LAM KIT v. THE QUEEN

IN THE HIGH COURT OF HONG KONG

( APPELLATE JURISDICTION )

MAGISTRACY APPEAL NO. 1040 OF 1987

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J U D G M E N T

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1. The Appellant was charged together with 2 other accused, D1 and D2 who pleaded guilty, with the offence of Theft. He was convicted and placed on probation for a period of twelve months. He now appeals against his conviction.

2. Very briefly, the Appellant and the other two accused drove to a dead end road in Homantin at about 1 a.m. They had all spent the evening together. D1 and D2 drove in Dl's car while the Appellant drove his own car. D1 parked his car on one side of the road and the Appellant on the other side. The Appellant testified that he saw D1 and D2 tampering with the light covers of another car and he knew D1 had lost similar covers on his car. The police arrived and it is not disputed the car light in the Appellants car was on.

3. Upon being questioned the Appellant denied he knew D1 and D2 - this was a lie and he said he lied because he did not want the police to think that he was associated with what D1 and D2 were doing.

4. I was referred to three cases, R. v. Allan & others ⁽¹⁾, R. v. Clarkson & others ⁽²⁾ and R. v. Jones & another ⁽³⁾ and I referred to the case of LEUNG Tak-yin and The Queen ⁽⁴⁾ in which the Court of Appeal approved the main principles set out in R. v. Clarkson & others ⁽²⁾ :

"'It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might, under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for a jury whether he did so or not.'

    It is not enough, then, that the presence of the accused person has, in fact, given encouragement. It must be proved that he intended to give encouragement ; that he wilfully encouraged."

5. An accused person is entitled, as of right, to know precisely not only of what he was convicted but the reasons therefore. The learned magistrate found that the Appellant was an aider and abetter "in a form of encouragement in the circumstances". With respect I found what the learned magistrate said at the bottom of page 51 and top of page 52 somewhat confusing. He appeared not to have chosen to say, of his Findings of Fact, that he found the Appellant guilty because he was acting in concert with D1 and D2, for example, as a lookout. He may have had doubts about the Appellant being a "lookout" because when the police arrived at the scene they found his car light on. A "lookout" is highly unlikely to advertise his presence. By the same token an aider and abetter is unlikely to do anything which might draw the attention of the police or to passers-by to the scene where a crime is being committed.

6. To find a person guilty as an aider and abetter it is not only necessary to prove that he was present while the offence is committed, that he knew an offence was being committed and that his presence, in fact, gave encouragement to the prepetrators but it must be proved that he intended to give that encouragement, that he wilfully encouraged.

7. The learned magistrate makes no mention that he found the Appellant intentionally gave encouragement to the others by his presence at the scene.

8. The learned magistrate having decided to find the Appellant guilty not as a principal in the first degree but as an aider and abetter omitted an important finding - that the Appellant wilfully encouraged the commission of the crime.

9. For these reasons I allow the appeal, quash the conviction and set aside the sentence.

(1) (1963) Cr. App. R. 243 

(2) (1971) Cr. App. R. 445

(3) (1977) Cr. App. R. 250

(4) Cri. App. No. 10 of 1987