The Queen v. Leung Tak Yin

IN THE COURT OF APPEAL

1987 No. 10
(Criminal)

BETWEEN

THE QUEEN

AND

LEUNG TAK-YIN

Coram: Roberts, C.J., Yang & Silke, JJ.A.

Date: 10^th March, 1987

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JUDGMENT

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Roberts, C.J.

1. This is an application for leave to appeal against conviction and sentence on one charge of indecent assault.

2. The applicant, who was the first defendant at the trial was jointly charged with another man with eight different charges, one of false imprisonment, three of blackmail, three of criminal intimidation and one of indecent assault.

3. At the conclusion of the Crown case the Judge led that there was no case to answer on seven of the eight charges against both defendants.

4. We observe, in passing, that it was a matter of some surprise to us that he should have reached this conclusion in relation to the second and third charges of blackmail and criminal intimidation, since the principal witness on whom the Crown relied, in relation to those charges, was the same witness as the one on whose evidence the Judge relied in order to convict the first defendant on the charge of indecent assault.

5. It is unnecessary to go into any detail as to the background facts giving rise to these charges, other than to say that the girl who was the subject of the alleged indecent assault, whom I will refer to as the complainant, had been to Macau for the purposes of gambling and had borrowed a substantial sum of money from a group of men there, who expressed themselves willing to lend money on certain conditions to those who wished to continue gambling.

6. After various incidents, into which it is unnecessary to go, the complainant found herself with the two defendants and other men on the 9^th September, in the afternoon, on the premises of the Tak Fuk Association in Wanchai, where a room had been rented by the group of men who were there with the complainant.

7. The evidence in relation to the indecent assault falls within a short compass. I quote the relevant passage of the complainant’s evidence –

“At the Tak Fuk Association I was accompanied by D1, D2, Ah Kan and Ah Chuen. A room was rented and they played mahjong and I stayed there to make further phone calls to my sister.

D1 had burnt my arm with a cigarette butt and caused it to be injured – about 3 p.m. I had made calls to my sister but nothing came of it then D1 burnt my arm.

Then D2 demanded that I should take off all my clothes when I failed to raise money he lost his temper and demanded me to do that. I refused but he threatened to beat me if I did not obey. At that time D1, Ah Chuen and Ah Kan were present in the room. I took off all my clothes. Then D2 committed an act of indecent assault – he touched my breasts with his hand – both hands – the other three were sitting there.

Ah Kan later told me to put back on my clothes. I was without clothes about 5 minutes.

I cried and then they asked me to make further phone calls to my elder sister.

I took off my clothes because D2 said if not he would beat me.

There was a phone in the room.

D1, D2 and Ah Kan made phone calls to their friends asking how much would be paid working as a prostitute.

D1 and D2 said to me if money not paid by 5 p.m. I would have to work as a prostitute, before and after I took off my clothes.”

8. Mr MacKenzie-Ross submitted on behalf of the applicant that the second defendant, although no doubt he and the applicant shared a common purpose to regain the money that they had lent, had gone further on his own than can reasonably be said to have been the common intention of the group.

9. In his very short Reasons for Verdict, the Judge directs himself on this issue in the following terms -

“I also accept that both D1 and D2 were endeavouring to get the return of a loan from P.W.1 and that was their common purpose or design. In the course of that common purpose D2 acted by losing his temper and getting P.W.1 to remove all her clothes. That in itself was an indecent assault as she was forced to strip in the presence of four men.

I have given much consideration to this point and take the view that since D1 and D2 had a common purpose which this incident was used to pursue, that D1 is equally guilty as D2 of the indecent assault."

10. There can, I think, be no criticism, and none was rasised by Mr. MacKenzie-Ross, of the Judge’s finding that an order to a woman to undress, accompanied by threats, would amount to an indecent assault in law.

11. The question, however, is whether the Judge has correctly directed himself on the question of common purpose. As we interpret his ruling, it can be summarized as follow.

12. Firstly, the two defendants had a common purpose, namely to secure the return of the money which they had lent to the complainant.

13. Secondly, in the course of that common purpose, the second defendant forced the complainant to remove her clothes.

14. Thirdly, that constituted and indecent assault by the second defendant.

15. Fourthly, the first defendant is also guilty of indecent assault because he shared with the second defendant a common purpose which the indecent assault was designed to further, though he took no part in the indecent assault, and there is no evidence that he encouraged it, though he watched it.

16. In our view, this is an incorrect direction on the law governing alders and abettors. The authorities state that, before a person may properly be convicted as an alder and a better, it is not sufficient merely for him to be present while an offence is committed. If he takes no part in it and does not act in concert with those who commit it, it is insufficient merely for him not to try to prevent the offence being committed. We were referred by Counsel for the Crown to R. v. Clarkson & Others[1], in which the main principles are set out. At p.450, Lord Justice Megaw quoted an earlier passage from the case of Coney (1882) 8 Q.B.D. 534 -

“’It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might, under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he willfully encouraged and so aided and abetted. But it would be purely a question for a jury whether he did so or not.’

It is not enough, then, that the presence of the accused person has, in fact, given encouragement. It must be proved that he intended to give encouragement; that he willfully encouraged.”

17. Had the Judge directed himself in the manner required by Clarkson¹ and various other authorities, he might well have come to the same conclusion which he did. However, for the reasons which we have already given, we are satisfied that the Judge did misdirect himself and that his approach to the evidence was in error.

18. We therefore feel obliged to allow the application for leave to appeal against conviction and sentence and to quash both conviction and sentence, though we do so with some regret because, as we have already commented, had the Judge correctly directed himself properly it might very well be that he would have reached the same conclusion.

Mr. D. MacKenzie Ross (C.W. Leung & Co.) for Appellant

Mr. I.G. Cross, Ag. Sen. Asst. Crown Prosecutor, for Respondent/Crown Prosecutor

[1]  [1971] 55 Cr. App. R. 445