THE QUEEN v. TONG KWOK SHUN AND ANOTHER

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JUDGMENT

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Silke, J.A.:

1. Tong Kwok Shun and Chan Shu Wai were jointly, on the A Charge, charged with robbery: on the 30th of December 1985 at the staircase of the fourth floor, Block 39 at Sau Mau Ping Estate. They were also jointly charged, on the C Charge, with Attempted Robbery: on the 21st of December 1985 at the eighth floor, Block 28, Sau Mau Ping Estate. There were another two charges of robbery not proceeded with. There was a single count of unlawful possession against the 2nd Appellant: that he had an identity card relating to one Kan Churk Wai which was reasonably suspected of having been stolen or unlawfully obtained.

2. The trial Magistrate dealt with the counts in reverse order, that is in the order of date rather than the order that they appeared in the Charge Sheet, and I shall deal with them in the same way.

3. The evidence in relation to the attempted robbery charge was that at about 25 minutes past ten in the evening of the 21st of December, a Mr. Ng Siu Kei was taking the lift in his building to bring him home. He was going to the eighth floor. When he got into the lift two other men also got in with him. On the eighth floor these two men got out first. Mr. Ng followed. One man was a short man, one man was a tall man. The short man speaking first, Mr. Ng was told that they had come to for a fight in the block. They asked for their fares home. The sum of $100 was mentioned. Mr. Ng said that he was afraid if he did not give them some money he would be beaten up. When he said he did not have any money he was bullied by both of the men. Just at about that time a neighbouring couple arrived to take the lift. Mr. Ng called out "Save life", tried to run away and was detained briefly by the tall man. When the short man said "Let him go" Mr. Ng was able to run away.

4. Mr. Ng said in evidence that he had sight of the two men for a period of some minutes and that he was able to recognise them. He identified them in Court. The prosecution also relied on a statement made by Chan, the 2nd Appellant, which made reference to an attempted robbery and which statement was admitted into evidence after a Voir Dire.

5. In relation to the robbery charge the evidence was that at about five minutes to eleven in the evening of the 30th of December, a Mr. Tam Yuk Kong was going home to the sixth floor of Block 39 of Sau Mau Ping Estate. He was on the outside staircase and just about at the fourth floor. He saw a tall and a short man who fronted up to him. He said the short one told him that there had been a triad settlement talk that day in another block of the Estate and that they needed some money. Tam was "surrounded" by the two and was frightened by the triad talk. He told the men that he only had $20. He took this out and he gave it to them. The two men were dissatisfied. The short man asked to see Mr. Tam's wallet which Mr. Tam produced. When no money was found in that he also asked for Mr. Tam's wallet containing his identity card which Mr. Tam also produced. That also had no money so the two men took the $20 and left. Mr. Tam reported to the police and he went around the area with them, saw the two men, identified them and they were arrested. They were also identified in Court. They are manifestly tall and short.

6. At the trial, Tong, the 1st Appellant, gave evidence. Chan, the 2nd Appellant, did not.

7. It was basic to Tong's evidence, and it is what he said in this Court, that he was present on the 30th of December but he did not hear what his companion Chan, the 2nd Appellant, said to Mr. Tam. That was put to Mr. Tam in the course of his cross-examination and it was suggested that he had merely been asked for a loan. Mr. Tam said this was totally untrue. He did not know either of the Appellants before the incident.

8. Tong contested at trial the identification by Mr. Ng on the attempted robbery charge - as he has done in this Court today.

9. This trial took place over a considerable number of days and there was a detailed Reasons for Verdict given after an adjournment. The Magistrate fully considered the two defence witnesses who were called on Tong's behalf, his mother and another, who suggested that Tong was at a methadone clinic roughly at the time of the commission of the offence.

10. The trial Magistrate accepted the prosecution evidence and thought it to be reliable. He thought Mr. Ng and Mr. Tam to be telling the truth. He considered everything that was raised in evidence by Tong, in cross-examination by Chan, and by the witnesses who were called on behalf of Tong and he said:

                "I rejected the defence evidence and assertions as indicated."

- he was referring to the passages in which he set them out -

"Being satisfied beyond a reasonable doubt I convicted both Appellants of charges A and C."

Also Chan in relation to the charge of having the possession of the identity card. There was ample evidence, if believed, to justify those conclusions and the appeals against conviction are dismissed.

Sentence

11. The sentences appealed against were: the 1st Appellant, 12 months for robbery and 20 months consecutive for attempted robbery; the 2nd Appellant, 12 months for robbery, 20 months consecutive for attempted robbery and 2 months consecutive for unlawful possession of another person's identity card knowing it to be stolen.

12. Before passing those sentences, the trial Magistrate called for and received Probation Officer's Reports and reports from the Drug Addiction Treatment Centre in respect of both of the Appellants. Both were drug dependent. The 2nd Appellant had two convictions in 1985 for simple possession of drugs. Tong had a conviction for robbery in 1974, twelve years ago which, when judged by the sentence imposed, does not seem to have been of a very serious nature.

13. No weapons were used here and there was no violence offered to either of the victims. Both took the form of petty intimidation, with the triad reference and the crowding round creating a climate of fear.

14. The trial Magistrate considered making a Drug Addiction Treatment Centre order but he did not think that that would be appropriate as he thought it to be too lenient. He relied on an authority reported in 1974 and Re Applications for Review of Sentence ⁽¹⁾ for that proposition. These were applications by the Attorney General for a review of sentences of Detention in a Drug Addiction Treatment Centre imposed for robbery convictions in separate cases, dealt with together. In all of those matters, there had been either a weapon, or a weapon and violence, used. Delivering the judgment of the Court, Briggs C.J. said:

"We do not think that a sentence of detention in an addiction treatment centre is wrong in principle in a case of robbery. Each case must depend upon its own facts. But we think that it is only in the rarest case that such an order should be made. A court might pass such a sentence in a case where no violence is used, no weapon displayed and where there is no accomplice and where the desire of the offender to cure himself of his addiction is proved to the satisfaction of the court. There must be factors which are exceptional and compelling before such a sentence is passed."

15. Here, there was no violence, no weapon was displayed. There were two persons involved but in respect of both of them the Drug Addiction Treatment Centre Intake Report makes it clear that their responses and their attitudes were acceptable, that is acceptable for treatment. Both expressed remorse, the 1st Appellant expressed his determination to quit his bad habit.

16. These were minor robberies, though the element of placing in fear cannot be under-estimated. In one nothing was achieved. In the other $20 was achieved.

17. It is a borderline case and I take the view that the public interest might best be served if these two men had their addiction removed by treatment rather than by their being sent to prison. That is with the hope that they will accept the treatment in the spirit in which it is given, that is to break the rhythm of the addiction which leads them to crime.

18. I have read the reports of the Probation Officer. I am prepared to take a course different from that of the trial Magistrate - and not without hesitation - in the belief that it will assist both the Appellants and the general interests of society, who would be better protected if these men remove themselves from crime. I therefore allow the appeal against sentence; quash the sentences of imprisonment imposed and substitute therefor a Drug Addiction Treatment Centre Order in respect of both of the Appellants.

(1)    [1974] H.K.L.R. 55