HKSAR v. Keung Hang Yee, Hannie

HCMA 42/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 42 OF 2008

(ON APPEAL FROM ESCC 1208 OF 2007)

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BETWEEN

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Before: Hon McMahon J in Court

Date of Hearing: 25 November 2008

Date of Judgment: 9 December 2008

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J U D G M E N T

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1.The appellant was convicted at Eastern Magistracy after a trial before Mr Joseph To of making persistent telephone calls without reasonable excuse and for the purpose of annoyance, contrary to section 20(c) of the Summary Offences Ordinance, Cap. 228.  She was fined $1,500 and now appeals her conviction. 

2.The prosecution case was that the appellant, a serving female senior inspector in the Hong Kong Police Force, over the period 9 to 16 December 2006 made 31 landline telephone calls to the landline of the complainant, most of those calls being in the early hours of the morning.  The two most prolific occasions were 9 December and 11 December, on each of which occasions 11 telephone calls were made, separated by only a few minutes.  

3.The complainant had earlier been to the police and complained of nuisance calls in October 2006 and, as a result of that, call tracing equipment had been installed on the complainant’s telephone so that during the period 9 to 16 December the calls received by the complainant’s landline were recorded.  Those recorded calls were, so far as they were relevant, found to have originated from the appellant’s landline.  It is worth noting at this stage that the recording device attached to the complainant’s telephone only recorded incoming calls.  It did not record outgoing calls, i.e. calls made by the complainant.  

4.None of this was in dispute.  The defence case was simply that the appellant was returning calls made to her telephone by the complainant, and in particular that the appellant simply wanted to find out why the complainant was making the calls and warn her of the trouble she would be in if she persisted. 

5.The history of the matter was unusual.  The complainant had been convicted of precisely the same offence of making persistent telephone calls in 2004 and the victim of that offence was the present appellant.  The complainant, who admitted that offence, had been sentenced to a term of imprisonment which was ordered to be suspended for three years.  Accordingly the present alleged offence occurred during the period of suspension of the complainant’s sentence. 

6.The prosecution did not put forward any motive for the appellant persistently telephoning the complainant, but the magistrate noted :

“39.  Motive often belongs to the realm of the unknown and the unknowable.  Common law never insists on positive proof of a motive, but asks that the intention, when an offender is said to have committed an offence, must be proved beyond all reasonable doubt.  In the context of this case, I have considered the lack of evidence of motive on the appellant’s part.  But I have also noticed the background of the case, one that involved a love affair with Mr Tse.  I do not consider there is any substance in the defence submission about the lack of motive, at least not such as would have any effect on my findings on the primary facts.”

7.The “Mr Tse” referred to had at one time been the boyfriend of the complainant, and subsequently the appellant, and it seems that had been the reason the complainant had made the telephone calls to the appellant which had resulted in her 2004 conviction. 

8.Nevertheless it seems to me, as it apparently appeared to the magistrate, that this relationship does not easily ascribe a motive to the appellant, she having acquired Mr Tse from the complainant.  In any event these matters occurred more than two years earlier and would seem to provide little motive for the appellant to suddenly wish to annoy the complainant in 2006.  

9.Mr Macrae for the appellant advances grounds of appeal which rely upon claimed logical inconsistencies in the magistrate’s stated findings.  It is suggested that the magistrate, by his findings, must have accepted that the appellant was in fact, when making the charged telephone calls, replying to calls made to her telephone by the complainant and, that being so, there must have been a doubt as to the conviction if only for the reason that the appellant may have had a reasonable excuse for making the calls.  A large part of Mr Macrae’s argument in this regard depends upon an interpretation of what the magistrate meant by those findings.  

10.The foundation of Mr Macrae’s argument is that, after finding the complainant to be a truthful and reliable witness in her evidence to the effect that the calls from the appellant had been unsolicited and not in reply to any calls she had made to the appellant’s telephone, the magistrate then went on to suggest in his findings that he accepted that the complainant had in fact telephoned the appellant and that the appellant called her back in reply. 

11.The magistrate said this :

“34.  As to the appellant, I bear in mind the fact of her clear record and the fact that she is a serving police officer, but I do not accept her as an honest and reliable witness.  She knew the caller was the complainant as early as mid-2006.  She knew the complainant had a suspended sentence hanging over her.  She explained she called the complainant in response only, to find out what had gone wrong and to warn her.  And when the complainant scolded her on the telephone, she did not, she said, have a chance even to talk.

35.  I find this contrary to common sense, and rule that the appellant could have raised this issue of the complainant’s suspended sentence and threatened to make a report to the police officer during those telephone calls she received.  There might be some cross-talking over the phone, but there is no reason why those very important matters could not have been uttered to the complainant.  In any event, there was no evidence from the appellant that she had ever done so or tried to do so during those earlier calls.  Common sense dictates that those matters could have been uttered, by yelling louder, even, and there was absolutely no necessity at all to call the complainant to find out what had gone wrong and to warn her, and certainly no need at all to do so repeatedly realising, as the appellant herself said in evidence, that the complainant did not want a dialogue with her.  I reject the appellant’s explanation given in the record of interview and in her evidence before me about the reason why she called back. 

36.  Even though I do not believe the appellant, that does not necessarily mean that she is guilty. …” [Emphasis added]

12.I have set out in full the magistrate’s findings in this regard so as to provide the context of what he said.  Those parts of the findings relied upon to most cogently suggest that the magistrate accepted the possibility that the complainant had called the appellant before the appellant “called back” have been emphasised. 

13.However it seems to me that, while the structure of the magistrate’s findings might be criticised, his meaning is sufficiently plain.  The magistrate was simply proceeding on the basis that, regarding the appellant’s evidence, there were fundamental implausibilities within it which made no sense.  To demonstrate those implausibilities the magistrate set out the appellant’s case in full.  There can be no real merit in the suggestion that, by setting out the appellant’s case in the way he did, simply to point out those difficulties within it, the magistrate in any way accepted that the appellant was replying to the complainant’s telephone calls.  There was no substance in this criticism. 

14.Mr Macrae’s next ground is more compelling.  It is fundamentally that, given the history between the appellant and the complainant, the conviction is unsafe. 

15.I must say I agree.  It concerns me that there was no record of any outgoing telephone calls made by the complainant.  In saying that I do not criticize the investigators.  In a case of this sort there would normally be no reason to record outgoing calls, and it may be that the appellant’s experience as a police officer allowed her to know that this would be so and to put forward her defence accordingly; but I note that she put forward her defence not only at trial but also at her police interview. 

16.Her apparent lack of motive is also a concern.  I do not see why, some two years after the complainant’s 2004 offence the appellant would commence to telephone the complainant so as to annoy her, regardless of the fact that the complainant had at one stage been involved with the appellant’s boyfriend. 

17.Of more concern perhaps is another aspect of the evidence.  What was referred to in evidence as the appellant’s “greeting message” was found recorded in the complainant’s voice mail account.  In other words an answering message from an unsuccessful attempt to contact the appellant by telephone was recorded in the complainant’s voice mail.  While that seems an unusual occurrence in the sense that it requires an answering message to be forwarded to voice mail, it could suggest that an attempt had been made by the complainant to contact the appellant.  The magistrate, after noting that this was a matter the complainant was not in a position to explain, concluded that “telephone systems could play up”.  There was no evidential explanation of how this may have come about. 

18.I note also the number of persistent telephone calls on days other than 9 and 11 December were relatively few, a matter of 2 to 3 calls on each occasion.  The issue reduces essentially to whether it was possible that the appellant could have had a reasonable excuse in making those calls, totaling 11 on each occasion, on 9 and 11 December 2006.  

19.The magistrate was of the view that 11 calls from the appellant’s telephone to that of the complainant on 9 December (most of which were after 9:00 a.m.) combined with a further 11 calls on 11 December (all of which on this occasion occurred between 4:00 a.m. and 4:27 a.m.) could not have been made for any reasonable cause and must have been made for the purpose of annoyance.  On the face of it that is a reasoned and sustainable finding. 

20.This appeal however is a rehearing : see Chou Shih Bin v. HKSAR [2005] 1 HKLRD 838 at 844 per Bokhary PJ and I must say that taking into account the unusual history of this matter; the prior convictions of the complainant (she being convicted in 2004 of criminal damage as well as the offence of making persistent telephone calls); the appellant’s answering message being found in the complainant’s voice mail in conjunction with the appellant’s defence that she was replying to persistent phone calls made by the complainant, and the apparent lack of motive by the appellant to make the charged telephone calls simply for the reason, in 2006, of annoying the complainant, leaves me with a doubt as to whether the prosecution evidence was sufficient for a safe conviction.  

21.I say this acknowledging that the magistrate’s findings were reasoned and that he had the advantage of assessing the credibility of both witnesses, i.e. the complainant and the appellant, in his courtroom.  

22.Nevertheless on the materials before me I find that there is a doubt as to why the appellant made the charged telephone calls and order that her conviction be quashed.  

Ms Vinci Lam, SPP of the Department of Justice, for HKSAR

Mr Andrew Macrae, SC and Mr David Khosa, instructed by Messrs Tang, Lai & Leung, for the Appellant