HKSAR v. Leung Kwok Chung

CACC 295/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 295 OF 2011

(ON APPEAL FROM DCCC 312 of 2011)

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BETWEEN

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Before: Hon Lunn JA, Macrae and McWalters JJ in Court

Date of Hearing and Judgment: 16 October 2012

Date of Reasons for Judgment: 6 November 2012

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REASONS FOR JUDGMENT

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Hon Macrae J (giving the reasons of the Court):

1.Once in a while a case comes before the courts, which on the face of it looks like the crime alleged, but on careful examination is not all it appears to be. This is one such case.

2.The appellant had appeared before Deputy Judge Casewell in the District Court on a charge of robbery.  He was tried and convicted and, on 18 July 2011, sentenced to 5 years imprisonment.  He originally filed notice of appeal against sentence only but was refused legal aid on the merits on 15 September 2011.  On 17 November 2011, he was granted leave to appeal against sentence by Hartmann JA.  Noting the rather peculiar circumstances of the offence, Hartmann JA ordered that the deputy judge’s Reasons for Verdict be attached to the appeal papers.  Notwithstanding that he had been granted leave to appeal by a Single Judge of the Court of Appeal, legal aid was again refused for the appeal against sentence on the merits on 15 December 2011. On the following day, however, Stock V-P granted the appellant a legal aid certificate not only for his appeal against sentence but also in respect of his application for leave to appeal against conviction out of time.  At the same time, he admitted the appellant to bail pending appeal. 

3.At the hearing of the appeal, on 16 October 2012, we gave leave to appeal against conviction out of time, allowed the appeal and quashed the conviction and sentence.  However, we substituted a conviction for common assault and imposed a sentence of 9 months’ imprisonment. We said we would give our reasons in due course.  These are our reasons.

4.The facts giving rise to this rather extraordinary case are as follows.  On 5 March 2011, two female car park assistants of a company which operated various car parks were on duty at the Yue Wan Estate car park, Chai Wan.  Their duties were to patrol the car park and receive payments in the shroff’s office.  At about 11:45 p.m. that night, Madam Yiu Sang Choi (PW2) was chatting with her colleague, Madam Chan Yin Fong (PW1) when the appellant came up to them.  At that stage, PW1 was inside the shroff’s office while PW2 was outside.  PW2 noticed “the reek of liquor from his body” at that time, while PW1 said she later smelt “a strong odour of alcohol” from the appellant.  The appellant was known to PW2 because some time during the previous month she had noticed him sitting alone in his car in the car park for about two hours, which had prompted her to ask him what he was doing.

5.The appellant asked PW2 if he could pay the rental fee for his car park for the following month.  However, PW2 told him that it was not due until 25 March.  She then had a conversation with the appellant for between 35 and 45 minutes.  Initially, they were both standing but after about 10 to 15 minutes, the appellant squatted down.  At one point, PW2 walked over to the appellant’s car and told him that it had been scratched, beckoning him to come over to look at it.  However, he did not move and remained squatting on the ground.  PW2 then decided to give the appellant a chair because she was afraid that he would fall over and they continued chatting.  At some stage, she left to check some vehicles but she returned after about 20 minutes and her conversation with the appellant resumed.  During the conversation, and this would seem to have a bearing on later events, PW2 told the appellant unprompted that the police would sometimes patrol the car park, and that if they were summoned, they would take just a few minutes to arrive because they were very close by.

6.During this time, which lasted until 12:45 a.m., PW2 formed the impression that the appellant was “a bit down”, “not feeling well”, “a bit dizzy” and, at one point, “about to faint”.  She said that he had to think before he could speak and sometimes he was unresponsive to her questions.  In her opinion, he was “really drunk”.  At about 12:45 a.m., she left to continue her patrol of the car park, during which she noticed several beer cans on the ground of the parking space next to the appellant’s car.

7.After PW2 left to resume her patrol, PW1 then noticed the appellant disappear into the car park.  About 15 minutes later at about 1:00 a.m., the appellant suddenly appeared inside the shroff’s office brandishing a 12” knife in his left hand.  He said to PW1 “I have a knife.  Call the police quickly.  I am really robbing you.  How come the police haven’t come yet?”  PW1 was understandably alarmed by this spectacle, although she was able, without interference from the appellant, to use her walkie-talkie to tell her colleagues that somebody with a knife was committing a robbery.  The colleague acknowledged the report, whereupon the appellant grabbed the walkie-talkie and shouted “Robbery” into it.  The appellant then continued to stand there for about five minutes.  The witness accepted that at no stage during that time did he either demand or attempt to take any money from her or from the counter inside the shroff’s office; nor did he say or do anything else.

8.The police duly arrived at the scene to find the appellant still standing inside the shroff’s office holding the knife.  When asked to come out, he put the knife down, placed his hands above his head of his own accord and squatted down.  He was then arrested at 1:10 a.m.

9.Perhaps because of the appellant’s somewhat perplexing behaviour, prosecuting counsel asked PW1 who she considered was the target of the robbery.  In normal circumstances, it would have been an odd question to ask.  However, the witness gave the rather surprising answer that she did not think she was the target of a robbery but that the appellant was trying to scare her.  She went on: “I am not sure whether it was because he was drunk, therefore he had such behaviour.”

10.Of the two police officers who quickly arrived at the scene, namely PW3 and SPC 466 who was not called to give evidence, PW3 denied that the appellant appeared drunk or smelt at all of alcohol at any stage of his dealings with him.  According to him, he was completely sober.  This was rather surprising given the clear evidence from the two female car park assistants, particularly PW1, who, at the time the appellant uttered the words inside the shroff’s office only minutes before, described him as smelling strongly of alcohol, having a face all red and being obviously drunk.  Rightly and not surprisingly, the deputy judge preferred their assessment of his condition to that of PW3.

11.According to PW3, after his arrest and caution at 1:10 a.m., the appellant responded: “Ah Sir, I don’t want to either.  I have no money to spend, so (I) took a knife at home to rob.” This apparent admission was reduced into writing in the officer’s notebook at 1:45 a.m. on 6 March 2011 and, although its admissibility was not objected to at trial, the appellant testified that such was his state of intoxication, he could not remember what he had said to PW1 in the shroff’s office or to the police upon arrest, nor could he remember the circumstances in which he had signed PW3’s notebook at the police station.  It is a little surprising in the circumstances that defence counsel did not object to the voluntariness of the notebook post-record.  However, the case which he put to PW3 seems to have been that the appellant was drunk when he said whatever he said in response to the caution; therefore, he cannot have meant what he said, even assuming he said it.  Indeed, when asked what he had said to PW1 inside the shroff’s office, the appellant’s own evidence was to that effect: “I don’t remember what happened, so how can I say whether I meant what I said.” The officer, of course, would not have accepted the appellant’s claim because he asserted that the appellant was at all times completely sober.

12.At 5:00 a.m. the same day, the appellant was taken to his home for a search by, amongst others, a female police officer (PW4).  Like PW3, she also testified that at no stage of her dealings with the appellant did he look or sound in any way drunk or incoherent.  When the appellant pointed out where he kept the knife inside the kitchen, he was immediately cautioned, to which he made the following response: “As I have no money and am in debt of $200,000, therefore, on the spur of the moment, (I) took the knife from the refrigerator in the kitchen and went to the carpark in Yue Wan Estate to rob.  However, I did not harm anybody.  I now know (I) was wrong and I’m very regretful.  Please give me a chance.  I definitely will not (do it) again.” This statement was immediately reduced into writing in the officer’s notebook and signed by the appellant at about 5:10 a.m.

13.On the face of it, and given that this statement was made some four hours after the incident inside the shroff’s office when the appellant might reasonably be expected to have sobered up somewhat, the statement might be thought to carry more weight as to what was in the appellant’s mind than the earlier admission at the car park when he was plainly and obviously drunk, notwithstanding PW3’s rather adamant evidence to the contrary. Again, the appellant testified that he was unclear what he had said at his home and could not remember the circumstances in which PW4’s notebook came to be signed.  However, this statement, which goes to his intention when the appellant left his home and is not strictly an admission that he had actually committed any robbery some time later, has to be seen in the context of the evidence as a whole.

14.The appellant, who was 46 years of age at the time and had never been to prison before, had lived in the Yue Wan Estate for about 10 years and rented a car space in the car park in question since July 2010.  He resided at his flat with his girlfriend and his 21-year-old son from a previous marriage.  He testified that on the night in question he had had an argument with his girlfriend about their relationship, following which she left home.  As a result of the argument, the appellant began drinking in the flat and had consumed more than six cans of beer.  He recalled going down to the car park but could not remember much of what happened thereafter.  Although the evidence is silent as to the time he went down to the car park, the deputy judge accepted PW2’s evidence of seeing several beer cans near the appellant’s car.  It is reasonable to infer, therefore, that he had also spent some appreciable time drinking in the car park before the conversation with PW2 began at 11:45 p.m.  Thereafter, the appellant was unclear what had happened, although he vaguely recalled speaking to PW1 and PW2 in the car park.  However, he did not remember brandishing a knife or declaring a robbery to PW1, nor did he recall what, if anything, he had said to PW3 and PW4, or how he had come to sign their notebook entries. 

15.As for the state of his relationship with his girlfriend, it was not disputed by the prosecution that about two weeks after this incident, on 22 March 2011, his girlfriend had tried to commit suicide inside the flat at Yue Wan Estate, for which she had been taken to hospital in a coma.

16.On any analysis, the facts of this case were bizarre.  The place of the supposed robbery was the car park where the appellant himself lived and where he kept his own car, a fact already known to PW2.  As a result of the incident the previous month, when she had had occasion to speak to the appellant in his car, they were obviously known to each other. And it was PW2 with whom he had had a lengthy conversation outside the shroff’s office between 11:45 p.m. and 12:45 a.m. on the night in question.  If it were a genuine robbery, it is extraordinary that the appellant should have chosen somewhere so close to home where he could be so readily identified. 

17.It is also clear that the appellant had been drinking heavily for some hours before appearing in the shroff’s office brandishing a knife and declaring that it was a robbery; or, more precisely, that it really was a robbery.  Yet everything he did inside the shroff’s office thereafter belied such an intent.  He immediately invited PW1 to make a report to the police and asked why they had still not arrived.  He made no attempt to prevent PW1 using her walkie-talkie to alert her colleagues and showed no interest in taking any money.  Instead, he stood brandishing a knife for about five minutes, knowing that a report had been made, before meekly surrendering when the police duly arrived.  PW1 was not even sure whether she was really the intended target of a robbery and put the appellant’s behaviour down to his being drunk.

18.On these facts, Mr Caesar Lo for the appellant argues that, robbery being a crime of specific intent, there must have been a reasonable doubt whether the appellant in his obviously drunken state ever really intended to commit robbery.  He submits that there was no clear intention to permanently deprive anyone of anything, and no real evidence of dishonesty.  If anything, the appellant’s behaviour was consistent with a cri de coeur rather than anything more sinister.  He properly concedes, however, that since PW1 was clearly frightened by the appellant’s action in brandishing a 12” knife at her in her workplace at 1 o’clock in the morning, the appellant would be guilty of common assault, which is a statutory alternative to robbery.  Common assault is, of course, a crime of basic intent.

19.Ms Anna Lai, for the respondent, has mounted a gallant and persuasive argument in support of the conviction.  Although she recognizes that the facts of the case were unusual, she submits that a drunken intent is still an intent and one may judge the appellant’s true purpose from what he told PW3 upon his arrest and from what he later said to PW4.  Indeed, this was essentially the deputy judge’s reasoning for convicting the appellant.  However, Ms Lai concedes that in the peculiar circumstances of this case, the sentence of 5 years’ imprisonment was manifestly excessive.  It is also fair to point out that she takes no issue with the application for leave to appeal against conviction out of time.

20.We are grateful to Ms Lai for her thorough yet realistic submissions.  However, we cannot accept them.  Given PW3’s rather uncompromising evidence about the appellant’s sobriety at the time of his arrest, as against PW2’s evidence that “quite obviously he was drunk” and smelt strongly of alcohol just minutes before, we cannot see how one could attach very much weight to the admission upon arrest being a true reflection of what was in the appellant’s mind at the time of the alleged offence.  In relation to the statement made at his home at 5:00 a.m., we have already pointed out that it is not in fact an admission to committing this robbery.  At most, it seeks to explain what was or must with hindsight have been in his mind many hours and many cans of beer earlier when he left his home, and a significant time and several further cans of beer before the events in the shroff’s office.

21.At the end of the day, and looking at this bizarre incident and the appellant’s uncharacteristic behaviour in the light of all the evidence, we cannot accept as the only reasonable inference the deputy judge’s finding that when the appellant went into the shroff’s office at 1 o’clock that morning, he was intent upon committing a robbery.  We think the facts and surrounding circumstances suggest this could well have been a cry for help in the context of what he described as a “bad” argument and a tempestuous relationship with his girlfriend; and a cry for help that was significantly fuelled by alcohol. 

22.That being our view, the conviction for robbery could not stand and, accordingly, we allowed the appeal against conviction out of time.  However, there was clear evidence of a common assault on PW1 and, by virtue of section 32 of the Theft Ordinance, Cap 210, we substituted a conviction for common assault under section 40 of the Offences against the Person Ordinance, Cap 212.  For that offence, we ordered the appellant to serve a sentence of 9 months’ imprisonment.

23.Before departing from this case, however, we would like to register our concern that legal aid was refused on the merits not once but twice in this appeal; on the second occasion, notwithstanding that a Single Judge of the Court of Appeal had granted the appellant leave to appeal against sentence and given a written judgment in which he had referred to the applicant’s behaviour being “utterly irrational” and to sentencing in this case being “a troubling issue”.  Anyone making an objective assessment of the papers in this case ought to have realised immediately that it was such an extraordinary set of facts that the appellant cried out for legal representation. Fortunately, no harm was ultimately done because of the timely decision by Stock V-P to grant the appellant a legal aid certificate and to admit him to bail pending his appeal, having served just over 6 months of his sentence.

Ms Anna Lai, SADPP for Department of Justice, for the respondent

Mr Caesar Lo instructed by Messrs David Y Y Fung & Co, assigned by DLA, for the appellant