HKSAR v. Yau, Pik Yeung

HCMA 884/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 884 OF 2009

(ON APPEAL FROM TMCC NO. 3287/2009)

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BETWEEN

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Before: Hon Mackintosh J in Court

Date of Hearing: 8 January 2010

Date of Judgment: 8 January 2010

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J U D G M E N T

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1.This is my judgment in this appeal. The appellant was convicted by Mr Stephen Smout at Tuen Mun Magistracy of two offences of criminal intimidation, contrary to section 24(a)(i) of the Crimes Ordinance, Cap. 200 and the magistrate imposed a hospital order in respect of each offence under section 45 of the Mental Health Ordinance, Cap. 136. The appellant today appeals against his convictions.

2.He was unrepresented at trial but Legal Aid has been granted to the appellant and counsel, Mr Jacky Jim, has been instructed to represent the appellant, largely to look after his interests today; but as Mr Jim has informed me, he accepts that there are no grounds of appeal that can properly be argued; and therefore I have heard from the appellant directly in support of his appeal.

3.These charges arose from events in the earlier hours of 4 September 2009 in Shui Tsiu San Tsuen near Yuen Long. The complainant in the first charge that was PW1 heard noises at about 3 am and went outside his house. He there saw the appellant holding a knife, which PW1 said the appellant raised up and pointed at him. The appellant did not speak but PW1 was scared: he believed from the appellant’s conduct that he intended to chop him; and so PW1 ran off.

4.Later PW2, another villager, confronted the appellant at the playground and the appellant raised the knife, pointed it at PW2 and said, “If I had not grown up with you, I would chop you to death”. PW2 raised up a chair to fend him off and the appellant then left the scene and went home.

5.The police were called. They went to the appellant’s home and found the knife lying outside. They spoke to the appellant who said that he only went to the playground to pick up things for sale.

6.The appellant denied the charges when he was brought before the magistrate and cross-examined the complainants, challenging what they said. He testified and said that he was a scavenger and that he was out picking from rubbish bins. He said that when he was challenged by PW1, he scolded him. He said that he had picked up the knife several days before at a rubbish dump and he said that PW1 had attacked him with a bamboo stick. That was something that PW1 denied. The appellant said that he was angry but he did not attack PW1 or threaten him. He said that when he spoke to PW2, the knife was pointing downwards. He denied, in effect, making the threat that PW2 alleged.

7.The magistrate saw the witnesses, including the appellant himself, and considered what had been said by all involved. He accepted the testimony of the prosecution witnesses PW1 and 2 and said that he was sure that they were honest witnesses who could be believed. He rejected the testimony of the appellant and in particular his reason for having the knife with him at that time, which the magistrate said was not a credible explanation. He disbelieved the explanation of the appellant that he picked the knife up a few days before and that he took it out with him at the material time, hoping to sell it. This was 3 o’clock in the morning and the magistrate considered that the explanation was unbelievable.

8.The magistrate further found that the descriptions of the events given by the prosecution witnesses were true and the appellant’s actions and words, used towards the witnesses, were threats to cause injury.

9.On the evidence, the inference is irresistible that the appellant intended to alarm the complainants and did alarm them.

10.Today, the appellant repeats the gist of his defence to these charges. He says he is innocent of these allegations. He refers to various matters, including how he supports himself without recourse to CSSA; and he maintains that he was attacked first and that he has been wrongly convicted.

11.Of course, the magistrate has been able to see and hear the witnesses during the course of the trial; and, in my judgment, he was entitled, on the evidence that was presented to him in the course of that trial, to come to the conclusion he did. He rejected the appellant’s account, he accepted the honesty of the witnesses and was thereafter bound to come to the conclusion that the charges against the appellant had been properly proved.

12.There is nothing on the material before me, or in what the appellant has said, that raises any basis to doubt the correctness of the magistrate's decision to convict the appellant. As a result, I must dismiss this appeal against the convictions. There is no appeal against the order subsequently imposed, admitting the appellant to a hospital for treatment, and therefore the order will stand.

Ms June Cheung, SPP, for the Director of Public Prosecutions, for the Respondent, HKSAR

Mr JIM, Chun Ki Jacky, assigned by the Director of Legal Aid, for the Appellant