DCCC 626/2014





Law Lit-choi


Before: HH Judge Casewell

Date: 24 October 2014 at 9.36 am

Present: Mr William Stirling, Counsel on fiat, for HKSAR
Mr Maurice Peter Tracy, instructed by Massie & Clement, assigned by the Director of Legal Aid, for the defendant

Offence: (1) Robbery (搶劫罪)
(2) & (3) Assault occasioning actual bodily harm (襲擊他人致造成身體傷害)


Reasons for Verdict


1. The defendant faces one charge of robbery, allegedly committed in the evening of 9 June 2014 in the area of the Sau Ma Ping shoppingcentre.

2. The victim is particularised as being Mr Cheung Chung-ching (PW1), a man aged 43, a resident of the area. He was at the time inthe company of PW2, a Mr Shek, more elderly gentleman and also a resident of the area.

3. PW1 and 2 were passing the time talking, sitting on a bench in the vicinity of 7-Eleven. It is said the defendant, Mr Law, approachedthem and then spoke to them. The prosecution case is the defendant needed money and that he assaulted PW1 by striking him on theface. He then got hold of PW1’s wallet and took $100 from it and then left.

4. The defendant does not deny he assaulted PW1 and that he received $100 from him. He says the $100 was a loan and the assault wasin relation to a dispute about his missing mobile phone.

The evidence

5. The direct evidence against the defendant came from PW1 and 2.

6. PW1 said he was with PW2 outside the shopping centre at about 9.30 that evening. Around 10 o’clock, the defendant appeared. Thedefendant said, “I am a rascal,” and his name was Ah Choi. He asked for money and PW1 refused. The defendant then hit him severaltimes on the left side of his face. He asked for money; PW1 refused. He then took PW1’s wallet. PW1 said the defendant toldhim to take out his wallet. He gave the wallet to him. He added he did not hand it to him physically. Then, PW1 said he took outhis wallet. Defendant took it from him and he took $100 and then he said he gave it to him, as if he refused, he would be hit.

7. In cross-examination, PW1 said that he suffered from a mental illness that was described as schizophrenia. He had been in a mentalhospital four to five times for about two months on each occasion.

8. PW1 clearly was what could be described as a vulnerable witness, which is relevant to the way his evidence should be assessed. Despite his vulnerabilities, he was capable of dealing with a normal cross-examination.

9. It appeared from cross-examination that the 1st prosecution witness had in his earlier witness statement said the defendant hadtaken the wallet from his pocket directly, rather than the version we heard in evidence, that he, PW1, had taken out the wallet togive to the defendant. He agreed that he had originally not wanted to report the matter and had only done so at PW2’s insistence.

10. PW2 is aged 64. He was with PW1 that evening. He said the defendant came over and smelt of alcohol and held a can of beer in hishand. He asked PW1 if he followed anyone. “If not, then follow me,” he said. Defendant then asked PW1 if he had any money. PW1 said no. Defendant then punched PW1 two times on the left side of PW1’s face. Defendant then extended his hand, took PW1’swallet from his pocket, opened the wallet and took $100 and said, “There is so little money.” The defendant intended to hitPW1 further, but PW2 warded him off. The wallet was thrown back to PW1 and the defendant left.

11. PW2 said he also offered defendant $20. Defendant took it, but threw it to the ground and said it was too little.

12. It was at PW2’s suggestion that PW1 report the matter to the police and this was after they had seen the defendant at a hospital.

13. The other prosecution witnesses dealt with the arrest, caution of the defendant, search of his home, and the statements made bythe defendant that were voluntarily given.

14. In the record of interview, the defendant said he had been drinking. He had drunk about 20 cans of beer. He described himselfas being grumpy. In fact, what he said: “I usually get grumpy and irritable after drinking alcohol.” But he did add: “ButI don’t snatch things forcibly.”

15. He said that he had met the two witnesses two days previously. That had been put to the witnesses. They denied that occurred.

16. He had asked for some money to take a taxi to Yau Tong. He denied assaulting or robbing anyone. He said he had borrowed moneyfrom them. The purpose for going to Yau Tong was to see his mother and give her a key.

17. The defendant supported what he said in the record of interview by giving evidence in the hearing. He was a man who is currentlyunable to do work due to work-related injuries. He said that now he is receiving CSSA, but he received some kind of disability allowanceas well.

18. He also appears to have laboured under some kind of to some kind of psychiatric difficulties in the past.

19. He had got a flat in Sau Ma Ping recently and had moved in and, on the evening of 7 June, this is when he said he had first metthe two prosecution witnesses, who he knew then as “Tai Kau” and “Sei Ngan Suk” respectively. He had also met them on theevening of 8 June for a chat.

20. On 9 June, he stayed at home in the afternoon laying floor tiles, but he had been drinking. In the evening, he had gone down tothe sitting area of the shopping arcade near to 7-Eleven. He had brought his mobile phone with him. He met PW1 and 2 at about 10o’clock in the evening. He needed to see his mother in Yau Tong to return a key to her, but he only had $80. He was worried thiswas insufficient money for a round taxi trip, and this had led him to ask PW1 if he could borrow $100 from him. PW1 had taken $100from his wallet, given it to him. He also got $20 from PW2. He told them he would repay the following day.

21. Other elements of his evidence was that an elderly lady had come over and had an altercation with PW1, that he had himself goneto 7-Eleven and had left his mobile phone on the bench and when he returned it was missing. He thought PW1 might have stolen thephone, so he asked him to stand up. PW1 refused. Defendant had hit PW1 two to three times on his face, and PW1 had then asked for$100 back, but the defendant ignored him.

22. As far as the law is concerned, the defendant is charged with robbery and that charge requires the prosecution to prove beyond reasonabledoubt that the defendant stole the $100 from PW1 and that immediately before or at the time of doing so, and in order to do so, heused force against PW1 or sought to put the witness in fear of being then and there subjected to force. The burden of proof thusremains on the prosecution at all times.

23. Defendant’s case is that PW1 and 2 are untruthful or mistaken or unreliable when they say that the defendant assaulted PW1 inorder to facilitate the taking of the $100. As part of that, they say that the evidence of PW1 and PW2 is contradictory, unclearand not reliable.

24. The issue thereby becomes one of credibility and reliability of the prosecution witnesses. Are they truthful and reliable? Doestheir account properly evidence a robbery, in that the assaults on PW1 were clearly designed to facilitate PW1’s acquiescence inthe taking of the $100?

25. The defence say that no reliance can be placed on them.

26. First, they have said that the evidence is contradictory. In his original witness statement, PW1 said that the defendant took thewallet out of PW1’s pocket and took the money from the wallet, whereas in evidence, PW1 had said that he himself took the walletout of his own pocket, took the money out and handed it to the defendant. It is said this is a fundamental discrepancy.

27. Furthermore, that PW1’s history of mental illness places questions on the reliability of his testimony. They say it is importantthat PW1 never intended to complain to the police and that he had been influenced by PW2 to not only make the complaint, but alsoinfluenced by PW2 to state that the defendant had taken the wallet from his pocket, something he was unable to maintain in his evidencebefore the court.

28. It is said that aspects of the defendant’s evidence were, in fact, confirmed by the prosecution witnesses in the course of cross-examination. These were that an elderly lady had been present and also the defendant had raised with firstly, PW1, the question of his missingmobile phone. Also, the other prosecution evidence appeared to confirm the defendant’s mobile phone was not found in any search.

29. It is said the defendant’s evidence remained unshaken in cross-examination, that the prosecution case, as led from the witnesses,was confused and contradictory and should be rejected.

30. Naturally, I considered all these matters when deciding the questions raised by the evidence and I noted that PW1 was frank abouthis previous episodes of mental illness. On seeing him give evidence, clearly he had some difficulty in the process of giving evidence. It no doubt subjected him to stress that he had difficulty in coping with. As I said earlier, I considered he could well fall intothe classification of being a vulnerable witness.

31. Despite his disability in these areas, he was subject to the normal rules of questioning and subjected to a probing and carefulcross-examination, which allowed no concessions to his disability.

32. Nevertheless, PW1 consistently maintained the essentials of the case, namely, that he was subjected to unprovoked violence thatpreceded and facilitated the taking of his money. He consistently denied that there was any question of this money being consensuallygiven. He was clear this was not a loan. He was capable of refuting and understanding the defendant’s case.

33. He was supported in these essential matters by the evidence of the second prosecution witness, who witnessed the incident from beginningto end.

34. Of course, PW2’s account was that the defendant took the wallet from the pocket of PW1 and took the money from it, and PW2 inthat account has been consistent. It would appear this is the way in which the incident actually unfolded.

35. PW1 no doubt at this point recalls it in a certain way that differs from his earlier statement. That is no doubt accounted forby the stress of giving evidence. However, the essential features of an offence of robbery is still present on his account in court:the assault and the taking of money under threat.

36. On considering all the evidence, I found that both the first and second prosecution witnesses were reliable and truthful witnesses. I was prepared to place full reliance upon what they told me.

37. I also assessed the defendant’s evidence in the light of all the evidence in the case. I found that the defendant’s accountpointed to the fact that it was manufactured to provide him with a reason to say he was asking for a loan.

38. He said he had met PW1 and PW2 two days earlier. This, I found, was a fabrication designed to provide him with a veneer of familiaritywith the witnesses, so that he could then go on to say he had asked them for a loan.

39. As to how the money was obtained by the defendant, I found his account to be untruthful. I rejected his account in court and inthe record of interview insofar as he states that he was seeking a loan from PW1 and that the money was given to him consensually.

40. I also considered the effect of his undoubted consumption of alcohol. The evidence points to the fact that he had been drinking. PW2 said he smelt of drink and had a can in his hand.

41. Nevertheless, the defendant was clearly capable of forming a necessary intent to commit a robbery. His actions clearly evidencethis. No doubt the alcohol somewhat disinhibited him, but that would appear to have been its only effect.

42. As I said, I found the evidence of PW1 and 2 to be truthful and reliable. I found that the defendant stole the $100 from PW1, thatin doing so, he applied violence to PW1, and that, namely, that at the time before and at the time of doing so, and in order to doso, used force against PW1, and that was done to facilitate the theft of $100 from him.

43. On my findings, the prosecution have proved all elements of the offence of robbery beyond reasonable doubt against the defendant.

44. I convict him accordingly.

T Casewell
District Judge