R. v. AU LAI HONG

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J U D G M E N T

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Kempster, JA:

1. This is the judgment of the Court.

2. On 11 March 1991 and on his own pleas Au Lai-hong was convicted by Her Honour Judge Chua in the District Court on one, amended, charge of robbery and another of possessing an offensive weapon in a public place. Despite having pleaded guilty he seeks leave to appeal against the conviction for robbery on the grounds that the charge lacked particularity and that "there was no evidence of any force being used by the appellant immediately before, or at the time of the offence, nor was there any evidence of the appellant, at the material time, putting or seeking to put any person in fear of being then and there subjected to force."

3. There is nothing in the first point. The charge included particulars: "Au Lai-hong on the 22nd day of November 1990 outside Oi Man Commercial Complex, Oi Man Estate, Kowloon, in Hong Kong robbed Cheung Yuk-man of one handbag containing HK$160 cash, a purse, one Hong Kong identity card, one ETC card and one BOC card in the name of Cheung Yuk-man ... keys." As to the second no question of evidence arose having regard to the applicant's plea. What is meant, we believe and understand from Mrs Hopkin's submissions which were not always pellucidly clear, is that the Summary of Facts prepared by the Crown and admitted by the applicant says only "On 22 November 1990 at about 2105 hours, the defendant snatched a handbag from PW2 outside the Oi Man Estate Market"; thus posing the question "Does 'snatching' involve the use or threat of force?".

4. Section 10(1) of the Theft Ordinance (Cap 210) reads:

"A person commits robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force."

5. After a series of changes of counsel assigned to the applicant by the Legal Aid Department the matter came before this Court, differently constituted, on 14 January 1992. It was adjourned to allow inquiries to be made as to exactly what had transpired before Judge Chua. The record does not mention the applicant's plea to the original charge of theft. A further adjournment was granted on 21 May to allow consideration of an affirmation which had been filed on behalf of the applicant. On 20 August formal application was made to this Court as presently constituted to admit both the affirmation of the applicant and an affirmation made by counsel who had represented him at trial but the hearing was further adjourned to allow the judge to comment on such documents. On 9 September the applicant wrote to the Chief Justice complaining of the delays in hearing his application.

6. The applicant's affirmation is to the effect that he had not used force on the victim, that the particulars of offence did not so allege and that he had only pleaded "guilty" because so advised by his counsel. He exhibited the victim's statement to the police which, where material, reads:

" ... suddenly someone snatched my ... handbag which I tucked under my right arm, from behind ... at that time when that man snatched my handbag he was behind me and he snatched my handbag in one go ... he didn't say a word to me nor did he threaten me with any weapons ... I chased after that culprit ... and shouted 'snatching' .. I did not receive any injury. I did not require medical treatment."

7. The applicant's counsel affirmed as, also taking into account a letter from prosecuting counsel dated13 November, we accept, that after his client had pleaded "guilty" to the original charge of theft the judge suggested that the Crown might apply to amend such charge to one of robbery. The Crown did so and, despite defending counsel's objection, the judge allowed the amendment. After his counsel had advised that he could not discount the judge's expressed or implied- opinion that the facts warranted the amended charge the applicant elected to plead "guilty" to it. No criticism can fairly be levelled against counsel's advice or conduct.

8. Early in October the judge submitted her comments confirming that she should have recorded the applicant's plea of "guilty" to the theft charge, that the initiative for the application to amend had come from her and that defending counsel had objected to the amendment - on grounds of lateness. Both affirmations, the judge's comments and the belated letter of 13 November have been received in evidence pursuant to s 83V of the Criminal Procedure Ordinance (Cap 221).

9. No question of fear arises in the context of this application but it is important to give due weight to the words in s 10 of the Theft Ordinance " ... uses force on any person ... ". Unless accompanied by force of this character theft is not tantamount to robbery. Jostling which caused a man to lose his balance was held sufficient to warrant the consideration of a robbery charge by a jury in R v Dawson and James (1976) 64 Cr App R 170 as was snatching which involved overcoming the victim's resistance in R v Clouden (1987) CR LR 56. Both are decisions of the English Court of Appeal.

10. The victim's statement that she shouted "snatching" apart and accepting that she was aware that her bag had been taken, unlike the prey of a skilful pick-pocket, we do not think that the facts admitted by the applicant import the use of force on the victim even to the extent of overcoming her resistance. They are, at the very highest from the point of view of the Crown, equivocal. In consequence the applicant could not lawfully have been convicted of robbery.

11. In the circumstances we do not find it necessary to consider the propriety of the amendment to the charge-sheet, which was not defective, albeit the applicant may well have felt that it was hopeless to plead "not guilty" to the amended charge which, on the basis of facts he could not but admit, apparently rendered him guilty of robbery in the eyes of the trial judge.

12. We have jurisdiction to entertain the application for leave to appeal, to treat this hearing as that of the appeal, to allow the appeal, to quash the conviction for robbery and to set aside the related sentence of 3 1/2 years imprisonment. R v Forde [1923] 2 KB 401 at p 403. All these steps we take and make the appropriate orders.

13. By reason of the time the applicant has already spent in prison there is no question of ordering a retrial or of substituting a conviction for theft pursuant to s 83 of the District Court Ordinance (Cap 336) and s 83A of the Criminal Procedure Ordinance even if we had jurisdiction to do so. As the applicant was convicted on his own plea these sections are not applicable to the instant case as s 79(4) of the District Court Ordinance makes plain.