HKSAR v. SO WAI SHING

HCMA 60/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 60 OF 2001

(ON APPEAL FROM TMCC 2562 of 2000)

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J U D G M E N T

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1. The Appellant, So Wai-shing (the 3rd defendant at trial) together with two other defendants, faced trial before Mr. Stephen Wong, a Deputy Magistrate sitting at Tuen Mun Magistracy, on a single charge of robbery. The proceedings were conducted in Chinese; I have an English translation of the transcript. On 15 December 2000 all three defendants were convicted after trial. On 29 December 2000, after considering reports, the magistrate sentenced to the 1st defendant to 14 month's imprisonment, the 2nd defendant to 15 month's imprisonment and the Appellant to 12 months' imprisonment.

2. The Appellant now appeals against both his conviction and sentence. Mr James McGowan represents him.

Facts

3. The facts of the case are that at about 6 p.m. on 2 August 2000, while the victim, a stationery salesman, was crossing Ming Kum Road, three men, including the Appellant, approached him. The victim tried to evade them, but was unsuccessful. The 2nd defendant bumped him in to. He heard something drop on the ground. The three men then surrounded the victim and accused him of damaging the 2nd defendant's mobile phone. They demanded compensation. The 1st & 2nd defendants attempted to take away the victim's handbag by force, he resisted. The 1st defendant then threatened him that if he did not pay compensation he would be beaten up. Under this threat, the victim took out his wallet. The 1st defendant inspected it and removed from it $100 in cash and the victim's Identity card. He then returned the wallet to the victim.

4. The Appellant was present for most of the time with the other defendants, but he was seen by the victim to move away for a few minutes during the course of the interchange between the victim and the 1st & 2nd defendants.

5. Later, the victim led all three defendants to the shopping arcade where he worked in order to get more money. He asked the 1st & 2nd defendants to wait inside the arcade and let the Appellant follow him to his shop. On the way, he managed to escape and make a report to the police. All three defendants were arrested at the scene.

6. There was no dispute as to the Appellant's identity and the fact that he was in company with the two other men.

7. I turn now to the grounds of appeal against conviction

Grounds 1 & 2

8. Mr McGowan submits that the magistrate erred in finding the Appellant guilty based on his mere presence. In the alternative, the magistrate failed to consider adequately, or at all, the Appellant's absence from the scene of the robbery on the state of his knowledge as to the intentions and actions of the other two defendants.

9. I do not agree; I am well aware that neither mere presence at the scene of a crime, nor a failure to prevent an offence will generally give rise to liability. However, presence at the scene of a crime is capable of constituting encouragement see: R v Jefferson [1994] 1 All ER 270 and R v Coney [1882] 8 QBD 534, if the accused is present in pursuance of a prior agreement with the principal, that will normally amount to aiding and abetting. It is a question of fact in every case.

10. Here it makes no difference if the Appellant was away from the scene for a short while. It is clear from the transcript that the magistrate considered all the circumstances and formed the view that all three defendants were engaged in a joint enterprise. This is a conclusion he was entitled to reach from the evidence. He considered that the claim of damage to the mobile phone was a ruse to extort money from the victim who was subject to threat of force at the time. Despite the fact that there was no evidence to suggest that the Appellant spoke, or did anything, to the victim, the magistrate was justified in inferring that he knew what was going on.

Ground 3

11. Mr McGowan says that the magistrate failed to consider the defence of claim of right adequately, or at all.

12. The Appellant elected to give evidence. He said that after the victim damaged the mobile phone, 'they' accused him of doing so and asked for compensation. He left the group for a while to look for the damaged phone. The victim told them that he had no money with him so he followed the victim to the shopping arcade to get money. On the way, the victim escaped.

13. The magistrate considered this defence, he came to the view that it was no more than 'a scam' by all three defendants to extort money from the victim. He was entitled to come to this finding.

Ground 4

14. It was argued that the magistrate failed to consider the evidence against the Appellant separately from that of his two co-accused.

15. I do not agree, the magistrate took the whole circumstances into consideration. He drew the inference that all three accused were acting in concert and that the Appellant was fully aware of what was happening. On the evidence, he was entitled to come to this decision.

Ground 5

16. It was argued that the magistrate failed to consider the Appellant's clear record when assessing his evidence.

17. The magistrate made it clear, both in his oral reasons when delivering verdict and in his statement of findings prepared for this appeal, that he bore the Appellant's clear record and its effect both on credibility and propensity to commit an offence in mind.

18. In his oral reasons he said:

"I take into full consideration that D3 has no criminal record. I understand well that this is relevant to the credibility of his evidence and propensity not to commit crimes."

And in his Statement of Findings he said:

"I took into consideration that D3 had no criminal record, because this would increase the credibility of his evidence and his propensity for not committing crimes."

19. In English the last phrase is badly expressed, however I am mindful that I am working from a translation of what the magistrate said in Cantonese. However, the meaning is clear.

20. I am satisfied that he considered the Appellant's good character adequately when making his assessment of the evidence.

Grounds 6 to 8

21. It was argued that the magistrate failed to consider the significance that no 'suspicious objects' were found on any of the three defendants on arrest, in particular the victim's $100 note and identity card. It is also argued that he failed to consider PW2 (a civilian witness) and PW3's (the arresting officer) evidence adequately on the question of whether or not the victim shouted for help.

22. The phrase 'suspicious objects' was used by PW3, the arresting police officer, in the course of his evidence.

23. The fact that no suspicious objects were found on any of the accused does not advance this ground of appeal. The absence of the stolen property does not negate a charge of robbery or theft. The magistrate found the victim to be a truthful and reliable witness and he accepted his evidence in full.

24. The magistrate considered that both PW2 and PW3 were truthful witnesses; he however, took the view that their evidence was neither crucial to the real issues in the case, nor of much probative value. This was not a 'broad brush approach'. The magistrate was the one who heard and saw the witnesses. It is trite law that a magistrate is not required to give exhaustive reasons as to why he found the witnesses to be credit worthy, it suffices that he gives reasonable justifications for his conclusion. The issues raised in Grounds 6 and 8 were raised by the Appellant's counsel in his final submissions and there is no reason to believe that the magistrate did not have these matters in mind when making his assessment of these two witnesses' evidence.

Grounds 9, 10 & 11

25. It was argued that the victim might have had a motive to misrepresent what had happened and that it was wrong for the magistrate to dismiss the defence case as unreasonable and to describe the demand for compensation as a 'badger game'.

26. The argument that the victim had a possible motive to misrepresent the facts is speculative. The magistrate weighed all the matters before him. He considered the victim to be a credible witness and that he had given a truthful account of what had happened. He did not consider that he was lying or misrepresenting what had happened.

Ground 12

27. It was argued that the magistrate descended into the arena by conducting the examination-in-chief of the victim.

28. From the transcripts of the victim's evidence, it is clear that the magistrate asked questions of the victim in the course of the court prosecutor's examination in chief. Some were couched in a leading form, they should not have been. The test however is whether or not this questioning caused the Appellant prejudice or unfairness? All three defendants were represented and none of their counsel at trial made any complaint about this line of questioning. The victim was subjected to extensive cross-examination by all defence counsel; in fact the transcript of the cross-examination runs to 50 pages.

29. The test when such an issue is pleaded on appeal was enunciated by Power VP in R v Yeung Man-lam [1991] 2 HKLR 486 as being:

"...the ultimate question for the consideration of an appellate court is whether the judge's conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial."

30. In the context of this case and notwithstanding the leading nature of some of the magistrate's questions, I am sure that the informed bystander would have been perfectly satisfied that the Appellant had a fair trial.

31. Much of this appeal was directed at criticisms of the magistrate's acceptance of the prosecution evidence. Like so many other cases in the Magistracy that are taken on appeal, this was a case that revolved around the credibility of the witnesses both for the prosecution and the defence. The magistrate had the advantage, which I do not, of having heard and seen the witnesses, including the Appellant, give evidence. The person appointed to resolve issues of credibility is the trier of fact, in the Magistracy the trial magistrate. It is not for an appellate court to usurp his function. The courts have made this abundantly clear. In England in R v Turnbull [1977] QB 224 (a case better known for its dicta on identification evidence) Lord Widgery LCJ, heading a five judge bench, in speaking of the Court of Appeal's statutory jurisdiction said, at page 231 C-E:

"...we can do no more than the Criminal Appeal Act 1968 authorises us to do. It does not authorise us to re-try cases. It is for the jury in each case to decide which witnesses should be believed. On matters of credibility this Court will only interfere in three circumstances. First, if the jury has been misdirected as to how to assess the evidence; secondly, if there has been no direction at all when there should have been one; and thirdly, if on the whole of the evidence the jury must have taken a perverse view of a witness, but this is rare."

32. Section 119(1)(d) of the Magistrates Ordinance, under which I derive my appellate powers, likewise, does not authorise me to re-try cases.

33. In Hong Kong in R v R.E. Low [1961] HKLR 13, a hearing before the Full Court of the former Supreme Court, Blair-Kerr J. said, at page 82:

"...an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not In dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge's finding if, having regard to the whole of the evidence, such findings appear reasonable."

34. Low was quoted with approval in R v Godber [1975] HKLR 340, R v CHAN King-man & others [1980] HKLR 105, R v Sheikh Abdul Rahman Bux and Others CA 1981 No. 756 (unreported) and as recently as March of this year in HKSAR v Lee Hon-shun CA 626/1999 (unreported).

35. I am satisfied that the Appellant's conviction is neither unsafe nor unsatisfactory; his appeal against conviction is dismissed.

Appeal against Sentence

36. I turn now to the Appellant's appeal against sentence. It is argued that the Appellant's role when compared with that of the other two defendants was a minor one. That he had a clear record and the sentence of 12 months imposed was manifestly excessive and/or wrong in principle.

37. The Appellant indicated after conviction that he was remorseful and was guilty of the charge. The magistrate gave a discount of one month to reflect this. He was wrong to do so, the acceptance of guilt and expression of remorse came too late in the day to merit any discount in sentence.

38. The magistrate took a starting point of 15 month's imprisonment for all three accused. In respect of the Appellant, he gave the one-month discount for his expression of remorse and a further two months, as I understand it to reflect his clear record, making it a sentence of 12 months imprisonment.

39. The starting point of 15 month's imprisonment was the right sentence for this offence. Robbery, even of small sums of money, is a serious offence and, save in the most exceptional circumstances, will always attract an immediate custodial sentence for an adult offender. The two months' discount for the Appellant's clear record is also within accepted sentencing principle, the further one month's discount for 'remorse' is not. However, I do not propose to vary the sentence upwards because of it. A sentence of 12 month's imprisonment for this offence is neither manifestly excessive nor wrong in principle. The Appellant's appeal against sentence is dismissed.