Ng Hon-kei V the Queen
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CACC001163/1976
----------------- Coram: McMullin, J. in Court. Date of Judgment: 26th November, 1976. ----------------- JUDGMENT ----------------- 1. The appellant was convicted together with another man upon a single charge of robbery. On the face of the story for the Crown the case could not be more simple. The victim, an auxiliary police constable and a printer by profession was approached at about 1.00 p.m. on the 5th of July at the Morrison Hill Road Carpark by the appellant and the other accused who has not appealed in the present case. His story was that they told him to make no noise and to get back into his car which he had just locked. He was very frightened. He said that they should not do anything to him and it is clear that from the outset he assumed that he was at that moment the subject of an attempt at robbery. The first appellant seized him by the shirt and the complainant struggled and broke away and ran a short distance and was pursued. A further struggle took place between him and the appellant. It is important to note that the complainant's evidence was that it was in the course of the first assault that the appellant possessed himself of the pens mentioned in the charge. At that point a senior European officer from the Police Recreation Club nearby intervened, separated the two combatants and took them into the Recreation Club and from there the appellant was later taken to the police station. 2. The case for the defence was that the appellant and his companion had gone to that place on that day because TAM Kwok-hung, the brother-in-law of the appellant, had phoned him on that day and told him that a man called CHAN Hung was blackmailing him over a wrist watch the loss of which apparently had been attributed in some way by CHAN Hung to TAM Kwok-hung. The appellant's story was that he went there to remonstrate with this man and that he took the second defendant along with him for security. He had been given a description of CHAN Hung by his brother-in-law and the victim in the case appeared to answer this description and they approached the victim with a view to taking up the question of blackmail with him. The victim ran away and was pursued and in the course of a struggle his shirt was torn. The European police officer then intervened and due to the fact that he could not understand Chinese, the appellant was not able to give the account of the matter which he later gave in the police station after his arrest and which he gave in court. 3. The learned magistrate accepted the evidence of the victim as showing a straightforward instance of street robbery. He did however advert to the fact that the two defendants had quite independently and without any opportunity of collusion between them put forward, by way of explanation, at the first opportunity, this story of their helping a relative of the appellant in respect of an attempted blackmail. Mr. Gunston for the appellant points out that there are other unusual features in the evidence. Firstly, it is clear that, contrary to the usual pattern of such cases, the alleged robbers did not make off after succeeding in their criminal act. Instead it was the victim who ran away and was then pursued by his assailants. Then there is the fact that the second defendant, who upon his own account of the matter had made off to inform Tam who was working nearby while the victim was under surveillance by the first defendant, and who, upon the intervention of Mr. Gadd, the European police officer, had gone off with Tam and had not intervened, nevertheless, about five hours after the arrest of the first defendant, turned up voluntarily at the police station with the brother-in-law and the appellant's mother to offer bail for the appellant. This, despite the fact that the second defendant, who has a criminal record, must have realized that he was certain to be arrested if he had indeed participated in robbing the complainant. There is then the fact that the victim himself, in the course of his evidence, says that the first words spoken to him were "make no noise get into the car". Upon this being said the victim said "You don't want to move your hands. I will give you" indicating thereby that he thought that he was being robbed. But after that one of his assailants said "You don't have to say anything" and grabbed him by the shirt. These exchanges, Mr. Gunston says, with some justification, are scarcely typical of the kind of conduct familiar in connection with robberies of the kind alleged here. There was, it is plain, no demand for money or other property. Taken together with the other matters to which I have already referred this evidence is, Mr. Gunston suggests, something which tells more strongly in favour of the story put forward by the two defendants than the Crown's allegation of an ordinary street robbery. Mr. Polson, with exemplary fairness, concedes that there are matters which occasion anxiety in the evidence and he went as far as to say, without wholly committing himself to that view, that he favours the view that the true background to the matter is some such mistake as was alleged by both defendants. But, he says, in any event the conviction must be sustained since the evidence does show that the appellant was in possession of the two pens at the moment Mr. Gadd intervened. In effect, he says, this is either what the prosecution alleges or else it is an instance of the initial motive having changed and the defendant having formed on the spur of the moment an intention to appropriate the property of the victim, having, for another purpose, assaulted the victim and put him in fear. It may readily be conceded that that view of the facts is available upon the evidence. In support of it Mr. Polson urges the fact that the appellant appear to have told what must be regarded as a blatant lie. In other words he denies that he ever had the pens in his hands at all. But the evidence of Mr. Gadd is clear on that point and I think the magistrate very rightly relied upon it and that is a finding of fact which cannot be disputed in this court. To this Mr. Gunston rightly retorts that the mere fact that the appellant told a lie in court is not in itself a proof of his guilt. Moreover this was not the basis upon which the magistrate convicted since he convicted both defendants and the other defendant admittedly had made no endeavour to appropriate any property of the victim and could scarcely have been associated with any such last minute change of intention on the part of the appellant. A conviction on this basis would amount to a conviction on a view of the evidence quite different from that proposed by the prosecution. 4. One might sum up the curious and a-typical features which are patent on the face of the evidence as follows (1) the fact that the blackmail story was independently given by both defendants without the chance of collusion between the event and the arrest of the second defendant; (2) the unlikeliness of their having pre-concocted a story of that description to cover any possible robbery especially in view of the fact that the appellant has a regular job and a clear record; (3) the fact that even on the victim's evidence no demand for money or any other form of property was ever made; (4) the fact that the victim says that the defendants invited him to get back into his own car a circumstance which tends rather to favour the blackmail complaint theory than the notion of robbery; (5) the fact that having possessed himself of the pens by tearing at the shirt of the victim it is the victim who runs away and the alleged robbers who pursue him; (6) the fact that the victim says that upon being seized again by the appellant outside the Police Recreation Club the appellant said to him "How do you dare to run away?" although by then, on the victim's account of the matter, his property had already been removed; (7) the fact that the second defendant voluntarily came to the police station later in order to offer bail for the first defendant; (8) the fact that upon the intervention of Mr. Gadd he found the two men shouting excitedly at each other and the appellant made no endeavour to run away. All of these are matters which are not in dispute and in respect to which therefore questions of demeanour do not arise. 5. An appellate court must always be very slow to interfere with any conviction based upon findings of fact when the magistrate has formed his opinion on the evidence in reliance principally upon his opportunity of observing the demeanour of witnesses. There is no doubt the learned magistrate in this case dealt with all the evidence carefully and came to the conclusion that he did not believe the defence witnesses saying: "None of the defence witnesses emerged in my opinion as witnesses of credit". This finding as to the witnesses is however not related in any way to their demeanour or manner of giving their evidence and is not further elaborated. I myself find it difficult to say that upon the record of the evidence there is, in the testimony given by any of the defence witnesses, anything so clearly contradictory or absurd that on the face of it should not be accepted. Such discrepancies as exist between what the victim told the court and what the defence witnesses said do not seem to me to be very large or material. Finally, in dealing with the blackmail story and in rejecting it the learned magistrate bases his finding principally upon two things: firstly, he said that he did not believe that the victim would have been quick-witted enough to invent a false claim. I can only say, with respect, that that does not appear to me to be a finding of great substance in view of the fact that the victim was himself from the outset, and for very good reason, as Mr. Gunston points out, clearly of the opinion that he was being robbed. At the very moment that Mr. Gadd intervened the appellant clearly was in possession of the victim's pens it therefore required nothing more than the application of basic logic to confirm the victim's opinion that he had been robbed. Again, the magistrate said that he did not think that the complainant was a person of a kind to commit perjury but on what I have said already I think it must be plain that the record does not disclose that any question of perjury need necessarily enter into the picture at all whichever version of the facts be accepted. Even if it be true that the two defendants approached the victim intending to set right a wrong done to a relative what transpired thereafter could, from the victim's point of view, be as readily explained in terms of an attempt to rob as in terms of mistaken identity and the pursuit of a quarrel in which the victim had no concern in fact. Notwithstanding the clear evidence as to the appellant's possession of the victim's property I have come to the conclusion that this is one of those cases in which the court should intervene on the basis of what may fairly be termed a "lurking doubt". The pens had been in the victim's shirt pocket. Had the accused said that he had accidentally possessed himself of them in the course of grappling with the complainant and tearing his shirt the learned magistrate might have found it necessary to give considerably more weight to the blackmail story, in view of his own appreciation of the element of perplexity which had been introduced by the patent lack of opportunity for collusion between the defendants. On what is before me I am not satisfied that this conviction is safe and it must be set aside. 6. It is plain of course that, even upon this finding, the appellant has been guilty of what amounts to a serious assault in public upon an innocent person having no connection with him and for which there was no legal justification. I have considered the fact that it is open to this court to substitute for the finding of the magistrate a finding in respect of that offence. However, I have taken into account the fact that the appellant has served something approaching two months' imprisonment already. On the assumption that the assault, grave though its nature, was based upon mistaken identity and a mistaken sense of loyalty to a relative, I do not propose to alter the conviction or to substitute for it a conviction of any other offence. I should perhaps add that Mr. Gunston, in view of the result of this appeal, has announced his intention of pursuing the case of the co-defendant who has not appealed.
Representation: Gunston of Gunston & Chow for Appellant. Polson, Crown Counsel for Respondent. |