Mak Chi-wing v. The Queen

CACC000419/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 419 OF 1972

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Coram: Rigby, C.J. and McMullin & Leonard, JJ.

Date of Judgment: 23rd August, 1972

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JUDGMENT

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McMullin, J. :

1. The applicant in this case was convicted on the 1st of June by the learned District Judge on a charge of robbery contrary to Section 10 of the Theft Ordinance. The appellant, who is a young man of about 20 years of age, was tried together with another person by the name of WONG Fu-shan. Both were convicted, and they each received a sentence of imprisonment of 2 years. Only one of the accused is now before this court.

2. The facts alleged on behalf of the Crown were that between 8 and 9 o'clock on the night of the 25th of March, the complainant, LING Hok-keung, a youth of 19 years of age, was walking in the vicinity of the Southern Playground in Hennessy Road with his girl friend. As they were about to cross the road, they were suddenly approached by 4 persons who had come from the playground and who, as the complainant and his girl friend passed them, had whistled at them and who shortly thereafter pursued them and set upon them. The complainant told the court that he was struck by these four people with their fists, that all four joined in the attack upon them, that his girl friend ran away, and that he was unable to defend himself. It was at some point in the course of these proceedings that his jacket was taken from him, and that jacket had at the time in it a sum of $155. As the youths ran away a police car came by, and the complainant fainted as a result of the injuries he received. He was later admitted into hospital where he spent some three days. The appellant and the original 2nd accused WONG Fu-shan were later arrested, and two separate identification parades were held at the Wanchai Police Station.

3. We have no evidence before us concerning the conduct of affairs at the first parade, but we understand that neither this appellant nor anybody else was identified on that occasion. At the second parade, however, the complainant picked out the two accused, that is, MAK Chi-wing and WONG Fu-shan, as being two of the four persons who had set upon him on the night in question. The complainant in giving evidence-in-chief to the court did not purport to identify any one of the four persons who had attacked him as being the person who had stolen his jacket. His evidence in fact was restricted to the statement :

"I fell on the ground: they took my jacket whilst I was on the ground."

For some reason this matter was not clarified by Crown Counsel at the time, but later when the complainant was referring to the identification parades, the learned District Judge intervened to ask whether the complainant at the parade had said anything about what the assailants had done to him, and he then said that he had told the officer-in-charge of the parade that both of them had beaten him up and that the one on the left hand side had taken his jacket. He said this in reference to the present appellant.

4. In the course of his reasons for verdict, having said that he found as a fact that the 1st accused did steal the victim's jacket, the District Judge said that he did so because of this belated allegation and he went on to say :

"and more importantly because he had said the same in the presence of the 1st accused at the identification parade."

There is no doubt that the record of the evidence shows that, according to Mr. Phillip who held the parade, the complainant, having placed his hand on the appellant's shoulder, said :-

"He also assaulted me. He snatched my jacket."

This evidence of Mr. Phillip was, however, clearly hearsay, and would only have been admissible - if at all - in relation to the appellant's reaction to that allegation and there is no evidence of any significant reaction. It is to be stressed that it was this particular piece of evidence rather than the answer to his own question at the trial which was emphasized by the District Judge in coming to his finding. We are left with the feeling that in the absence of this hearsay support the learned Judge might have hesitated to convict on the appellant's belated accusation. There was good reason for hesitation since in his unsolicited testimony in chief the complainant first said that ha had lost his jacket when he was knocked to the ground and then, when questioned further on the matter, went on to accuse all his assailants of having taken it whereas the rather pointed question put to him by the learned Judge concerning what he had said to Mr. Phillip at the identification parade elicited the reply :

"I told the superintendent that both of them had beaten me up and one had taken my jacket - the one sitting on the left hand side."

5. In view of these facts and bearing it in mind that, on being charged by the police, the appellant admitted the assault but denied the theft and reiterated this contention twice at the trial, we think that the evidence upon which the District Judge relied in coming to his finding that it was this appellant who took the jacket was unsatisfactory. Indeed it may be some indication of misgiving in this regard that, having so found he went on to find as a fact that there was, in any event, a common intention to rob shared by all 4 assailants. We do not think, however, that there was any evidence, other than the fact that the jacket was taken, to show such a shared intention. The assault itself might be equally explicable as a reaction to an imagined slight, sexual envy, fancied invasion of territory, mistaken identity, or simply as an example of cowardly and gratuitous viciousness unmotivated by any impulse more lofty or complicated than the prompting of animal high spirits. The incident, as described by the complaint himself, clearly yields no specific evidence of a pre-concerted design to rob, and the only inference of common intent is such as might be gleaned from the whole shape of the event itself - from the occurrence as it came about. Clearly, it is possible that some of the four who set upon the complainant may have been motivated by an intention to take property whilst others may not have been so motivated and may not have participated in the theft of the jacket. Since, in our view, there is no satisfactory evidence as to who took the property nor yet sufficient evidence to establish the necessary nexus of common intention, we think that it would be unsafe to let the conviction stand. The conviction will be quashed and the sentence set aside.

Representation:

Appellant in person.

Eddie Soh, C.C. for respondent.

(Judgment of the Court delivered by McMullin, J.)