THE QUEEN v. CHEUNG WING-MING AND OTHERS

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. This is an application for leave to appeal against convictions on charges of robbery and assault occasioning actual bodily harm. The three Applicants were jointly charged in the District Court and were convicted after a trial.

2. The main argument on the appeal relating to all three Defendants concerns only the robbery charge, but there is another which concerns the 3rd Defendant and the assault occasioning actual bodily harm charge as well.

3. The circumstances are as follows. The two victims, LAW Ying and LAW Yip-tai, were sleeping in their but when a number of men, including these three Defendants, burst in upon them late at night. They say that they were then robbed of various items of personal property and that LAW Ying was forced to write out three cheques for large sums of money, which were taken away by the Defendants. While all this was going on a man called CHOI Sun-yau came to the scene and he, later that night, drove most of the alleged robbers to the ferry. He was a friend of the victims but took no part in the events and really knew very little about what was going on.

4. There was a complicated story of the relationship between the various parties.  LAW Yip-tai was a married woman with two children. She had, however, formerly cohabited with the 1st Defendant. The 1st Defendant ran a canteen at the premises where this incident took place.  He was in trouble with the police and, prior to his trial and his committal to prison, he left the canteen in the management of LAW Yip-tai and of a foki called WONG Kam-cheung. While he was away they continued carrying on the business, but some time later LAW Yip-tai purported to lease the canteen to a man called Tam, and he also for a time carried on the business. However, prior to the events with which we are concerned the canteen ceased to operate as such. The first victim, LAW Ying, had formerly cohabited with one SHUM Sam-mui, who was a cousin of the 3rd Defendant, but had left him for LAW Ying. The robbers who were driven by Choi to the ferry probably included the 3rd Defendant, CHAN Shun. The other two, having left the premises took a bus to the ferry. On the same bus by chance LAW Yip-tai, according to her, travelled to work. LAW Ying had said he would report to the police and Yip-tai had no intention of doing so, but, having travelled with two of the alleged robbers on the bus, at her destination she did make a report and the 1st and the 2nd Defendants were arrested.

5. So much for the evidence for the Crown. The case was fought on the basis that this was merely the collection of a debt, that the action of LAW Ying in surrendering his property was entirely voluntary and that one of the essential elements - namely stealing - was absent. The difficulty with which we are faced arises from the fact that counsel who then appeared for the Defendants, at the close of the evidence and before the addresses of counsel, expressly said: "Defence is not a claim of right.  Defence is money was given voluntarily." There had been cross-examination of the witnesses tending to show that LAW Ying and LAW Yip-tai, by virtue of their having ,run this canteen, owed money to the 1st Defendant and that he was claiming this money and was accompanied by the 2nd and 3rd Defendants merely as friends, and that the 1st Defendant was, trying to recover or to obtain an account and payment of the moneys due to him. The learned judge in his Reasons for Verdict said

"Although I was assured that the defence of 1st Accused was not that of a claim of right, the way in which the defence was put forward certainly gave strong indications of a claim of right. But assuming and accepting that this was not the basis of 1st Accused's defence, there were the extraordinary circumstances of the case",

and he went on to particularize those circumstances. It is a little difficult to understand why the judge said “Although I was assured" and then pointed out that there were strong indications of a claim of right if he was not. intending to deal with this case on the basis that there was a claim of right. However, as we understand his judgment this was a slip on his part and he was approaching the case solely on the basis that the defence was one of voluntary payment and that no claim of right as an answer to a charge of robbery was there for his consideration.

6. The main issue we have to decide, therefore, is whether he was right to take the view that the claim of right, if any, was irrelevant to the matter before him.  It is argued on behalf of the Crown that, once counsel for the defence expressly said that he was not relying upon the claim of right, that was the end of any reliance which the defence could place on the claim of right, either in the lower court or in this court. Mr. Lss, on the other hand, submits that he is not bound by that concession, and his argument is that, provided there was evidence which raised the issue of a claim of right, it was obligatory upon the judge to deal with the matter. It is unfortunate that that matter was not made clear by the Notice of Appeal and strictly we should not have allowed the point to be taken. However, we think that justice required that we should consider it and we have come to the conclusion that, where the evidence raises the issue, it is incumbent upon the judge to deal with it whatever may be said by counsel for the defence. This was not a case where a concession was made at the beginning of the case in such circumstances that the evidence given thereafter was limited. The concession - if that is the right way of describing it - came after the evidence was complete, and the fact is that there was evidence which, in our view, raised an issue whether there was a bona fide claim of right. That being so the fact that the judge did not deal with it is, we think, fatal to the convictions on the robbery charge. We think that the applications must be granted in respect of that charge, the appeals allowed, the sentences set aside, but the circumstances are such that we are satisfied there ought to be a new trial. It is unnecessary, therefore, for us to deal with the other arguments which have been addressed to us in respect of that charge. We say merely that we do not think there was any substance in those points. The inconsistencies which were relied upon were of no significance, and corroboration was not required in this case.

7. That leaves the assault occasioning actual bodily harm. The points which have been taken do not affect the convictions of the first two Defendants on that charge. There is, however, the matter of the alibi advanced on behalf of the 3rd Defendant., In respect of that there was evidence from another witness - a witness who was a friend of the 3rd Defendant. The judge said:

"The alibi witness called by him had no special reason to recall the night of 17th October 1983 putting his evidence at its best but I am of the opinion that he came to the Court at the behest of 3rd Defendant and out of a misplaced sense of loyalty gave the evidence that he did."

We have been referred to the evidence, and it would appear that the alibi witness did give a special reason for recalling the night of 17th October. It may have been a poor reason; it may have been a reason which did not commended itself to the judge, but it was wrong for him to say that there was no special reason, and we have come to the conclusion that he cannot have considered this matter as carefully as it should have been considered. That is enough for us to say that the verdict against the 3rd Defendant on the 2nd charge, also, must be set aside. We think that in all the circumstances again it is proper that he should stand trial for that offence along with the other charge of robbery.

22nd August 1984