THE QUEEN v. LEUNG WING-HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1226 of 1988

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BETWEEN

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J U D G M E N T

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1. The appellant was charged with robbery - he was convicted of handling stolen goods.

2. On the 15th of June, 1988 WONG Ka-chow's (the complainant') car was stationary in a road when a goods vehicle, driven by the appellant, rammed into the back of his car. With the appellant, inside the car were CHU Kwok-wing (the 2nd accused) and 5 or 6 other people.

3. The appellant asked the complainant for compensation for damage to his goods vehicle.

4. The complainant said he had no money and that he would refer the matter to the police. The 2nd accuse then punched his left eye. There is no evidence as to where the appellant was at that time and whether he was in a position to see this assault.

5. The complainant said he only had $200- The 2nd accused then asked for his automatic bank teller card - the complainant said he did not know whether his bank account had $2,000. The 2nd accused punched him a second time. Again there is no clear evidence as to where the appellant was at that time and whether he was in a position to see this second assault.

6. The 2nd accused and  'the other' pushed the complainant to a teller machine about 50 meters away. Who was 'the other'? It would appear, (the evidence is not clear) that the appellant was standing in the vicinity of his goods vehicle at the time.

7. No evidence was called as to how far the goods vehicle was from the teller machine. The complainant withdrew $2,000. The appellant said that 'they' (not 'we') then walked back to the vehicle. After the complainant had drawn $2,000 he nave it to the 2nd accused who handed the money to the appellant.

8. There is no evidence that the appellant witnessed the 2nd accused striking the complainant. Nor is there sufficient evidence for the learned magistrate to draw the inference that the appellant witnessed the assault.

9. To complicate matters, at some stage, the complainant said he would get his brother (who, apparently, ran a car repair shop) to repair the damage to the goods vehicle. There is no evidence whether the complainant mentioned this before or after he was first struck by the 2nd accused.

10. The evidence raises a strong suspicion of guilt but there was insufficient evidence of primary facts to found the conclusions reached by the learned magistrate. The appeal is allowed and the sentence set aside.