Chan Chi Yum and Another v. The Queen

CACC000467/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 467 OF 1972

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Coram: Huggins J.

Date of Judgment: 27th July, 1972.

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JUDGMENT

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1. The Appellants were two of four young men charged before the magistrate with assault with intent to rob. They all pleaded Not guilty and at the trial the other two Accused were acquitted. These Appellants were convicted and were sentenced to detention in a Training Centre. They now appeal against conviction and sentence.

2. The Notices of Appeal against conviction allege that there was no evidence or no sufficient evidence whereon to found the conviction and in particular that there was no or no sufficient evidence either of the assault or of the intention to rob. The burden of the argument addressed to me on the hearing of the appeal has been that there was no sufficient evidence of identification. As to the identification counsel says with some justification that the evidence was not as strong as it might have been. The facts as found by the learned magistrate were that at about 10:30 p.m. a man and a woman were walking in the vicinity of the junction of Stafford Road and Essex Crescent, Kowloon; that the two Appellants confronted them and pointed objects at them; that the 1st Appellant demanded money; that while this was going on a police vehicle passed by and the victims called out to it and, finally, that the Appellants ran away but were caught by the police after a brief chase. In his evidence the man said that four persons approached them and that although "the lighting was rather dim I can recognise them faintly". Both he and the woman identified the Appellants in the dock at the trial. If that were the only evidence of identification I would entirely agree with Miss Leong that the conviction was unsafe. However, we must not overlook the evidence of the police officers. The man said that the police chased the four assailants. Police officers gave evidence of having seen a group of five men and a woman from which four men ran away and that they chased them and caught, inter alios, the two Appellants. In my view that was ample evidence of identification, if believed. The two victims gave evidence that articles were pointed at them in a manner which caused them fear. These two Appellants were found to have on them a comb and a pen, each of which could reasonably be mistaken in a dim light for a weapon, and the man expressly said that the object pointed at him was "something like a dagger". There was clearly an assault and the evidence of a demand for money would justify a finding of an intent to rob.

3. It is questionable whether it lies in the mouths of these Appellants to attack the identification at all in view of the submission which was made on their behalf in mitigation of sentence. The facts then put before the magistrate were that the 1st Appellant had borrowed $50 from a school friend and found himself unable to repay; that he and the other Appellant then decided to obtain the money by illegal means and that this offence was the result. Whatever may have been said in mitigation of sentence it was and always has been open to the Appellants to attack the conviction on the basis that there was no evidence which justified a conviction. However, there was evidence which, if believed, justified conviction and what was said in mitigation clearly shows that the learned magistrate was right when he believed that evidence.

4. The appeal against conviction is dismissed.

5. The appeals against sentence present greater difficulty, in particular because of a passage in the Statement of Findings:

"The 1st appellant despite his being less than frank with the Probation Officer was not recommended for Probation nor was the 2nd appellant".

It has been submitted that the learned magistrate is there shown to have misunderstood what the Probation Officer said and I confess that when I first read that passage I had difficulty in understanding it. It is true that the Probation Officer in each case said that he did not recommend probation but it was not because he thought the Appellants were too unruly to benefit from probation but because he thought the parents were capable of giving such supervision as was required and that it was unnecessary to place the Appellants under the supervision of a Probation Officer. What I think the learned magistrate intended to convey was that even the fact that the Appellants were less than frank with him did not persuade him that a conditional discharge under s.36 of the Magistrates Ordinance might not be appropriate. The learned magistrate took a more serious view and emphasised that this was a deliberately attempted robbery, adding

"it is a matter of concern that you both appear to have thought that in the popular phrase, 'there was nothing to it'".

When calling for Probation Officers' reports he told the Appellants that he wanted to make it perfectly clear not only to them but to others who might be tempted in the same way that in cases of this kind the interests of an individual might be overridden by the interests of the public, whose safety it was the duty of the courts to protect. After considering all the matters put before him he decided that custodial sentences were appropriate and the question I have to decide is whether he was wrong.

6. The Appellants have been ably represented both in the court below (the 1st Appellant not only at the original hearing but also upon an application for a review) but also before this Court and everything possible has been said on their behalf. There was a great deal which could be said for them although it is a matter for comment that to the Probation Officer each sought to maintain that he was innocent. It may well be that some would take a different view but the learned magistrate thought this was too serious a matter to be dealt with otherwise than by the sentences which he passed and I am not persuaded that I ought to say he was wrong.

7. The appeals against sentence are also dismissed.

27th July, 1972.

Representation: