Supreme Court
Action No. 16 of 1982
22nd November 1982
Alcantara, J.

Mr. Dean Barrow for the Appellant.
Mr. Hubert E. Elrington for the Respondent.

Appeal from dismissal of Magistrate of four complaints brought by Appellant for trespass, remaining on premises after being requested to leave, use of threatening words and use of insulting words - Refusal of Magistrate to grant adjournment for Appellant to call witness at trial - Affidavit evidence in support of contention sought to be used on appeal - Affidavit evidence not admissible on present appeal - Conduct of Magistrate in issue - Appellant should have brought appeal in form of a motion for mandamus or certiorari or under Section 142 of the Supreme Court Ordinance - Meaning of "private enclosure" in Section 4(1)(XI) of the Summary Jurisdiction (Offences) Ordinance - Does not include building or dwelling house - Words uttered inside a building other than a building to which public has access not a "private enclosure" - Complaints for use of threatening and insulting words, as they were uttered in the Appellant's dwelling house, could have been dismissed by Magistrate - Meaning of "threatening words" - Words uttered meant as a threat and taken as a threat - Intention of speaker and feeling of receiver to be taken into account together with all surrounding circumstances - Appellate tribunal should not readily disturb findings of fact of a lower tribunal - Section 58, Summary Jurisdiction (Procedure) Ordinance - Powers given to adjudicating tribunal discretionary and not mandatory - Appellate tribunal should not substitute its own discretion for that of original tribunal - Appeal disallowed with costs.

J U D G M E N T

This is an appeal from a decision of the Inferior Court in dismissing four complaints without calling on the Defendant to answer. This, the Learned Magistrate was quite entitled to do if he came to the conclusion that the evidence adduced by the Prosecution had been so discredited as a result of cross-examination, or was so manifestly unreliable, that no reasonable tribunal could safely convict on it.

The proceedings before the Inferior Court arose out of that eternal triangle: man, wife and another woman. The short story is that the wife, (the Defendant/Respondent) went to the other woman's house looking for her husband with the purpose of taking him back home. There was a confrontation and hard words were used by the wife. In turn, the wife was boxed by the other woman (the Complainant/Appellant) and beaten up by the husband, ending up in hospital.

The woman, whom I shall henceforth call "the Appellant", sought fit to lay four complaints against the wife accusing her of:

(1) trespassing;
(2) remaining on the premises after being requested to leave;
(3) threatening words and;
(4) insulting words, contrary to various provisions of the Summary Jurisdiction (Offences) Ordinance.

The learned Magistrate has given his reasons for decision in dismissing the four complaints.

The Appellant was dissatisfied with the decision and with the reasons for decision and has put forward six grounds of appeal. The sixth ground of appeal is stated thus: "Evidence was wrongly rejected by the Inferior Court when the learned Magistrate refused to allow the Complainant to call a police officer to give evidence on her behalf."

In support of this ground, the Appellant seeks to introduce two Affidavits, one by the Appellant herself and the other by an attorney who just happened to be present in Court, purporting to prove that the learned Magistrate refused to allow a witness to go into the box. Stated thus, what is in issue is not really the adjudication of the Inferior Court but the conduct of the learned Magistrate at the hearing. And if his conduct is in issue, then he should have an opportunity to defend himself. This he would be able to do if the appeal had been in the form of a motion for one of the prerogative Writs, mandamus or certiorari. In such a case, Affidavit evidence would have been clearly admissible on the motion not only on behalf of the Appellant but on behalf of the learned Magistrate. It is highly dangerous to allow Affidavit evidence in the present appeal (it is even doubtful whether it is admissible, in any case) when Counsel for the Respondent has informed the Court that what really happened was that the learned Magistrate did not forbid a witness being called but refused an adjournment to produce a witness, i.e. the police officer.

I am satisfied that ground six is not a proper ground under the present appeal. If the Appellant wanted to pursue it she should have applied for one of the prerogative writs or possibly under section 142 of the Supreme Court Ordinance. I have also come to the conclusion that the Affidavits sought to be put forward are not admissible under the present appeal. Consequently, I reject ground six.

I now turn to ground one, where the Appellant complains that the learned Magistrate misdirected himself in dismissing the complaint of threatening words because of his erroneous legal interpretation of section 4(1)(xi). This particular offence reads as follows:

"Every person who uses to or at any other person or in the hearing of any person, any threatening, abusive, profane, obscene, indecent or insulting words or behaviour, whether calculated to lead to a breach of the peace or not, such several offences being committed in a street or public place, or in a private enclosure or ground shall be guilty of an offence."

It is common ground that the words alleged to be threatening were used inside the dwelling house of the Appellant. The learned Magistrate found that the Respondent told the Appellant, "I will kill you, I will kill you". The learned Magistrate then went on to define what threatening words meant in law and came to the conclusion that for words to be threatening, "those words must be capable of and place the Complainant in prospect of immediate jeopardy of her person and life". He also made a finding of fact that the words actually uttered were mere angry words in desperation and not threatening words. The Appellant argues that this finding of fact is tainted by his view of the law. This might well be so. For the purpose of this offence, 'threatening words' means words uttered meant as a threat and taken as a threat, and in order to arrive at a finding you not only take into account the intention of the speaker but the feeling of the receiver, together with all the surrounding circumstances. I agree with the finding of the learned Magistrate on his appreciation of the evidence and find that he came to the correct conclusion on the facts regardless of his misdirection on the question of law. I find that he misdirected himself by saying that there has to be 'immediate jeopardy to her person or life.' Some threats are not of immediate execution and can embrace a wider field than life or limb.

There is one other question which I brought to Counsels' attention at the hearing for them to argue. Were the words complained of uttered in a private enclosure? There is no definition in the Ordinance of private enclosure, although there is a definition of premises, which is very wide and comprehensive. "Premises' include land, whether covered with water or not, canal, trench, pond, yard, garden stelling, wharf, house or other property."

It is my view that the Legislature, by using the words 'private enclosure' in this offence instead of premises, obviously intended to restrict the ambit of this particular offence. What does enclosure mean? The ordinary meaning of enclosure is open land which has been fenced. The dictionary meaning is 'land fenced in together with the particular meaning well known in legal circles of the fencing of common land.' That being so, I am of the opinion that a building or a dwelling house is not an enclosure. Consequently, words uttered inside a building, other than a building to which the public has access, are not caught under this particular provision of the Ordinance. Taken into account that Section 4 of the Summary Jurisdiction (Offences) Ordinance can trace its ancestry to the Town Police Clauses Acts, this is not surprising. On this ground also the complaint for threatening words could have been dismissed.

Dealing now with complaint No.4 to which Ground Two refers, the learned Magistrate made a finding of fact that the Respondent referred to the Appellant as a big whore. This was inside the dwelling house. After having been boxed on the face by the Appellant, I am not surprised at the reaction of the Respondent. The Appellant has argued before me that the learned Magistrate has given no reason for having dismissed this complaint. I am of the opinion that he did in the last two sentences of his written decision, but even if he did not, I also disallow this ground of appeal on the basis that a house is not a private enclosure.

I am now only left with one complaint against the Respondent, No.2; that relating to remaining on premises after being requested to leave, contrary to section 4(1)(xvi) of the Summary Jurisdiction Ordinance, as Complaint No.1, that of trespassing, contrary to section 28(1) of the Ordinance is not being pursued by the Appellant. I can find no fault either with the learned Magistrate's exposition of the law or his findings of facts. It should be borne in mind that an appellate tribunal should not readily disturb the findings of facts of a lower tribunal. It is not the duty of an appellate tribunal to try the case de novo substituting views on the facts for those of the original tribunal, much less where the result has been acquittal from a criminal offence. I disallow the three grounds of appeal and confirm the decision of the learned Magistrate.

Finally, the Appellant, in his address has referred me to section 58 of the Summary Jurisdiction (Procedure) Ordinance, arguing that the learned Magistrate did not avert to that section when on the evidence he could have found that an offence either under paragraphs XLV or XLVII of section 4(1) of the Summary Jurisdiction (Offences) Ordinance had been proved. There is nothing on the record on which an assumption can be drawn or an inference made that the learned Magistrate was unaware of section 58. This particular ground of appeal has little to commend itself. The powers given by section 58 to an adjudicating tribunal is discretionary and not mandatory, and an appellate tribunal should never substitute its own discretion for that of the original tribunal. Having said this, it is not clear to me how the Learned Magistrate could have substituted one offence for another in the circumstances of this case.

Appeal disallowed with costs.

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