HKSAR v. Chan Ping Kwan

HCMA960/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 960 OF 2004

(ON APPEAL FROM ESCC 3247 OF 2004)

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BETWEEN

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Before : Hon Nguyen J in Court

Date of Hearing : 7 June 2005

Date of Judgment : 14 June 2005

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J U D G M E N T

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1.The appellant was convicted by Mr Eddie Yip sitting in Eastern Magistrates’ Court of two offences of making a telephone call of a menacing character, contrary to section 20(a) of the Summary Offences Ordinance, Cap. 228.  Both charges alleged that he had sent, by telephone, a message of a menacing character to Madam Ng Fung Yin, the first call being on 3 April 2004 and the second on 8 May 2004.  He now appeals against the convictions. 

2.At the trial the defendant was unrepresented.  He gave evidence in his own defence and denied having telephoned the complainant on those two days.  However, he admitted that on the first day, namely 3 April, because it was the complainant’s birthday, he had borrowed the telephone of the daughter of a friend of his to send the complainant a birthday message.  The magistrate accepted the complainant’s evidence and rejected that of the appellant and convicted him of both charges. 

Grounds of appeal

3.The 1^st ground of appeal was that the learned magistrate failed to consider whether, at the time of the commission of the 1^st offence, the appellant had the necessary mens rea.  The basis of this ground of appeal is that when the complainant gave evidence, she had mentioned that on the day in question, namely 3 April, the appellant sounded as if he had drunk alcohol and he was under the influence of the alcohol which is why she said she did not talk with him any further.  Also the two defence witnesses who gave evidence about the party that the appellant attended on 3 April, mentioned that on that evening, the appellant had consumed alcohol.  

4.Mr Chung, who appears for the appellant, submits that the two offences that the appellant is convicted of are offences which require a specific intent.  It is submitted that because these offences were offences which required a specific intent, voluntary intoxication could have been relied upon by the appellant as a defence. 

5.Mr Chung relies upon the list of offences stated by the editors of Archbold Hong Kong 2005 at paragraph 16 - 77 as offences which only required a basic intent.  These offences are :

(1) common assault;

(2) assault occasioning actual bodily harm and indecent assault;

(3) manslaughter;

(4) assault on a police officer in the execution of his duty;

(5) the two offences against section 19 of the Offences Against the Person Ordinance;

(6) taking a conveyance without the owner’s authority;

(7) arson or criminal damage;

(8) arson or criminal damage involving an intention to endanger the life of another; and

(9) rape.

It is said that because the offence in question does not appear in this list it therefore requires a specific intent. 

6.He also relied on the House of Lords’ case of R. v. Court [1989] 1 AC 28, where the House found that in an indecent assault charge, the prosecution had to prove “not only that the accused intentionally assaulted the victim, but that in doing so he intended to commit an assault which right-minded persons would think was indecent”.  He, therefore, submits that even though the offence of indecent assault is committed when the indecent assault is perpetrated on the victim, the House of Lords held that the accused also had to have the intention to commit an assault which right-minded persons would think was indecent, thereby requiring a specific intent. 

7.I do not agree that what the House of Lords said in that case was intended to mean that the offence of indecent assault is an offence which requires a specific intent.  Indeed, in the list mentioned above, indecent assault was stated as one of the offences which only required a basic intent.

8.The offence that the appellant was convicted of is completed once it is proved that it was the appellant who had sent, by telephone, a message to the complainant and the message was of a menacing character.  The mens rea which is required for this offence is simply that the appellant was aware that he was, by making the telephone call, sending a telephone message to the complainant.  The other requirement of the mens rea necessary to substantiate this offence is that the appellant must have been aware that the message that he sent was of a menacing character.  If, indeed, it was the appellant who was speaking to the complainant on the telephone, then quite clearly he would have been aware of what it was that he was saying to the complainant and whether what he was saying was of a menacing character.  In my view, therefore, the intent required for this offence is only a basic intent.  That being the case, voluntary intoxication will not be a defence to the charges.  If it was not a defence to the charges, then quite clearly there was no duty upon the magistrate to consider whether the defence of intoxication was applicable.  Furthermore, even though the appellant was not legally represented at the trial, this defence was never raised at the trial and the defence that the appellant was relying upon was that he never made these telephone calls.  Ground one therefore fails.

9.The 2^nd ground of appeal was quite simply that the magistrate was wrong in adjudicating that on 8 May, the appellant had said anything to the complainant which was of a menacing character.  

10.I need not go into this ground in any detail, save to say that the magistrate in his Statement of Findings found that the complainant was an honest and reliable witness and that she was able to clearly identify the voice which was speaking to her on those two occasions.  He also found that she had no reason whatsoever to fabricate her evidence against the appellant and she had nothing to gain by so doing. 

11.The magistrate having accepted the complainant’s evidence as truthful, it is quite clear that there was sufficient evidence for the magistrate to find that what the appellant was saying to the complainant on the second occasion was of a menacing character.  Ground two also fails.

Conclusion

12.The appeal against conviction is dismissed.

Ms Lily Ho, SGC of Department of Justice, for HKSAR

Mr Jerry Chung, instructed by Messrs Ho, Tse, Wai & Partners, for the Appellant