HKSAR v. Hossain, Aejaz

HCMA 54/2022

[2022] HKCFI 3760

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 54 OF 2022

(ON APPEAL FROM KCCC 3244/2021)

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BETWEEN

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Before:  Deputy High Court Judge Woodcock in Court

Date of Hearing:  8 December 2022

Date of Judgment:  29 December 2022

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J U D G M E N T

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1.The appellant was convicted after trial of 2 charges of criminal intimidation on two divers dates whilst inside the Kowloon Mosque. After trial, he was sentenced to a total of 12 weeks’ imprisonment. He has served that sentence. He now appeals against his conviction and sentence.

2.The particulars of Charge 1 are as follows; the appellant on 30 October 2021 at Kowloon Mosque and Islamic Centre, 105 Nathan Road, Tsim Sha Tsui, Kowloon threatened Arshad Mohammad with injury to the person of Arshad Mohammad with intent to alarm.

3.The particulars of Charge 2 are identical but for the date of the offence which was 3 November 2021.  Arshad Mohammad was an Imam of the mosque.  The appellant was a worshipper who attended the mosque regularly.

4.The prosecution’s allegations were that the victim, PW1 was the Imam of the Kowloon mosque and the appellant told another worshipper, PW2 that he would kill the Imam and said it twice, on 30 October and 3 November 2021.  When he made the threats he made it in an angry voice and manner.  PW2 then repeated what he said to the victim who became scared on both dates.

5.The appellant’s case was that he denied uttering any words of the threats referring to or aimed at the victim.  The appellant elected not to give evidence during his trial.

6.After the appellant was convicted, the magistrate was informed that he had on 25 October 2021 been convicted of a common assault charge and fined $2000.  The victim of the common assault was the Imam, PW1.  The location of the assault was the same mosque.  After his conviction, the appellant continued to attend the mosque daily.  In his letters to this court, he denies the assault, conviction and fine lead to ill feelings and words of intimidation aimed at the victim.

The magistrate’s findings

7.In his statement of finding the magistrate reminded himself of the prosecution’s burden of proof and the standard of proof required.  He also reminded himself that the appellant had no duty to prove his innocence.  He had a right not to give evidence and the magistrate did not draw any adverse inference on that election.  He considered the charges separately and independently.  He found the prosecution witnesses credible and reliable. They were not evasive nor shaken during cross examination.

8.The magistrate found the prosecution witnesses were truthful.  There were some discrepancies as to the timing of some incidents and whether or not they were covered by the CCTV video footage produced in court.  The magistrate found that the incidents reported by PW2 were approximate timings and that there were no material discrepancies because the time differences were not significant.  In any event, the CCTV footage was mute, there was no audio.  He found no inconsistency in PW2’s evidence that were serious or troubled him.

9.Specific threatening words were used and evoked in the Imam’s name.  The magistrate found that the appellant had said on 3 November that he would kill the Imam Arshad; naming him specifically.  His threat had nothing to do with any incidents involving other worshippers in the mosque. The magistrate found that threatening words were uttered on both dates by the appellant to PW2.  He considered whether the offence was made out when the victim himself did not personally hear those words threatening to kill him.

10.An element of this offence to be proved is that the person making the threat intends to cause alarm to the person to whom the threat is made or that the threat itself is of such a kind that a person of ordinary firmness would be affected by it.  The context of the circumstances out of which the threat arose is of paramount importance to be considered and the test involves both objective and subjective considerations in as much as the question whether a threat amounts to a criminal intimidation or not, does not depend on the nerves of the individual threatened; if it is such a threat as may overcome the ordinary free will of a firm person and or whatever the nature of the threat, if it is made with the intention mentioned in the particulars, it is an offence.

11.The magistrate considered both the objective and subjective test and found what the appellant was said to have uttered on both dates were threatening words that amounted to criminal intimidation.  A reasonable man would be in fear and he accepted the evidence of the victim, PW1, when he said he was frightened on both occasions when he heard of the death threat.  The magistrate found it was the intention of the appellant that he intended those threats to be repeated to the victim.

12.In his findings, the magistrate considered whether the words uttered by the appellant were wild and whirling words on both occasions but his finding was that they were not.  On both occasions, the appellant shouted in a loud and angry voice.  He had pointed to the victim and banged on the floor.  His intention was to threaten and alarm the victim; they were not just wild and whirling words uttered in the heat of the moment.

13.The magistrate was satisfied beyond reasonable doubt that the prosecution had proved the elements of both charges against the appellant.

14.In sentencing, the magistrate considered the appellant’s criminal record which included a conviction of common assault on 25 October 2021, which was 5 days before the commission of the 1^st charge here.  The victim was the same Imam which indicated to the magistrate that the appellant did not show any remorse.  He considered it an aggravating factor that the appellant had been convicted only days earlier of an assault involving the same victim.  He took the view that a custodial sentence was appropriate and sentenced the appellant to 8 weeks’ imprisonment on each charge, with 4 weeks of the 2^nd charge to run consecutively to the 1^st charge which meant a total of 12 weeks’ imprisonment.

Grounds of Appeal

15.The appellant did not file any perfected grounds of appeal or written submissions.  He was unrepresented at his appeal. However, he has written several letters to the court setting out his grievances and reasons for his appeal.  He also refers to his judicial review and filed documents relating to his non-refoulement claim which I have not taken into account as it is irrelevant to this appeal.

16.In his longest letter of 15 pages, he sets out his version of events as well as much material unrelated to the charges dating back to as early as 2017.  He also goes into great detail about the common assault charge for which he was convicted of 5 days prior to the 1^st Charge here.  He makes allegations against the police and the duty lawyer office but they are not related to these charges.  He makes vague allegations of fraud against the victim, PW1, which he elaborated on in his appeal hearing.

17.In the appeal hearing, the appellant accused the Imam, the victim, PW1, of acting in cahoots with the trustees of the mosque to steal from worshippers and the poor people of Hong Kong.  They are alleged to have paid PW2 to lie in court and fabricate his evidence.  This was all for the sole purpose of silencing the appellant, having him imprisoned and then sent home back to his own country.  During the appeal hearing, many matters were raised by the appellant that do not appear to have been put to any prosecution witnesses during the trial.

18.I have considered the contents of his letters where it is relevant to these charges and I have watched the available CCTV footage.  During the hearing, he reiterated that the CCTV footage produced in court was not complete meaning not more of it was shown.  He submitted the verdict was not reasonable or fair and not based on fact.  He would not utter words like that in the House of God.  Both prosecution witnesses PW1 and PW2 were lying in their oral evidence.  He is a victim of injustice and did not verbally threaten to kill PW1 twice.  In short, he alleges that he was framed for these two offences and that he did not utter any words amounting to criminal intimidation nor did he intend to criminally intimidate the victim. He also alleges that his sentence was manifestly excessive.

19.He stressed that there were no audio recordings of his intimidating words.  He did not utter any intimidating words.  He questioned how he could be convicted when there was no evidence.  He said he was convicted on assumptions only, not facts or evidence.  He was unable to call any defence witnesses at his trial to prove the corruption and stealing by the trustees and the Imam because he had had his telephone seized when he was arrested.

20.He had nothing to add to the grounds of appeal relating to the sentence other than to say it was manifestly excessive as set out in the notice of appeal.

My considerations

21.Mr Lau for the respondent submitted the magistrate was well aware of the elements of the offence and acknowledged it was essential to consider the circumstances where the threats have been uttered.  He considered the intention behind the threats.  He fairly considered the incident where the appellant was pulled by a number of people from the front of the mosque hall to the back and found that this incident had nothing to do with the death threat uttered.

22.The magistrate considered the reliability and credibility of the witnesses, in particular PW2 and found there to be no serious inconsistencies.  The respondent submits that the magistrate considered all relevant facts and his findings were supported by the prosecution witnesses and evidence produced.  There was no error of law or fact in reaching the guilty verdicts.

23.The appellant did not give evidence at trial. There was no evidence to contradict or undermine the prosecution case.  What the appellant has said in the appeal hearing and his letters is not evidence. The magistrate was sure that the appellant threatened to kill the victim on 2 separate occasions.

24.In my view, the crux of the prosecution case is the credibility of the prosecution witnesses and whether or not the words uttered by the appellant on 2 separate dates amounted to criminal intimidation.  The magistrate carefully analysed what was said as well as in what context and manner it was said.

25.The magistrate found the appellant intended to cause alarm and considered the applicable test to answer this question involved both an objective and subjective consideration to determine whether the appellant’s words were made with a genuine intention of causing fear, or likely to produce such effect under the circumstances.

26.I have reminded myself of the principles on “rehearing” in magistracy appeals.  It is not a retrial.  The magistrate enjoyed the advantage of having heard and received the evidence at first hand. He had an opportunity to see and hear the witnesses.

27.I find no flaws in the magistrates reasoning or findings.  The magistrate thoroughly evaluated the prosecution’s evidence as well as the case put by defence counsel.  His analysis is sound.  Therefore, the appeal against conviction is dismissed.

28.I see no reason to disturb the magistrate’s findings.  The appellant’s convictions are neither unsafe nor unsatisfactory.

29.The appellant should consider himself fortunate that the magistrate when considering sentence, did not enhance the sentence based on the appellant’s immigration status here.  The magistrate would have been within his rights to enhance the sentence for the commission of a serious offence.

30.The sentence of 12 weeks’ imprisonment after trial imposed by the magistrate is not excessive nor too severe.  I see no reason to interfere with it.  The appeal against sentence is also dismissed.

Mr Lau Tak Chak, Douglas, Senior Public Prosecutor (Ag), of Department of Justice, for the Respondent

The appellant appeared in person