Chan Kam-wing and Others v. The Queen

CACC001087/1976

Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 11 May, 1977.

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JUDGMENT

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1. The first and second appellants were found guilty of two counts of robbery and one count of wounding with intent to murder and sentenced to various terms of imprisonment. The third appellant was found guilty of one count of robbery and the fourth appellant was charged with one count of robbery and one count of wounding with intent to murder.

2. This judgment is only concerned with two matters, (1) the appeal of the first appellant against his conviction on the three counts mentioned above, and (2) with the appeals of the second and fourth appellants against their conviction on the charge of wounding with intent to murder. It is unnecessary to deal with any other matter.

3. The first appellant, with others, was charged with the offence of robbery of a woman called LAU Mui-fong, who was employed as a massage parlour hostess. The case for the prosecution was that LAU Mui-fong agreed with the appellant and three other persons to go for a joy-ride in the early morning of the 3rd February, 1976. When they reached a lonely spot in the New Territories, she was robbed by the appellant and the other three men. A knife was used but the evidence was that the appellant had no weapon. The first appellant was the driver of the vehicle in question. Almost immediately after the robbery took place, a police patrol appeared on the scene and the appellant and the other three men were arrested.

4. The learned Commissioner directed the jury that there was no evidence that the first appellant gave any actual assistance at the time of the robbery to the person or persons who was or who were actually concerned in the physical act of robbery. He further directed the jury that they would have to find that there was an agreement prior to the robbery between the first appellant and at least one of his companions to commit a robbery and that the robbery was committed in pursuance of that agreement before they could safely convict the first appellant on this charge.

5. We have carefully examined the record and it is a fact that there was no evidence of any such prior agreement to rob. Nevertheless, the jury did convict the first appellant. We think that, considering the clear direction of the Commissioner, the jury should have acquitted the appellant on this count, even if it was right to leave the matter to them at all. We therefore allow the appeal on this count.

6. The first appellant was also found guilty of a second charge of robbery and of the offence of wounding with intent to murder. These offences occurred on the 6th October, 1975. The case for the prosecution was that this appellant, together with three others, robbed a woman police constable; that she was approached by the first appellant and another man when she was waiting for transport in a street in the early hours of the morning; that she was dragged into a car from which the first appellant and his companion had emerged and was taken off to Tai Mo Shan; that there were four persons in the car of whom one was the first appellant; and that when the car arrived at a lonely spot in the New Territories the woman police constable was very badly beaten up by the first appellant and his companions.

7. The identification by the woman police constable of the first appellant as being one of the persons engaged in the robbery and wounding was paramount to the case for the prosecution. In the recent case of Turnbull⁽¹⁾ the Court of Appeal in England suggested valuable guidelines to assist a judge summing-up a case to a jury where the question of the identification of an accused person is the sole or main issue. We think that in this case the Commissioner acted within those guidelines. He pointed out that though there was no corroboration of the evidence of identification by the woman police constable she had three opportunities of identifying the first appellant. She said that he was one of the two men who approached her in the street. She said that in the car a torch was used to examine her handbag and she saw the face of the first appellant by its light, albeit briefly, on that occasion. And she said she recognized him as being one of the four persons who attacked her after the robbery. The learned Commissioner also referred to the evidence that though she had identified the first appellant as one of the robbers at an identification parade held a month later, she had also identified two other persons wrongly; and he gave an adequate general warning on the dangers of identification evidence as such.

8. The learned Commissioner also referred to two statements made to the police by the second and fourth appellants, both of whom pleaded guilty to the robbery of the woman police constable at the trial. Both statements are to the effect that there were four persons in the car at the time of the robbery, three of whom are named. However, they do not mention the name of the first appellant. Both statements said that the person whose name they did not know was the driver of the vehicle. The woman police constable's evidence was that there were four persons in the vehicle. But she was emphatic that the appellant was not the driver. Since the other three were named by two of the appellants and none of those names was that of the first appellant, it follows that his presence in the vehicle was a matter of the gravest doubt.

9. There was a further important piece of evidence on the issue which was not referred to by the learned Commissioner in his summing-up to the jury. The woman police constable said that she heard one of the robbers address another of the robbers by the name of "Wah Chai". This points to the possibility that "Wah Chai" was there and may have been the driver, and it supports the statements made by the second and fourth appellants to the police to that extent, namely that the fourth man was Wah Chai, the driver. This leaves us in doubt whether the first appellant was at the scene at all. His defence was that he was not there and he called evidence to prove an alibi.

10. In the event, we think that the convictions on these two charges, namely of robbery and wounding with intent to murder are unsafe and unsatisfactory. The appeal is allowed and the convictions are quashed.

11. There remains the conviction of the first appellant on a minor offence with which it is unnecessary to deal in the judgment.

12. The second and fourth appellants were found guilty of wounding with intent to murder. This offence arose out of the robbery of the woman police constable to which reference is made above. As we have said, the evidence was that she was taken by the appellants to a lonely spot in the New Territories and having been robbed she was beaten up and severely wounded by the persons who had robbed her. There was evidence that a knife was used by the second appellant and that she received serious injuries not only by being stabbed in the abdomen but also injuries to her head and neck and the upper part of her body. It is true that this is a case of a deliberate attack by four men with weapons on a defenceless young woman in a lonely place. The wounds were serious and she was abandoned after the attack. We think that there is just a doubt whether these facts can be said to prove that the intention of the appellants was to murder her. However, there is ample proof that there was an intention to cause grievous bodily harm to the woman police constable.

13. We think that the proper course to take, therefore, is to substitute a conviction of these two appellants on a count of wounding with intent to do grievous bodily harm contrary to section 17A of the Offences against the Person Ordinance for the conviction of wounding with intent to murder. In so doing, we think that a proper sentence to be passed for this offence is eight years' imprisonment on each of the second and fourth appellants. And we impose that sentence on each of the two appellants, such sentences to be served concurrently with the other sentences passed on the appellants and with which we have not interfered.

Representation:

Sanguinetti & Cheng Huan (W.K. Poon & Co.) for 1st appellant

Donnelly (Hampton, Winter & Glynn) for 2nd, 3rd & 4th appellants

Conway for crown.

(1) (1976) 3 All E.R.549.