Cheung Li Bo v. The Queen

CACC000322/1976

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Coram: Pickering, J.A.

Date of Judgment: 28th April 1976.

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JUDGMENT

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1. The appellant was convicted, after a trial, of assault with intent to rob and sentenced to two years' imprisonment. He appeals against both conviction and sentence.

2. The evidence of the victim was that at about 8.45 p.m. he was alone in Portland Street near Dundas Street when two men approached him. One of them said "Don't move" and both placed their hands on his shoulders, one of them thereafter grabbed the victim's neck. The appellant then arrived on the scene and hit the victim in the chest and the mouth. The whole incident occupied about two minutes, at the expiration of which the victim saw police arriving and shouted "snatching" whereupon the three men ran but the appellant was caught. It was the evidence of the victim that he felt frightened because he thought the men would take away his money and he had several thousand dollars upon him.

3. There was no evidence of any actual attempt to rob in the evidence-in-chief of the victim or in any part of the evidence of any other witness and the only evidence of any kind as to such attempt came in answer to a question put by the appellant to the victim in cross-examination, the question was:

That was the sole evidence and it came in cross-examination in answer to a question put by the appellant.

4. That question was a very reasonable question in the light of the defence put forward by the appellant and repeated in this Court. This constituted of frank admission of assault and a denial of any attempt of robbery. The appellant stated that he did in fact assault the victim and had done this at the request of a friend who had himself been assaulted by the victim. It is true that the victim was heard to cry out "Snatching" but neither he nor anybody else gave any evidence of an attempt at snatching and it may well be that his cry was nothing more than a call for assistance because he was being assaulted. Nor was there any evidence that any of the three assailants had any knowledge of the large sum of money carried by the victim. Suspicion there must be but it appears to me that the evidence as to attempted robbery, particularly in the light of the appellant's frank admission of assault and of his stated reason therefor, was so very thin that there should have remained a reasonable doubt as to the purpose of the assault.

5. It was for this reason that I quashed the conviction for admitted robbery, substituted one of common assault and set aside the sentence of two years' imprisonment substituting that with one of nine months' imprisonment.

Representation:

Appellant in person

Alderdice, C.C., for respondent.