Tang Poon-kan v. The Queen

Case No.CACC 951/1980[1980] HKLR 885

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000951/1980

IN THE HIGH COURT	Criminal Appeal
	1980, No. 951

Between
	TANG Poon-kan	Appellant
	and
	The Queen	Respondent

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Coram: Bewley, J.

Date of Judgment: 18th December, 1980

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JUDGMENT

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1. The appellant was originally charged, together with the 1st defendant, with three charges of criminal intimidation, contrary to section 24(a)(iii) of the Crimes Ordinance, Cap. 200. All the offences were alleged to have taken place at the same time and concerned the same victim.

2. At the close of the prosecution case the learned magistrate held no case to answer in respect of charges A and B. Instead of dismissing these charges, however, he purported to amend them, pursuant to section 27 of the Magistrates Ordinance, to one charge of common assault. I have examined the original record and note that no amendment was actually made. Nor was the new charge read and explained to the defendants, as enjoined by section 27(2). Counsel for the defendants merely informed the Court that his clients denied the charge of common assault.

3. It appears, therefore, that both defendants were put upon their defence on one charge of common assault and one charge of criminal intimidation. Having heard their evidence, the learned magistrate found the defendants guilty and convicted them on both charges.

4. Both defendants appealed against conviction on the criminal intimidation charge. At the 11th hour notice of motion was filed, seeking leave to appeal against the assault conviction also. When the appeal came on for hearing, the appellant LO Chun-yuen (1st defendant) was absent and counsel informed the Court that he wished to withdraw his appeal.

5. The case concerns a triad protection racket on a public light bus route in Kowloon. The police suspected that triads were controlling minibuses plying between Sai Yeung Choi Street and Oi Man Estate.

6. To find out more about it, the police cast DC1780 in the role of public light bus driver, with DC1528 in support as a 'passenger'. Their first journey was from Sai Yeung Choi Street to Oi Man Estate at 5.10 p.m. on the 29th April this year.

7. On arrival, DC1528 alighted and DC1780 picked up a new load of passengers. The officers noticed that a youth, aged about 17, was paying particular attention to the minibus, but nothing was said.

8. DC1780 drove back to Sai Yeung Choi Street, where he was approached by someone, who told him that, if he wanted to work on this route, he would have to get the permission of a man in Parkes Street called LING Chan-ping. DC1780 said nothing, collected his passengers and returned to Oi Man Estate.

9. This time, according to the officers, the appellant drew up alongside in his minibus and told DC1780 that this route belonged to LING Chan-ping. DC1780 had noticed this vehicle arrive at the terminus and had seen the same 17 year old youth go up and say something to the driver. DC1780 explained to the appellant that he was prepared to obey the rules, but he was told that more drivers would mean reduced income for those already plying the route.

10. Another minibus stopped alongside and the driver, who was 1st defendant, spoke to the appellant and then alighted. He approached DC1780 and told him that, if he did not go away, he would have to surrender his takings. DC1780 repeated that he would obey the regulations, but 1st defendant said there could be no discussion and hit the side of the vehicle with his fist. At this point, the passengers that had already boarded the minibus, including DC1528, were ordered to alight.

11. 1st defendant and the appellant had a short discussion. DC1780 could not hear what was said, but DC1528 heard the appellant say: "Take the route plate and tear it up." The two men returned to the minibus and 1st defendant told DC1780 to destroy his route plate. The DC refused and 1st defendant said he would not be allowed to leave unless he obeyed: he began to count aloud. In fact the minibus was hemmed in by two other minibuses and DC1780 was unable to move his vehicle.

12. Then 1st defendant told him to alight and again struck the bus door with his fist. He was very angry. Eventually, seeing no way out of the impasse, DC1780 handed over the route plate. However, 1st defendant refused to take it and told the DC to destroy it himself. He refused and 1st defendant again began to count aloud. As the DC showed no sign of complying with the order, 1st defendant opened the driver's door and began to pull the DC out of the vehicle. At this point the watching police officers intervened and arrested the two men.

13. Both defendants gave evidence. 1st defendant denied that the DC was told to destroy the route plate, or that he banged on the door. He admitted that he had asked the driver to leave because he was causing obstruction.

14. The appellant maintained that he told DC1780, when he asked, that he might work there if he wished. He also told him that he worked for LING Chan-ping. He denied that any threat to take away his earnings was made, or that 1st defendant had dragged the DC out of the driver's seat. The reason he alighted from his minibus was that he had no space to park. The only thing he had said to 1st defendant was that there was a new foki on the route.

15. The particulars of the intimidation charge alleged that the defendants "did threaten CHOY Yam-chung with injury to his person, with intent to cause the said CHOY Yam-chung to destroy the plastic route plate, an act which he was not legally bound to do."

16. The learned magistrate found as a fact that:

	(1)	The defendants approached DC1780 and asked him to cease driving on the route;
	(2)	1st defendant hit the minibus and told him that unless he quit he would have to surrender his earnings;
	(3)	Both defendants ordered the passengers to alight;
	(4)	1st defendant told the DC to destroy the route plate; and
	(5)	1st defendant again hit the door and opened it, intending to pull the DC out.

17. In making these findings, the learned magistrate records that he found both police officers to be truthful witnesses. He sets out the defence case, but concludes that the actions of both defendants amounted to threats of violence against DC1780. He does not, however, say why he disbelieved their evidence. This is one of the things about which Miss Tam, who appears for the appellant, complains. In this regard I respectfully adopt the test stated by McMullin, J. in Yeung Chiu v. R.⁽¹⁾:

"Certainly, there are cases in which the body of evidence led on behalf of the prosecution and the body of evidence led on behalf of the defence are each of them so simple and straight-forward and so succinct and within such a short and clear compass that the magistrate can virtually do no more than recite the evidence and then say that he believes one set of witnesses rather than another. Beyond such a simple case I think it may be said that there are cases, somewhat more complicated than that, in which nevertheless the failure of the judge or a magistrate to assign reasons for rejecting one body of evidence rather than another may not necessarily be fatal, since it may be evident, from what has been recited of the evidence, that such discrepancies or incoherences as exist in the story which he eventually does accept are of minor nature and therefore too trivial to have disturbed the judgment of a reasonable magistrate. But where the body of evidence upon which the Crown relies in a criminal case shows on the face of it, difficulties and incoherences of a substantial sort then I think in any such case it must always be the duty of a magistrate or a judge, in giving reasons for deciding which body of testimony he believes to discuss these difficulties and to give some reasonable indication of the manner in which he has disposed of them."

18. This was a straight-forward issue of credibility. The discrepancies in the evidence of the two detectives are so few in number and trivial in nature that I do not think the magistrate can be critized for stating in bald terms that he believed their evidence. It follows that he disbelieved the defendants' story that they were concerned only with the problem of obstruction.

19. Miss Tam submits that the magistrate has failed to distinguish the evidence against the 1st defendant from that involving the appellant. She points out that the concern of the latter throughout was the destruction of the route plate. By his actions, 1st defendant may have caused apprehension of personal injury to DC1780, but the appellant was merely standing by and in no way associated himself with 1st defendant's behaviour.

20. However, the evidence shows that the two men were acting in concert over a period of several minutes. They consulted privately with each other on two occasions. There is also evidence from DC1528 that both defendants were angry. The prime concern of both was obviously to prevent this driver from operating further on the route. 1st defendant took the leading part in the business and there is no doubt that his behaviour amounted to intimidation. This is not disputed by Miss Tam. The banging on the door and the threat to take away prior earnings both implied a threat of personal violence, which was manifested when 1st defendant finally laid hands on DC1780.

21. The crucial factor is the deliberate support and encouragement given to 1st defendant by the appellant. He was present throughout, which was no accident. At no stage did he interfere, or make any attempt to restrain 1st defendant. On the contrary, he clearly identified himself with 1st defendant's actions. Such behaviour amounts to aiding and abetting. R. v. Clarkson.⁽²⁾ Both men were properly convicted of criminal intimidation and the appeal on this charge is dismissed.

22. It is unnecessary to determine whether the appellant was also aiding and abetting 1st defendant on the charge of common assault, because I have decided that, for other reasons, this conviction cannot stand.

23. Counsel for the appellant does not challenge the magistrate's decision to amend and I think it was open to him to take this course. The manner in which he proceeded, however, leaves something to be desired. Not only should he have caused to be written down the new statement of offence and the parti-culars, the latter should have been read to the defendants and a fresh plea taken. It is not enough for defence counsel to indicate that the new charge is denied.

24. Section 27(2) reads:

"Whenever in the opinion of the magistrate there is a defect of substance or there has been any such variance as aforesaid he shall make the necessary amendment in the complaint, information or summons and shall read and explain the same to the defendant."

25. In Chan Kam-chau and another, v. R.⁽³⁾ the appellants pleaded guilty to a number of robbery charges in the Magistrates Court and were committed to the Supreme Court for sentence. The magistrate, before he accepted the pleas of guilty, failed to record that the offences and the ingredients, which at law constitute them, were explained to the defendants as is, inter alia, required by section 81B(3)(c) of the Magistrates Ordinance. It was held by the Court of Appeal that such a breach of a statutory condition invalidated the committals.

26. In IP Chiu and another, v. R.⁽⁴⁾ the Court of Appeal held that in the circumstances of the case, where the amendments were of a minor nature, it was not necessary to read and explain the amended information to the defendants. Huggins J.A. pointed out that section 27(2) was intended to relate to cases where the amendment results in a material alteration of the offence charged. The substitution of a charge of common assault for one of criminal intimidation is clearly a material alteration of the offence.

27. The Court in IP Chiu approved the quashing of the conviction by McMullin J. in Yeung Chiu v. R.,⁽⁵⁾ in which amended particulars had not been put to the defendant. The amendment involved the deletion from the particulars of offence of the words 'in the company of persons not in custody'.

28. On these authorities, a fortiori, the failure to comply with the sub-section must be fatal to the conviction for common assault. In the circum-stances I do not propose the remit the matter for retrial. The appeal is allowed and the conviction quashed.