HKSAR v. Yan Cheuk Nam, Boyle

HCMA 250/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 250 OF 2014

(ON APPEAL FROM ESCC 945 OF 2014)

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Before: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing: 7 October 2014

Date of Judgment: 7 October 2014

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J U D G M E N T

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1.This Appellant was convicted after trial in the Magistrates Court on two charges. Charge 1 was criminal intimidation, contrary to s.24(a)(i) of the Crimes Ordinance, Cap. 200. Charge 2 was of obstruction of an officer in the exercise of his duty, contrary to s.139 of the Public Health and Municipal Services Ordinance, Cap. 132. The Appellant now appeals against his convictions.

2.Both offences were charged as having been committed against a health inspector who was, in the exercise of his duty, dealing with the obstruction of a street caused by the placing in a public area of tables and chairs for use by customers of food stalls.  This officer gave evidence as the 1^st prosecution witness (“PW1”).  A colleague of his gave evidence as the 2^nd prosecution witness (“PW2”).  Their evidence, if accurate, was evidence on which convictions on both charges would be justified.  As was his right, the Appellant chose not to give or call evidence at the trial.  It was submitted to the Magistrate by defence counsel that the evidence of PW1 and PW2 as to the criminal conduct alleged against the Appellant was unbelievable because they had not reported such conduct to the police officers who arrived at the scene.

3.The Magistrate rejected this submission.  His rejection of it is now attacked on appeal.  Four perfected grounds of appeal, all going to essentially the same point, have been filed.  They read as follows :

“ Ground 1

The learned Magistrate erred in his finding, that he did not find the reaction of PW1 (to the alleged conduct of the Appellant) to be unreasonable. Such finding was contrary to the weight of evidence.

Ground 2

The learned Magistrate erred in finding that the degree of violence was not so high that it would be inherently improbable for PW1 not to take immediate action. Such finding was contrary to the weight of evidence.

Ground 3

The learned Magistrate erred in his finding that for the same reasons, he did not find the evidence of PW2 to be unreasonable. Such finding was contrary to the weight of evidence.

Ground 4

In all the circumstances, the learned Magistrate was wrong to rely upon the evidence of PW1 and PW2 in finding the offences proven against the Appellant.  The conviction is unsafe and unsatisfactory.”

4.I have considered everything put forward, in writing and orally, on the Appellant’s behalf.  The only point that I consider it necessary to say anything specific about is the complaint based on the Magistrate’s observation (in para. 13 of his Statement of Findings) that “There is no evidence that after the police arrived the Defendant continued with his aggressive acts”.  Counsel for the Appellant points to the evidence of PW1 that the Appellant made threats even in the presence of the police and to the evidence of PW2 that the Appellant continued to be violent.  As to that evidence of PW2, there is nothing to suggest that the continuation lasted so as to take place in the presence of the police.  As far as PW1’s evidence is concerned, it has to do with threats which continued in the presence of the police.  The Magistrate was talking about acts of aggression not mere threats. The evidence of acts of aggression was of the Appellant poking his finger in PW1’s face with great force causing him to lose his balance and fall backwards, and of the Appellant picking up a folding chair and throwing it in PW1’s direction so that it landed about one metre from him.

5.The defence’s submission against the evidence of PW1 and PW2 was worthy of due consideration.  The Magistrate’s Statement of Findings shows that it received due consideration.  I see no basis on which it can properly be said by an appellate court that the Magistrate, who saw and heard the witnesses, was bound to accept the submission.  All the grounds of appeal fail.  Accordingly the appeal is dismissed.

Mr Martyn Richmond, instructed by S H Chan & Co, for the appellant

Mr Prakash L Daryanani, of the Department of Justice, for the respondent