THE QUEEN v. TONG CHI HO

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 665 OF 1985

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JUDGMENT

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1. In this case one Ah Man who is not before the court, while accompanied by the appellant, accused 3 other boys i.e. the 3 Prosecution Witnesses of stepping upon and damaging his shoes. Ah Man then got them to accompany him and the appellant to King's Park where he relieved them individually of a total of $87. He did this some 50 feet from where the appellant remained, in turn, with 2 of the 3 Prosecution Witnesses, while the third was dealt with by Ah Man out of sight and hearing of the appellant. After that Ah Man accused the Prosecution Witnesses of beating his younger brother and left them ostensibly to fetch his younger brother. At the MTR station he gave the appellant $30, which the appellant accepted in the belief, he claims, that it was excess compensation.

2. The point are very properly taken by Mr. P.K. Lee for the appellant is that the appellant had no knowledge of what Ah Man proposed or did, and that there is no evidence upon which the Magistrate could make the finding he did make, that the appellant knew what was going on.

3. I will not recount Mr. Lee's very full submission. I have carefully considered it and reviewed the evidence and the Magistrate's findings. The Magistrate expressly accepted the evidence of the 3 Prosecution Witnesses. PW1 and PW3, who were accompanied to King's Park by the appellant as opposed to Ah Man who accompanied PW2, both testified that the appellant mentioned or asked for compensation. Furthermore, the appellant himself admits that he accepted $30 from Ah Man. In all the circumstances there was evidence upon which I consider the Magistrate could properly make his finding that the appellant knew what was going on. Indeed I go further and consider that the Magistrate was quite right in coming to the conclusion he did. I think it would be expecting the courts to be wholly naive and unrealistic to believe that the appellant was, for one moment, under the impression that somehow lawful compensation was being legitimately recovered. The Magistrate, in my view, rightly accepted that the victims were in fear and scared. Furthermore, PW3 whose evidence the Magistrate accepted, testified that his friend did not step on Ah Man's shoe.

4. While therefore I am indebted to Mr. Lee for his eloquent and very full submission, I regret that I cannot accept it. I do accept that the Magistrate's reference to the appellant willingly going along with a sinister set of circumstances could perhaps have been fatal had it formed the basis of the conviction. But in my view it was simply thrown in for good measure. The Magistrate's conviction clearly rests upon his finding that the appellant "both knew what was happening and assisted in the commission of the offences". As I have said there is a factual basis for the finding that the appellant had knowledge, particularly in his demands and mention of compensation, and generally in the entire incident. As to the appellant assisting in the commission of the offence, that was not seriously disputed and is clear from the evidence; only the knowledge was disputed.

5. Accordingly I think the conviction must stand and the appeal is dismissed.