HKSAR v. Cheng Wai Tai

HCMA000848/1999

HCMA848/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.848 OF 1999

(On Appeal from ESCC1636 OF 1999)

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Coram: Hon Suffiad J in Court

Date of hearing: 1 March 2000

Date of judgment: 10 March 2000

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J U D G M E N T

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1. The appellant (being the 1st defendant in the case before the learned magistrate) was convicted of one count of criminal intimidation on 6 July 1999 by the learned magistrate after trial. He was sentenced by way of a Training Centre Order. He now appeals against both conviction and sentence.

2. Briefly, the prosecution's case was that, on 31 May 1999, the appellant, together with another person (the 2nd defendant in the case), went to the complainant's office in Waichai to collect a debt from the complainant (PW2 in the case). The appellant and his co-defendant were debt collectors acting on behalf of a Mr Leung. In the process of demanding for repayment of the debt from the complainant, both the appellant and his co-defendant resorted to making threats of violence against the complainant. Eventually, the police was called to the premises, and the appellant and his co-defendant were taken away to the police station.

3. The defence of the appellant (and also that of his co-defendant) was that they did not utter the alleged threats to the complainant although they did not deny going there for the purpose of collecting a debt from the complainant, nor was it denied that they had become angry and that foul language had been used at the complainant by both of them.

4. The 1st ground of appeal was that the learned magistrate had prevented defence counsel from fully cross-examining the complainant in order to show that a 'legitimate' business debt was owed by the complainant to Mr Leung and the manner in which the complainant was avoiding the debt. It is submitted by the appellant that these were relevant matters which could explain why the complainant was making the false allegation that he was being intimidated.

5. Admittedly, the learned magistrate did, on occasions, intervene in the cross-examination, but these interventions were to make clear to defence counsel that the legitimacy, or otherwise, of the debt was not an issue for him to decide in the case. The learned magistrate was doing no more than ensuring that only evidence relevant to the issues to be decided in the trial should be brought out by counsel in his cross-examination of the witness.

6. Indeed, when one looks at the transcript of the proceedings relating to the cross-examination by defence counsel on this aspect of the case, it can be seen that firstly defence counsel was able to get PW2 to admit to owing a debt to Mr Leung and secondly, that part of the cross-examination ended with defence counsel saying to the court :

"Sir, I don't know whether your Worship has actually ruled. I do not think I need to pursue the line that I was pursuing any further, sir, ..."

I can hardly imagine that defence counsel would say what he did as quoted above if he had been stopped unfairly by the magistrate in the cross-examination of this witness. In the light of what appears on the transcript, I can see no merit on this ground of appeal.

7. The 2nd ground of appeal alleges that the learned magistrate erred in failing to properly and critically examined the discrepancies in the prosecution's case. Three instances of discrepancies were canvassed. The first discrepancy relied on was that there were different versions of the alleged threat uttered by the 2nd defendant. According to PW1 (an employee of PW2 in the office), the 2nd defendant had said words to the effect "We always frequent here, be careful". According to the complainant (PW2), the 2nd defendant had said words to the effect that "If you are going in and out of here, be careful" (these words were also translated as "upstairs, downstairs, be careful"). The different versions given by PW2 was due, firstly, to difficulty with interpretation. Indeed, it was defence counsel who pointed out that the correct translation of the Cantonese words used should be "upstairs, downstairs, be careful". This difficulty with translation was further complicated by the fact that PW2, when giving evidence, had difficulty in understanding the difference between what the 2nd defendant actually said at the time, and what he (PW2) understood to be the meaning of what the 2nd defendant said to him.

8. The learned magistrate was well aware of such a discrepancy in the evidence between the versions given by PW1 and that given by PW2, and fully dealt with in his Statement of Findings. He was also aware of the different translated versions which came from PW2. The learned magistrate came to the conclusion, quite rightly in my view, that the different versions given by PW1 and PW2 was not a material discrepancy and that whichever version the 2nd defendant had uttered, those words were uttered after a direct threat of bodily injury had been made by the appellant to the complainant, and that the words of the 2nd defendant were designed to reinforce the intimidation uttered by the appellant.

9. The second discrepancy relied upon by the appellant was that the learned magistrate had confused PW1 with PW2 (at p.57S of the transcript) when he gave brief oral reasons for his judgment in court after the trial. Admittedly, when he was giving those brief reasons for his judgment, on that one isolated occasion relied upon by the appellant, he had said 'PW1' when it was clear that he meant 'PW2'. I take the view that that one isolated occasion was a mere slip of the tongue by the learned magistrate. This confusion between PW1 and PW2 appears nowhere else either in the transcript or in his Statement of Findings and, in fact, from what is stated in his Statement of Findings, it is abundantly clear that the learned magistrate was absolutely clear in his mind what evidence came from PW1 and what evidence came from PW2, and no where in his Statement of Findings could he be said to have confused the identity of PW1 with PW2.

10. The third discrepancy relied on by the appellant relates to PW2's presence in the premises after the police arrived. There is a conflict between the evidence given by PW1 and PW2 on the one hand and the evidence coming from PW3, PW3 being a police officer called to the premises. PW3's evidence was that when he arrived at the premises, PW2 was not there and he had made a note in his notebook, having been told (presumably by PW1) that PW2 had left the office out of fear. On the other hand, the evidence of PW1 and PW2 were that PW2 was in the office, albeit in his room making a long distance phone call when police came. Both their evidence were that because PW2 was on the phone, PW2 had indicated by hand signal to PW1 that he would follow them to the police station later. PW1 further denied having told PW3 that PW2 had left the office because he was frightened.

11. Once again, the learned magistrate was fully aware of this conflict in the evidence and had dealt with it in his Statement of Findings. The learned magistrate, sitting as both judge and jury, came to the conclusion that PW3, from his own evidence, had not made a room-to-room search for PW2 in the premises, but had made an assumption that PW2 was not there, perhaps due to what PW3 thought had been said about PW2 being frightened. The learned magistrate therefore concluded that PW3 had got it wrong.

12. Findings of facts is always left to the tribunal who had the benefit of seeing the witnesses give their evidence. Seeing how a witness performs and the witness' demeanour can at times help a tribunal to make up his mind as to whether the evidence from that witness is believable or reliable or even whether the witness was capable of having made a mistake. An appellate court, who does not have that benefit, will always be slow to interfere with such findings of facts by the trial judge or magistrate unless it can be shown that there was a good reason to interfere with such findings by the trial judge or magistrate.

13. Here, the learned magistrate was in the best position to evaluate for himself what evidence he accepted and what evidence he rejected, or whose evidence can be believed or who had made a mistake.

14. I can see no good reason for disturbing the findings of facts by the learned magistrate. He was fully appraised of all the discrepancies and the conflicts in the evidence from the prosecution witnesses. He dealt with each of those discrepancies and/or conflicts fully and at length, and came to his conclusions from the evidence in the case, properly and fittingly in my view.

15. Accordingly, the appeal against conviction is dismissed.

16. I turn now to deal with the appeal against sentence. The appellant, aged 18, was sentenced to a training centre by the learned magistrate. The appeal against sentence was put on the following basis : the offence arose out of a debt collecting exercise with nothing to suggest that the debt was not a legitimate debt. No triad threats were made, neither weapons nor actual violence was used and no damage was done. The appellant made no attempt to flee the scene. The victim was of mature years. It was also submitted that because the appellant was 18 with one previous conviction for possession of cannabis, whereas the 2nd defendant, aged 211/2, with three previous convictions, one for possession of cannabis and two others for criminal damage, that the 2nd defendant must have been the ringleader in this escapade. That being the case, the appellant has a justifiable sense of grievance, in that, he was sentenced to a training centre whereas the 2nd defendant was incarcerated for a shorter period having been sentenced to a detention centre. Moreover, it was urged upon me that the training centre order for the appellant must have been wrong at the outset because the Correctional Services had considered the appellant to be unsuitable for a training centre order due to his drug addiction at the time.

17. Mr McGowan accepts, however, that it would be futile for a DATC Order to be made now in respect of the appellant. For these reasons, it is submitted that the training centre order is manifestly excessive and/or wrong in principle.

18. I do not accept that solely because the 2nd defendant was older by 3 1/2 years and had a worse criminal record than the appellant, that the 2nd defendant must have been the ringleader. In this respect, the fact that the initial threat of bodily injury came from the appellant to the complainant before any threat was uttered by the 2nd defendant must have been a matter which the learned magistrate had taken into consideration.

19. Moreover, another matter which must have weighed even more heavily with the learned magistrate when he sentenced the appellant is the fact that from the various reports called for by the learned magistrate, it is clear that this young man of 18 is in need of very strict supervision for his rehabilitation.

20. Sentences of such a nature becomes personalised and little assistance is gained in comparing it to sentences imposed on another offender - even a co-defendant in the same case.

21. Looking at the sentence imposed upon this appellant and the offence for which he was convicted, I do not find the sentence to be either manifestly excessive or wrong in principle.

22. The appeal against sentence is also dismissed.

Representation:

Mr Alex Lee, SGC of Director of Public Prosecutions, for HKSAR

Mr James H.M. McGowan, instructed by Messrs John M. Pickavant & Co. for the Appellant