Chan Yuk-hung and Another V.The Queen

CACC000275/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION).

CRIMINAL APPEAL NO. 275 OF 1973

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Coram: Trainor J. in court

Date of Judgment: 19 May 1973

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JUDGMENT

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1. The appellants were convicted in the Magistrato's court of (a) robbery, and (b) assault with intent to rob and were ordered to be detained in a Training Centre. They now appeal against conviction and Training Centre order.

2. The facts of the case are as follows:

3. On the 26th of November, 1972 three boys CHAN Siu-kong, CHO Tsz-kong and his brother CHO Tsz-cheong (hereafter referred to as P.W.1, P.W.2 and P.W.3 respectively) left the home of P.W.1 and P.W.2 at about 1.00 p.m. and went to the garden in Bowen Road. They had a bicycle and P.W.3 went off on it for a ride and P.W.2 went to buy ice-cream. Two Chinese boys approached P.W.1 who was sitting at the side of the road and one of them asked him to what Triad Society he belonged. He said he didn't know and was told to go into the garden. He did and was followed in by those two boys. At about the same time P.W.3 returned on the bicycle. He saw a number of people and someone shouted at him to stop. He braked his bicycle and two of these people the two accused, came up and grabbed it. The first accused asked P.W.3 why did he not stop when he was asked. When P.W.3 said that he did not hear the call, and asked why had he been called the first accused told him not to talk too much. P.W.1 was at this time sitting on a seat and P.W.3 with the two accused and about three of the others wont there. The second accused ordered P.W.3 to sit down beside P.W.1. The first accused sat down beside P.W.3 and one of those who had first approached P.W.1 sat down on the other side of him. The second accused stood in front. P.W.1 said he was very frightened. The first accused asked for $100 bail money for a friend. When P.W.1 and P.W.3 said they had no money the first accused asked the second to take P.W.1 to one side and this was done. The second accused then asked P.W.1 if he had any money and when he said that he had not he was told to go back and sit on the bench.

4. Before sitting on the bench P.W.3 was asked by the first accused "Where do you belong?" He understood this to be an enquiry as to what gang he belonged. He said he replied "What do you mean by where do you belong?" and the first accused said "Don't pretend. We have beaten up someone at Bowen Road pavillion. Don't be cocky." The first accused directed others of the group to stand guard at various parts of the garden.

5. For an interval, during which the two accused left P.W.1 and P.W.3 sitting on the bench between two other boys, the two accused were absent. On their return the two accused sat down, one on either side of P.W.1 and P.W.3. The first accused again asked P.W.1 and P.W.3 if they had money. When told that they had not P.W.3 was asked about the value of a necklace he was wearing. The second accused, according to P.W.3. "became very fierce" when P.W.3 said it was valueless and said "If you fooled me I would not be courteous to you". P.W.3 said he understood the second accused was referring to a "beating up". He said he was frightened. P.W.1 said he was frightened lest he be beaten up but he did not run because there were so many surrounding them.

6. The first accused then enquired about the value of a watch P.W.3 was wearing. When told about $100 he said he had two friends in custody who needed $100 for bail. He said he would take the watch and see if he could pawn it for $100. He said if he could he would give P.W.3 the ticket and the, P.W.3 could redeem it later. This accused then asked for the bicycle to go off and pawn the watch. When P.W.3 refused saying that the bicycle belonged to a friend he said the first accused spoke "fiercely" to him and said "we are not taking your bicycle. We only want to pawn the watch and the bicycle will be returned later." The two accused then stood up and walked away a pace or two, the first accused with the watch.

7. In the meantime P.W.2 who had started off to get ice-cream saw P.W.1 being approached by a group of 7 - 8 people. He later saw his brother, P.W.3, return on his bicycle and he saw two people approach and grab the bicycle. Those two people he identified as the two accused. P.W.2 went and dialled 999 and reported the matter to the police and returned to Bowen Road to await their arrival. When he returned he saw P.W.1, P.W.3 and the first accused sitting on the bench in the garden and the second accused standing in front of them.

8. On the arrival of the police the two accused who had moved off with the watch returned and sat down beside P.W.1 and P.W.3 and told them to say that they all knew each other. However, when they saw P.W.2 pointing them out to the police they stood up and hurried away. They were pursued and caught by two police officers. The constable who caught the first accused asked him where he was going and he said to buy ice-cream. He was searched and it was discovered that he had no money. When this was pointed out to him he told the constable he had been robbed. The constable asked why he had not reported this, and how was it he still had his Parker fountain pen but the accused made no reply.

9. The accused's evidence was that on the day in question he and his brother were strolling together in Bowen Road when a group of teddy boys, one of whom had a knife, approached them. The first accused had something hard pressed against his back. Money was demanded and the first accused handed over all his money, $6. The second accused had no money. The two accused were then told to sit on the seat and about 10 minutes later P.W.1 and P.W.3 were brought there. They sat there and the person with the knife remained standing behind. Later the police arrived and, according to the second accused, the two accused stood up with the intention of going to buy ice-cream.

10. The first accused was searched and it was only then he told of having been robbed. In cross-examination the first accused said "after the arrival of the police we were so happy we forgot we had no money".

11. The evidence of both accused was substantially the same. It was denied by both of them that they had robbed the P.W.3.

12. The learned magistrate considered P.W.3 and P.W.3 to be both truthful and reliable. He was not impressed with the evidence of the accused and did not find that it lead him to doubt the evidence of P.W.1 and P.W.2 in any way.

13. There were four grounds of appeal against the conviction on the first count and a fifth on the second count. The grounds might be summarised as follows:

14. Mr. Gunston who appeared for the appellants first dealt with the robbery. He argued that there was not a scintilla of evidence as to an assault or that the appellants did any act that would justify a school boy being afraid. He said that the magistrate summarised the evidence of the prosecution in his findings but did not say specifically where in that evidence were the facts that constituted the assault, or what justifiably put P.W.3 in fear. The magistrate baldly said "I accepted the evidence of P.W.1 and P.W.3 and found as facts ... that they (appellants) stole a wrist watch within the meaning of the Theft Ordinance ... and immediately before doing so, and in order to do so, they did seek to put P.W.3 in fear of being then and there subjected to force and that they (appellants) did assault P.W.1 with the intention of robbing him."

15. At the outset may it be said that while assault may be, and usually is an ingredient of robbery it is not an essential ingredient. It is robbery if at the time of a stealing a person is put in fear of physical force and as a result parts with his property.

16. In the instant case there is no doubt that P.W.1 and P.W.3 were put in fear; both of them said so. So far as P.W.3 is concerned itisquite clear from his evidence what he feared. When asked in cross-examination why did he hand over his watch, he said "I have read in the newspapers that there were so many robberies. If the victim refused to hand over his property to the robbers the victim would be stabbed . ... I was afraid I would be stabbed." As to his reasons for being so afraid he had been told by the first accused "We have beaten up someone at Bowen Road".

17. Mr. Gunston did not argue the third ground of appeal (though he did not specifically abandon it) save in so far as he argued that it would be unreasonable to hold there was a robbery.

18. There was abundant evidence for the learned magistrate to hold as he did that the appellants stole the watch. Having accepted the evidence of P.W.3 as truthful and reliable there was no logical conclusion to be reached on P.W.3 's evidence :"I'll take your watch and see if I can get $100. If so, I'll give you the pawn ticket and I'll use the $100 in the meantime. You can redeem the watch later" and "immediately after I removed my wrist watch from my wrist, (the first accused) asked me to hand it over to him."; other than that the watch was stolen. It was abundantly clear that P.W.3 did not deliver it voluntarily and that the two accused knew this. It was equally clear that they intended permanently to deprive him of it. The offer (even if genuine) of the pawn ticket to redeem it in no way altered this. There is absolutely no substance in the third ground of appeal.

19. The first two grounds of appeal were lack of evidence of a concerted design.

20. It was common case that the two accused were together on that evening. There was the evidence of P.W.3 and P.W.3 being told or ordered to sit on the seat; of the accused sitting on either side of them; of the second accused telling P.W.3 "If you fooled me I would not be curteous to you"; of the first accused telling the second accused to take P.W.1 off and the second accused doing so and asking P.W.1 for money.

21. There is evidence there which if accepted, as it was, establishes beyond any doubt that the accused were acting in concert on that afternoon to achieve their unlawful object.

22. The evidence before the learned magistrate was more than sufficient to establish that the accused robbed P.W.3 of his watch and he rightly held so.

23. That the learned magistrate erred in not setting out in detail and precisely what exact pieces of evidence to justify his decision can be dealt with in a few lines.

24. Desirable though it may be that a magistrate should in his Statement of Findings set out in somewhat more particularity than is done in this case the points that influenced his decision, nevertheless a failure to do so would not warrant a quashing of the conviction.

25. The argument of Mr. Gunston with regard to assault on the first count is much more relevant in the instant case to the second count in the charge : assault with intent to rob. He argued that there was nothing to establish the assault.

26. What constitutes an assault. Archbold 37th Edition, paragraph 1500 defines it as " ... an attempt to commit a forcible crime against the person of another." and gives an examples: pointing an unloaded gun or a pitchfork at a person within range, and goes on to say "any other like act indicating an intention to use violence against the person of another is assault." In Underhill on Torts (16th Edition) page 59 an assault is defined as " ... an offer to apply force to the person of another directly or indirectly, if the person making the attempt or offer causes the other to believe on reasonable grounds that he has the present ability to execute his purpose" and adds at page 60 "the essence of the tort is that the wrongdoer puts the other in present fear of violence".

27. The court was referred to the case of Rex v. TSANG Cheong and CHAN Fuk, ⁽¹⁾ where the authorities and text books on assault were extensively reviewed. I think that that these may be summarised thus: "It is an assault if one person offers or indicates an intention unlawfully to apply force or violence to another in circumstances which cause fear in that other that the intention can and will be there and then oarried out."

28. From this it follows that there may be an assault even if no weapon or words are used. If a person stands in front of another and by his posture indicates to the other that he passes at his peril even, if he never says a word, and the other fears violence if he goes about his lawful ways, that is an assault.

29. In the instant case P.W.1 was approached by two Chinese males who asked what Triad Society he belonged to. He was then told to go into the garden into which he was followed by these two men. He was told to sit down and one of these men sat beside him. Later they were joined by the two accused and the second accused stood in front of them. Altogether, P.W.1 told the learned magistrate there were about six people. He said "I did not run because there were so many surrounding us. I felt frightened lest they might beat me up". He was taken aside later by the second accused who asked him if he had money.

30. Why was P.W.1 surrounded. The only logical conclusion to be derived form that fact and the other evidence is that it was to prevent him going away; and that if he tried to do so he would be restrained. The other logical conclusion to be drawn from the evidence is that had he had money it would have been obtained from him by coeroion. His fear is clearly indicated from his evidence. There was again ample evidence for the learned magistrate to come to the conclusion he reached.

31. The appeal on both counts against conviction is dismissed. Having heard what was offered by Mr. Gunston and given earnest and anxious consideration to it and read the reports on the accused I can see no reason for interfering with the decision of the learned magistrate and, accordingly, I dismiss the appeal against the Training Centre Order.

Representation:

(1) 34 (1951) H.K.L.R. 276.