THE QUEEN v. AU YEUNG CHOY

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 941 OF 1987

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J U D G M E N T

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1. The appellant was convicted of assault with intent to rob and was sentenced to 18 months imprisonment. He appeals against both conviction and sentence. It is an unusual and puzzling case that has caused me some anxiety.

2. The facts are straightforward. Madam Tsang Kwai-lin, a hawker aged 62, was walking on the pavement near some pillars in Causeway Bay at 11.20 p.m. on 2nd August. A man approached her, stopped and punched her twice. In chief she said it was on the bridge of the nose, in cross-examination below the left eye. This was the appellant. He then tried to snatch her shoulder bag, which contained $10,000 worth of jewellery, but she held on to it with both hands. She fell to the ground, still holding the strap and shouting for help. The appellant climbed over a railing, pulling Madam Tsang towards it but was still unable to separate her from the bag. As she continued to shout for help and for the police, the appellant let go and 'walked away gently', as she put it. It was conceded by the prosecution that, in her statement to the police, she shouted snatching only when the man was 100 metres away.

3. There were some students nearby and they chased the appellant, who ran away. Madam Tsang later saw them holding him while she was waiting at a bus stop. She says she suffered an abrasion and redness where she was hit, but she did not go to a doctor because she was afraid of trouble.

4. One of the students, Cheng Chung Hei, aged 17, also gave evidence. He says he heard the lady shout 'snatching'. He asked her what had happened and then chased a man she indicated, who was walking about 50-60 metres away. He brought him back and Madam Tsang identified the appellant, who was then arrested by a police officer.

5. Mr Cheng said in cross-examination that, when he and the others called out to him, the appellant started to run. When they caught him he said he did not rob and they should not listen to what the woman said.

6. They took the appellant back to the scene, where they found Madam Tsang at the bus stop.When Mr Cheng first saw her he did not notice that she was injured but, when he returned with the appellant, he saw that her left eye was swollen, bruised and bloodshot, though not actually bleeding.

7. The final prosecution witness was PC45406, who arrived at the scene and arrested the appellant. He said in chief that the victim's left eye was red and there was some blood on her nose. In cross-examination he admitted there was no blood, but her eyeball was red. He had not mentioned any injury to the victim in his statement. He said he forgot.

8. That was the prosecution case. On the face of it, it was a common, run of the mill, robbery attempt. When the appellant gave evidence, however, it assumed a different character.

9. The appellant is a Supervisor in the Electrical and Mechanical Services Department. He has been employed by the Hong Kong Government for 21 years and earns $5,520 per month. He is 38, married and with two young children. He is the holder of a Black Belt at Tae Kwon Do. He is definitely not the kind of man usually found in the dock facing this sort of charge.

10. The appellant told a very different story. He crossed the road, after leaving a restaurant, and was turning the corner from Kai Chiu Road into Lee Gardens Road when he collided with the victim. He bumped into her accidentally, but he had been walking fast and he had to hold her shoulders to prevent her falling.

11. The woman was angry and they exchanged words, She tried to hit him with her bag, but he warded it off. She threatened to call the police, but he told her she was crazy and walked away. He did not hit her. The quarrel had lasted 5-8 seconds and a small crowd had gathered.

12. Instead of continuing along Lee Gardens Road, the appellant turned back into Kai Chiu Road in order to avoid the woman. As he passed the car park, he lit a cigarette and it was then that he heard the cry 'snatching'. He heard the sound of running and then saw 4-5 young people running in his direction. Since he was the only person in that stretch of the road and thinking they might mistakenly pick him as the thief, he began to run.

13. At Sogo Department Store he stopped and asked the group of young people what they wanted. They said they wanted to take him back to the woman, who was complaining that he had snatched something from her. They returned to the scene, where he was arrested.

14. The appellant called Mr Roger Harvey, his superior officer, as a character witness. Mr Harvey said the appellant was honest and hardworking. He was not in financial difficulties.

15. He also called Mr Ka Kiu, who had worked with the appellant at HMS Tamar. He said the appellant had been honest but timid. Mr Ka is now a man of some substance. In July he bought a flat and arranged for the appellant to do some work on it. He offered to pay him several $10,000 as deposit, but the appellant said he should wait until he had bought the materials. When he heard about this charge he was shocked and took him to a solicitor.

16. In his judgment the magistrate said he believed the prosecution witnesses, in spite of some minor discrepancies, and disbelieved the appellant. In particular he did not believe that a crowd of 6-8 persons would have gathered in the short time that the quarrel lasted. He also found that the evidence of Mr Cheng and PC45406, concerning Madam Tsang's injuries, corroborated her story.

17. In his statement of findings the magistrate again refers to the crowd that the appellant says gathered. He points out that these people apparently were not noticed by Mr Cheng, but he also concedes that Mr Cheng was not asked about this.

18. The magistrate also stresses the corroboration of Madam Tsang's evidence to be found in her injuries and also in Mr Cheng's evidence that she walked out from behind some pillars.

19. This is the first matter about which Mr Alderdice, for the appellant, complains. He rightly points out that the magistrate was not required in law to look for corroboration of the victim's evidence. The fact the he did so, he submits, indicates that he was not convinced by her evidence. That, however, is not the only possible explanation. It is more likely, I think, that he was looking for corroboration ex abundante cautela, rather than from any uncertainty about Madam Tsang's evidence.

20. Mr Alderdice also submits that there was in fact no corroboration. I agree that Mr Cheng's evidence that she emerged from behind the pillars was not corroborative, since there was no dispute that she had done so.

21. I do not agree, however, that the evidence concerning her injuries could not amount to corroboration, though the magistrate does not appear to have considered the possibility, raised by the appellant's evidence, that they occurred in the course of the altercation and when the appellant was defending himself from a handbag assault.

22. Mr Alderdice also complains, with justification, that the magistrate wrongly admitted much hearsay evidence that was prejudicial to the appellant. The following are examples:-

(1) Mr Cheng was allowed to say what this woman had told him before he chased the appellant, but after the scuffle had ended. He thus only knew about the snatching because Madam Tsang had told him about it.

(2) Likewise she later told him about the punches.

(3) The police constable reported what the woman had told him about the punching, and snatching.

23. The weakest point of the defence is the fact that the appellant ran away when he saw the youths following him. This is not usually consistent with innocence. The magistrate rejected his explanation.

24. On the other hand the magistrate did not explore the possibility that Madam Tsang was injured by her own handbag. This was by no means unlikely if the appellant's evidence is true.

25. Nor did he consider the appellant's prowess at Tae Kwon Do. It is hard to imagine that a Black Belt could not have subdued a woman of 62 in an instant, and made off with her handbag, had he wished to do so.

26. An appeal court is always reluctant to overrule a magistrate on a question of fact, where the issue is so clearly defined, and where the magistrate has had the opportunity of assessing the credibility of the witnesses.

27. However, as I said at the outset, this is an unusual case. I am persuaded to interfere, firstly because I think the magistrate may not have given sufficient thought to the possibility that, given the appellant's circumstances and character, the defence might reasonably be true. Secondly the magistrate may have been influenced by the inadmissible evidence. Thirdly there is a possibility of a grave miscarriage of justice. In other words, I have a lurking doubt.

28. I am satisfied, for these reasons, that the verdict is unsafe and unsatisfactory. The appeal is allowed, the conviction quashed and the sentence set aside.