HKSAR v. Ng Wing Hang

[English Translation]
CACC 98/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 98 OF 2000

(ON APPEAL FROM DCCC NO. 1045 OF 1999)

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BETWEEN

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Before: Hon Leong, Wong and Woo JJA

Date of Hearing: 13 June 2000

Date of Delivery of Judgment: 13 June 2000

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JUDGMENT

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Hon Leong JA (giving the judgment of the Court):

1. On 25 February this year, the applicant for leave to appeal, Ng Wing Hang, was charged before the District Court with one count of robbery.  Particulars of the offence stated that on 8 September 1999, in Wanchai Road and together with Ho Chi Wai (何志徫) (i.e. D1) and Li Wai Yip (李偉業) (i.e. D2), the applicant robbed one Chow Ka Yin (周嘉賢) of cash in the sum of HK$60 and a multi-purpose bankcard.  The applicant was convicted after trial, and Her Honour District Judge Toh sentenced him to imprisonment for 40 months.  He now seeks leave to appeal against conviction and sentence.

2. On the prosecution’s evidence, the circumstances of the offence are as follows:

3. On 8 September 1999, the victim Chow Ka Yin (i.e. PW1) was walking along Wanchai Road after work.  D1 bumped against the victim, then stopped him and asked him who his “big brother” was.  At the same time, D2 and applicant also approached.  D2 asked the victim whether he had a “big brother”.  The victim replied, “No.”  D2 further asked the victim if he had any money on him.  The victim also replied, “No.”  D1 and D2 then assaulted and kicked the victim.  Thereafter, the victim handed his wallet to D2.  D2 took from the wallet the property referred to in the charge, including three $20 banknotes.  At that time, D1 wanted to take away the victim’s mobile phone, but the applicant told D1 not to do so.  D1 listened to the applicant and did not take away the victim’s phone.  Later, two traffic policemen turned up and the three defendants immediately fled.  The applicant jumped on board a taxi, but the taxi was stopped by the police.  The applicant was arrested, and the police found a $20 banknote on his person.  He admitted that the $20 banknote was part of the money obtained from the robbery.  The victim subsequently identified the applicant as one of the three robbers who had intercepted him.  The police cautioned the applicant for the robbery.  Under caution, the applicant said, “I admit, but I did not intend it.  It’s just that my two friends thrust twenty dollars into my pocket after they robbed the guy!”

4. At trial, the applicant testified that on the day in question, before he met D1 and D2 in Wanchai Road, he had no knowledge whatsoever of the robbery.  He also testified that, prior to his arrival, D1 and D2 had already assaulted and demanded money from the victim.

5. Judge Toh disbelieved the applicant’s testimony and believed the victim’s evidence.  She concluded that the applicant approached the victim with D2 and that the applicant was present when the victim was assaulted by the two defendants.  The applicant had never intervened or told the other two defendants not to rob.  When the applicant saw the policemen, he immediately fled and took off his jacket in the course in order to avoid detection.  In the end, Judge Toh ruled that the applicant did take part in the robbery and therefore convicted him of robbery.

6. The first and second grounds of appeal mainly complain that Judge Toh erred in ruling, on the sole basis that the applicant was present at the scene, that he and the other two defendants were accomplices in the robbery.  Since Judge Toh did not rule that the applicant’s presence at the scene was pursuant to an agreement or premeditated plan between the applicant and the other two defendants, the conviction of the applicant was unsatisfactory.

7. The third ground of appeal is that the trial judge erred in inferring the applicant’s guilt from the mere fact that he had fled and taken off his jacket in the course.

8. The fourth ground of appeal is, even if the applicant were guilty, he should only have been guilty of handling stolen property.  Judge Toh should not have failed to consider this alternative charge.

9. There is an abundance of judicial authorities on the legal concepts of “joint enterprise” and “aiding and abetting”.  One of the principles that emerge is this: where it is necessary to prove that a defendant aided and abetted another to commit a crime on the basis that the defendant encouraged another to commit a crime, the prosecution must prove that the defendant intentionally and wilfully encouraged another to commit a crime.  The mere fact that the defendant was present at the scene of his own accord when the other person committed a crime, even if such presence was not by chance, is not tantamount to encouraging another to commit a crime.  If the defendant voluntarily and purposefully placed himself at the scene and witnessed the commission of the crime, he would naturally be expected to stop the crime from occurring to the extent that he was able to do so.  Under certain circumstances, however, if he did not object to or dissent from the commission of the crime, this may constitute cogent evidence from which the jury may conclude that the defendant has aided or abetted another to commit a crime.  The foregoing sums up the views expressed in two cases: R v Kwan Kwok-hing [1977] HKLR 159 and R v Clarkson and Ors 55 Cr App R 445.

10. This Court is of the view that the trial judge did not convict the applicant solely on the basis that he was present at the scene.  The conviction was based on the following evidence: after D1 intercepted the victim, the applicant and D2 approached the victim; when the victim was assaulted by D1 and D2 and, later on, when D2 took away property from the victim’s wallet, the applicant was beside him, and all along the applicant neither intervened nor expressed disapproval of what the other two defendants were doing; subsequently, the applicant told D1 not to take away the victim’s mobile phone, and this indicates that the applicant thought that enough had been taken from the victim; D1 also followed the applicant’s instruction; and when applicant saw the policemen, he immediately fled with the other two defendants and took off his jacket with intent to avoid detection.

11. The above evidence does not serve to prove any prior agreement between the applicant and the other two defendants to rob the victim or other people, but it does prove that the applicant’s presence at the scene was neither by sheer chance nor for no reason whatsoever.  His approaching the victim with D2 was plainly related to D1’s intercepting the victim.  Judge Toh could infer from the applicant’s behaviour at the scene that he had encouraged the other two defendants to commit the offence.  She could also infer from the evidence of his instructing the other two defendants not to take away the victim’s mobile phone that the applicant actually took part in the robbery.  The applicant alleged that the reason for his taking to his heels when policemen appeared was that he was frightened.  Nevertheless, this explanation, which might, if accepted, have provided an “innocent” motive for fleeing, had been rejected by the judge.  On this basis, Judge Toh was quite entitled to draw an inference adverse to the applicant.  (See  R v Mo Shiu-shing [1992] 2 HKLRD 155).

12. This Court comes to the conclusion that the trial judge has not erred in law or in fact in her judgment.  There is sufficient evidence of the applicant having committed the offence to support Judge Toh’s verdict that the applicant was guilty.  The application for leave to appeal against conviction is accordingly refused.

13. Turning to the application for leave to appeal against sentence, this is a case where three people acted in concert to commit robbery, and violence was involved.  The starting point of 4 years as adopted by Judge Toh is in accord with the general sentencing guideline for this type of offence.  The discount given to the applicant and the eventual sentence of imprisonment for 40 months show that the trial judge had been lenient to the applicant.  In our view, this sentence is neither excessive nor wrong in principle.  The application for leave to appeal against sentence is therefore also refused.

Ms. E. Chan, Senior Assistant Director of Public Prosecutions, for the respondent.

Mr. Patrick Szeto, instructed by T. C. Lau & Co, for the applicant for leave to appeal.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor