THE QUEEN v. YUE HOI TUNG

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JUDGMENT

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Fuad, V.-P. (giving the judgment of the Court):

1. The applicant was convicted on 7th May 1990 by Judge Chua in the District Court of attempted robbery and, on 21st May, sentenced to imprisonment for 4 years and 3 months. He now seeks leave to appeal against his conviction.

2. Although there is a fair summary of the evidence led during the trial in the judge's Reasons for Verdict, we have had the benefit of examining the judge's meticulous manuscript record of the proceedings, which had not been reduced to typescript for this hearing, to see precisely what the prosecution witnesses told the Court.

3. The first witness was a lady bank teller who said that on the day in question (which was the 19th December 1989) she was working at the Cheung Sha Wan Branch of the Hong Kong and Shanghai Bank. At about 10 o'clock in the morning when she had finished serving a customer she pressed her bell to indicate that she was ready to receive the next customer. It was the applicant who came up to her window at the counter and he threw a ball-point pen into her tray. He said that he wished to withdraw $10,000. The witness asked for his bank passbook and indicated that he should sign the appropriate bank form, but the applicant said that he did not have a passbook and asked "Will you agree to pay or not?" She said she was very surprised to hear this. Her colleague who was sitting at the window next door then shouted out "robbery", so they all knelt down benind the counter and she shouted "robbery" too. She then carried out the procedures that they were trained to do in such circumstances and she heard someone say "It is robbery. Why don't you leave?" She said she became very scared. She heard the applicant say "It's alright now. You can all stand up." She said that since she had been able to recognise the voice of the person speaking, she had told her colleagues that they should not stand up as he was the person she had just dealt with. She then heard a banging sound. The applicant had picked up one of the metal posts that hold ropes to guide the queue of those waiting to be served and was striking the glass panel of the teller's window next to her. It was damaged but the glass did not break.

4. In cross-examination, the teller said that she was very surprised when the applicant had asked for $10,000 without producing a passbook. She agreed that he had not produced a weapon at any time and that he had not threatened her but she said that the applicant had spoken in a hostile tone. When it was suggested to her that her immediate reaction to his conduct was one of surprise, and that robbery had not come to her mind, she said that her mind was a little bit confused but she had followed the instructions she had been given, to shout "robbery" in circumstances such as those which had confronted her on that day.

5. The next witness who gave evidence was a police sergeant who said that on receiving a report of what had taken place in the bank he went there with his colleagues, arriving at 10.23 a.m.. When he looked into the bank from outside he saw the applicant standing between two of the windows at the counter with his hands behind his back, leaning against the counter and facing the main door of the bank. He was just standing there. The sergeant could see none of the bank staff nor were any other customers visible in the bank at the time. He rushed into the bank with one of his brother officers and shouted "Don't move, police". The applicant was then arrested.

6. The sergeant went on to say that, when cautioned, the applicant told him he was waiting at the counter. When another man, standing behind him in the queue, said to him "Uncle, go to the counter and get $10,000 for me." He said that he fell down and a hard object was pointed at his waist. So he went up to the counter and told the staff that he did not have a passbook. After he had said this he realised that there no longer was any one standing behind him; nor was anything being pointed at his back. So he shouted out "robbery".

7. The police officer told the Court that he noticed that the glass window of one of the windows at. the counter was damaged. when asked in cross-examination whether on approaching the applicant he smelt a strong smell of alcohol on his breath, he said "No".

8. The third witness was a uniformed attendant in the bank who was tendered for cross-examination by the prosecution. He said that the applicant had approached him that morning and asked to borrow a pen. When he was given one he was asked whether he needed any help in filling in the bank form. The applicant did not answer and went to queue up at the counter. Shortly afterwards, he heard someone shouting out "robbery" but he could not be sure whose voice it was. A few minutes later he heard the applicant say in a very loud voice to the other customers "You better go away". The applicant also shouted out loudly: "You take photos. You take photos." When asked by counsel whether this behaviour was not very strange, the witness replied that the applicant was behaving in a very calm manner. He was not prepared to accept that the conduct he had witnessed was in any way strange.

9. The applicant elected not to give evidence or to call witnesses.

10. After the learned judge had reviewed the. evidence., she said this in her Reasons for verdict:

"As was his right the defendant did not give evidence or call any evidence - robbery is the act of stealing accompanied by a threat of violence or violence. There need not be words amounting to a threat. As Miss Mohamed who appears for the Crown has said the actions or the voice can themselves make the demand for money threatening. I find on the evidence before me there was a demand for $10,000 and the defendant's manner threatening by his shouts and subsequent behaviour in trying to bash down the glass pane with the steel barrier stand. Pw2 denied that the defendant smelt of alcohol. He may not have acted in every way like the common bank robber might have done but that does not detract from the fact that he did, on the evidence, attempt to rob the bank. His reaction may be described as strange or indeed that of a very cool person who decided to brazen it out with the police. I find him guilty on the evidence of the charge of attempted robbery

11. Mr. Saw, who appears for the Crown today, after reading the full record of the proceedings, has indicated that on the evidence before the judge the Crown could not say that the elements of the offence of attempted robbery had been established. We feel that it is not necessary to say any more than that we agree; whatever other offence the applicant may have committed that day, it was not shown prima facie that his offence was attempted robbery. No doubt, had there been an alternative charge of causing malicious damage, a conviction for that offence could have been warranted.

12. Whether the applicant's bizarre behaviour was or was not due to drink, as he asserts in his "home-made" grounds of appeal, we are satisfied that attempted robbery was not made out. In these circumstances, the application is granted. We treat it as the hearing of the appeal. The appeal is allowed, the conviction is quashed and the sentence set aside.