HKSAR v. Lee Yung Ngai
Read the full judgment text of HCMA 177/2021 on BabelCite. This High Court CFI judgment was delivered on 15 September 2021.
1. The Appellant was convicted after trial of one count of criminal intimidation and one count of blackmail. After the learned Magistrate obtained psychological and background reports, he sentenced the Appellant to 10 months’ imprisonment.
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HCMA 177/2021 [2022] HKCFI 895 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 177 OF 2021 (ON APPEAL FROM ESCC 2812 OF 2019) __________________________
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____________________________ REASONS FOR JUDGMENT ____________________________ 1.The Appellant was convicted after trial of one count of criminal intimidation and one count of blackmail. After the learned Magistrate obtained psychological and background reports, he sentenced the Appellant to 10 months’ imprisonment. 2.The Appellant appeals against both his conviction and sentence. 3.At the conclusion of the hearing on appeal, this Court had allowed his appeal against conviction and therefore, his sentence was also quashed. The following are my reasons. Prosecution’s evidence 4.The Appellant, a young man aged 25, a social worker, met the complainant (“PW1”) on an online app in October 2019. They then started a “love affair” for about 2 months. It transpired that PW1 wanted to end the relationship while the Appellant did not wish to do so. 5.PW1 gave evidence that on one occasion during a sexual encounter, the Appellant had taken some photographs and a video. She had claimed that she had given the photographs and video to the police. However, nonewere produced at the trial nor was any explanation forthcoming from the prosecution as to why they were notproduced or whether PW1 did indeed submit the alleged photographs and video to the police. 6.Without repeating all the details in the case, it was apparent that PW1, although wanting to break off her relationship with the Appellant, was not particularly adamant in doing so. In fact, in the course of her evidence, she disclosed that the day before she reported the matter to the police, she had voluntarily met the Appellant in a mini-hotel for over an hour. As the photographs taken from a CCTV camera in the hotel showed[1] they were kissing each other before they departed. 7.Also in the course of her evidence, PW1 did agree that she and the Appellant would often say things to each other without meaning it and also she admitted that she continued to communicate with the Appellant even after his arrest. Magistrate’s findings 8.The Appellant did not give evidence at the trial, and the learned Magistrate found on the evidence given by PW1 that the Appellant intended to intimidate PW1 and he had threatened to post her nude photos online which “must be a threat that would overcome the ordinary free will of a firm person”[2]. 9.The learned Magistrate also found that the Appellant made a demand with a view to gain for himself and threatened PW1 as a result of such demand, and that such demand was unwarranted. 10.After conviction, the learned Magistrate received a letter from PW1 entitled “mitigation letter”. The letter was also sent to the defence and in that letter, PW1 said:
11.Having received the letter, the defence rightly went before the learned Magistrate and applied for a review pursuant to section 104 of the Magistrates Ordinance, Cap 227, but that was declined by the learned Magistrate and the defence also applied for PW1 to be recalled to be cross-examined on the letter, and that was also refused by the learned Magistrate. 12.The learned Magistrate gave as his reason that the letter written by PW1 was entitled “mitigation letter”, and therefore whatever she said in the letter must be “considered under this preamble”. And that nowhere in the letter did she say that she was overturning her evidence. And that the letter merely contained her own belief, her own opinion in the matter.[3] Appeal 13.In his submission, Mr Cheng SC correctly submitted that the letter of PW1 calls into question whether the Appellant had the requisite mens rea in relation to the two offences. The test to be applied in an application to adduce fresh evidence after the close of the prosecution case, is whether it is in the interests of justice to do so. Therefore, when the learned Magistrate refused to do so, it was a material procedural irregularity. And the Appellant was thus deprived of a fair trial. 14.In her reply, Ms Ng had submitted that the crux of the case was whether the Appellant had the necessary intent, and what was expressed in the letter of PW1 was merely stating her belief as to what the Appellant’s intention were. Therefore, the learned Magistrate was correct in not allowing PW1 to be recalled as it does not affect his findings in the case. Discussion 15.I do not agree with Ms Ng because at the end of the day, the crucial principle is that the Appellant should receive a fair trial, and whether the interest of justice would be served by recalling PW1 to be cross-examined. 16.I am well aware that for a layperson to write a letter, she may not be as precise in the language she used as a letter written by a lawyer. Therefore, what she had said in the letter did generate many questions as to what actually transpired between her and the Appellant, and why she believed that what the Appellant said to her resulting in the two criminal charges were not intentional. Her additional evidence may have been material in determining the intent of the Appellant. 17.At the end of the day, I found that the conviction of the Appellant was therefore unsafe and unsatisfactory. 18.Therefore, I allowed the appeal against conviction and quashed the sentence.
Ms Claudia Ng, SADPP(Ag.) of the Department of Justice, for the Respondent Mr Cheng Huan SC leading Mr Harold Lai, instructed by SSW & Associates, assigned by the Bar Free Legal Service Scheme, Hong Kong Bar Association, for the Appellant | ||||||||||||||||||||||