HKSAR v. Chan Hung Sing, Desmond

HCMA000010/2001

HCMA10/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.10 OF 2001

(ON APPEAL FROM ESCC 3843 OF 2000)

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Coram: Hon Gall J in Court

Date of Hearing: 27 April 2001

Date of Judgment: 16 May 2001

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J U D G M E N T

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1. The appellant was convicted on 27 November 2000 of two counts of criminal intimidation and was sentenced on 11 December to a total of 100 hours of community service. He now appeals the conviction.

2. The facts relied upon by the prosecution were that the principal witness (PW1) was a former girlfriend of the appellant. On 24 May 2000 which was the date of the first offence, she had a meal with the appellant during which a dispute arose. After the meal whilst waiting for a taxi, she pleaded with the appellant to let her leave the appellant. She cried and knelt down and begged him. He said if she kept on shouting, he would call the police and ask her mother to come. He said he would not allow her to leave him and said that if she left him, he would tell her family members that she had had an abortion on 16 November 1998, having become pregnant by him.

3. This, said PW1, made her frightened and annoyed. She was frightened that her mother did not want her to be with the appellant and she did not want anyone to know of the abortion. At about 11 p.m. on the same day when she was at home, she testified, the appellant rang her. He said that she made him very unhappy and that she had to say something which would make him happy and that was to be that she would not leave him. She said she did so as she was scared that he would tell her mother about the affair and the abortion. They had been lovers, the appellant said, and that he would tell that she had had the operation and the bills were with him and he would take them out and show the family.

4. The appellant again phoned PW1 on the night of 30 May 2000, the day that the second charge on the summons. Again, he asked her not to leave him and said he would tell things to her family including the fact that she had had an abortion. He said he would send things out on the internet so that other people know about it also. She was frightened. She felt emotional stress. She did not want her family to know. She felt scared after the calls, so she told her family and a report was made to the police.

5. In cross-examination, PW1 added to her evidence by showing that in respect of both the offences, the appellant further said that he would fax the bills to her father's company and also to where she worked. She denied that this was a joke and that the appellant had never threatened her.

6. The appellant said in evidence that he had never threatened her and said he attempted to soothe her on the first occasion. He had said in a joking manner that he would fax things to others, he just said that and did not intend to do so. He did not mention any website or how he would inform others. He said he did not have the email address of her friends or relatives.

7. The appellant, it is submitted, has knowledge of computers to the extent that he was technically able to both disseminate matter on the internet and to send emails. It is also claimed that the receipts held by the appellant, one of which he had given to PW1 and which she had torn up, did not mention that the operation undergone by PW1 was an abortion. The copies before the court are bad photocopies and it is not possible to distinguish in the diagnosis section just what has been written. But in any event, the allegation was that the threat was to claim that an abortion has taken place and the use of receipts in whatever form they might be to supplement that allegation.

8. The first ground of appeal was that the magistrate erred in finding the appellant's action amounted in law to the offence of criminal intimidation. In that, the acts were not :

(a) unlawful;

(b) the defendant had no or sufficient mens rea; and

(c) the publication by the defendant of hospital receipts as alleged could not injure the complainant's reputation.

9. In my view, the issue was not whether the act which is threatened is unlawful but whether the act which is threatened is threatened with an unlawful intent, that is with criminal intent.

10. I am satisfied that by his threats to not only disseminate the information of the abortion to the family of PW1 but also to her workplace and to her father's company as well as over the internet, there were reasonable inferences to be drawn by the magistrate that the appellant had a criminal intent.

11. Mr Coghlan makes the point that the receipts could not have injured the complainant's reputation as they, he said, did not contain information that there had been an abortion carried out on PW1. As to that, it is clear from the evidence that it was the appellant's intention to couple those receipts with his assertion that the abortion had taken place and the fact that the money had been paid to the hospital was proof of his claim. Publication of those receipts, coupled with that allegation could, in my view, injure the complainant's reputation.

12. The second ground of appeal was that in accepting the complainant's evidence totally and rejecting the appellant's evidence, the magistrate failed to consider or take into account the subjective nature of the evidence which as an approach to the facts. Mr Coghlan argues that the appellant was in an emotional state and the context was a lovers' dispute. He said the magistrate failed to adequately consider if the words used by the appellant were, as said in R. v. Lo Tong Kai, [1997] HKLR 193, "wild and whirling words".

13. It is clear that the magistrate considered the evidence in the circumstances in which the appellant was alleged to have said those words on each occasion. He considered their nature and I am fully satisfied that he was entitled to find that the words were used with a serious and criminal intent.

14. Ground three was that the magistrate erred in admitting into evidence or drew the wrong conclusion from the exhibits of the hospital records other than the four-pages of receipts. The hospital records related to the abortion which was undertaken by the complainant and which was part of the threat made by the appellant. I am satisfied that the magistrate was entitled to look at them to assess the degree of damage to the reputation of the complainant that might be done, had the appellant carried out the threats and therefore the effect that would had upon the mind of the complainant.

15. The last ground of appeal is that this conviction was unsafe and unsatisfactory for two reasons, firstly, that the parties had argued on these issues since November 1999, but the relationship continued until 24 May 2000, and it was not clear the appellant had threatened on 24 May to reveal the receipts to the complainant's parents.

16. I am satisfied that, firstly, the ongoing nature of the relationship does not make the conviction unsafe and unsatisfactory. The magistrate had been fully aware of that fact and had taken that with consideration. I am further satisfied the magistrate was entitled to find that the appellant had threatened on 24 May to reveal the receipts to the complainant's parents. This was a specific finding made by the magistrate in his Statement of Findings.

17. I find the magistrate has approached this matter correctly both as to facts and as to law and that the convictions must stand. The appeal in respect of both charges on the information is dismissed.

Representation:

Mr Tam Sze-lok, SGC of Department of Justice, for HKSAR

Mr Christopher Coghlan, instructed by Messrs Li, Wong & Lam, for the Appellant