HKSAR v. Pearce, Matt James

HCMA635/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 635 OF 2006

(ON APPEAL FROM ESCC 1399 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge Line in Court

Date of Hearing : 12 December 2006

Date of Judgment : 12 December 2006

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J U D G M E N T

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1.This is an appeal against conviction on 15 charges variously of criminal intimidation, loitering and one charge of making a false report to the police.  There is also an appeal against the sentences that were imposed.

2.In the magistrate’s statement of findings, he has comprehensively set out the facts, what the issues were and how he resolved them.  When it comes to the provision of the transcribed written reasons of the oral judgment I am now giving, that statement of findings will be set out there in full.  I may prune the odd paragraph away from it if it is not directly relevant, but the final written judgment of the Court will incorporate the statement of findings.  That is because it, if I may say so, very clearly set out what the evidence was and it is vain for me merely to produce another summary of it.

“	Statement of Findings
	Charges
	1.	As a result of a matter between the Deft and a school teacher at the Chinese International School in North Point, Ms Jennifer Hollier (PW2), the Deft is charged with 15 charges, as follows:
		1st and 2nd Charges: Criminal intimidation, 1st Charge being on a day between the 1st and 15th of May 2005, by threatening PW2, contrary to Cap.200 s.24(a)(ii), and 2nd Charge being on a day between the 15th and 29th May 2005, by threatening headmasters Mr Blumenthal (PW3) and Mr Drake (PW4), contrary to s.24(b)(ii).
		3rd to 14th Charges: Loitering causing concern, contrary to Cap.200 s.160(3), as follows:
		Charge	Date
		3	29  September 2005
		4	7  October 2005
		5	8  November 2005
		6	21  November 2005
		7	24  November 2005
		8	9  December 2005
		9	16  December 2005
		10	10  January  2006
		11	11  January  2006
		12	12  January  2006
		13	7  February 2006
		14	8  February 2006, and,
		15th Charge: Making a false report to the police on the 8th February 2006, contrary to Cap.232 s.64(a), by falsely claiming that PW7 had assaulted him by grabbing his neck.
	Prosecution’s case
	2.	Basically all the primary facts regarding Charges 1 to 14 are not in dispute.  However the primary fact of whether a grabbing of the neck had been committed by PW7 upon the Deft, is in dispute.
	3.	Ms Jennifer Hollier PW2 was a teacher at the Chinese International School.  She came to know the Deft via the internet and went out with him a few times, but decided not to continue their friendship.  Deft however sent her gifts such as books, flowers, and a painting, which PW2 threw away.  The Deft demanded the painting back, and when this was not done he took out a civil claim against PW2 at the Small Claims Tribunal, but this was dismissed with costs.  The Deft then turned not only upon PW2 but also the headmasters of the School, which was the subject of the 1st & 2nd Charges: Deft by letter (Exh P1) demanded PW2 to return the painting with compensation and make an apology, otherwise he would stage protests outside the School every week.  When PW2 did not yield, Deft threatened headmasters Dr Blumenthal PW3 and Dr Drake PW4 by letter (Exh P3) thaf if PW2 did not return the painting and apologise, he would persistently stage protests outside the School “to inform the pupils, members of staff and parents that there is a thief in the school”.  Deft said to PW3 and PW4 things damaging PW2’s reputation, e.g. that PW2 was a thief and a person into casual sex.  PW3 and PW4 inquired into the matter, but found Deft’s allegations unjustified, hence did not yield to Deft’s demands.
	4.	Accordingly, on the dates as stated in the 3rd to 14th Charges inclusive, the Deft carried out his threat as stated in his two letters.  Witnesses such as PW10 and PW11, and statements tendered under Cap.221 s.65B such as from PC-2091, PC-1237 and PC-3329 described the protests.  The Deft does not dispute he had staged all these protests at the main entrance to the School, dressed on different days as Superman, Santa Claus and Mr Incredible, and holding up placards from 07:15 to 08:00 when children and teachers were coming into the School.  The placards bore for example the following words: “Some teachers are bad people, I’m still waiting for an apology”, “Educate your teachers”, “Casual sex is morally wrong”.  In addition, Deft handed out leaflets to passers-by which had PW2’s name clearly printed (Exhibits P34, P35 and P36), for example “Jennifer is having sex with other men at the same time”, and “Jennifer promised she would not have sex with anyone else when seeing me”.  The Deft distributed, on different days, flowers, Bibles, and condoms to pedestrians and schoolchildren, telling them that PW2 was having sex with two men.  As to PW2 herself, she knew about all these protests because she was coming into school via the main entrance by taxi, and she also saw the Deft from the school corridors.  The Deft’s conduct on each of these 12 occasions had caused PW2 extreme concern, which in her own words were “I was very frightened, I was devastated, I was upset, I was humiliated, and I cried” because the protests were staged to damage her reputation, especially when the recipients were her own colleagues and superiors, and schoolchildren who were PW2’s own students, some as young as 11 who brought into class the condoms distributed by the Deft, and because the content of the protests were ruining her reputation and her work as a teacher.  Deft’s demand for the return of the painting and for an apology, as we know from the Law of Trusts, PW2 was under no duty to comply.  But PW2’s fear and concern have caused her to resign from the School, as she could not continue to teach with a ruined image.  Exh P3, and P23 through to P32 show the Deft’s state of mind and his motive, which support PW2’s testimony as to why she was frightened, humiliated, upset and concerned, i.e. “because Deft was using the guise of a protest to ruin my reputation”.  She said the basis for her concern included the Deft’s volatile, unpredictable, rude, and intrusive behaviour towards her, approaching her in Wanchai despite her requests to leave her alone, throwing beer on her, poking her person, and even breaking into her residence without her consent.  During the protests, therefore, she was so frightened she dared not use ordinary transport and walk past him to go into school, but could only take a taxi thereby incurring more expense.
	5.	Regarding the 15th Charge, PW5 through to PW10 were called.  Chief Inspector Foster PW5 tendered the Deft’s statement which was the subject matter of this Charge (Exh P40) in which paragraph 3 contained Deft’s allegations against who we now know was teacher Mr David Brian PW7, saying in particular that PW7 had “grabbed my neck with his left hand”.  PW5 investigated Deft’s allegation of assault but found insufficient basis to charge PW7.  But it went further than this, because PW9 Mr Vishwakarma a security guard of the School had seen the two encounters between Deft and PW7 that morning, and said the first time the two men spoke for about 1.5 minutes, but they were 3 feet apart and there was no bodily contact between them, the second time being PW7 having parked his motorcycle, and the men spoke for only a few seconds, and there was again no bodily contact, although Deft does not allege any assault during this second encounter.  School technician Mr Tsang (PW6) tendered a CD (Exh P41) containing captured video from CCTV over the encounters, and the video showed no evidence of any body contact between PW7 and the Deft, although I note that the camera was quite some distance away.  PW7, the alleged assailant, said he was upset by Deft’s placard because it said teachers were bad people and he was one of the teachers there, and so he stopped his motorcycle to speak with Deft, but he was soon told to move on by a traffic constable, and there was no body contact between him and the Deft.  SSgt YAM (PW8) was present on the occasions of the 13th and this alleged incident.  He saw Deft holding up a placard, but there was no violence, with Deft departing at 8 a.m. on both days.  Deft had complained to him that a male foreigner had used abusive language to him, but Deft made no allegation of assault.  PW10 SPC-9797 described Deft’s protests on the occasions of the 10th, 13th, 14th (same as 15th) Charges, i.e. holding up placards with the words “Educate your teachers”, and “Some teachers are bad people, I’m still waiting for an apology”, being clearly consistent with the whole of the evidence that the protests had in mind PW2 as ultimate target (more below).  PW10 was tasked to watch the Deft, and he saw both encounters between PW7 and the Deft.  He said that PW7 was 2.5 feet away from the Deft and was sitting on his motorcycle, and there was no bodily contact between PW7 and the Deft, and certainly no “grabbing the Deft on the neck”.
	6.	The Deft was interviewed under caution.  The admissibility was not challenged, nor was the accuracy of the transcripts (Exh P45).
		In VIR1 the Deft admitted he was the person who was staging the relevant protests (Entries 189-193), about his relationship with PW2 leading up to Deft’s demand for the return of the painting and his unsuccessful claim against PW2 in the Small Claims Tribunal (269-572), leading to why he wrote the letter Exh P1 to PW2 (711-823), and Exh P3 to PW3 and PW4 (578-663, 833-947), about the emails, and Deft stated the reason for his correspondences (Entries 1140-1146).
		In VIR2 the Deft spoke about the emails leading up to his protests (Entries 96-623), which he agreed he was the author and sender (e.g. Entries 238-239), letters he sent to the CIS and lawyers acting for PW2 (785-1016), about his protests at the School and his purpose, he had spoken with PW3 in the first protest (just as PW3 had testified to this Court), about his costumes, placards and the items he distributed, i.e. leaflets condoms and flowers, and reactions from people (1020-1480), he said his target audience were the headmasters (1544, 1595), and the purpose was to make PW2 apologise to him (1576-1581, 1586).
		In VIR3  the Deft admitted to have written and sent the relevant letters and emails to PW2, PW3 and PW4, and that he had staged the protests and handed out the relevant pamphlets to people, that the contents were true (Entries 62-69, 86-102), and on letters he had written to the Secretary for Education and Manpower etc, and that he had tried to settle the dispute in a sensible way (Entry 292).  Deft maintained that PW7 had grabbed his neck on the occasion of the 15th Charge.
	Defence case
	7.	Deft elected not to testify, and called no witnesses, but his case was clear from the way he questioned the witnesses, from what he had said in the records of interview, and from his final speech to this Court.
	8.	Regarding the two Criminal intimidation charges, Deft says there was no word in the letters saying “intimidate” or anything pointing to the threat of physical harm.  However neither Section 24(a)(ii) nor (b)(ii) require physical harm as an element of the offence.  As to the aspect of threat, the whole tone of the letters was indeed a threat, see for example Exh P3 where, after stating the whole background, the Deft wrote “I am writing to you in the hope that this matter can be settled over the next week before we stage the protest outside your school….once she has apologized to me for what she did and once she has either returned my belongings or paid me compensation she is free to go”, and Exh P1 where the words consisted of the following: “Unfortunately for you, you chose the one person in Hong Kong who you shouldn’t have mistreated”, “….I am a person who always does what he says he is going to do….if I don’t hear from you shortly I will be writing to inform Richard Blumenthal and Barry Drake of the protest outside your school at the busiest time of day”, and “Once the protests start they will continue once a week during school semesters until you have apologized and there has been justice between us. Once you have apologized you are free to go. You should never push a good man too far.”  The presence of threat is obvious in both letters.
	9.	Regarding the protests the subject of the 3rd to 14th Charges, Deft first says they were peaceful demonstrations hence permitted under the Basic Law.  But we need to look at the nature of these protests.  They were not demonstrations for example by members of a labour union about workers’ rights.  The Deft’s protests were personal attacks against an individual person via her superiors, pre-meditated and calculated to destroy an individual’s reputation, in the context of a personal affair, and about personal demands which had no basis in law.  As the Deft himself says in court, “It didn’t look good for anyone with this personal dispute between me and the school”, and “This was a matter where I was fighting for justice for myself”.  The Basic Law does not grant unlimited freedom of expression, and each case depends on its own facts: see NG Kung-siu & Another [1999] HKCFAR 87 (FACC 4/1999).  The Deft’s personal motive and mens rea are crystal clear.  And he succeeded, because PW2 resigned as a result of his acts.  I am unable to see how the Basic Law could possibly allow the Deft’s conduct to be regarded as reasonable or lawful.
	10.	Deft next says the protests were not aimed at PW2.  However the evidence clearly shows otherwise, viz: (1) the background leading to these protests shows Deft’s purpose was to make PW2 apologise, (2) the protests were the result of Deft’s unsuccessful threats made to PW2 and her superiors, the subject matter being none other than PW2, (3) the content of the protests were precisely the same subject as the Deft’s demands made to PW2 and her superiors, (4) the pamphlets distributed to people had PW2’s name: see Exh P34, P35 and P36, and (5) last but not least, Deft knew PW2 was coming to the School at those times and she must therefore know, see, and hear about the protests, and Deft wanted PW2 to know, because if PW2 was not there he would not continue: see Deft’s own letter Exh P15.  I have not the slightest doubt who the real target of his protests was.  I have no doubt that all the protests were indeed aimed against PW2.
	11.	Deft says he had not spoken to or physically harmed PW2 during the protests, but this is irrelevant in Charges 3 to 14.  Deft says the children were happy to see him, with which the headmasters PW3 and PW4 did not agree.  In any event what the children had thought is not relevant.  PW2 was a teacher teaching at the school where Deft was staging his protests, and of course going for PW2’s superiors was an effective way to put pressure on PW2 and/or ruin her.
	12.	Deft says he had not obstructed anybody during the protests.  The evidence does not totally support this thesis, but even if so this again is not relevant.  Deft also says he “had not hung around” once he decided to leave at 8 a.m., but his actus reus was not in relation to after 8 o’clock but between 07:15 and 08:00 hours.  And Deft says that his protests were well received, but this is contradicted not only by the witnesses, but also by his own correspondence to headmasters PW3 and PW4 in Exh P16 where he wrote: “several of your members of staff were extremely verbally abusive…as well as several parents…if they continue to be verbally abusive I will have no choice but to make a legally acceptable ‘citizen’s arrest’ on them and take them down to North Point police station to make a report”.  In addition, this serves to show the Deft’s state of mind regarding those who found his protests offensive, and his motive for the 15th Charge.
	Assessment of evidence and Conclusion
	13.	I bear in mind the Prosecution has the burden of proof and the necessary standard.  All the prosecution witnesses testified in a straightforward manner and without exaggeration.  The testimony of PW2 is supported not only by other witnesses, especially PW3 and PW4, but also by other external evidence for example the content of the protest pamphlets, and by Deft’s records of interview.  No prosecution testimony contained any inherent improbability or impossibility.  I find what the prosecution witnesses have told me represented the truth.  In his final address the Deft spoke about his previous conviction, but as a professional judicial officer I took no notice of it.
	14.	Regarding the two Criminal intimidation charges, I find the words said by the Deft not to have been “a mere outburst of the spleen” as Deft had ample time over many days to pre-meditate.  The elements of the offence are stated in the Ordinance.  I find, beyond reasonable doubt, that the Prosecution has proved the 1st Charge for an act done to PW2, the 2nd Charge for an act done to PW3 and PW4, both acts threatening the reputation of PW2 and the School, and the unwarranted demand made upon PW2, PW3 and PW4 was for PW2 to apologise to the Deft and to return the painting or pay compensation: see Exh P1 especially at the second half of the letter, and P3 at unnumbered 1st, 2nd, 4th, 6th and 7th paragraphs for evidence of the relevant unwarranted demands and threats.  The relevant gifts having already been delivered to PW2, the Deft had no legal basis to make such demands.  Accordingly neither PW2, PW3 nor PW4 was under any legal obligation to perform the demanded acts.  I find, therefore, that the 1st and 2nd Charges have been proved beyond reasonable doubt.
	15.	Regarding the Loitering charges, “loitering” means idling, lingering, or hanging about: MOK Chi-ho [1979] HKLR 118.  The Deft does not dispute he was walking up and down the pavement for - hour on each of the occasions as stated under the 3rd to the 14th Charge inclusive.  I find no doubt that he was “lingering and hanging about” the entrance of the school on those occasions.  As to his mens rea, emails from the Deft in Exhs P4 to P30 show this crystal clear in a repetitive, insistent and persistent manner.  The nexus between Deft’s mens rea and all the protests is again crystal clear.  As to the element of PW2’s “concern for her safety or well-being”, I find her concern did exist and entirely justified.  The concern was soundly based on her own past experience with the Deft, involving: (1) Deft’s volatile behaviour, (2) unpredictable behaviour, (3) rude and intrusive behaviour, (4) his approaching her in Wanchai despite her repeated requests to leave her alone, (5) his throwing beer onto her, (6) his unwanted poking on her body, (7) his insistent demands even to the extent of taking out a civil claim against her although this was dismissed with costs, and (8) even breaking into her residence without her consent.  Further, these protests were clearly aimed at the ruining of her reputation and image.  I find the element of “concern for safety or well-being” proved beyond reasonable doubt, and that there are more than ample grounds for PW2 to feel such concern.  I find, therefore, that the 3rd to 14th Charges have been proved beyond reasonable doubt.
	16.	As to the charge of Making a false report to the Police, from the whole of the evidence I find there was no bodily contact between PW7 and Deft.  The Deft made a report to CIP Foster (PW5) alleging that PW7 had grabbed his neck: this is in Exh P40.  The Deft’s report was independently proved to be false because independent witnesses PW9 and PW10, especially PW10, and the CCTV recording, all confirmed PW7’s version, i.e. there has never been any physical contact, let alone grabbing Deft’s neck during any of the two encounters between PW7 and the Deft.  For the Deft to say that the moment when PW7 was grabbing his neck both PW9 and PW10, who were both watching the scene, had blinked their eyes or looked away both at the same precise moment, and that at the same precise moment the Deft had also happened to be standing between the CCTV camera and PW7 so that the camera had not captured the act, I find too much of coincidences to be possible.  But there is more.  PW7 was shorter and of a much lesser build than the Deft, and PW7 was at least 2.5 feet away from the Deft and sitting on his motorcycle.  To say PW7 had reached his hand not just outwards, but also upwards, not just touch but grab the Deft’s neck, as jury I find this impossible.  And Deft’s neck was not bare, for he had an overall Superman suit on.  Deft suggested that PW10 had come over from the other side of the road because the latter had seen the assault of grabbing, with which PW10 did not agree.  And further, PW10 testified that the Deft’s only complaint made to him (and to PW9) was wanting the Police to speak to the headmasters to tell teachers not to disturb him, but no complaint of assault was made to them at the scene.  I find no possibility of PW7 grabbing Deft’s neck having occurred.  Actually, in court the Deft detracted from his statement by suggesting to witnesses that “pointing with a hand in anger could amount to assault” – but this was not the allegation he made to PW5.  I have not the slightest doubt that the Deft had made a false report to the Police when he stated that PW7 had grabbed his neck.  I find this Charge proved beyond reasonable doubt.
	17.	For the above reasons the Deft is convicted of all the 15 Charges.
	Reasons for Sentence
	1.	As a result of a matter between the Deft and a school teacher Ms Hollier (PW2) at the Chinese International School in North Point, the Deft was convicted after trial of 15 charges, as follows:
		1st and 2nd Charges: Criminal intimidation, 1st Charge being contrary to Cap.200 s.24(a)(ii), on a day between the 1st and 15th of May 2005 by threatening Ms Hollier, and 2nd Charge contrary to s.24(b)(ii), on a day between the 15th and 29th May 2005 by threatening a Mr Blumenthal and a Dr Drake,
		3rd to 14th Charges: Loitering causing concern to PW2, contrary to Cap.200 s.160(3), over a period of 4.5 months, by staging florid demonstrations outside the School’s entrance, and,
		15th Charge: Making a false report to the Police on the 8th February 2006, contrary to Cap.232 s.64(a), by falsely claiming that a male schoolteacher had assaulted him outside the abovementioned School.
	2.	The maximum penalty for Criminal intimidation, if prosecuted in the Magistrates Court, is a fine of $2000 and 2 years in gaol, that for Loitering causing concern is 2 years in gaol, while that for Making a false report to the Police is a fine of $1000 and 6 months in gaol.  As to committing multiple offences on different days, if gaol is imposed the sentences should be made consecutive, although I will consider the totality principle.
	3.	The Deft has 1 previous conviction for Causing public nuisance.  I have heard mitigation.  The nature of this case leaves a very nasty taste indeed in the mouth, its seriousness obvious.  The Criminal intimidation offences were in the nature of blackmail, as they were unwarranted demands with menaces.  One needs to read the language and tone used by the Deft in his letters to PW2 and her headmasters to appreciate how nasty the Deft was.  The Deft had gone much further than mere harassment, and his insistent, persistent and repeated behaviour shows the gravity of the whole case.  Florid and unwarranted protests in public occurred not just once, but 12 times on the Charge Sheet, but the undisputed evidence in fact discloses more times than those.  And the 12 protests took place not just over a few days, but over a long period of 4.5 months (9 months if counting the first protest at the end of May 2005).  PW2 did not wish to continue going out with the Deft, but that was not a wrong.  Throwing away unwanted gifts was not a wrong.  In the position of a schoolteacher she was, and was expected to be, respected by her school children, and the evidence from her headmasters was that she was a good teacher.  But she was publicly defamed, and defamed openly in front of those she was charged to teach, seen in full view by her colleagues, her superiors, and parents of the children in her class.  Given her past experience with the Deft, in these circumstances it came as no surprise that she was so frightened she needed to take a taxi to go into school instead of walking in.  The Deft’s conduct was pre-meditated, calculated, nasty, persistent, aimed to intimidate, and engineered to destroy PW2’s reputation and image, and he indeed succeeded, because PW2 could no longer work at the School and had to resign.
		As to the making of a false report to the Police, the Deft’s motive was nasty, being aimed to cause trouble to a teacher who justifiably found his behaviour offensive and which was causing great embarassment not only to the teachers themselves but also to the whole school.  The Deft in furnishing the false report to the Police has wasted police manpower in investigating the alleged offence, has wasted police time, and wasted the public purse.
		Even when the Deft was supposed to be mitigating, he kept smudging the authorities which was not supported by any evidence, and kept degrading PW2’s character.  I do not accept that PW2 had invited Deft into bed because she was in love with him, when on the same occasion she had told Deft she was sleeping with 2 other men.  One cannot help but wonder whether PW2 had said those things only in order to stop the Deft’s unwanted advances.  Deft has not pleaded guilty, and I have not seen a single shred of remorse.
	4.	Having taken the relevant factors into account, I sentence as follows:
		1st Charge: Gaol, starting point 12 weeks.  As Deft has not pleaded guilty I cannot reduce the sentence.
		2nd Charge:  Gaol, starting point 12 weeks.  As Deft has not pleaded guilty I cannot reduce the sentence, but due to the totality principle I make only 8 weeks consecutive to the 1st Charge.
		3rd to 14th Charges:  The sentences are the same, i.e. gaol with a starting point of 8 weeks.  As Deft has not pleaded guilty I will cannot reduce the sentence.  Theoretically the sentences should be consecutive, but due to the totality principle I make the 3rd Charge consecutive to the 2nd Charge, but sentences from the 4th to the 14th Charges only 1 week consecutive to the charges previous to them, i.e. the total sentence from the 3rd to 14th Charges is 8+(11x1) = 19 weeks consecutive to the 2nd Charge.
		15th Charge:  Gaol, starting point 4 weeks.  The nature of this offence is completely different from the above.  As Deft has not pleaded guilty I will not reduce the sentence.The Court of Appeal has said that unless in one act a deft has injured two persons, two different acts even if committed on the same occasion will attract consecutive, at least partly consecutive, sentences.  Because of the totality principle I make 3 weeks consecutive to the 14th Charge.
		The overall sentence is therefore 42 weeks in gaol.”

3.Let me say this, that essentially, the facts involved in the case were not in dispute.  There was only one issue of disputed fact which arose in relation to Charge No. 15, the making of the false report to the police, and that is whether or not there did occur a grabbing of the neck by a witness who was a schoolmaster, PW7, grabbing the neck of the Appellant in this case.

4.Having, by that means, set out for the purposes of this judgment what the background is and what the findings were, I can move straightaway to the attack that was made upon the convictions that have been argued today by the appellant.  The appellant has appeared in person but he has used as a basis for his case on appeal a document entitled “Initial Grounds of Appeal against Sentence and Conviction” drafted by counsel who then appeared for him when an application for bail was made, pending appeal.  Very much the form of the hearing today has been to go through that document with the appellant expanding as he chose to or as he wished on the points that were made there.

5.So let me turn straightaway to the first two charges which were charges of criminal intimidation.  The first point that the Appellant makes is that there was insufficient evidence of any intention in him to alarm the victim, Miss Hollier.  The magistrate, in his statement of findings, set out, at paragraph 8, various quotations from the letters in question and his view was that - it is the last sentence of his paragraph 8 - the presence of threat is obvious in both letters. 

6.I am bound to say I agree with that judgment.  The letters in question both, in effect, threaten a course of action.  In the first letter to Miss Hollier herself, it takes the form of the Appellant saying he is going to tell parents, staff, pupils, school governors what he knows about her.  Given the context of what had already happened, it was clear that he was going to refer to those matters which appear in the second letter to the headmasters, which were basically that he was going to claim that she was a thief and that her private sex life was open to criticism.

7.I would have thought any recipient of those letters would appreciate that it was an alarming course that the Appellant proposed.  In the end, what the Court has to decide is whether or not a threat was made.  In my judgment, those two letters were both threatening. 

8.The Appellant made a point that he cross-examined one of the recipients, Dr Drake, of the second letter who said that he did not feel intimidated by it, but of course that was not the point.  The person who was going to feel intimidated by it was the person who was the object of the enmity, which was Miss Hollier.  That disposes of the point that there was insufficient evidence of any intention to alarm.

9.The next point the Appellant made was that he genuinely believed he had the right to behave in this manner; in other words, he had a right to send the letters in the terms in which they appear.  If he thought he was legally entitled to do that, then he has made a mistake of law and a mistake of law is no defence to a criminal charge.  If he merely thought he had the moral right, then again, it is trite law to say that that is no defence.  Robin Hood doubtless felt free to rob the rich to give to the poor, but it would not have stopped his activities being robberies.  So there is nothing in that second point.

10.The third one was that the Appellant claimed that what he did was done out of a good motive.  I am afraid motive is not an ingredient of the offence and even if one could describe it as good, it would be irrelevant.

11.The next point that was raised was that he had a claim of right.  As I understand it from the written document prepared by his counsel, he was saying that because he had a right to the return of his picture, he was entitled to write these letters and that he therefore did not act contrary to the criminal law in doing so.  This avenue raises all sorts of problems but they are easily circumvented by just going to this point, that the main thing the Appellant sought was an apology and it is common ground in this case that there is no legal right to an apology in these circumstances, even if they were entirely as the Appellant claimed them to be.  There is no such thing as a claim of right to an apology; therefore, the idea of a claim of right providing him with a defence to these two offences of criminal intimidation fails.

12.The next point was that the writing of the letters and their content represented no more than what we usefully use the shorthand term to describe as “wild and whirling words”.  The answer to that is that this was clearly a calculated course of conduct; writing the letter, taking it, posting it, thinking about its terms, was not something that arose out of a momentary splenetic reaction to the situation.  Indeed, both letters were written the same month, but one is on 2 May, the other is on 20 May, over a fortnight apart.  This behaviour, in my view, was calculated and it cannot be said that this was just something done in the heat of the moment, thereby robbing the documents of their threatening character.

13.To be fair, in argument, the appellant adapted this to argue that what he really wanted me to do was bear in mind that there was a background of intimacy that led to the problems that arose in the case.  Of course that was the case and I have borne that in mind, but it provides nothing which would make me doubt the correctness of the convictions on the criminal intimidation charges.

14.The next point made was that it was true what he was saying  about her: that she was a thief and that her sexual life was open to criticism. Unfortunately for the Appellant, such an argument provides no defence.  Indeed, one of the qualities of criminal intimidation, and indeed the offence of blackmail, is that people take something that has happened to a person’s discredit and then seek to use it criminally by, in the case of blackmail, making unwarranted demands with menaces or, in the case of criminal intimidation here, seeking to have someone do something which they were not legally obliged to do.  Accordingly, the idea that truth would be a defence to these two criminal charges also fails. 

15.There is a general attack on the charge as a whole, which I shall call the constitutional challenge, which I shall come to later as I deal with it also in relation to the next set of offences which were the loitering offences, namely, Charges 3 to 14 inclusive.  This sets out the 12 occasions upon which the Appellant attended the public place outside the school in question and carried out the relevant activities. 

16.The first reason that is advanced for attacking the loitering convictions was this - and this comes from the initial grounds of appeal against sentence and conviction - in effect, that loitering is something that people do when they have no reason to loiter and if the Appellant had a reason to loiter, such as educating the school and the headmasters and urging them to educate properly their staff, then it could not be loitering.

17.I am afraid that argument is, in my judgment, misconceived and is based on confusion in the mind of counsel who drafted the document in question as to the effect of the previously, now repealed, section 160(1) of the Crimes Ordinance.  That provided for loitering which called for a satisfactory account by the loiterer and a satisfactory explanation of his presence and if one was not given, the crime was committed.  That was found to be inconsistent with the Bill of Rights and so the subsection was repealed.  But that is subsection (1).  This Appellant was charged and convicted under subsection (3) and quite different considerations apply to it.  I have no doubt that even if the Appellant loitered outside the school for the reason he claimed, he would still be loitering.

18.The second point was that this was done in full view of the police, that he was not told to stop and that the police took the view, and communicated it to him or other people, that he was merely exercising his right to protest peacefully.

19.The answer to that is this, that policemen are not judges of the law.  The courts judge that.  But of course, the policemen here were not apprised of all the circumstances.  They were in no position to pass a judgment on the true matters which are the substance of this prosecution and this appeal.  The policeman would not have known, on any of these days of protest, what the situation was between the Appellant and Miss Hollier.  No policeman was to know what letters had been written; the policeman was not to know what she would reasonably have had cause to be concerned about.  Accordingly, as regards the public order element of what was going on, no policeman had reason to intervene, but the idea that this can provide some sort of defence to someone who is otherwise guilty and has the ingredients of the charge proved against him is, I am afraid, misconceived.

20.The third point was that no physical harm was caused.  Of course, none was alleged and it is concern for wellbeing that is the substance of these charges.  The lack of physical harm does not provide any defence.  The real burden of the argument that the appellant made in relation to the loitering is for him to say what he did would not have caused the lady in question concern and that, even if it did, it was reasonable to do so.  I am afraid I reject both of those arguments.  The reality was that this would cause her concern, for the publicity he attracted, against the background of what he was saying about her conduct, was bound to cause concern to the lady in question.

21.She told the magistrate - this is at paragraph 4 of the findings I have set out - “I was very frightened.  I was devastated.  I was upset.  I was humiliated and I cried”.  The magistrate was quite entitled to act on that evidence as he did and not surprisingly so.  What reaction did he think a woman would have to having her morals, both as to honesty and sexuality, openly dealt with in a situation like this, let alone dwelling on the detail of 11-year-olds coming into her class carrying condoms that the Appellant had handed out?  Both assertions I find to be wholly untenable and I reject them.

22.Common to both the criminal intimidation and the loitering charges is a claim made by the Appellant that he was entitled to do what he did.  That is because we have basic freedoms in Hong Kong and, in particular, we have Article 27 of the Basic Law which provides that Hong Kong residents shall have freedom of speech, the press and of publication, freedom of association, of assembly, of procession and of demonstration, and freedom to form and join trade unions and to strike. 

23.Of course, the right to demonstrate does exist but the Respondents argue that what the Appellant has done is to mask a personal vendetta with this public right, and they say he cannot do that.  They say that is because no matter that you have a right to protest, if you in fact by reason of your conduct breach one of the provisions of the substantive criminal law, you will be guilty of the crime. 

24.The Appellant says that just should not be so.  He makes the bold claim that he has a right, if he wanted to - not that he says he did - to have stood outside the school with the intention of harming the wellbeing of the lady by reason of his loitering there and carrying out the protest and he could have done that such that she would have quit her job and, in effect, have been hounded out of her employment and he was entitled to do that because our law protects it.  The answer to that is, I am afraid, he has got the balance dramatically wrong.  These matters are questions of balance and what has to be balanced here is the general right to demonstrate against the right of people to be able to live their life peacefully without being harassed by former boyfriends. 

25.I take what the Appellant has argued here to be really an attack on the constitutionality of both section 24 and 160(3) of the Crimes Ordinance.  If a law does offend the Basic Law, then the courts will strike it down if the circumstances justify it.  The circumstances require the court to look at considerations of necessity and proportionality.  Both these provisions have now long withstood the passage of the Bill of Rights.  Indeed, section 160 has been amended in the light of the passing of the Bill.  I have no doubt these criminal provisions exist for good reason; that they are lawful; that they are necessary to protect people from certain sorts of conduct and that they are proportionate to the mischiefs they seek to control.  It would be a very sad day if a man could hound someone out of their job in Hong Kong merely by saying, “I’m allowed to do that because I have the right to demonstrate”.  Accordingly, the constitutional challenge to the intimidation and the loitering, in my judgment, fails.

26.That merely leaves the question of Charge 15 outstanding, the false report to the police.  This was a factual dispute.  The man who was alleged to have carried out the grabbing of the Appellant’s neck denied it :  there was thus evidence that it did not happen.  The fact is that there was a CCTV tape and albeit that you cannot really see very much from it, due to the distance and the like, the fact is you cannot see anything on the CCTV tape which would support the Appellant’s assertion that the grabbing did take place.  There was a security guard.  Of course, he did not watch the whole time but he was there and around the scene at the relevant time.  He noticed nothing of any grabbing around the neck.  The same can be said for the policeman.  The policeman’s attention was drawn by some gesticulating and pointing and he walked across the road.  The Appellant makes the point, he looked left and looked right just to make sure it was safe to cross and the suggestion seems to be that, in that twinkling of an eye, the grabbing of the neck took place. 

27.The Appellant did not give evidence himself below.  He was not obliged to, but the fact is, as he would have been told there, courts make their decisions on the basis of evidence and the evidence in this case was all one way.  When I look at it, I see evidence just going in one direction.  I have no reason at all to doubt the correctness of the magistrate’s finding.  And what one comes up against, as in so many such cases, is this:  it was the magistrate who actually saw and heard the security guard and the policeman, and the teacher be examined and cross-examined.  He was in a much better position than I am today to judge the issue of fact.  There is nothing that makes me doubt the finding of fact that the magistrate made.  There is no room for mistake.  A grab around the neck is a grab around the neck.  It either happened or it did not.  If you go and tell the police it happened when it did not, you must  knowingly make a false report of a battery by grabbing round the neck.  The offence will inevitably be proved.

28.A point was taken in the initial grounds of appeal drafted by counsel that, somehow, because the policeman described a gesture of the teacher waving or wagging his finger at the Appellant, that could be taken as a common assault, short of a battery, and because the charge claimed that a false report of assault had been made, therefore it would not have been made out. 

29.I am afraid the point is misconceived.  The falsity of the claim alleged against the Appellant was that he complained of a battery by having his neck grabbed.  “Assault” is used these days to describe both assault and a battery.  Indeed, the magistrate pointed out, significantly, that there was a change of ground made by the Appellant in the court below where he sought to move his ground from claiming the grab round the neck to some sort of common assault.  I am afraid that would not do.  The document, exhibit 40, sets out the complaint and made it absolutely clear that a battery was complained of by a grabbing round the neck.  Accordingly, on the issue of fact which determines the fate of Charge 15 on this appeal, I am of the view that the appeal against the conviction on that charge must, like the others, be dismissed.

30.Let me turn to the question of sentence.  In relation to the charges of intimidation, the magistrate imposed 12 weeks’ imprisonment on each and overlapped by 8 weeks, creating a total of 20 weeks for them in all.  In relation to the loitering charges, he took a starting point of 8 weeks and then overlapped each one ,in part, to make a total of 19 weeks.  He ordered that to run consecutively.  In relation to the 15th charge, the false report, he ordered a sentence of 4 weeks, overlapping by a week to make 3 weeks consecutive, creating a total of 42 weeks’ imprisonment.

31.I take a different view on sentence, not a radically different one, from the magistrate.  I do not have to say that he was wrong or that I am right, it is just that I have a different view of this.  In my view, I think he was hard on the intimidation offences but light on the making a false report.  Let me start with that sentence for making a false report.  It was done knowingly.  This was not a case where someone just makes a report to the police of a crime and names no perpetrator.  This complaint specifically identified the man and is followed up by contemporaneous documents that are exhibits and which I have seen, with the Appellant urging the police to prosecute him, and with him writing to the headmasters at the school, repeating the matters complained of and urging that he be dismissed. 

32.To do that knowing that the basis of the complaint was not true is, in my view, a serious matter.  It is not the sort of case where people, as I have said, report an offence without blaming someone.  The statement of findings, when it deals with this sentence, merely talks in terms of wasting police manpower and police time.  I think that the element of mischief towards the man who was the subject of the false report may have been overlooked.

33.In my view - I know the maximum sentence for this offence is one of 6 months - this is a serious instance of its occurrence.  Accordingly, I shall alter the sentence on Charge 15 and I shall make the sentence there one of 4 months’ imprisonment.

34.It is a matter of choice how a court approaches sentencing in respect of whether the overall sentence should be concurrent on all charges which deal with the same course of conduct, or whether there should be some overlapping.  The magistrate chose overlapping.  I prefer, and find easier, the way of dealing with the matters globally.  In relation to the course of conduct which is represented by the loitering on Charges 3 to 14, I take the view that a sentence of 4 months’ imprisonment is appropriate there, concurrently of course, on each term.

35.In relation to the 1st charge, the letter that was written to the complainant, Miss Hollier, I regard 12 weeks as being hard.  I can see how the analogy with blackmail offences led the magistrate to that course, but the letter followed a difficult course between the parties in question and the actual threatening nature of the letter by itself, I do not find to be that great. 

36.Accordingly, I would not, if that 1st charge had stood alone, have passed a sentence of imprisonment.  What I am minded to do on that 1st charge is this:  I shall quash the 12 weeks’ imprisonment and I shall substitute an order of conditional discharge.  I do that because of the particular facts of the offence here, because the letter was written to someone, doubtless, to whom he had been saying similar things orally before as to how he viewed her past conduct, and it seems to me that the benefit of a conditional discharge - and it will be a conditional discharge for 3 years - means that there will be some sort of sanction on the behaviour of the Appellant in the future.  He is a man who shows not a trace of remorse for his conduct; he thinks he is right in what he has done; he thinks his behaviour justified and when that is the situation, there is a risk that, either in relation to this lady or some other lady, there might be a repetition of the conduct.  In order to seek to diminish the risk of that, I shall pass a conditional discharge on the 1st charge. 

37.Which means, Mr Pearce, I tell you this, it means there is no punishment in respect of that 1st charge now, but if within a period commencing today and lasting for 3 years, you were to commit a further crime, then you could be dealt with not only for the new crime but for this one as well.  In order to get you back to the court, I require you, on this charge, to enter into recognisance.  It will be in the sum of $2,000 - you do not have to find the money now - to be of good behaviour and to appear for sentence if called upon.  That is rather an archaic provision we have but it follows the imposition of a conditional discharge here.  Basically, it means you will hear nothing more about sentencing on that 1st charge unless you get into further trouble within 3 years from today. 

38.As regards the 2nd charge, I do regard that as more mischievous than the first one because it was addressed to Miss Hollier’s headmasters and it referred to her being a thief and to the amount of casual sex in which the Appellant claimed that she had engaged.  In those circumstances, I pass a sentence of 2 months’ imprisonment, but with a view to the totality of all that occurred, I am minded to make it concurrent with the sentences on Charges 3 through to 15.  The total therefore would be a sentence of 8 months’ imprisonment with a conditional discharge on the 1st charge.  The appeal against sentence is allowed to that extent. 

39.So from some 10½ months, the sentence is reduced to one of 8 months’ imprisonment.

Representations:

Mr Patrick Cheung, Deputy Principal Government Counsel, leading Ms Olivia Tsang, Government Counsel, of the Department of Justice, for the Respondent

Appellant, Matt James Pearce - in person