THE QUEEN v. CHEUNG WING-SHUN AND ANOTHER

IN THE COURT OF APPEAL

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J U D G M E N T

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Silke, J.A.:

1. The applicants were convicted of the offence of robbery. The particulars as set out in the indictment are worth repeating:

"That they did on the 12th day of May 1983 in Kowloon and this Colony together with another person unknown robbed TSUI Kam-ming, CHAN Chi-hung and LAM Man-wah of a quantity of watches and bracelets, the property of the said TSUI Kma-ming. "

2. That there was an occurrence in the shop of which Mr. Tsui was the proprietor on the 12th May is not in dispute. These two men accepted that they did go to the shop, that they did tie up the fokis and Mr. Tsui, that they did take watches, that they produced a pistol and that the watches were removed from the shop. The defence raised was simply that this was all done at the instigation and with the connivance of Mr. Tsui. Mr. Tsui wished to claim from his insurance company for the value of the watches supposedly stolen.

3. The trial judge in answer to the following question posed by the jury after they had retired gave an answer which is the subject of the main criticism made in this application for leave to appeal.                 The question was this:

"Can we give a verdict of guilty or not guilty against each of the accused in respect of TSUI, CHAN arid LAM individually or in combination? "

The answer that the trial judge gave to the jury was:

"Now there is, members of the jury, one charge and it is that the accused robbed TSUI Kam-ming, CHAN Chi-hung and LAM Man-wah. In respect of each accused you will bring in one verdict on that charge."

That, of course, is unexceptional. But he continued:

"If you are satisfied beyond reasonable doubt that the accused committed robbery of TSUI Kam-ming, CHAN Chi-hung and LAM Man-wah, you will bring in a verdict of guilty. If you are of the opinion or come to. a decision that there has been a robbery of, for example, not all three of the people named in the charge but of one or of two of them, you will bring in a verdict of guilty."

That form of answer was repeated a moment later at the request of the foreman of the jury. In the course of that repetition the Judge again said:

"If you are satisfied that he committed robbery in respect of only one or two of the victims and not all three of the victims, but only two or one of the victims, then you will bring in a verdict of guilty in respect of the victims - just one verdict of guilty."

4. Mr. Dale, who appeared for the Crown in this Court, was called upon to support this conviction at the opening of the hearing of this application. He has fought valiantly despite considerable opposition to make the point that first of all the indictment on its wording was correct and secondly that it mattered not whether the jury accepted that Mr. Tsui was the instigator or the person involved in the robbery for the applicants could be properly found guilty of robbing the two fokis. Therefore the direction was correct. He cites in support a passage in the 4th Edition of Smith which says:

"So if today an employer takes his own property from the custody of. his servant, intending to claim against his insurers for its loss,' he might be held to have stolen it."

That passage goes on to say that:

"The more natural charge would be under s.15; but he might not have reached the stage of an attempt to obtain by deception."

5. Mr. Dale seeks to bolster his argument by reference to the definitions contained in sections 2(1) and 6 of the Theft Ordinance and it is his basic contention, as I understand it, that, given a dishonest intention in the two applicants in their entry to the shop,   there was sufficient possession and control in the fokis themselves so that if the goods were taken out of their possession and violence used then that would be robbery. I hope I do not do dis-service to his submission. We do not agree.

6. If the defence that Mr. Tsui, who was the owner of the property and is so stated to be the owner in the particulars of the indictment, had given his consent to the taking of these watches from his premises was accepted by the jury then, whether or not his fokis were present at the time and whether or not they had an "employment" possession as opposed to any other form of possession in these goods, the dishonest intention, that is the mens rea necessary to the offence of robbery, was not present in the minds of the applicants.

7. The direction complained of had the effect of depriving the jury of their consideration of whether or not they accepted Mr. Tsui to have been a participant in the events which took place. Participant in the sense of an instigator and that the departure of the watches from his premises was with his consent. In those circumstances the conviction cannot stand.

8. Mr. Dale has asked us, if we were against him to consider first of all the application of the proviso and secondly, and more strongly, a retrial. This matter is not one for proviso.

9. On the question of retrial, the evidence, if Mr. Tsui were believed and if the defence was disbelieved, was strong The "robbery" was a violent one. We think that in the circumstances of this case the public interest requires an order that a retrial on a fresh indictment be ordered - and that fresh indictment should have deleted from it the comma after the words "TSUI Kam-ming" and the words then appearing up to the word "of" ; that is to delete the reference to the fokis.

10. The order will be that the application for leave to appeal is granted, the hearing treated as the hearing of the appeal, the appeal allowed and the convictions quashed. A retrial is ordered on a fresh indictment which should not contain the names CHAN and LAM.