R. v. SO WAI LUN

IN THE COURT OF APPEAL

1993, No. 216
(Criminal)

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. The applicant, So Wai Lun, appeared with four others for trial before Miss Cathy Wong, sitting as a Deputy Judge of the District Court, on a charge sheet containing a number of charges, six in all, of which four concerned the applicant who was the first named defendant at trial. He was convicted of the first of those charges, which is one of robbery. The particulars of that were that

3. He was convicted of the first of those charges, which is one of robbery. The particulars of that were that he and two of the others on 25th February 1992 at a staircase next to shop G17, ground floor, of Man Commercial Complex, robbed three persons of small amounts of money. This is the only charge with which we are concerned. He seeks leave to appeal against his conviction.

4. It was the case of the Crown that on 25th February 1992 in the shopping area of Man Commercial Complex the victims, who were all Form 2 students, having had a snack were window shopping. As they were standing outside a toy shop it would appear that one of them stood, accidentally, on the toe of someone who was nearby. The person whose toe was stepped upon was with two other persons. Umbrage was taken. The three persons took the group of students up to the top of a staircase; there they were made to sit down side by side. Three of them who wore spectacles were told to take them off. They were each beaten in turn. There was a general beating plus individual beatings, each victim was taken away from his friends for the purpose of that individual beating. Their moneys were demanded and they handed them over. Their escape was inhibited by their being directed to tie their shoelaces one to the other. One of them had a school bag placed over his head.

5. The issue at trial was the identification by the third prosecution witness of the applicant - he being the only one of the victims to identify him - and the participation, if any, of the applicant in that which was taking place. It was PW3's evidence that, as he put it, the applicant "did nothing except watching us".

6. It was his evidence that at the time his group were approached by the robbers the robbing group consisted of a youth with gold hair, a youth with white clothes and a white cap and a youth with a black jacket. The identification was of the applicant as being the man with the black jacket. This placed the applicant at the scene at the start of the whole incident.

7. Mr. Yuen, who appeared for the applicant both here and below, takes issue with the identification by PW3 of the applicant. But mainly, and this involved the identification itself, with the finding as to the part the applicant played in the robbery.

8. It is his submission that, upon the evidence of PW3 alone, there was not sufficient to show a participation in the joint enterprise. Further he accepts a suggestion from the court that there may well not have been a full and complete direction to herself by the learned District Judge on the issue of joint enterprise.

9. His basic submission is that there was insufficient evidence to permit the irresistible inference to be drawn that the applicant participated in this incident.

10. It is clear, looking at the general evidence overall appearing from the transcript of which we have the benefit, that these beatings took place while the applicant was at the very least present. If one of the witnesses is to be believed, he was a participant although the applicant was not positively identified. That witness said that they all three of robbers had participated in the beating. The applicant did not give evidence.

11. Given that the evidence was quite clear, and virtually uncontested, that the victims had been taken away from the Complex to a private staircase and there been beaten individually and collectively, that there had their moneys taken, that there they had their escape partially inhibited, during all of which the applicant was present the trial judge was entitled to draw the irresistible inference - and particularly so when there was no evidence given by the applicant to counter it - that the applicant was a participant in the robbery which took place.

12. While we have considered the submissions made to us on behalf of the applicant by Mr. Yuen and all the matters which he has raised, we are not persuaded that this conviction was in any way unsafe or unsatisfactory.

13. In the course of those submissions our attention was directed to The Queen v. Chan Chun Kit Magisterial Appeal No. 40 of 1991 but, with respect, from it we took no great assistance.

14. The application for leave to appeal is refused.