HKSAR v. HUNG SIU TUNG

CACC 507/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 507 OF 1999

(ON APPEAL FROM DCCC 671/1999)

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J U D G M E N T

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Woo JA (giving the judgment of the Court) :

The Defendant was convicted by Deputy Judge Tong Man in the District Court of an offence of attempted robbery, contrary to s 10(1) and (2) of the Theft Ordinance, Cap 210 and s 159G of the Crimes Ordinance, Cap 200, in that on 11 July 1999, at the junction of North Point Road and Wharf Road, North Point, Hong Kong, he attempted to rob LI Yau-suen. He was sentenced to 5 years' imprisonment. The Defendant originally applied for leave to appeal against both conviction and sentence. The application regarding sentence having now been abandoned, we only need to deal with that regarding the conviction.

The Perfected Grounds of Appeal against conviction attack in various ways the Judge's evaluation of the evidence. It is therefore necessary to go into some detail of both the prosecution and the defence cases.

The victim of the incident was Ms LI Yau-suen, and she was PW1 at the trial. She was a 30-year-old masseuse and had to work late hours. At 3.30 am on 11 July 1999, she went off duty and went home. She walked from Kings Road to Wharf Road along North Point Road. She told the Judge that when she was near Wharf Road and Java Road, there was a male walking towards her and she was alerted. The male wore spectacles and she could not see his face then. That man walked past her. She felt relieved and walked on. But she then felt someone coming up to her from her back. She turned her head to the left to take a look and then felt an object as hard as a brick hit on the back of her left ear. She also felt one hand touching her left shoulder as well as a pull effected on the strap of the handbag which was hung on her right shoulder. The body of the bag was kept between her right forearm and her waist and she was grabbing hold on the front end of the strap with her right hand. She was also carrying a paper bag in her left hand. After she turned her head, she saw the Defendant holding a dark colour paper carrier bag with a hand at the level of her shoulder. She dashed forward. There was no one around except the Defendant. She yelled "Ah". She knew the Defendant was the person who walked past her because as she turned she saw no one else around. The Defendant just stood there. For fear that the Defendant would chase after her, she ran away. When she had reached a spot 40-50 feet away from the Defendant, she turned to look at him again. She found that he was still standing in Java Road. She scolded him, asking him why he snatched her handbag. She then boarded a nearby taxi and told the taxi-driver, PW2, what had happened and asked him to locate the Defendant who had at this stage disappeared. PW2 drove his taxi into Java Road and then turned into an unknown street. PW1 then saw the Defendant board a minibus. The taxi then followed the minibus. In the taxi, PW1 used her mobile phone to make a report to the police. On the way PW2 saw two uniformed police officers and they boarded the taxi to join in the chase. Eventually the minibus was stopped, the policemen and PW1 went into the minibus in which the Defendant was identified and arrested.

There was hardly any dispute as to the facts presented in the prosecution's case except as to whether the Defendant had pulled the strap of PW1's handbag and whether she had ever scolded the Defendant as to why he snatched her handbag.

The Defendant elected to give evidence before the Judge. He told the Judge that he was 24 years old and had reached an education level of Form 7. He started off his career in a bank at the age of 19-20 years but switched to the real estate agency trade and stayed on that last job about 2-3 years ago. He lived with his parents and his grandmother. He had a clear record. He came to know a girl called "Ah Kit" in a nightclub. About 1 1/2 years ago, that girl borrowed $15,000 from him and did not repay. He had tried to contact her through her pager but the service of the pager was discontinued. He had made phone calls to the nightclub but was told that Ah Kit no longer worked there. As he had on a prior occasion given Ah Kit a lift home in a taxi and dropped her in the vicinity of Provident Centre, situated close to the spot where the incident occurred, he believed Ah Kit was living there. He admitted that he had hit PW1 with a bag containing a glass ashtray which he brought along from home, which he intended to use to hit Ah Kit in order to inflict pain and fear in her, for the purpose of obtaining the repayment of the loan to Ah Kit. He had also on several previous occasions gone to the same locality to look for Ah Kit but without success. On this occasion, he saw PW1 walking on the opposite side of the street. He thought she was Ah Kit. He crossed the road and followed PW1 for several steps. He then went up to PW1's back, held the bag with his right hand and swung the bag up from a lower position and hit PW1's head. He then found out that he had attacked a wrong person. PW1 moved back several steps. He was very frightened and did not know what to do. He later left on a minibus and was eventually arrested by the police.

As the dispute between the prosecution's case and the defence case centred upon whether there was any act on the part of the Defendant demonstrating his intent to rob PW1, it is important to have particular regard to the pulling of the handbag strap that PW1 told the Judge in her testimony. Under cross-examination, PW1 admitted that in her first statement to the police she only described that the Defendant had been following her and that he had hit her. Also, in her second statement, she did not say that she had ever seen the Defendant coming up in front of her. PW1 explained that when she was giving the first statement, she was still feeling dizzy from the hit on her head and was still in the observation ward of the hospital. She also told the court later on another occasion that she found it difficult in reading complicated Chinese characters and so she could not read what the police had taken down in her statement. When she was asked if she had mentioned to the taxi-driver, PW2, anything about someone trying to rob her, she said she did not; but later on, she was not sure what she had told the taxi-driver. However, she said she remembered that she had told the police at the scene that the Defendant had hit her on her head and intended to rob her. Finally, when she was cross-examined to recount the words she used to scold the Defendant at the scene, she said:

"Are you mad! Why you hit me? Why you behave like this?"

She did not maintain her evidence in-chief that she scolded the Defendant for snatching her handbag.

1. It is also important to note that when cross-examined, PW1 volunteered to tell the Judge that before she was taken to hospital, the police had told her the Defendant said sorry to her for having assaulted her by mistake. She, however, did not tell the Judge how she reacted to that apology.

PW2's evidence was that he saw PW1 walking towards his taxi in a "staggering" manner. Having got on board his taxi, PW1 told him to chase after a man who had hit her head at Wharf Road. PW4 was PC 53662. He was one of the two police officers picked up by the taxi. He eventually intercepted the minibus and boarded it to arrest the Defendant. After PW1 had identified the Defendant to him, he seized a paper bag at the feet of the Defendant and examined the contents. There was in the paper bag a glass ashtray wrapped inside a Wellcome Supermarket plastic bag, two comic books and a pack of instant noodles. He asked the Defendant about the items in the bag. The Defendant said he took the ashtray from home and intended to use it to hit his girlfriend, Ah Kit. It was because Ah Kit owed him money. The two comic books were for self-entertaining when he took his transportation. He bought the pack of noodles from a convenience store situated below his residence and he intended to take it home for his own consumption.

With the agreement of the defence, a post-recorded statement recording the arrest and some of the questions and answers made during the inquiry was produced as exhibit P8.

In P8, which was recorded at 4.45 am, within an hour after the Defendant's arrest, as to what happened between PW4 and the Defendant at the inquiry stage. There was recorded in exhibit P8 that PW4 had earlier received a report from a female, PW1, stating that at about 3.45 am, at Java Road, near Tong Shui Road, she was attacked and assaulted by an unknown male with a paper bag object on the rear part of her head, causing her to feel dizzy. It also recorded that PW4 arrested the Defendant for common assault because he had reason to believe that at about the reported time and place, the Defendant had assaulted a female with a paper bag. The Defendant's answer after caution was:

"I mistook the wrong person and thought that she was my former girlfriend."

2. Under cross-examination, PW4 confirmed that PW1 had never mentioned anything about robbery or attempted robbery to him at the scene. This is entirely consistent with the contents of exhibit P8. According to PW1, the police relayed the Defendant's apology to her for having assaulted her by mistake. There is no evidence from PW4 or any other witness that PW1 reacted to that apology by saying that the Defendant tried to snatch her handbag.

PW5 was SDPC 12582, who interviewed the Defendant in the North Point Police Station between 0655 hours and 0851 hours on 11 July 1999. He also told the Defendant that he was suspected of having assaulted a Chinese female LI Yau-suen with a hard object on her head occasioning her harm. This interview was recorded in exhibit P9, which was produced by consent to the Judge. In exhibit P9, the Defendant again admitted that he hit a female with a paper bag containing an ashtray, but reiterated that he mistook the victim for his previous girlfriend Ah Kit. He told the story about the loan to Ah Kit of $15,000 and his wish to get it back from Ah Kit. Again, it should be noted in this exhibit P9 that there was never any allegation by the police of the Defendant having attempted to rob PW1.

Regarding whether PW1 had told the taxi-driver and the police about the pulling of her handbag strap, the Judge attempted to resolve it in the following manner in his Reasons for Verdict:

"In my judgment, the victim no doubt was in a state of shock shortly after the incident. Such mental state may affect her mind in refined thinking process such as estimating the size of a bag and the significance of a pull on her handbag strip (sic) at the time. Equally, the wordings she used in scolding the defendant and in reporting the incident to others at the time may become difficult to remember. However, she was still sober enough to issue instruction to the taxi driver in carrying out a chase after the defendant and then identified the defendant on the minibus without difficulty. She was not firm on what she had told the taxi driver and she may have been mistaken when she said she had told the police about the snatching and the attempted robbery. However, she could not have been mistaken when she had personally experienced the pulling on her handbag strip (sic) in the incident. She had been adamant on this point and her evidence on this point was not shaken in any way. Furthermore, I could find no reason for PW1 to fabricate this act of pulling on the defendant's part when she had never experienced it before. Therefore, I give her evidence full weight on this point. The fact that there had been no damage done to the strip (sic) of the handbag (P.1) did not negative the existence of the pulling. I could see that strip (sic) of the hand bag were (sic) made of relatively strong plastic materials and that the rings to which the strip (sic) attached were made of stainless steel."

3. On the other hand, the Judge dealt with the Defendant's case as follows:

"When I come to assess the defendant's evidence, I warn myself that the defendant was a man of previous good character and of clear record and that I should bear this in mind when I come to assess his credibility as a witness and the propensity of his committing the present crime. I also remind myself that the burden of proving a charge always rests on the prosecution and that a defendant is not obliged in proving his innocence at all. I am also required to consider both the inculpatory part as well as the exculpatory part of the two statements which the defendant had given to the police. However, I still find his story implausible. There are too many doubtful points in his version that could not be answered. For example, how could the defendant, a man of moderate means, be prepared to lend $15,000.- to a girl even without knowing her full name and her address? Without knowing the 'Ah Kit's' address, how could the defendant put in so much effort by going to the locality for several times in the early hours in the morning? After all, the defendant did not appear to be so desperately in need of money for he could still go to cinema with his girl friend before he effected his plan that early morning. Furthermore, why choose such a strange and unusual way, namely hitting 'Ah Kit' with an ash tray, to instill (sic) fear on her. Wouldn't a slap or a punch on 'Ah Kit's' face be more efficient and convenient in achieving the same end? There can only be one answer to these questions; i.e. the defendant was not telling the truth when he was giving his evidence. I find that he was not an honest witness and I attached no weight to his evidence."

4. The Judge also analysed how the articles found in the paper bag carried by the Defendant to effect the hit on PW1's head were arranged inside the bag and he concluded:

"It would be fair to expect that if the blow had landed squarely on the back of PW1's head or neck, PW1 would have had immediately fallen unconscious. On the evidence before me, I have no reasonable doubt that this was exactly what the defendant aimed at achieving when he launched his blow at the time. Together with PW1's evidence on the pulling of the handbag strip (sic), I find that no reasonable jury properly directed would fail to draw an inference in that the defendant was attempting to rob PW1 at the material time. In the end, I have no reasonable doubt that the defendant was guilty of the offence charged and I convict him of the same accordingly."

In view of the special circumstances of this case, in that the Defendant had all along upon his arrest admitted that he had hit PW1 with the bag containing an ashtray, his claim of having mistaken the identity of PW1 for his former girlfriend Ah Kit, and the lack of complaint of his snatching of the strap of PW1's handbag when she talked to PW2 and PW4 and the other policeman before the arrest, we regard the Judge's assessment and evaluation of the evidence before him unsatisfactory.

In assessing the correctness of PW1's evidence about the snatching of the handbag strap, the Judge seemed to consider PW1's feeling dizzy at that moment as justifying her not being able to remember clearly the wordings she used in scolding the Defendant and in reporting the incident to others at the time. However, in our view, this is not merely a matter of comparing the evidence of PW1 with that of PW2 and PW4, regarding the key issue whether she had complained about the snatching of the strap of her handbag to the two other witnesses. The fact is, PW2 and PW4 testified that PW1 never mentioned the pulling of the handbag strap to them. Indeed, throughout that very day, after the arrest of the Defendant, the police inquiries with the Defendant were never concerned with any robbery or attempted robbery; they merely related to an assault on PW1. That was frankly admitted by the Defendant when he was arrested and afterwards up to and including the time when he appeared before the Judge and testified. The Judge seemed to deal with this point on the basis that there was no reason for PW1 to lie when giving evidence before him, and he held that she might have been mistaken. This might resolve the inconsistency in the PW1's own testimony on the versions whether she had told the taxi-driver and the police about the pulling of the handbag strap by the Defendant. Although the Judge did not make any specific finding whether PW1 did complain to PW2 and PW4 about the pulling of her handbag strap, there seemed to be no reason that he should have preferred the evidence of PW1 in this respect to the unanimous evidence of the other three prosecution witnesses. The Judge did not try to resolve this obvious discrepancy. Nor did he give any reason for disregarding the evidence of PW2, PW4 and PW5, which tallied with the contents of the written exhibits P8 and P9, both taken shortly after the arrest of the Defendant. The Judge did not give any reason for accepting PW1's evidence that she felt the Defendant pulling her handbag strap but on the other hand she did not make any complaint about that to PW2 and later to PW4, save to say that she was honest. Admittedly, as the Judge seemed to think, PW1's memory must have been affected by her feeling dizzy shortly after she had received a blow to her head. However, she was able to instruct PW2 clearly to locate the Defendant, to recognise the Defendant when he boarded a minibus, to instruct PW2 to chase after the minibus, to telephone the police and report the incident to them on the taxi, and to identify the Defendant on the minibus when it was intercepted. What was conspicuously absent was any complaint about the Defendant's pulling her handbag strap during the whole course of events that early morning at the scene of the arrest. Moreover, PW1's evidence was that she felt (not saw) the handbag strap being pulled, one or two seconds after she was hit. This evidence should not be considered as at all strong. From the circumstances surrounding the incident, such a feeling could have been caused by her just turning to the left, by the fear and excitement at the moment or because she felt dizzy. The Judge found PW1 to be an honest witness, but that does not mean that her evidence of her feeling that her handbag strap was pulled must be reliable, particularly when the Judge found that she was no doubt in a state of shock after the incident. The Judge's placing full weight on PW1's evidence regarding this strap pulling in the circumstances gives rise to grave concern.

Whether there was a pulling of the handbag strap should also be examined in the circumstances described by PW1 in her testimony, as she was believed by the Judge to be honest. She said after she was hit, the Defendant just stood there. There is no evidence that his face was covered in anyway or that he tried to avoid recognition. She then ran away from the spot and when she reached a point about 40-50 feet away from the Defendant, she turned to look at him again. She found that the Defendant was still standing in Java Road and she started to scold the Defendant, "Are you mad! Why you hit me? Why you behave like this?" The Judge did not examine this evidence about the parties' reactions closely or at all. We think that it is most pertinent to consider these pieces of evidence as to whether they were consistent with an attempt to rob or with the Defendant's story that he was surprised that the woman he had hit was not his former girlfriend Ah Kit. If the Defendant had attempted to pull the handbag strap, but apparently failed to get the handbag, why was there no further action towards PW1, and PW1 was allowed to run away and she even turned back to scold the Defendant. After all, PW1 said that there was no one around at the spot where she was hit. Or alternatively, why did the Defendant not run away upon PW1 running away? Her handbag was not taken away in the event. When the Defendant was intercepted on the minibus, and his possessions examined by the police, no misappropriated items were found. Coupled with all these factors, the Defendant was ready to admit the assault put to him by the police upon his arrest and after he had been brought back to the police station and he at all these times and before the court told and maintained the story that he mistook PW1 for Ah Kit. He even asked the police to tender his apology to PW1 who, when told the apology, did not say that the Defendant wanted to rob her, which would have been a natural reaction had her handbag strap been in fact pulled. This is a case where, if we may say so, that the Defendant's clear record as bearing upon his propensity to commit a crime and his veracity as a witness, must be considered most conscientiously by the court.

The Judge disbelieved the Defendant and found him not an honest witness for a number of reasons which, apart from their quality on which we will dwell later, we consider to be not decisive of the issue whether he had pulled the strap of PW1's handbag at the scene. The Judge said that it was doubtful that the Defendant, a man of moderate means, would be prepared to lend $15,000 to a girl even without knowing her full name and her address. He also found it doubtful that the Defendant would make so much effort to go to the locality several times in the early hours of the morning to try to locate Ah Kit. He said the Defendant was able to afford going to a cinema with his existing girlfriend and therefore did not appear to be so desperately in need of money as to take the step of trying to locate Ah Kit. He also found the Defendant's admitted way of using the ashtray in a bag to hit Ah Kit as strange and unusual, because he thought a slap or a punch on Ah Kit's face would be more efficient and convenient in achieving the same aim. We consider these grounds for disbelieving the Defendant most unconvincing. The most unreasonable basis for disbelieving the Defendant's story of going to the locality where the incident occurred was that he had been to a movie with a girlfriend and therefore he did not appear to be so desperately in need of money; this was to ignore the huge difference between $15,000, the alleged loan to Ah Kit, and the amount of money required for a movie for two persons. There was, in our view, also nothing so unbelievable about a young person of moderate means, but having a steady job and income, to lend $15,000 to a nightclub girl whom he considered to be his girlfriend. Nor is a story of lending such a sum to a nightclub girl without knowing her full name and address inherently incredible. Moreover, if a reasonable doubt can result from the Defendant's evidence that because Ah Kit's exact address was not known and that he had failed by all other means to contact her, there would be insufficient logic or ground for saying that he had made too much effort in going to the locality several times in the early hours of the morning to locate Ah Kit. Last but not least, the Judge's comment or reason that it would be more efficient and convenient to slap Ah Kit instead of using the ashtray in a bag to hit her was totally unjustified. That, if we may say so was, either consciously or subconsciously, employed by the Judge to justify his inference that the weapon used by the Defendant was for knocking any victim that he found, but unfortunately in this case it was PW1, unconscious for the purpose of effecting a robbery.

In all the circumstances of this case, in view of the evidence of PW2 and PW4 that there was not any complaint of any attempted robbery at the scene of the crime, before the arrest and shortly after the arrest of the Defendant, the Defendant's consistent story that he told the police and to the court, his readiness in admitting the assault which was put to him by the police upon his arrest and in the police station shortly thereafter, and the clear record of the Defendant, we are left with a lurking doubt whether there was in fact a snatching of the strap of PW1's handbag by the Defendant at the scene, which was but a feeling of PW1 who was in a state of shock after receiving the blow to her head. In the circumstances, the basis for being satisfied with the presence of the necessary intent for robbing on the part of the Defendant is very shaky, and we consider the conviction unsafe and unsatisfactory. We therefore treat the application for leave to appeal against conviction as a substantive appeal, allow the appeal and quash the conviction of attempted robbery.

The Defendant, on his own admission, should have been convicted of the alternative offence of common assault, pursuant to section 32 of the Theft Ordinance and the Schedule thereto. PW1 was hit on the back of the head by the Defendant with an ashtray in a paper bag. She felt dizzy. Upon admission to the hospital shortly after the incident, the doctor examining her found her to be fully conscious with no neurological defect. The Defendant frankly admitted to PW4 who arrested him that he had committed the assault on PW1, harbouring a mistaken belief that she was his former girlfriend. At the trial, the Defendant also fully admitted the assault, and indeed his counsel right from the commencement of the trial mentioned that the Defendant offered to plead guilty to common assault. That offer was not accepted and the Defendant was compelled by the prosecution to proceed with defending the attempted robbery charge. In these circumstances, we substitute a conviction for common assault.

We consider that for the assault, which was a serious one with the possible consequence of inflicting a very serious injury, a proper starting point should have been 12 months' imprisonment. Taking into account the Defendant's frank admission of the assault, a full one-third discount should have been given, resulting in a sentence of 8-month imprisonment. We therefore set aside the sentence of 5 years' imprisonment for attempted robbery and substitute for it a sentence of 8 months' imprisonment for the alternative offence of common assault.

[An application for the appellant's costs in these proceedings was refused.]