Yeung Luk-nang v. The Queen

BETWEEN

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Coram: McMullin, V. - P., Li & Silke, JJ.A.

Date: 7 March 1982

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J U D G M E N T

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McMullin, V.-P. :

1. The appellant was charged with robbery, contrary to section 10 of the Theft Ordinance. The particulars are that he robbed LEE Sin-kiu of a handbag, a wallet, a $100 Hong Kong currency note, a cigarette lighter and a Hong Kong identity card No. XXXXXXX.

2. It is common case that a confrontation did take place between the accused YEUNG Luk-nang and the victim LEE Sin -kiu at about half past midnight on the 24th of September 1981 at Lee Tung Street.

3. The stories of the victim and the appellant, both of whom gave evidence, are, however, entirely different. Her evidence - and there are certain discrepancies to which I must later refer - was basically this. She was walking in the road outside No. 12 Lee Tung Street when the appellant approached her and put his arm round her neck, asked her for money and forced her to give up her handbag with the wallet from which he took the $100 note and then returned her the handbag and the wallet with the other items in it. This was done after he had forced her up some stairs in the building nearby.  He did that at knife point and he forced her doom upon the stairs before removing these objects and returning the handbag etc.  Immediately thereafter he ran off and she pursued him shouting "robbery". He was subsequently caught close to the scene in Ship Street by some police officers on patrol.

4. The accused agrees that he encountered the victim on that occasion. He said, however, that although he did force her at knife point, his intention was to have sexual intercourse with her having no money and knowing that she was a prostitute. He described the area which he found her as being a place where prostitutes were familiarly encountered. He said that he forced her up the stairs and into an apartment house.  They entered an apartment together and at his instance and under that threat, though the knife was not shown inside the apartment, she paid for the room which he was hoping to occupy with her by using the $100 note.

5. The judge was not wholly satisfied with the evidence from either party. He noted that the first witness probably is a prostitute and he noted that she had changed the story as to what was taken from her. The charge, as he pointed out, suggests that she had handed over her entire handbag and he noted also that she told the police officer, P. W. 2 who was one of the officers who pursued the appellant, that as the appellant ran away, she had picked up her wallet. As against that her evidence was that as she pursued him, he had thrown the $100 note which she picked up. There was also some prevarication, as Miss Remedios has put it, in her evidence. At one point she indicated that she did not get her $100 note back until she was taken to the nearby police unit.

6. These were matters which, undoubtedly, detracted from her evidence and the judge was aware of them. He found, however, that the appellant's story was absurd and he pointed out that there were some elaborations to his basic story which had not been put in cross-examination to the complainant.

7. He was, however, sufficiently unimpressed by the evidence to acquit of the crime charged. He was satisfied that the evidence was sufficient to show an offence of assault with intent to rob, and the appellant was convicted of that offence under section 2(ii) of Chapter 210.

8. In the course of the appeal, while Miss Remedios was conducting us through the evidence and these various discrepancies, Mr. Alderdice for the Crown brought to our attention a matter which was not before the judge at the trial.

9. The judge was aware of the discrepancy to which I have referred, that is, where the police officer had said that the victim told him that the accused had dropped the wallet and that she had picked it up whereas, in evidence, she said that she had picked up the $100 note. He was not aware, however, that in her original statement to the police, she had given the version that the police officer gave in court. That statement was not produced at the trial nor was it referred to.

10. A second matter, which was not before the judge, and which emerges from the statement which Mr. Alderdice referred us to, is that in that statement she made no reference to being pushed up a stairway of an adjacent building and said that the assault and the robbery had taken place in the street outside that building.

11. We are satisfied that had these matters been before him, it is very unlikely that the judge would have been sufficiently persuaded of the victim's story and the truth of it to sustain even the offence of assault with intent to rob. There was no other alternative available upon the facts and there is no alternative available to this court by way of substitution. The appellant has been in custody for some time and has suffered a substantial period of incarceration as a result of the act which he himself admits to having done.

12. We think, therefore, for these reasons that the conviction was unsafe. We set it aside and the appellant will be set at liberty.

Representation:

Miss Corinne Remedios (Cheung & Tong) assigned for the appellant

Mr. G. Alderdice, Crown Counsel, for respondent/Crown