HKSAR v. Bass, Christopher J

HCMA185/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 185 OF 2011

(ON APPEAL FROM TWCC 3558 OF 2010)

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BETWEEN

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Before : Deputy High Court Judge P. Li in Court

Date of Hearing : 28 September 2011

Date of Judgment : 11 and 30 November 2011

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JUDGMENT

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1.The appellant was convicted after trial of one count of criminal intimidation.[1] The charge was that on 8/3/2010, the appellant threatened to injure the reputation of Wong Yuk-wah (PW1) and with intent to cause alarm to her. He was sentenced to 2 months’ imprisonment. He appeals against the conviction and sentence.

2.The prosecution alleged that the appellant had sent an e-mail[2] to PW1 on 8/3/2010. It was sent from the account “relativeusa @ yahoo.com”.  In the e-mail, the appellant accused PW1 of denying him the 15% commission in their business.  He stressed that he could destroy PW1’s reputation and take everything away from her.  He demanded a sum of money[3] or else he would kill PW1’s business.  

3.PW1 gave evidence that the appellant sent her an e-mail demanding money to set up an Internet café, if she did not give, he would defame her and her company.  She confirmed that she received Exhibit P1.  It was sent through one of the appellant’s e-mail accounts.  She was very disturbed and frightened.[4] 

4.The record of interview[5] was ruled admissible during the trial. There were five attachments to this record of interview as follows:

a.  An e-mail dated 18/10/2007 (attachment 1),

b.  An e-mail dated 15/1/2010 (attachment 2),

c.  An e-mail dated 8/3/2010 (attachment 3, also separately marked as Exh. P1),

d.  An e-mail dated 22/3/2010 (attachment 4),

e.  Five photos of PW1 (attachment 5)

5.The appellant admitted under caution that “relativeusa @ yahoo.com” was his e-mail account.  He communicated with PW1 through her account “sarina @ sharp-china.com”.  He admitted sending attachment 1 to PW1.  However, he had no explanation on attachment 2 and 3 (Exh. P1).  He also admitted sending attachment 4 to PW1.  He admitted that he had posted the company affairs on “scambusters.com”.  He also admitted sending attachment 5 to PW1.  This attachment contained four photographs which depicted sexual acts between him and PW1. 

6.The appellant did not give evidence on the general issues in the trial. 

7.Having considered the admissions in the record of interview, the Deputy Magistrate was sure that Exhibit P1 was a threat to the reputation of PW1.  He further held that the appellant did so with intent to cause alarm to PW1[6].

Grounds of appeal against conviction

8.Counsel for the appellant raised five grounds of appeal.  In gist, counsel criticized the Deputy Magistrate that he erroneously used Exhibit P1 which was ruled hearsay in nature and inadmissible.  Further, Counsel pointed out that those admissions in the record of interview related to attachment 4 and 5 only.  They were acts done after Exhibit P1 was sent out.  They were not within the scope of the charge which only covered the e-mail sent on 8/3/2010 (Exhibit P1).  

The first ground of appeal

9.Counsel pointed out that the Deputy Magistrate found that Exhibit P1 was inadmissible.  Counsel relied on paragraph 4 of the statement of findings[7].  It is necessary to quote in full the relevant part of paragraph 4. 

“The printout of this e-mail was later produced by PW1 as an exhibit with the defence confirming it had no objection to its production as Exhibit P1. I found, however, that this document and PW1’s evidence on the content of the e-mail was hearsay as it failed to comply with the Evidence Ordinance, section 22A.”

10.Section 22A of the Evidence Ordinance provides that a statement contained in a document produced by a computer shall be admissible in any criminal proceedings as prima facie evidence of any facts stated in the statement.  This section overcomes the hearsay nature of the content of a document produced from a computer database provided that the conditions in subsection 2 are satisfied. 

11.The Deputy Magistrate did not rule Exhibit P1 inadmissible because of section 22A.  He only warned himself that it would be hearsay to rely on the truth of its content.  

12.In my view, the admissibility of Exhibit P1 does not depend on section 22A.  It could be produced as a real exhibit in conjunction with the oral evidence of PW1.  According to PW1, she received this e-mail on 8/3/2010 from the appellant.  She gave a summary of the content of the e-mail and identified the printout of the e-mail in court[8].  In other words, it was a confirmation of what PW1 saw on the screen of her computer.  There is nothing objectionable for Exhibit P1 to be produced by PW1.  Certainly, if the prosecution was to rely on the truth of the content, it would still be hearsay. 

13.There was also evidence from the computer expert, PW3.  According to her forensic analysis, in the hard disc of a computer seized from the appellant, an e-mail was sent from “relativeusa @ yahoo.com” to “sarina @ sharp-china.com” at 12:52 p.m. on 8/3/2010 with the subject [!! SPAM].  All this header information conformed with that of Exhibit P1.  The only reasonable inference was that Exhibit P1 was sent by the appellant[9]. 

14.The Deputy Magistrate could have relied on what was said in Exh. P1.  This ground of appeal fails. 

The second and third grounds of appeal

15.I can deal with these two grounds together as they are part and parcel of the same argument.  Counsel argued that as Exhibit P1 was inadmissible, the Deputy Magistrate could only rely on the record of interview.  In the record, the appellant offered no explanation to attachment 3, i.e., Exhibit P1.  Counsel therefore argued that there was not sufficient evidence to infer that there was any threat.

16.As I have stated above in paragraphs 9-13, Exhibit P1 was admissible as real evidence.  The Deputy Magistrate was entitled to consider what was said in it to determine whether there was any threat and decide whether there was an intent to alarm.  These two grounds must fail. 

The fourth ground of appeal

17.Counsel argued that the Deputy Magistrate wrongly used attachments 4 and 5 as the basis of drawing inference.  Attachment 4 was an e-mail sent on 22/3/2010.  Attachment 5 contained photographs sent to PW1 on 12/5/2010.  Both were after the sending of Exhibit P1.  Counsel argued that they should not be used as the basis for drawing inference on the intention of the appellant as of 8/3/2010, the date of the offence. 

18.Although attachment 4 and 5 were sent after 8/3/2010, they were conduct which confirmed the threat in the e-mail on 8/3/2010.  In deciding whether there was a threat and intent to cause alarm, the whole course of conduct of the appellant was relevant. 

19.To appreciate the link between Exhibit P1, attachment 4 and attachment 5, it is necessary to quote part of the content as follows:

a. In Exhibit P1, the appellant said,

“…..You said I would get commissions for every company I brought to Sharp China……Instead you screwed me out of any commission giving them to your brothers and yourself……You use me and my image to help build a business for your family. It had nothing to do with building it for you and I……Again business is slipping away from you. Your sales are dropping. I WONDER WHY lololo! Have you read the internet yet? Just as I helped to build your reputation, I can destroy it and thus take everything away from your family by imposing a boycott on Sharp China. Is that what you want?......I am writing it up in a story for television. I will sell and let it be known that it is a true story. I imagine that you will become famous. Your bigamist husband will be famous too……I want residence in Hong Kong and that is what I am after now. If you refuse I simply KILL your business.” (my emphasis)

b. The demand mentioned above was consistent with the oral evidence of PW1.

c. In attachment 4, an e-mail sent on 22/3/2010, the appellant said this,

“If I can’t get voluntary help from you to get a business going in Hong Kong so I can stay here, I will destroy Sharp China and all that is with it……My advertising brought you business and you did not give me shit for it as you promised. As you said you are a very good liar. I am posting on the internet that Sharp China is a lie and does NOT do American quality work and tell where the buttons actually come from and post pictures of an almost empty factory in China, the actual building in Cham Ping. Just why do you think I took so many pictures? I needed proof. Do you want to buy videos of Wing On or pictures of her when she is small? Or pictures of you and your husbands? I need money to either open another learning center or an Internet café. All I got from you were lies. Time to pay up or lose everything.” (my emphasis)

d. In relation to attachment 4, the appellant admitted in the record of interview that he had put some company information on the website, “scambusters.com”.[10]

e. According to the forensic analysis of the appellant’s computer by PW3, an e-mail was sent to PW1 from the appellant using his account “mrchris002 @ yahoo.com” to “sarina @ sharp-china.com” at 12:37 pm, on 22/3/2010.  All the header information tallied with that of attachment 4.[11]  This e-mail was sent by the appellant. 

f. The appellant had posted the company information on the Internet.  This conduct was consistent with what he said to destroy PW1’s business—Sharp China.[12]

g. In relation to attachment 5, the appellant admitted sending the photographs on 12/5/2010 in the record of interview.[13]

h. According to the forensic analysis of the appellant’s computer by PW3, an e-mail was sent from the appellant to PW1 with 4 photos attached on 12/5/2010, at 10:55 am.  

i. This conduct was a clear indication that the appellant was going to damage the reputation of PW1.  

20.From the above, taking into consideration the whole course of conduct, the oral evidence of PW1 and the content in Exhibit P1, attachment 4 and 5, the only reasonable inference was that as of 8/3/2010, the appellant threatened PW1 with intent to alarm her. 

21.Although the Deputy Magistrate had not relied on Exhibit P1, he must have considered the oral evidence of PW1 in coming to his decision.  In my view, there was ample evidence for the Deputy Magistrate to draw the irresistible inference as he did.  

22.This ground must fail. 

The fifth ground of appeal

23.Counsel repeated that there was insufficient evidence in the record of interview to justify the finding of the Deputy Magistrate.  I have already dealt with this in the discussion above.  This ground fails.

Conclusion

24.Base on the above, I dismiss the appeal against conviction.  

Appeal against sentence

25.Counsel argued that the sentence of two months imprisonment was manifestly excessive given the background of the appellant. Counsel pleaded for a suspended sentence. 

26.In sentencing, the Deputy Magistrate stressed that the appellant threatened to upload the details of PW1’s company to Scambust website.  This was a serious threat to PW1’s reputation.  However, he did not sentence the appellant based on the photographs.  The Deputy Magistrate took a starting point of 3 months’ imprisonment.  He deducted 1 month for the appellant’s clear record and sentenced the appellant to 2 months’ imprisonment. 

27.While the appellant admitted uploading some information of PW1’s company to a website, there was no evidence of any potential damage done to the company.  As to the photographs, the appellant did not deliberately upload them to an e-mail account known to be accessible by others.  In addition, all these must be assessed in the light of the background of the appellant and PW1.  They had divorced and seemingly had some dispute in their business. 

28.Bearing in mind the above, the appellant’s clear record and the gravity of the offence, an immediate imprisonment term is manifestly excessive.  In the circumstances, I allow the appeal on sentence.  I order that the 2 months’ imprisonment be suspended for two years.  I also order the appellant to pay a fine of $10,000.  

29.In passing, I note that the Deputy Magistrate was exceptionally generous.  He gave, in effect, a one third discount for the clear record of the appellant despite there was no evidence of positive good character.  The Deputy Magistrate could have taken a lower starting point.  To reduce the sentence by one third because of a ‘clear record’ is a wrong approach. 

30.On 14 November 2011, three days after the above judgment, I was informed that the maximum penalty for s. 24 was imprisonment for 2 years and a fine of $2,000[14].  In the circumstances, my ‘initial order’ for a fine of $10,000 was invalid.

31.On 15 November 2011, I checked with Tsuen Wan Magistracy where the original trial took place.  The appeals clerk confirmed that my ‘initial order’ had not been entered into its computer record as required under s. 119 (f) of the Magistrates Ordinance.  I requested the appeals clerk to withhold registering the ‘initial order’ until I recalled parties for further submission.

32.On 30 November 2011, I advised both parties that I had been wrong in ordering a fine of $10,000.  However, I did not consider myself functus officio relying on the principle stated in HKSAR v Tin’s Label Factory Ltd, FACC5/2008.  In that case, it was held that a judge’s decision, in relation to a magistracy appeal, was only perfected when it was finally recorded in the computerized register of the Magistrates’ Court where the initial trial took place.  A judge had the power to perfect his earlier oral decision before that.[15]  Although I had delivered a written judgment on 11 November 2011, the principle should still be applicable. 

33.Ms Peggy Leung, counsel for the respondent, agreed with the principle stated above. The appellant had no objection either.

34.In view of the above, I amended the ‘initial order’ to a fine of $1,500. I gave three months for the appellant to pay, in default, 7 days imprisonment.

35.To sum up, the appeal against conviction is dismissed.  The appeal against sentence is allowed. Instead, the appellant is sentenced to 2 months imprisonment suspended for 2 years.  The appellant is ordered to pay a fine of $1,500.  I give three months for the appellant to pay, in default, 7 days imprisonment. 

For the hearing on 28 September 2011

Ms Irene Poon Oi Lim, Senior Public Prosecutor, of the Department of Justice, for the Respondent

Mr John Hemmings, instructed by Messrs Krishnan & Tsang, for the Appellant

For the hearing on 30 November 2011

Ms Peggy Leung Po Kei, Senior Public Prosecutor, of the Department of Justice, for the Respondent

The Appellant, in person