The Queen v. Chan Siu Ming and Others
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CACC001264/1983 [Definition of 'robbery' in section 10 of the Theft Ordinance.]
Coram: Roberts, C.J., McMullin, V.P. and Bewley, J. Date: 14 February & 2 March1984 ----------------- JUDGMENT ----------------- Robert, C.J. - Background 1. CHAN Siu-ming (D.1), CHOW Kam-tai (D.2), LAU Yat-cho (D.3), LAU Yat-on (D.4) and LAU Yat-tung (D.5) were all convicted on two charges -
2. All were sentenced to terms of imprisonment, the sentences on the charge of robbery to run concurrently with those imposed on the charge of wounding with intent. 3. D.1, D.3 and D.5 sought leave to appeal against both conviction and sentence, but abandoned their applications in relation to sentence before the hearing. Facts 4. The Crown case depended primarily upon the evidence of the victim, P.W.1 an 18 year old boy, POON Chi-hung. 5. POON was sitting with a friend of his, named Cheung, at about 4 a.m. on the morning of 30th April, 1983, in the Kam Lun Kok Seafood Restaurant in Granville Road. A man, not one of the defendants were sitting and accused Poon and his friend of staring at them, which they denied. The restaurant captain then asked Poon and Cheung to go and sit at the defendants' table, which they did because they were frightened. 6. When they arrived there, D.1 accused Poon of having stared at him and said that he would order a few more dishes and that he was very frightened and therefore agreed, though he had not done anything to warrant such an accusation. D.5 made a similar complaint that Poon had stared at him. 7. D.3 said that they were only asking Poon to pay for the bill and that if it was not for the fact that Poon knew the captain he (i.e. Poon) "would not be able to walk down the stairs". Poon said that he interpreted this as meaning that he would be chopped to death, or at least, as the judge put it, "would be severely maltreated". 8. Poon and his friend remained at the table for half an hour while food was consumed. During this time there was, according to Poon, no further conversation. 9. At the end of the meal, D.1 asked the Captain to give Poon the bill which was shown to him and amounted to $600. Poon said that he was unable to pay this amount. D.1 asked him how much he had, Poon replied that he only had $100 and suggested that he might pay it the following day. He asked the defendants if he could go, whereupon they said "You want to go to make a report to the police". 10. D.1 next told D.4 to take Poon to the lavatory, to hand over the money to D.4. The latter took Poon to the lavatory where he handed over the $100 to him. When they emerged from the lavatory D.1 asked Poon to sit next to him again and told him to take off his wrist-watch. Poon was unwilling to do this, whereupon he was assaulted, first of all by D.1, next by D.3, using their fists, and finally by all five defendants, who gathered round and hit him. 11. During this stage of the attack, it appears that stools were picked up and thrown at Poon, one of which struck him on the head and caused him a wound from which he bled. At about this time, Poon fell to the ground. While he was there, one of the defendants suggested that a knife should be fetched. Soon afterwards, someone brought a knife, which was handed to D.3, who chopped at Poon's foot causing him injuries. D.3 next grabbed him by the hair, pulled him downstairs and out of the restaurant, to a staircase across the road, where he chopped him again on the left leg and both hands. 12. As a result of these vicious assaults, committed upon the slightest possible imaginary provocation, Poon was obliged to spend over four months in hospital. Among his injures was the amputation of his left hand at the midcarpal joint. Grounds of appeal of first defendant 13. Counsel for D.1 abandoned the application for leave to appeal against conviction on the robbery charge. 14. On the wounding charge, counsel based his principal submissions on the following passage in the reasons for verdict -
15. It was argued on behalf of D.1 that the evidence did not justify the judge in finding that all the defendants had been acting with a common purpose throughout the incident, although it was conceded that the evidence was sufficient to support a conclusion that D.1 took part in the original unlawful demand and in the first assault during which all five defendants attacked Poon with their fists. 16. It was also conceded that it was at this stage that Poon was struck with a stool. The evidence, though not entirely clear as to this, suggests that Poon was complaining that it was this blow with the stool which caused a laceration of the skull, from which he bled. 17. After the attack with fists and the stool, Poon was knocked to the ground and suffered the first of his knife wounds, at the hands of D.3. Poon was not, understandably, sure as to who was still surrounding him at that stage. In evidence he said "they gathered round me. Not sure who gathered round as my head was bleeding at the time." 18. As to the last stage of the attack, when the most severe injury was inflicted on Poon, the latter admitted that he was not sure if the others in the group accompanied him and D.3, as the latter pulled him downstairs and across the road to a staircase where D.3 chopped him. 19. All five defendants left together in a taxi, which was, shortly afterwards, stopped by the police, after an officer had Poon shouting for help and had chased it. Participation 20. We were referred to Jones v. Mirrless (1), in which it was said that mere -
21. In Mirrless,(1) the English Court of Appeal quoted the following passage from the earlier case of Allan(2) -
22. In R. v. Clarkson(3) it was said that -
23. The circumstances of this assault hardly fall within those contemplated by Mirrless(1). On any reading of Poon's evidence, all five defendants did more than be present, since they took part in the initial attack with fists and all were gathered round him as he fell to the ground. It was indeed not seriously contended by the defence that all defendants were not participants in the attack on Poon to this point. 24. However, we were invited to find that the judge could and should have separated the later stages of the attack from the earlier events. It was submitted that there was no evidence to connect D.1 with anything which occurred after the point at which the assault moved from fists to knives. 25. We do not agree. In essence what occurred was that member of the group, which contained all the defendants, made an unwarranted demand against Poon, accompanied by a threat of violence. All defendants participated in this demand. All actively encouraged the robbery of Poon. All moved from threats to an assault with fists and with stools. During this assault, in which all took part, one of the group fetched a knife, and gave it to D.3 who used it to inflict injuries of a severe nature, some of them in the restaurant and others on a staircase across the road to where D.3 dragged the victim. Shortly afterwards D.4 hailed a taxi in which all defendants left together. 26. In these circumstances, how can it be said that no reasonable judge, properly directing himself on the facts and law, could have found that all those who had taken part in the attack which had beaten the victim to the ground were similarly involved and participators, whether by physical violence or active encouragement, in the continuance of that assault with a knife as Poon lay on the ground surrounded by members of the group though, understandably, he was unable to identify exactly which of them, apart from D.3, was there at that stage. 27. Some objection was taken to the passage in the judgment, in which the judge says that there was no evidence on which he could find that any defendant was a passive onlooker, it being said that this indicated that he had approached the question of the burden of proof in the wrong way. 28. We do not see this passage as doing anything of the kind. In considering whether or not each member of the group had participated in the later stages of the attack, it was surely right for him to look to see whether there was evidence that any of the defendants had passed from the role of attacker to the role of passive onlooker. There was no such evidence. None of the defendants gave evidence or called any witnesses. There is nothing to suggest that at any time any of the defendants any attempt to disassociate himself from the actions of the others. Appeal of the third defendant 29. In relation to D.3, counsel who appeared on behalf of D.3 and D.5 adopted the various submissions which he had earlier put forward on behalf of D.5 and formally submitted the written grounds of appeal which had earlier been put forward on behalf of D.3. 30. He did not address us further in relation of D.3's written grounds. This is not surprising, since whatever arguments could be put forward on behalf of D.1 and D.5 as to the point in the assault at which their participation may have ceased, no such argument can be advanced for D.3, who carried out the later stages of the assault with a knife and inflicted appalling wounds upon Poon. Appeal of D.5 31. The main ground put forward on behalf of D.5 was similar in its major respects to that advanced on behalf of D.1, namely that the evidence was insufficient to justify a finding that D.5 continued to take part in any assault on the victim after the point at which somebody handed a knife to D.3. 32. It was argued that thereafter one or more of the defendants may have withdrawn from the ensuing attack. And because this was one of the reasonable inferences from the evidence of the victim which it was open to the judge to draw, he should have drawn that inference which was most favourable to the defendants, even though none of the defendants gave any evidence in support of such an inference. 33. As we have indicated above in relation to D.1, it was open to the judge to find, as a matter of common sense, even though the victim himself was not able to say which of the defendants apart from D.3, had been present at the very last stages of the attack upon him, that the others had participated in the assault form start to finish. Robbery 34. A more difficult question fell to be decided on the submission that, on the evidence of Poon, it was not open to the judge to convict any of the defendants on a charge of robbery. 35. Section 10 of the Theft Ordinance reads as follows -
36. The argument which was advanced to us was that the evidence of Poon was sufficient, if accepted, to support a conviction of blackmail, contrary to section 23(1) of the Theft Ordinance, but not for robbery. 37. Poon testified that an interval of about 30 minutes ensued between the time when D.1 threatened him with serious injury and the time at which he was taken by D.4 to the lavatory, where the money was taken form him. 38. It was submitted, therefore, that the convictions for robbery could not be upheld, since section 10 requires that the use of force, or the putting of a person in fear of being then and there subjected to force, must take place immediately before or at the time of the stealing, and an interval of 30 minutes between the making of the threat and the act of stealing cannot be said to fall within the word "immediately". 39. Literally, to require that B shall "immediately" follow A must mean that B takes place instantly and without any interval of time after A. If there is any measurable gap in time, B cannot, literally, be said to follow "immediately" upon A. 40. To construe this section in this matter would, in our view, rob it of most of the force and produce results that can hardly have been intended. 41. For instance, if a knife is pointed at the throat of a victim, with a demand for cash, and he walks across a room to retrieve money from the drawer and hand it over to the attacker, the theft did not immediately follow the demand. 42. Indeed, in a substantial proportion of cases of robbery, there may be expected to be a measurable interval, however short, between the action or words which put a person in fear of being subjected to force and the moment of the theft itself. 43. We consider that section 10 should be construed to mean that a robbery is committed if the victim, at the moment of stealing, is still in fear of being subjected to force as a result of some act done, or threat used, against him earlier on. The act of theft will thus follow immediately upon a fear of violence instilled into the victim, even if the victim was put in fear at an earlier stage. 44. In this instance, the victim was threatened with an assault of a serious nature. He knew that he was expected to pay for the whole meal which had been consumed by all the defendants. He feared that if he did not do so he would be subjected to personal violence. Throughout the meal he must have remained under the influence of the threat which had been made to him. At the end of the meal he was asked to produce what money he had and was taken to the lavatory where it was removed from him against his will. 45. We are satisfied that the threat of violence continued to operate so as to put him in fear of force throughout the meal and to the point at which the money was stolen from him by D.4 in the lavatory. Indeed, his fear of violence was more than substantiated by what happened to him when he came out of the lavatory and was set upon by the defendants. 46. Since the applications for leave to appeal against sentence were withdrawn, it was not necessary for us to consider them, though we would like to comment that the defendants, and in particular the third defendant, may feel themselves fortunate not to have received longer sentences for this appalling act of savagery. 47. For the above reasons, we dismissed the applications for leave to appeal against conviction. Representation: D. O'R Mayne, OBE, QC, JP., P. Dinan, E. Lin (H.M.So & Co) for D.1. A. Bell (D.L.A.) for D.3 & D.5 A. Howard, Crown Counsel, for Crown (1) [1977] 65 Cr.App.R. 250. (2) [1963] 47 Cr.App.R. 243. (3) [1971] 55 Cr.App.R. 445. |