HKSAR v. TSANG LOK FU & ANOTHER

HCMA 944/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 944 OF 2003

(ON APPEAL FROM TWCC 667/2003)

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J U D G M E N T

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1. The Appellants, together with two other youths, were charged jointly with one count of Robbery which was tried in the Magistracy. At the end of the trial, each Appellant was convicted. A1 (D3) was sentenced to a term in Detention Centre and A2 (D4) was made the subject of a Rehabilitation Order which required him to stay in a Rehabilitation Centre. The Appellants now appeal their convictions and sentences.

2. A1 applied the day before the appeal hearing to have the appeal adjourned, so he could apply for a transcript and instruct counsel. That application was refused as he had had since September 2003 to deal with those matters. He was represented at the appeal by counsel who, commendably, at very short notice, prepared perfected grounds of appeal against conviction and argued them.

3. There are two grounds of appeal for A1. The first is that the Magistrate erred in finding there was sufficient evidence of identity and the role played by A1 to support his conviction. The second ground, was that the Magistrate failed to consider properly, or attach sufficient weight to, discrepancies in PW1's evidence about the number of robbers, the timing and sequence of their actions and words in respect of the victim and the lack of any clear or sufficient evidence to link A1 with the robbery.

4. A2 (D4) was represented on appeal and filed perfected grounds of appeal against conviction. The first ground was that the Magistrate erred in law in finding that the A2 and two other males were involved in a joint enterprise to rob, and, in particular, the Magistrate failed to direct himself properly, or at all, whether there had been a meeting of minds amongst the A2 and the other males, to rob the victim.

5. Further, the Magistrate failed to consider properly or at all whether A2 was actually involved. There was evidence A2 was involved in a joint enterprise to rob, but in view of various discrepancies and problems with the evidence, it was submitted that the conviction was unsafe and unsatisfactory and/or there was a lurking doubt in all the circumstances whether A2 was actually involved in a joint enterprise to rob PW1.

Facts

6. The robbery took place on the podium of an estate in Tsuen Wan, when the victim, then aged 16, was robbed by four youths of $11.30 which was all the cash that he was carrying. The prosecution alleged and the Magistrate found that A1 and A2 were two of a party of four teenagers sitting on a bench when the victim walked past. The group demanded his attention and he was ordered, aggressively, to come over, which he did. He was pushed by one boy and told to take out all his money. He did so. One of the boys took the money and another boy demanded somebody search the victim's pockets and inspect his wallet. When that search produced nothing, the four boys went back down the steps.

7. PW1 returned to his school, told a teacher what had happened and the police were summoned. The police arrived at the podium about 20 minutes later and the victim identified the four boys to the police. A1 and A2 were part of the group and all four were arrested.

8. The Magistrate found that A1 was part of the group who approached the victim and that he was still at the podium when the police arrived. Further he admitted his presence at the robbery. The Magistrate was satisfied he was one of the robbers and did not believe his assertion that he was merely present, but not participating.

9. In relation to A2, the Magistrate did not believe his assertion that he was merely present and noted the circumstantial evidence of his having in his possession the exact amount in coins stolen from the victim in the denominations PW1 described. He admitted he pocketed the coins on the instructions of A1.

10. The victim's evidence was that he had given the police a description of the four youths. When he was returning to the podium, he saw the two police officers had already intercepted the four youths and he told the police officers they were the ones involved. There was no dispute that A1 and A2 were in the group intercepted by the police. Further, the victim told the police that the third male who had told one of the others to search his pocket, had long hair and glasses. The fourth male stood 6 feet away from him, but did not say or do anything. The victim could not identify any of the defendants in the court. The coins taken from him were 1 x $10 coin, 1 x $1 coin, 1 x10 cent coin and 1x20 cent coin.

11. In cross-examination, PW1 said the youths approached him in two groups of two and when he was asked to hand over the money, the second group of two had not arrived at that spot. A short time later, estimated at two to three minutes, the third man with the long hair and glasses asked one of the first group of two to search PW1's pockets. In cross-examination it was put to him that three of the men were involved in the robbery, but the fourth male was not and he replied that he was not sure. He said that after the robbery all four males left together and walked back in the direction from which they had come.

12. The Magistrate was sure that A1 and A2 were with the group of four which approached the victim. He found that the four persons who approached the victim were the same ones who had been seated at the podium and that all four men ascended the stairs approaching the victim in two groups of two. The Magistrate realized that the two groups came together after a gap of 2 to 3 minutes, but was satisfied that the victim handed over the money because the four males appeared very aggressive and he found, at that stage, that all four must have been nearby.

13. He was satisfied that A1, who was wearing glasses, had instructed one of the others to search. He took into account A2's admission that he was present and admitted pocketing $11.30 on the instructions of A1. The Magistrate was satisfied a joint enterprise had been established and did not believe the evidence given by A1 and A2 that they were merely present. He found that the robbery commenced when the first two of the group of four males approached the victim and continued when the second group of two arrived. He convicted the Appellants.

14. Despite the arguments put forward today in respect of A1 and A2, I cannot say the Magistrate was wrong in reaching the conclusion that he did. It was for him to evaluate the evidence having seen and heard the witnesses. Accordingly the appeals against conviction are dismissed for each of A1 and A2.

Appeal Against Sentence

15. In sentencing, the Magistrate noted robbery was a serious offence and must attract a deterrent sentence. He considered robberies of that type were prevalent in the area. He noted that no weapon was used and force was minimal; the fear of being subjected to violence and being pushed around was sufficient to make the victim hand over the money.

16. He obtained reports for each Appellant (who had clear records) having remanded them so such reports could be obtained. In each case there was a background report and a suitability report as to fitness for detention in a Detention Centre, Rehabilitation Centre or Training Centre.

17. The reports showed that A1 had been the subject of a Care or Protection Order for an offence committed in 2001. He had maintained a positive response towards counselling and his case was closed in April 2003. He had a caring and a supportive family. There was concern about his mixing with dubious peers. He was a school underachiever. He was considered suitable for the Detention Centre programme and a place was confirmed for him.

18. The Detention Centre report indicated that A1's father was over-protective towards him and wanted a lenient sentence for him, although it was considered doubtful whether the father could supervise him effectively in future. The officer believed a short period of disciplinary training would be beneficial. On that basis a Detention Centre Order was made.

19. A2's reports showed he was a school dropout who had been idling without a job since the end of 2001. His mother had started working around the end of 2000 and as a result her supervision of A2 had diminished. He had had frequent night activities since mid-2002. Because of his obesity, he was considered unsuitable for a detention in a Detention Centre, but was mentally and physically fit for detention in either Rehabilitation Centre, or Training Centre. The officer considered him more suitable for detention in a Rehabilitation Centre and confirmed a place was available. The Magistrate made a Rehabilitation Centre order.

20. Having considered the circumstances of the offence and the contents of the various reports sought in respect of A1 and A2, I am of the view that a probation order should have been considered as the initial sentencing option, but no recommendation was sought. I agree that robbery is a serious offence and respect the Magistrate's view that it is prevalent in the area. Nevertheless given the ages and the particular circumstances of this robbery it appears desirable that the Appellants with their families should be given the opportunity to show they can work to improve their own behaviour and working history. For that reason, I propose to seek a Probation Report for each Appellant before deciding the appeal on sentence.

21. Accordingly, I adjourn the appeal against sentence for a period of one month so supplementary Probation Reports can be obtained for each of A1 and A2.