Lau Sze-ming v. The Queen

CACC000414/1977

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Coram: Huggins, J.A., Pickering, J.A. and McMullin, J.

Date of Judgment: 10th August 1977.

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JUDGMENT

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Huggins, J.A.:

1. The Appellant was convicted on five charges of robbery and one, under s.17 of the Summary Offences Ordinance, of possession of an offensive weapon. He appeals against those convictions.

2. All the offences arose out of a raid by a gang of robbers on a so-called "beauty parlour". It was not disputed that the Appellant was at the scene at the time of the incident and the issue was whether he was there as a robber or as a prospective customer. His case was that he arrived as the robbery was in progress, was dragged into the premises and was himself searched, but that the police entered before anything could be taken from him. On the other hand there was evidence from the police that he was one of two persons who rushed out of the premises as they were trying to gain entry and from a Mr. Pang that the Appellant struck and robbed him. We are indebted to Miss Leong for a very thorough analysis of the evidence, in the course of which she has pointed out inconsistencies which she submits exist between the testimony of Mr. Pang and that of the other witnesses. Miss Leong then contended that the learned judge unfairly selected pieces out of the evidence of the various witnesses in order to make up a picture of guilt. It was open to the judge to believe such parts of the evidence of each witness as he was satisfied was credible, but, more important, he expressly stated that he believed Mr. Pang and once Mr. Pang's evidence was believed it was inevitable that the Appellant should be found guilty on the robbery charges. We are unable to say that the judge came to a wrong conclusion.

3. As to the charge of possession of an offensive weapon there is some force in the suggestion that the particulars were originally drafted to support a charge under s.33 of the Public Order Ordinance. Be that as it may, while we do not accept the argument that the charge was bad for duplicity, we think it did lack an essential element. The offence consists of possession of an offensive weapon either "with intent to use the same for any such unlawful purpose" or "being unable to give satisfactory account of his possession thereof". We have been invited by the Crown to hold that it was clear that the prosecution was alleging an inability to give a satisfactory explanation - presumably because no evidence had been led of an intent to use the knife for "such unlawful purpose". We think that that is not good enough and that in fairness to the Appellant he ought to have been told precisely what it was that the prosecution alleged against him. For this reason we allow the appeal against convictions to this extent, that the conviction on the seventh charge is quashed and the sentence set aside.

4. On the matter of sentence Miss Leong reasonably criticizes the laying of five separate charges of robbery when a single charge could have been drafted naming the five victims and listing the property stolen from each. The objection we see is not that suggested, namely that the result has been a higher sentence than would have been imposed upon a conviction on a single charge, but that the Appellant's record will show five convictions for what was in truth only one offence - to his possible future detriment. We do not think there is anything we can do about that now, but we would suggest to those responsible for drafting charges in such circumstances as these that not only would justice be done but injustice averted if a single charge were laid naming all the persons and all the property concerned. Miss Leong submits that the sentence was on the high side but she has balked at contending that it was manifestly excessive. We sympathize with her. In our view a sentence of three and a half years' imprisonment for a robbery by a gang armed with knives was amply justified and it matters not that by some standards the amount of property stolen from the victims was small: one who had $2,400 with him was relieved of the entire sum. The application for leave to appeal against sentence is dismissed.

10th August 1977.

Representation: