THE QUEEN v KOO MAN KEE

HCMA000054/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.54 OF 1996

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Coram : Hon Duffy, J. in Court

Date of hearing : 16 February 1996

Date of handing down judgment : 29 February 1996

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J U D G M E N T

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1. This was an appeal against a conviction for criminal intimidation and a sentence of 18 months passed therefor.

2. Originally the appellant was charged with blackmail but an alternative charge of criminal intimidation was added later in the trial. The learned Magistrate acquitted on the charge of blackmail but convicted on the charge of criminal intimidation.

3. The facts of this case arose from a trip to Macau by the 1st prosecution witness, Cheung Kwok Ching. While in Macau, he lost heavily and borrowed heavily. Indeed he borrowed to the extent of $60,000. When asked how he would repay, he told the lender in Macau that his family would repay. From then on he was in the company of the Appellant. Several attempts were made to contact his family, initially without success. Eventually the witness contacted and spoke to his mother and advised her that he had gambled in Macau and lost money and that he owed people money and was detained. A report was made to the police. For the next two days, he was taken back to Macau and contact was made with his family in an effort to extract an undertaking that they would repay the debt. Then the Appellant and PW1 returned to Hong Kong and went to the flat where he lived with his parents in Ngau Tau Kok. PW1 said that they went to the door, but initially no one answered and so they went downstairs to make a telephone call. The telephone call, he said, was made by the Appellant to his home but he did not hear what was said. At any rate, it was confirmed that someone was at home, so they went back to the door of his flat. He said that at the door the Appellant chatted with his younger sister, Cheung Siu Wai, and eventually the door was open and the Appellant was arrested by the police who were hiding inside.

4. His evidence was that neither at that stage nor at any other stage did the Appellant issue any threats, either to him or to anyone else. However, the two sisters of the first witness, Cheung Siu Wai and Cheung Siu Wan, both testified that at the door, the Appellant had threatened to cut off the first witness' limbs and to set fire to their house. It was on the basis of their evidence that the learned Magistrate convicted the Appellant of criminal intimidation. In passing, it has to be said that it was difficult to understand why the learned Magistrate, having found the facts she said she had found, acquitted on the charge of blackmail. The facts she found clearly supported a conviction for blackmail, but for some reason I could not fathom, she did not convict of blackmail but convicted of the alternative charge of criminal intimidation. That concerned me to some extent.

5. Certainly there was a clear discrepancy between the prosecution witnesses. The learned Magistrate dealt with it in this way :

"By the time PW1 and the Appellant were outside PW1's family home, PW1 must have been very stressed, and also very worried for himself and his family, but at the same time being hopeful that this would be the end of his ordeal. It would not be surprising if a person in such a condition would not hear or be aware of everything that occurred or was said at the front door."

6. The evidence was that PW1 was standing at the front door right next to the Appellant. If a threat such as the one alleged to have been uttered by the Appellant was in fact made, there could be no question but that the victim would have heard it. Such a threat, you would have thought, would be something he would remember. In my view the Magistrate confronted by this inconsistency in the Crown case has tried to rationalise the position and has engaged in a speculative exercise which has no foundation in the evidence. I did not think she could so easily dismiss this inconsistency. It affected the very piece of evidence which convicted the Appellant. I was unhappy about the conviction as a result and allowed the appeal.

Representation:

Mr Derek Pang, APCC (Ag.), for Crown

Mr Andrew Macrae (Karbhari & Cham) for Appellant

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