The Queen v. Mok Hing Wo

CACC001029/1983

BETWEEN

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Coram: Hon. Roberts, C.J., McMullin, V.-P. and Li, J. A.

Date: 17 February 1984

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JUDGMENT

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McMullin, V.-P.:

1. The applicant Mok Hing-wo was convicted of robbery in the District Court receiving a sentence of 2¹/₂ years. The complainant in the case was one Kwok Chun-wah. At the time of the trial he was not employed but at the time of the alleged offence he had been engaged in some form of business involving the use of  hypnotism in the treatment of disease at No. 670 Shanghai Street on the 8th floor, the site of the alleged robbery.

2. On that day, according to him , the premises were approached by the defendant and a number of other  persons, he led them in and a demand was then made, according to him , for some $10,000.00.  He gave an account of how he was terrorised, forced down upon a sofa and how a chopper was used to force him to give up a key which led into a room where money was discovered. He was then bound and gagged and he heard the intruders sharing out the money.

3. On his account of the matter, some $5,000.00 were taken together with a camera and a driving licence.

4. He was cross-examined and. it was put to him that the defendant had been engaged in making a claim to monies which the defendant said were owed to him by the complainant. The complainant denied that any such thing had taken place, although he admitted that he had known the defendant some years previously at a time when he, the complainant, had been engaged in business at some kind of hawker stall at which he practised as a street magician. According to him, the complainant was interested in his. performance and did seek to become his pupil, but he said that he had not taken him on as his pupil, and he wholly denied that there had been any commercial arrangement between them whereby money was exchanged for services rendered by him.

5. The defendant's story was quite different. He said that he had approached the complainant. some five or six years previously, at a time when the latter was conducting his magical show in the street, and had sought to become and had in fact become his pupil. His main purpose it would seem was to learn magical tricks which he could do himself. He said that when the complainant agreed to    take him on as a pupil he gave him a yellow paper with some black characters written on it.  In the first place the complainant performed some kind of trick involving the use of this paper and of mahjong tiles, presumably to gain his confidences. He then told him that he must pay $4,000.00 which he did, and told him that he must return some 49 days later and pay another $4,000.00, which he did.

6. On the latter occasion he was then given the yellow paper and told that he must keep it with him at all times if he wished to enjoy good luck and health. The complainant did keep the paper with him, but  according to him, his fortunes did not in any way improve. He became dissatisfied with what he regarded as the unsuccessful outcome of their bargain, and he sought recompense from the complainants. However, the latter had by then moved his premises and he was unable to find him.

7. They later encountered each other, not long before the events with which this case was concerned, when the defendant was working in a restaurant. According to the defendant, the complainant spoke to him and it appears that the interview was a friendly one. The complainant gave him his address verbally and gave him also a card  with a telephone number on it, but the defendant is, according to him, illiterate, and he could not remember the addresses. Later he saw an advertisement in a  newspaper which directed him to the premises in Shanghai Street.

8. He admits that he got a number of his friends to go together with him, in order to collect what he regarded as a lawful debt. He did not admit that they terrorised and tied up the complainant, though he did agree that he and his friends had squatted in the shop for some hours, in an obvious endeavour to force payment, and that eventually one of their number did threaten to tie up the complainant, at which point the complainant made a bargain with him, offering him 40% what he originally paid, and that is some $3,200.00. He accepted this and went to a restaurant with his friends. where, he says, he spent $1,000.00 on a meal for himself and his friends and  then lent them the remainder. The story which he gave had such unlikely overtones to it that the District Judge perhaps  understandably believed that it was an entirely made  up affair. The Judge, in giving his reasons, said that he was not satisfied that the defendant was the country bumpkin that he tried to present himself as being.

9. We have this morning had the advantage of a short address by Mr. Oderberg, on behalf of the Crown. He is not seeking to support the conviction in the present case. We are indebted to him for the attitude he has taken because this court too has, even on the face of the papers, entertained considerable doubts as to the safety of this conviction.

10. These doubts are basically. for the following reasons. It is undenied that the complainant was himself a confidence trickster who has recently been convicted of an offence of obtaining money by deception, the deception being the sale of simples or charms of some kind, presumably upon a promise that they would be effective for good luck, the sum involved being $80,000. He has also a previous conviction for theft.

11. The probation report concerning the defendant is of an unusually favourable character and it undoubtedly lends strong support to the idea that the defendant is a simple-minded person who would readily be taken in by an experienced confidence trickster. The defendant had come from China about 7 years prior to these events. He had managed to get himself employment. He has had no previous convictions. His character, according to those who have had dealings with him including neighbours is one of probity and honesty. He married, after he came to Hong Kong, a woman somewhat better educated than himself who also gives him a character of the description given by the other persons who have had dealings with him. After arrest the defendant made a statement to the police. Although it was contested it makes a clear claim to an entitlement to recover money from the complainant albeit in a manner more forcible than he alleged at the trial. The complainant was confronted with a statement he had made to the police in which he had admitted taking the defendant on as a pupil in 1975. His denial of this at the trial is of significance in relation to the defendant's explanation of his actions. It is not specifically dealt with by the trial Judge.

12. We are therefore left uneasy with the Judge's finding that the defendant was not pursuing a claim which he regarded as legitimate. We have in mind the decision of the Court of Appeal in Skivington reported in Volume 51 of the Criminal Appeal reports, a case in  which a man had sought to exact wages which he reckoned were due to his wife, although it appears that they were not yet actually due when he sought  to exact them at knife-point, clearly circumstances - if there had not been in the picture something in the nature of a claim of right - which would have borne every appearance of straightforward robbery. The claim of right was however made on behalf of the defendant in that case, and at page 171 of the report Lord Parker says as follows:

"In the opinion of this court the matter is plain, namely that a claim of right is a defence from robbery or any aggravated form of robbery, and that it is unnecessary to show that the defendant must have had an honest belief also that he was entitled to take the money  in the way in which he did."

That case has been followed in a more recent case The Queen v. Robinson, noted at page 173 of the Criminal Law Review for 1977.

13. For these reasons we are not satisfied that the conviction in the present case was safe, or satisfactory, and the application is granted, the conviction is quashed and the sentence set aside.

Representation:

Mr. A.W. Sedgwick (D.L.A.) assigned for Applicants

Mr. K. Oderberg for Respondent/Crown.