The Queen v. Tsang Ming-hung

CACC000118/1986

[Claim of right a defence to robbery.]

BETWEEN:

Coram: Roberts, C.J., Fuad, J.A. & Clough, J.

Date: 19th June, 1986.

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JUDGMENT

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Roberts, C.J. -

1. This is an application for leave to appeal against conviction and sentence by TSANG Ming-hung, who was convicted by a District Judge on one charge of robbery and sentenced to three years' imprisonment.

2. The facts can be briefly summarized as follows. A Mr. WONG Chun was returning to his place of work on the afternoon of 20th November, 1985, when he was attacked by three men, pushed to the floor and assaulted. A notebook, two bank pass books, US$40 and HK$500 were taken from his shirt pocket. He called for help and some of his friends from the nearby garment factory where he worked, came to his rescue.

3. In the incident, Mr. WONG Chun suffered injuries to his face, including bruising and, more seriously, a broken nose.

4. When his friends appeared, the attackers ran away and were chased by Mr. Wong and his friends. They were joined by a police constable, who eventually arrested the defendant.

5. The judge accepted the evidence of Mr. WONG Chun and of the other witnesses called for the prosecution as being truthful and reliable, and convicted the defendant accordingly.

6. Miss Moosdeen has raised in the appeal a substantial point of law, which is based on the following passage from the judge's reasons for verdict -

"Whilst the crime may have been committed as a result of mistaken identity - I was prepared to believe that much in view of the throwing back of certain items and the defendant's subsequent statements -there was also I believed clearly an intention to commit robbery accompanied by a snatching and the use of force. If the defendant later realised it was the wrong person and then threw back certain items (retaining only $500 Hong Kong currency) it was still nevertheless a robbery."

7. The defendant had given evidence to the effect that he believed that Mr. WONG CHUN was someone else, who owed him money and that he was attempting to recover it. When he discovered that he had attacked an innocent victim, he threw away what he had taken from him.

8. It is seldom that a defence of this kind is likely to succeed. It can do so only when the proper foundation in fact is laid, that is to say, if the judge accepts the defendant's story that he was attempting to do no more than exert a claim of right against the victim.

9. We have been referred to a number of authorities, all of them to the same effect, beginning with R. v. Knight ^l in which it was held that a burglary could be excused if the defendants had established that they had a claim of right to the property taken in the course of the burglary.

10. In R. v. Skivington² the following passage appears at p.170 -

"It is quite clear, and it is sufficient only to mention Rex v. Bernhard [1938] 2 K.B. 264, that a claim of right exists whenever a man honestly believes that he has a lawful claim, even though it may be completely unfounded in law or in fact. The question is whether that defence to larceny applies equally when the offence with which one is concerned is really an aggravated larceny such as in this case, robbery, or whether the honest belief must extend to being entitled to take the money by force.

In the opinion of the court, both on principle and upon the cases, it is clear that it can be a defence. So far as principle is concerned, it can be stated in the simple form that larceny is an ingredient of robbery, and if the honest belief 'that a man has a claim of right is a defence to larceny, then it negatives one of the ingredients in the offence of robbery, without proof of which the full offence is not made out."

11. After Skivington², the law on theft in England was consolidated and, to some extent, revised by the Theft Act of 1969, which is largely reproduced in the Hong Kong Theft Ordinance, section 3(1) of which states -

"3.          (1)     A person's appropriation of property belonging to another is not to be regarded as dishonest -

(a)	if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person.

12. R. v Skivington² was followed in R. v. Robinson³, which was heard after the enactment of the Theft Act of 1969. We conclude, therefore, that on the basis of the judge's findings, the defendant honestly believed that he had a claim of right against the person for whom he mistook for Mr. WONG Chun and that this was a valid defence to the charge of robbery.

13. But this is not an end of the matter, since the schedule to the Theft Ordinance, when read with section 32 of that Ordinance, provides a number of alternative offences of which a defendant charged with robbery may be convicted, even though he was not charged with them. Among these are blackmail and common assault. It was argued, though I think not too vigorously, by Counsel for the Crown that we might consider substituting an offence of blackmail.

14. We do not consider that the judge's findings justify such a substitution since there is no evidence that the defendant made an, unwarranted demand with menaces, which is a prerequisite to a conviction under that section.

15. We are however, satisfied that it would have been proper for the judge, on the basis of the evidence which he found established, to have convicted the defendant of common assault. It is not really in dispute that the victim was injured, nor that there was an assault upon him in which the defendant took part. This was admitted by him in statements which he made to the police after caution.

16. It was an assault which caused an unpleasant injury to the victim and one which, in our view, requires an immediate custodial sentence to be imposed.

17. At one stage we were asked by Counsel for the Crown to consider ordering a retrial, on a charge of assault occasioning actual bodily harm. Even if we thought that the interests of justice so required, which in fact we do not, we do not think that we would have had power to order a retrial on that other charge.

18. Section 83E.(2) of the Criminal Procedure Code is subject to strict limitations, one of which is that a person shall not be ordered to be retried for any offence other than an offence of which he could have been convicted at the original trial on an indictment for the first-mentioned offence.

19. This defendant could not, on a charge of robbery, have been convicted of assault occasioning actual bodily harm. So we do not think that we have power to order a retrial on that charge even if we had thought it proper to do so.

20. In the result, therefore, the application for leave to appeal against conviction and sentence are allowed. The conviction is quashed on the charge of robbery. We substitute a conviction for the offence of common assault. We quash the sentence of three years' imprisonment and substitute therefor a sentence of six months' imprisonment

¹ [1782] East P.C. 510

² [1968] Q.B. 166

³ [1977] Grim. L.R. 173

Representation:

Miss M. Moosdeen (Melville Boase & Co.) for Appellant

Mr. G.J.X. McCoy, Senior Crown Counsel, for Respondent/Crown Prosecutor