The Queen v. Lam Fat Kit

HCMA001157/1989

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTCTION)

MAGISTRACY CRIMINAL APPEAL No. 1157 of 1989

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 25 October 1989

Date of Delivery of Judgment: 29 November 1989

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J U D G M E N T

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1. The Appellant pleaded not guilty to a charge of threatening to cause criminal damage contrary to S.61 of the Crimes Ordinance, Cap. 200. The particulars were that on 3rd July, 1989 he made a threat to PW1 to damage her vehicle intending that she world fear the threat would be carried out.

2. PW1's evidence was that her vehicle was a mini school bus which she drove collecting children from their homes and driving then to one or other of two schools in Shek Kip Mei and then back home after school She had been doing that for 6 or 7 year. The 3rd July, 1989 was an admission way at one of her schools. New pupils were being enrolled so she distributed material advertising her service. The Appellant, who also owned a school bus, came up to her and told her that if she did not go away he would get someone to break her vehicle. She then returned to her vehicle but she did hot drive off. When the Appellant left the scene she got out of her vehicle and distributed her advertising material again. Shortly afterwards the Appellant returned and scoldingly said to her: "You better go away. If not, I will get some one to break your vehicle.''

3. Part of the incident was withessed by another school bus driver operator. She PW2, said that she heard the Appellant loudly say to PW1: "You better drive off your vehicle .... I'll try to fix your car so that it cannot be moved."

4. The Appellant did not give evidence nor did he call any witnesses.

5. The learned magistrate found tae charge proved.

6. Mr. Macrae, for the Appellant, in his appeal against conviction, relies on two grounds of appeal. The first is that -

"the learned magistrate erred in law by considering the issue of 'whether PW1 was frightened' and concluding 'I am fully satisfied that PW1 was frightened by the threats' (p 22 Appeal Bundle) rather than whether the Appellant intended that PW1 would fear the threat would be carried out, within the meaning of S.61(a) Crimes Ordinance, Cap 200."

7. In his Statement of Findings the learned magistrate sets our the elements of the offence and specifically makes the point that the threat has to be one which "was intended that (the) other would fear". He then goes on to find that the words were clearly a threat and that PW1 was frightened by it.

8. The concentration by the learned magistrate on the question of whether PW1 was frightened arose from a submission by counsel for the defence. Mr. Macrac did nor appear below but the submission of counsel there was that the "important element is fear on PW1 (and the evidence was) PW1 could not be frightened". Now, it is perfectly clear that the learned magistrate had as he shows in his findings, the element of intention in mind. I think that the learned magistrate did properly consider whether the evidence established an intention on the part or the Appellant to carry our his threat. It seems to me that the only reason for his highlighing the question as to whethrt PW1 was in fear was that the Appellant's counsel at the trial raised it as an important issue.

9. As the evidence supports a finding that the Appellant uttered the threat with the statutory intention I see no merit in this ground.

10. The 2nd ground is

"In any event, the learned magistrare failed properly to evaluate the evidence of PW1's purported fear. In particular he failed to bear in mind, inter alia, the evidence of PW1 in cross-exam ination (p.10 Appeal Bundle) viz;

Q. Even after tile final scolding by defendant you still continued distributing your cards?

A. Yes.

Q. You were not frightened of the defendant then?

A. No. I had to rely on that day to get business for the whole year."

The learned magistrate in his Statement of Findings said.

"PW1 stated that she was frightened by the threat although she remained at the scene continding to distribute her said cards. In this respect it is clear that the said threat was one which was not to take immediate effect since it was that the (Appellant) would get some one else to break the said van. The threat was that some damage to the said van would be done in the future by some one.

11. I think that the learned magistrate did properly evaluate the evidence of PW1's fear and found that she was in fear that the threat would be carried out in accordance with the terms of the threat. In his Statement of Findings the learned magistrate shows that he did have in mind the evdence set out in this ground.

12. I find no merit in any of the grounds and dismiss the appeal.

Representation:

Miss Patty Lee, C.C. For Crown Prosecutor.

Mr. Amdrew Macrde instructed by M/s. So a karbnari for appellant : Lam Fat Kit.