Wong Lok Kwai and Another v. Attorney General

Case No.HCMA 142/1984

Court

High Court CFI

Date26 Apr 1984

Judge—

Case Document

100%Judiciary

HCMA000142/1984

IN THE HIGH COURT OF JUSTICE	MAGISTRACY APPEAL
	NO. 142 OF 1984

BETWEEN:-

	WONG Lok-kwai	1st Appellant
	PANG Kam-kuen	2nd Appellant
	AND
	The Attorney-General	Respondent

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Coram: The Honourable Mr. Justice Jones in Court

Date of hearing: 26 April 1984

Date of delivery of judgment: 26 April 1984

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JUDGMENT

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1. On the 21st November 1983 the two appellants were convicted by a magistrate at Fanling Magistrates Court on a charge of criminal intimidation contrary to Section 24(a) of the Crimes Ordinance Cap. 200. Both were sentenced to 6 months imprisonment suspended for 18 months and fined $1,000.

2. They appeal against their convictions.

3. The evidence reveals that the appellants and the complainant PW1 were working independently as decorators at Wang Cheong Court on the 26th October 1983. Within a period of one and a half hours on that day PW1 was approached separately by the two appellants who threatened that if he did not stop working there he would be chopped. The appellants were arrested after PW1 reported the incident to the police.

4. The appellants admitted that they spoke to PW1 but deny that any threats were made.

5. Essentially the issue before the magistrate was one of credibility. He found PW1 to be a truthful and honest witness. On the other hand neither appellant impressed the magistrate. He disbelieved their evidence where it conflicted with that of PW1.

6. The magistrate made the following findings of fact:-

	1.	On the 26th October 1983 at about 10 a.m. at Kwong Fuk Estate D. 1 approached P.W.1 (who was engaged in decoration work there) and said, "Ha, not to work here - if you are going to work here continuously you will be chopped by someone."
	2.	At approximately 11.30 a.m. same day D. 2 approached P.W.1 and said, "Hai, when shall I send you to 'HART CHAI' in order you have a talk to him?'' and then "Look if you are not. going to have. this talk - talk it over - you will be chopped by someone.
	3.	D. 1 and D.2 spoke the words in a 'fierce' manner and P.W.1 was put in fear.
	4.	D. 1 and D. 2 had no lawful reason or justifiable excuse for so threatening P.W.1.
	5.	D. 1 uttered the threats intending that P.W.1 would discontinue his decoration work in Kwong Fuk Estate - a work he was legally entitled to do."

7. Three grounds of appeal have been argued by Mr. Wu who appeared for the appellants. The first is that the charge was defective in that the evidence disclosed separate offences. The test to be adopted where the charge is joint and several is to determine whether the defendants were acting on their own or in concert. Although there was a gap of one and a half hours it is clear from the evidence as referred to by the magistrate that the appellants were acting in concert. This ground of appeal therefore fails.

8. The second ground of appeal was:-

" The learned Magistrate failed to consider the evidence against the 1st Appellant and the 2nd Appellant separately with particular reference to an issue of the intention of the 2nd Appellant and the 2nd Appellant was thereby prejudiced."

In his statement of findings the learned magistrate said: -

" It is true that D. 2 did not actually state an intention as found against D.1 that P.W.1 should discontinue, but in view of the relationship between D. 1 and D. 2 (employee/employer); D. 2's statement to P.W.1 the previous day "If you are to work here I will not give you face." and the shortness of time between the two threats made on 26th October 1983 taken with all. the evidence as a whole and my belief in the credibility of the Prosecution Witnesses the only inference reasonably possible on all the proven facts is that D. 2 uttered the threats with similar intention to D. 1 and they acted jointly in that intention.".

I am quite satisfied on the evidence that the learned magistrate was entitled to draw this inference. This ground of appeal also fails.

9. The final ground is:-

The learned Magistrate erred in law in entering into the arena by asking questions which:-

(1) closed the gaps of the prosecution; and

(2) suggested the guilt of the Appellants

when there were no ambiguities in the evidence of the witness.".

This ground relates to a question put by the learned magistrate to PW1 after the conclusion of his evidence. The question was not recorded, but the answer reads:-

"When D. 1 and D. 2 spoke to me they each were very fierce and I was very frightened because of their manner and words.".

Mr. Wu cited a passage from Archbold 41st Edition at page 414:-

The judge may, of course, question any witness at any stage in the course of the trial; .................................................................. But he should not put questions to a witness which suggest that he (the judge) is satisfied that the defendant is guilty ...........".

Mr. Bruce for the Crown in reply cited Lo Tong Kai v. R (1977) HKLR 193. In that case it was held:-

"	1.	On a charge of criminal intimidation the prosecution must show that the person making the threat intended to cause alarm to the person to whom the threat was made or that the threat itself was such that a person of ordinary firmness would be affected by it.
	2.	Questions of the intention with which the threat was made and of the effect which it had produced on the person to whom it was made, or would be likely to produce on a "firm man" were relevant and had to be determined by reference to the particular circumstances affecting both the persons involved at the particular time when the words were spoken.".

10. Would the words as found to have been uttered have caused alarm in the particular circumstances of this case. In my opinion they did. In fact PW1 had in any event before the magistrate had asked him the question complained of testified on two occasions in evidence in chief that he was frightened. I do not consider that the magistrate filled in any gaps by the question that he asked nor did he enter into the arena. In fact the answer did not add anything to the evidence. This ground of appeal therefore fails. Accordingly the appeals against conviction are dismissed.

( B.L. Jones )
Judge of the High Court

Representation:

Mr. R. Wu (Howell & Lo) for Appellants.

Mr. A. Bruce (Legal Department) for Respondent.