Yeung Ka-wah and Others v. The Queen
Read the full judgment text of CACC 357/1970 on BabelCite. This Supreme Court of Hong Kong (Appellate Jurisdiction) judgment was delivered on 27 March 1971 before Rigby, C.J., Mills-Owens and Huggins, JJ..
Criminal law – demanding money with menaces – aiding and abetting – sufficiency of evidence – identification – probation officer's report – s.109A Criminal Procedure Ordinance – manifestly excessive sentence – five appellants and two others jointly charged following a 4.30 a.m. street confrontation with bar girls – first appellant took victim Dai to Golden Crown Restaurant and demanded $500 for offence to 'sister' Tina plus $50 'tea money' with threats of disfigurement and crippling – partial payment of DM150 obtained that night – accused returned next day for balance and were arrested at Tokyo Coffee House – whether evidence sufficient to convict fourth appellant as aider and abettor – held, insufficient: not identified at identification parade, not shown to have sat at demand table, not shown to have answered first appellant's question in street – Crown did not seek to uphold conviction – fourth appellant's conviction quashed – whether evidence sufficient to convict second, third and fifth appellants – court had considerable doubt about inference of concerted action but counsel did not argue insufficiency, so convictions stood for sentencing purposes – whether s.109A Criminal Procedure Ordinance requires probation officer's report before custodial sentence – held, section is directory not mandatory, following Morris v. Crown Office [1970] 2 QB 114 – report not required where serious nature of offence clearly overrides personal considerations – sentences of 18 to 21 months not manifestly excessive given threats of disfigurement and conduct by six persons – applications for leave to appeal against sentence dismissed.
Legal issues: Sufficiency of evidence against the fourth appellant · Requirement of a probation officer's report before custodial sentence under s.109A · Whether sentences were manifestly excessive
Outcome: Appeal of fourth appellant allowed and conviction quashed for insufficiency of evidence; appeals against sentence by the other appellants dismissed; applications for leave to appeal against sentence dismissed.
Cited by 4 cases
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CACC000357/1970 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.357 OF 1970 -----------------
----------------- Coram: Rigby, C.J., Mills-Owens and Huggins, JJ. Date of Judgment: 27th March, 1971. ----------------- JUDGMENT ----------------- Huggins, J.: The five appellants, together with two other men, were jointly charged with demanding money with menaces. In addition the first appellant was charged with larceny. Upon their trial in the District Court all seven defendants were found guilty and they were sentenced as follows:
The second appellant appeals against conviction only, while the other appellants appeal against conviction and sentence. 1. The facts are conveniently set out by the learned District Judge in his judgment:
2. The first appellant appeared in person on the appeal and asserted his innocence. As to sentence he urged that he had been in prison since 3rd May. 3. Counsel who appeared for the second, third and fourth appellants (but only upon the appeals against conviction) submitted that the evidence against the fourth appellant was altogether insufficient and in particular he attacked the finding that the fourth appellant was among those who visited the table at which the first appellant and Dai were sitting when the payment of the money was under discussion. Dai said that "other boys were coming and going" during the conversation but she did not identify them. LAM Mei-po, the other bar girl, at first said that the fourth appellant was with Dai at the second table but later corrected herself and said that he remained at her table, explaining that she misunderstood the previous question. She said that the fourth appellant was one of three men who were going to and fro between the two tables. This was believed by the learned judge, who obviously also accepted that the fourth appellant never moved to the second table in spite of Lam's original statement that he did. This was consistent with Dai's evidence in that she did not include the fourth appellant among those who were sitting with her at the second table. The fourth appellant was not identified at the identification parade nor was there any evidence that he was one of those who answered the question put by the first appellant in the street. The fact that he was subsequently seen near the place where, and at the time when, it had been arranged that payment of money should be made really takes the matter no further. Counsel for the Crown did not seek to uphold his conviction and we were of opinion that the evidence against him was altogether insufficient upon which a conviction could safely be sustained. We therefore allowed his appeal. 4. Counsel for the Crown did, however, seek to uphold the convictions of the second, third and fifth appellants. These were identified as having been at the second table, although here again there was no evidence that they were among those who answered the question put by the first appellant in the street. The third and fifth appellants made unsworn statements to the effect that they were not at the restaurant at all when the alleged demand was made and the learned judge disbelieved them. It was still, however, for the prosecution to prove their guilt. Mere presence does not make a person a principal in the second degree: he must aid and abet the commission of the offence and that involves proof of participation, i.e. of some concerted action between him and the principal in the first degree. What evidence is there of concerted action between these appellants and the first appellant who made the demand? There is nothing in the evidence to suggest that they said anything to indicate that they supported his demand. It is suggested that they accompanied the first appellant into the restaurant for the purpose of intimidating Dai by their presence into agreeing to a demand which they knew would be made. Taken by itself their conduct in the restaurant may arouse suspicions that they were aiding and abetting. In the case of the third and fifth appellants these suspicions are increased by reason of the fact that (as found by the learned judge) they lied in saying they were not in the restaurant. Apart from that the learned judge found that the presence of all the appellants in the restaurant was "not accidental" and "following upon this" he "found the inference" that the presence of the same accused when the demand was made was in pursuance of an agreement between them and the first appellant that such a demand should be made. He said this was supported by the evidence that subsequently the second appellant met Dai at the time and place agreed with the first appellant for the payment of money and that the third appellant arrived at the coffee house to which Dai was then taken. The fourth and fifth appellants were also in the vicinity and all the appellants were seen talking together before Dai was taken to the coffee house. As to this the learned District Judge said that he did not believe that the presence of the accused there was fortuitous. Each of the members of the Court has considerable doubt whether the evidence really justified or inference that the second, third and fifth appellants were aiding and abetting the first appellant, but their counsel have expressly stated that they do not seek to argue there was insufficient evidence to support the convictions of these appellants and we have, of course, not heard counsel for the Crown in support of the convictions. We must therefore approach the appeals against sentence on the footing that the appellants were rightly convicted. 5. The second and third appellants were able to advance nothing before us in mitigation of sentence. Counsel for the fifth appellant emphasized that his client was only 21years of age and submitted that as the fifth appellant had no previous conviction if the learned District Judge had obtained a probation officer's report before passing sentence he might have taken a different course. He went so far as to say that without a probation officer's report it could not fairly be said that he had considered the alternatives to a prison sentence. We cannot accede to that argument. In regard to two of the accused who were under 21 years of age and to whom s.109A of the Criminal Procedure Ordinance applied the learned judge expressly said that in view of the circumstances which he set out he was of opinion that the only appropriate method of dealing with those young accused was by way of imprisonment. We think a judge (but rarely, perhaps, a magistrate, for he deals with cases which prima facie are not so serious that a summary trial is inappropriate) is entitled, where the facts warrant it, to take the view that the serious nature of an offence so clearly overrides any considerations personal to the offender that he can properly exercise his discretion under s.109A without first obtaining a probation officer's report. This was done in Morris v. Crown Office 1970 2Q.B. 114, where it was further said that the provisions of the English equivalent of our s.109A are not mandatory but directory only. The section does not prescribe in detail the type of information "about the circumstances" which must be obtained and we are not disposed to do so. We would not, however, wish to discourage judges and magistrates from obtaining reports in cases where these are not required by statute, because even though a prison sentence may be inevitable the difficult task of deciding upon its term still remains and a report may be of the greatest assistance. The learned judge reasonably thought that the menaces in this case were of a particularly unpleasant nature: there were hints of disfigurement and there were, as we hold, six persons proved to have been threatening the girl. We cannot say that the sentences were manifestly excessive and the applications for leave to appeal are dismissed. Representation: |
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