Chan Chi-kwong v. The Queen

CACC001144/1977

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Coram: Leonard, J.

Date of Judgment: 2nd December, 1977.

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JUDGMENT

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1. This was an appeal from a conviction of criminal intimidation contrary to section 24(a)(iii) of the Crimes Ordinance the relevant provisions of which section read:

"Any person who threatens any other person

shall be guilty of an offence."

I should say straight away that I am unable to see how one can have the intent specified in (iii) without having the intent specified in (i) in an aggravated form. In its ordinary connotation the word "alarm", derived as it is from the notion of a call to arms, means to arouse to a state of preparedness or, in more modern parlance, to increase the flow of adrenalin. That this is its meaning is evident to me when I remember that the Satanic time piece used to wake me to my early studies and sold in such appalling numbers by Mr. Ingersoll was called an "alarm clock". The concept of alarm may, of course, have many degrees from calm readiness to repulse attack to immobilizing fear. Therefore I should regard it as the intention of the Legislature to create an offence under section 24(a)(i) if the person making the threat of bodily injury does so with the intention that it shall be taken seriously rather than as an empty threat. As to section 24(a)(iii) the intention of the Legislature would appear to be to have been to create an offence where the utterer of the threat intends it to be taken so seriously as to inhibit action. I appreciate that this is to ignore the probable effect of the threat on a "firm man" with which some of the Indian authorities on section 503 of the Indian Penal Code appear to have concerned themselves but it appears to me that one should look to that probable effect to ascertain whether in the mind of the utterer the words used were, in the words quoted by McMullin, J. in LO Tong-kai v. The Queen (Criminal Appeal No. 178 of 1977), "wild and whirling words" signifying, as he put it, "nothing more than an instinctive outburst of spleen". What, however, I am concerned to point out here is that a threat of bodily injury uttered with the intention of inhibiting action can have the desired effect only by causing fear - an advanced state of alarm - and any reasonable person will realise that so that the utterer of a threat must intend alarm if he intends to inhibit action. It is alarm which is the inhibiting agent and can be nothing else.

2. This is of some importance in view of the facts of this case and the findings of the learned magistrate. The appellant was originally charged with two charges, the one of disorderly conduct and the other of criminal intimidation. These charges arose out of a hawker fracas which developed in Argyle Street/Tung Choi Street. It was of a type that is all too frequent. The police were arresting the appellant's partner for a hawking offence when the principal witness for the Crown, who was on patrol and not on hawker duty, noticed the appellant shouting abuse at the hawker squad and intervened as a crowd was gathering and a traffic jam developing. The disturbance of the peace was added to by the appellant leading the crowd in chanting derision at the hawker squad. The police witness asked him to desist and when he refused arrested him for disorderly conduct whereupon the appellant said "If you arrest me I will stab you to death when you are off duty". Counsel for the appellant must have been at his most persuasive for the learned magistrate acquitted the appellant on the charge of disorderly conduct (apparently on the basis that what had occurred did not amount to disorderly conduct). Furthermore the learned magistrate appears to have been in doubt as to whether what the appellant said was said with intent to cause alarm or was just "gutter abuse" for with the consent of counsel for the Crown, counsel for the appellant read to me his note of what the learned magistrate said from which it appeared that he did not regard intention to cause alarm as proved. This may have been a matter of semantics for indeed Crown counsel in argument before me suggested that "alarm" was not inclusive of "fear". Fear he suggested might be regarded as something which fell short of "alarm". I do not think this is correct for the reasons I have already given.

3. Be that as it may, the learned magistrate took the unusual course of finding the appellant guilty of an offence under section 24(a)(iii) rather than that of which he was charged.

4. This he did without reference to the appellant. He had this to say in his statement of findings:

"On the 'B' charge I was quite satisfied that the defendant did threaten to stab P.W. 1 when he would be off duty and that his intent in making this threat was to cause him to omit to do an act which he was legally entitled to do i.e. to arrest a person whom he believed was committing an arrestable offence. I convicted accordingly, under section 24(a)(iii) of Cap. 200 and not under section 24(a)(i) as charged. This seemed to me to be the more appropriate subsection of section 24 although no doubt it could be said that the evidence also justified a conviction under subsection (i). However, having regard to the mandatory provisions of section 27 of the Magistrates Ordinance, Cap. 227 I felt I should make this slight alteration. It made absolutely no difference to the defendant's defence."

5. The grounds of appeal with which I am concerned are grounds 1 and 4. These read:

"The conviction of threatening Police Constable 17299 with intent to cause him to omit to do an act which he was legally entitled to do is unsafe and unsatisfactory having regard to the facts

4. Having found that there was a case to answer on the offence charged, namely of threatening P.C. 17299 with intent to cause alarm, the learned magistrate convicted of another offence which had not been charged and which was never at any time road or explained to the Defendant, namely the offence of threatening P.C. 17299 with an intent to cause him to omit to do an act which he was legally entitled to do."

The learned magistrate appears to have failed to appreciate the mandatory provisions of section 27(3) which reads:

"(3) ln every case falling within the preceding subsection parties shall be allowed to recall and examine on matters relevant to such amendment any witness who may have been examined and to call any further witness:

Provided that if the amendment under subsection (2) is made after the case for the complainant or informant is closed no further witness may be called by the complainant or informant other than such and on such matters only as it would, notwithstanding the provisions of this section, be permissible to call and put in evidence in rebuttal."

The final sentence of his statement of findings reads:

"It" (i. e. the conviction under section 24(a)(iii) rather than section 24(a)(i)) "made absolutely no difference to the defendant's defence."

The appellant may well have lied in his defence in that he alleged a conspiracy between police officers improperly to arrest him and alleged that the threat he used, if it merited that name, was "If you always arrest us all the time, it won't be good for you." The question, however, is not whether an amendment makes any difference to a defence but whether it might have made a difference to the approach by the defence to the case for the prosecution or to the arguments. This alteration was made after the close of the case for the defence and indeed after all argument had been completed.

6. It is important to bear in mind that the learned magistrate was not satisfied of conduct likely to cause a breach of the peace nor apparently was he satisfied of the intent of the appellant to "alarm". The later finding may, as I have said, be a matter of semantics; he may have regarded "intent to alarm" as more serious than "intent to cause fear"; indeed, unless he did, the eventual conviction was manifestly illogical.

7. Taking all the circumstances into account and most importantly that additional cross-examination and argument might have resulted had the learned magistrate complied with section 27(3) of the Magistrates Ordinance I am persuaded that this conviction is unsafe and unsatisfactory and allow the appeal.

Representation:

A. Huggins (T.Y.Lee & Co.) for Appellant

Kitson, C.C. for Crown/Respondent