HKSAR v. Tang Kwai Choi and Another

HCMA000130/2001

HCMA130/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.130 OF 2001

(ON APPEAL FROM ESCC 4092 OF 2000)

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Coram: Hon Gall J in Court

Date of Hearing: 29 March 2001

Date of Judgment: 29 March 2001

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J U D G M E N T

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1. The appellants were both convicted on 9 January 2001, as to the 1st appellant on one count of criminal intimidation, and as to the 2nd appellant on one count of criminal intimidation and one count of theft. They were each sentenced to three months' imprisonment on that day in respect of the criminal intimidation and the 2nd appellant was sentenced to one day's imprisonment in respect of theft. Although the theft conviction has been appealed, Mr McLanachan has informed me that he will not address me on that and the appeal in respect of the theft conviction is dismissed. Both appellants have pursued their appeal against conviction, having abandoned the appeal against sentence.

2. The principal witness in this matter was an 11 year old boy. The appellants had gone to the home of that boy on 9 August 2000 looking for his uncle, a Mr Lin. The uncle apparently owed a considerable sum of money. The two appellants were employed by a debt collection agency. The debt is real and the agency is a legitimate business. The 1st and 2nd appellants, as representatives of that agency, were entitled to go to the premises to ask for payment of the debt. They were not entitled to intimidate or threaten or use any unlawful method to recover the debt.

3. On the occasion, that is, on 9 August 2000, the boy was alone in the premises and told the 1st and 2nd appellants so. He closed the door and there were some banging on the gate. He opened it again and he was told that if he did not locate his uncle for them, that is, the family did not do so, they would have to tolerate, put up with or withstand it for a very long time. There is a violent implied threat in those words.

4. Shortly after that day, the family moved house and took up residence at the address where this offence took place. They were found again by the 1st and 2nd appellants who went to the premises with a third man who was also charged with the offence. He pleaded guilty. They found the premises by the expedient of the 2nd appellant stealing a letter from their old address showing their new address. On this occasion, on 22 August 2000, they came to the door and again the boy was home in the premises. He answered the door. They said they were looking for Mr Lin and he told them that he did not live there. After a number of exchanges, he was told, "You be careful". He was frightened and slammed the door closed. The outside iron grill gate was rattled, banged and after a while, he heard a noise. He looked through the spy-hole and he saw one of the men splashing a liquid against the door. He believed it was kerosene. He was frightened. He called the police, and the three men were arrested as they left the building.

5. The liquid was not in fact kerosene. What had happened was that after the banging took place on the door, the man who accompanied the two appellants to the premises went to the stairwell where he found the bucket into which he urinated. The brought the bucket back and splashed the liquid onto the door. It is quite clear that the intent was that the occupants of the premises would believe that inflammable liquid had been thrown on the door and thereby be put in fear. The only conclusion that can be drawn from this conduct as was drawn by the magistrate is that that was an act of intimidation which accompanied the endeavours to collect the debt.

6. The magistrate directed himself as to the law on joint venture and found that the two appellants were acting in concert with the other man and that they were guilty of the count of criminal intimidation. Mr McLanachan argues that the magistrate was not entitled either to find that the act of urinating in a bucket and throwing it on the door was in contemplation of the appellants at the time they entered into whatever joint venture there might have been with the man who took that action or alternatively, that he was not entitled to find that a separate agreement was entered into and adopted by the appellants after they perceived that the man had used the bucket and perceived what he was doing with the contents.

7. The magistrate found that there was a general aura of intimidation. He found that the two visits were linked together and showed the pattern of conduct involving the appellants in which they intended that the occupants of the flat be intimidated to a degree that they would produce or find information for them for the whereabouts of Mr Lin.

8. It is unfortunately not specific in either his oral or written findings as to the exact approach that he made. Suffice it to say that he found that the act of the man who threw the liquid to be act with which the appellants agreed and that by their presence outside the door, they encouraged that act. He said in his oral findings :-

"That anger was compounded by PW1 slamming the door. He did not deny doing so in cross-examination. He explained that he was very frightened by the three men. I am sure that, as PW1 says, they banged on the metal gate. PW1 concedes that he does not know whether they were kicking it or hitting it. But it was not simply to attract attention that this was done, it was further threatening behaviour. Against this background of threat D1 then went and found a bucket to urinate into. I have no doubt whatsoever that D2 and D3 knew exactly what he was doing. His claim that they did not is wholly implausible and indeed I find it to be absurd and I reject it.

They were only a few feet from him and if they could not actually see what he was doing they could have heard it and they could of course have asked why he was going into the stairwell or they could have gone to look. It would have taken an appreciable time to urinate and I am in no doubt that D2 and D3 knew what was happening. So they knew therefore what he was doing and it must follow from the context of this case that they knew why he was doing it. D1 says that not only did they not know but they did not ask why he was carrying the bucket of urine to the door of the flat. I reject that possibility."

and further :-

"And the action is entirely in context with the other events. Bearing in mind the commonality of the other events I have no doubt that D2 and D3 adopted what was going on. They did not dissociate themselves when they could have done (D1 has not suggested the contrary) and they did not intervene to stop it or to impede it when they could have done. Their actions amounted to deliberate and wilful encouragement intending that the act of throwing the urine should be carried out."

9. The magistrate seems to have adopted a twin approach : firstly, he found that the act of splashing the urine was within the general contemplation of the common intent between the parties that general low grade acts of intimidation by words or actions not culminating in any particular or severe damage should be carried out as a means of enforcing the repayment of the debt; and secondly, the magistrate found that when these actual acts took place, the appellants joined in by a deliberate and wilful encouragement intending that the act of throwing the urine should be carried out. I can find no fault with this reasoning. It could have been expressed in happier words but the tenor of the magistrate's finding is when taken overall that the act of the man who actually threw the liquid was within the general contemplation of the joint agreement made between the parties as to the way in which they would conduct themselves at these premises.

10. Whilst Mr McLanachan has very ably raised an interesting argument, I do not see that it amounts to a satisfactory attack upon the findings or the reasons of the magistrate. The appeal against conviction is dismissed in respect of both appellants.

Representation:

Mr K.P. Zervos, SADPP and Mr Gary Lam, GC of Department of Justice, for the Respondent

Mr John McLanachan, instructed by Messrs Yuen & Partners, for the 1st and 2nd Appellants