The Queen v. Chau Huong

HCMA000845/1989

_______________________________________

Coram: de Baste, J.

Date of hearing: 11 August 1989

Date of judgment: 11 August 1989

----------------------

JUDGMENT

----------------------

1. The appellant was convicted of criminal intimidation, contrary to section 24(b)(ii) of the Crimes Ordinance, Cap.200.

2. The magistrate found as a fact that the appellant who was a Vietnamese came to the Tuen Mun Closed Camp on two occasions on the night in question and demanded admission. On the first occasion he was refused entry by PW1 and on the second occasion by PW2, both of whom were Correctional Services officers. On the second occasion he threatened PW2 that he wanted to hit PW1 who had refused his admission on the first occasion. PW1 was not present when the threat was made to PW2.

3. Having heard the evidence-in-chief of PW2, the magistrate altered the charge to one of disorderly conduct. The charge was read to the appellant who again pleaded not guilty. Later the magistrate ordered the original charge of criminal intimidation to stand. In his Statement of Findings, the magistrate stated :

" However on a perusal of section 24 of the Crimes Ordinance, Cap.200 the threat can be made to a third person, so I let the charge proceed as it was. "

4. Mr King, counsel for the appellant, contended that the learned magistrate having substituted a charge of disorderly conduct for the original charge of criminal intimidation failed to follow the correct procedure under s.27 of the Magistrates Ordinance, Cap. 227 when he reverted to the said original charge. I agree. The magistrate should have caused the re-substituted charge to be read to the accused who should have been asked to plea. This is so even though the appellant was not prejudiced. He was convicted for the offence of criminal intimidation whereas he was then only facing a charge of disorderly conduct.

5. Mr King also contended that the particulars of the charge was at variance with the charge under section 24(b)(ii) and that the criminal intimidation charge should have been under section 24(b)(i) as the threat was made to PW2 to injure PW1. Mr Coghlan, counsel for the Crown, conceded the conviction was wrongly founded under section 24(b)(ii).

6. The appeal is allowed. Conviction quashed and sentence set aside.

Representation:

Mr C.D.F. Coghlan, Sr Crown Counsel for Crown.

Mr Alexander King assigned by D.L.A. for appellant.