Cheung Muk-kan and Others v. The Queen

CACC000290/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 290 OF 1973

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Coram: Pickering & Cons, JJ.

Date of Judgment: 11th Sepember 1973

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JUDGMENT

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1. The victim of the robbery with which we are concerned was walking home early one evening along King Lam Street, Kowloon. Suddenly a private car driven by the first appellant drew up beside him. The second and third appellants alighted from the car and dragged the victim with them into the back seat. As the car was driven slowly off the third appellant threatened the victim with a knife while the second appellant searched the victim and removed $190 from his pocket. The car was then stopped and the victim released. He noted the registration number as the car drove away.

2. Almost immediately a passing motorist, one Mr. TANG Wah-chun, noticed that the victim was walking, as he put it, "very hastily" and appeared to be nervous. He stopped his car and asked what was the matter. The victim related how he had just been robbed and without hesitation Mr. Tang invited him into his car and drove off in pursuit of the robbers' car which the victim pointed out in front. He followed that car for some way until it eventually turned into Castle Peak Road and headed towards Tsuen Wan. Along that road was a police check point but the first appellant did not stop. Mr. Tang, however, alerted the officers there, picked up a uniformed constable and continued the chase together with other officers in a police jeep. When the appellants were finally caught and arrested the second appellant was found to be in possession of $190 and a knife was found concealed under the carpet by the back seat. Enquiries later showed that the car had been stolen by the first appellant five days previously on Hong Kong Island. Charges of robbery and possession of an offensive weapon in a public place were laid against all appellants as well as other charges connected with the taking and use of the stolen vehicle.

3. The first and third appellants either pleaded or were found guilty of all the charges laid against them and received sentences totalling 36 months and 30 months respectively. Against those sentences each has appealed. The first appellant seeks a reduction on the ground of a good record and an aged mother needing his support. The third appellant wished to say nothing on his own behalf. It is sufficient here to say that we see no reason to interfere with any of the sentences that were passed upon these two appellants.

4. The second appellant pleaded not guilty to the charges laid against him but was eventually found guilty of robbery and possession of an offensive weapon. Against these convictions he now appeals. Before us he has recited the same story that he gave to the trial judge, namely, that while waiting for a mini bus by the Cheung Sha Wan Bus Terminus to go to meet his wife in Tsuen Wan the first appellant, an old friend of his, offered him a lift in the same direction and which he gladly accepted; that he knew nothing of the robbery which would have taken place before he boarded the car; that he did not have the $190 upon him when arrested but rather that $900 of his own money was missing from his pocket after he had been assaulted at the police station. His story was to some extent supported by the evidence of the first appellant at the trial but the third appellant was not called, although the second appellant had then the benefit of legal representation and the third appellant had already been dealt with by the trial judge on his own plea. At the hearing before us the third appellant, of his own accord, attempted to confirm that the second appellant was not implicated in these crimes but we declined to take account of his comments at that stage.

5. The trial judge rejected the evidence given by the second appellant and we are satisfied that he was correct so to do. It was inconsistent with the evidence of both the victim and Mr. Tang and the two police officers, all of whom the trial judge after considering certain small discrepancies between them found to be honest witnesses. It was also, as the trial judge pointed out, a highly improbable story on its own account. The application for leave to appeal against the conviction of robbery must therefore be refused.

6. We do not, however, take the same view with regard to the charge of possession of an offensive weapon. In this respect the trial judge appeared to be satisfied that neither the first nor the second appellant had any knowledge of the existence or the presence of the knife until it was actually used by the third appellant but he came to his decision in the light of comments made by Hawkins, J. in R. v. Coney⁽¹⁾ to wit:

"It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power to do so, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not."

From this he argued that the first appellant, by continuing to drive the third appellant, was giving wilful and active encouragement to his possession of the knife and then the trial judge applied the same conclusion to the second appellant. With every respect to him we are not prepared to accept that this necessarily follows. There was no evidence to suggest that the second appellant had any form of control over the progress of the car. All that was shown was that following the disclosure of the knife he remained a fellow passenger. We are not satisfied that amounted to wilful encouragement of its continued possession. The application for leave to appeal against this charge is therefore granted, the hearing treated as the appeal, the conviction quashed and the sentence thereon set aside.

7. Application is also made by the second appellant against the sentence of 2 ½ years imposed upon him for his part in the robbery. However, that appears to us to be a perfectly proper sentence and the application is refused.

8. We would like to add that Mr. Tang is to be highly commended for the part he voluntarily undertook in the circumstances and without which it is probable that these criminals would not have been brought to justice.

Representation:

Appellants in person

E.Doh, cc for Respondent

(1) (1882) 8 Q.B. 534, 557.