HKSAR v. Larm Tat Ming
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HCMA1123/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 1123 OF 2007 (ON APPEAL FROM KCCC 3778 OF 2007) ------------------------------ BETWEEN
------------------------------ Before : Deputy High Court Judge Longley in Court Date of Hearing : 15 January 2008 Date of Judgment : 15 January 2008 ------------------------------ J U D G M E N T ------------------------------ 1.This is an appeal by the appellant against his conviction by Mr Ronald Cheung at Kowloon City Magistrates’ Court on 23 October last year on a charge of criminal intimidation, contrary to section 24(a)(i) of the Crimes Ordinance, Cap. 200. The appellant has abandoned his appeal against sentence. 2.The charge alleged that the appellant :
3.The magistrate’s findings as to the facts that provide the background to the charge are not challenged. 4.Miss Ching Man Wa (PW1) (“Miss Ching”) was a cashier in a cyber café in Hang Hau Village in Tseung Kwan O. On 15 March 2007, there was an incident at the cyber café during which someone broke the glass door of the premises. Miss Ching saw two males run out of the café immediately afterwards. She said that one of the males had a harelip. The learned magistrate made the following findings :
5.The magistrate went on to find that the words uttered by the defendant were not what McMullin J in Lo Tong Kai v. The Queen, [1977] HKLR 193 referred to as “wild and whirling words” and did amount to a threat and were so regarded by Miss Ching, and that the threat was of injury to her person. He found that the threat uttered by the appellant was made with intent to alarm Miss Ching. 6.The sole ground of appeal is that the learned magistrate erred in law in that he failed to properly consider the defence case, namely that the appellant’s motive was a relevant factor in considering whether or not he was guilty of the charge. 7.This ground of appeal arises because the learned magistrate accepted that it was at least a reasonable possibility that the appellant had uttered the threat in the belief that Miss Ching might otherwise implicate someone as being responsible for the breaking of the glass door whom he believed to be innocent. The magistrate found that such a belief was irrelevant if the appellant had threatened injury to the person of Miss Ching. 8.Mr Boyton for the appellant has argued that the magistrate was wrong the disregard to motivation of the appellant. 9.He puts his argument in two ways :
10.Insofar as the first limb of his argument is concerned, I find no substance in such an argument, nor do I find that the judgment of McMullin J in Lo Tong Kai v. The Queen [1977] HKLR 193, cited to me by Mr Boyton lends it any support. If such a construction was accepted it would result in a position that there were situations in which the ends justified the means. I am satisfied that that was not the intention of the legislature in enacting section 24 of the Crimes Ordinance. Section 24 makes it a criminal offence for a person to threaten another person with injury to his person, reputation or property with any of the intents referred to in subparagraphs (i), (ii) or (iii). The motivation of the person making such a threat with any of such intents is irrelevant to the question of guilt. 11.If authority is needed for such a proposition, it is found in the judgment of Line DJ in HKSAR v. Pearce, Matt James, HCMA635/2006. 12.In his written submissions and argument, Mr Boyton referred to two situations where a court would be obliged to convict a defendant if the construction put forward by him was not accepted. 13.One situation was where a police officer informed an individual obstructing the highway that if he did not move he would be arrested. Another was when a parent threatened a naughty child with corporal punishment. 14.Insofar as the examples are concerned, Mr Boyton ignores the fact that the “injury” to the person, reputation or property referred to in section 24 must be a legal injury, in other words a violation or infringement of a person’s right that causes him harm and is actionable at law. The police officer and the parent in his examples would not commit an offence if the consequences that they threatened did not amount to a legal wrong. 15.Insofar as the second limb of Mr Boyton’s argument is concerned, I find it also has no substance. There is nothing to suggest that the magistrate had not taken into account all the circumstances including the defendant’s motivation, when considering whether what the appellant had said was a threat and whether it was a threat of injury to the person of Miss Ching. 16.The magistrate said this :
17.The magistrate made it clear that it was only after he had found that the appellant “did it”, in other words threatened injury to the person of Miss Ching, that he regarded motive as irrelevant for the purpose of deciding guilt. I share the view of the magistrate that it was indeed fanciful to suggest that the words which the magistrate found the appellant to have uttered were an appeal to Miss Ching’s conscience, particularly in view of the fact, as Mr Boyton accepts, that he had found that the words were uttered in an aggressive manner. 18.I dismiss the appeal.
Ms Christal Chan, SGC of the Department of Justice, for HKSAR Mr David Boyton, instructed by Messrs Littlewoods, for the Appellant |