HKSAR v. Lai Yun Kwai and Another

HCMA000742/2003

HCMA 742/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 742 OF 2003

(ON APPEAL FROM KCCC 5260/2003)

____________

____________

Coram: Hon Beeson J in Court

Date of Hearing: 25 September 2003

Date of Judgment: 25 September 2003

_______________

J U D G M E N T

_______________

1.The Appellants in this case were each charged with one count of Criminal Intimidation, contrary to section of the Crimes 24(b)(i) and 27 Ordinance, Cap. 200. The prosecution's case was that the 1st Appellant had criminally intimidated a Housing Authority Surveyor at a conference convened to discuss payment claims made by the Appellants for work done by their company, for the Housing Authority. The 1st Appellant allegedly threatened to kill the surveyor's father and also threatened to employ a "Mr Heung" to pursue the debt. The case against the 2nd Appellant was that she criminally intimidated the same surveyor by threatening to kill his whole family.

2.The Magistrate was satisfied that the Appellants had made the threats and made findings to that effect. He was satisfied that the surveyor to whom the threats were addressed, had been alarmed by those threats. However he acquitted the Appellants because he could not be satisfied beyond a reasonable doubt that at the time they made the threats they intended to alarm the surveyor. He could not rule out the possibility that, on the evidence before him, the threats might have been uttered in anger and exasperation, without a genuine intent to create fear.

3.Accordingly he acquitted each of the Appellants of the charge against them. He decided the circumstances justified the exercise of his power under section 109I of the Criminal Procedure Ordinance (Cap. 221) and bound each Appellant over to keep the peace and to be of good behaviour for a period of 12 months, in the sum of $3,000 for each Appellant. He explained to the Appellants the effect and meaning of that order and assured them that it was not a conviction.

4.The Appellants appeal today against that order saying the Magistrate should not have made it, because they had not done what they were alleged to have done and their business would be affected by the order. It is quite clear that the Magistrate had power to make this order and given the circumstances in which he found threats had been made, there was justification for making such an order against each of these Appellants.

5.The only aspect that arises on this appeal is whether the Appellants should have been given the opportunity to make representations, at the time, as to why such an order should not have been made. I note that the Appellants were represented at the hearing in the court below and counsel did not choose to make any representations at the time, nor did he seek to review the order. I cannot see that there is any obligation, certainly not a statutory one, on the Magistrate to ask for representations from a defendant before making an order, although in the ordinary course of events it may be sensible for a Magistrate to do so. As there is no requirement for a Magistrate to obtain the consent of a defendant before making such an order, to permit such representations, or to read into the section a requirement to allow representations, is otiose.

6.It is important to differentiate between the position of acquitted defendants, as these Appellants were, who know the circumstances and background of the alleged offence, and the position of a witness called to give evidence who, thereafter, is considered a suitable subject for a binding over. In the latter case a court should ask if the witness wishes to be represented and/or make submissions. (R v Woking Justices, Ex parte Gossage [1973] QB 448 (@451))

7.It is appropriate for these orders to stand. This appeal is dismissed.

Representation:

Ms Lynda Shine, SGC, of Department of Justice, for the Respondent Lai Yun Kwai, 1st Appellant, in person

Wu Kam Yuk, 2nd Appellant, in person