Chan Man Shing v The Queen

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 410 OF 1968

-----------------

-----------------

JUDGMENT

-----------------

1. This is an appeal against conviction of the appellant by a magistrate for a charge of robbery with aggravation contrary to section 40 (1)(a) of the Larceny Ordinance, Cap. 210. The particulars of the offence were that the appellant, together with another, who is not now before the court, did on the 15th May 1968 outside Block 11 Li Cheng Uk Resettlement Estate, Kowloon, in this Colony, rob LI Kwok Wai of a wrist watch.

2. According to the evidence for the prosecution, the owner of the watch, LI Kwok Wai, was approached at about six o'clock on the evening of the 5th May last by the appellant and another companion. According to the testimony of the complainant the appellant shouted at the complainant, "You four-eyed fellow, stand there!". The complainant ignored him but the appellant again shouted and, because he was frightened, the complainant obeyed and stood still, together with a friend who was accompanying him at the time. The appellant then approached and asked the complainant if he had $5. The complainant said he hadn't. The appellant, according to the complainant, said "If I do succeed in finding the money on you, it would be embarrassing indeed"; he then said, "Take your watch for pawning for the time being". The complainant refused to hand over the watch but the appellant said if he did not hand it over he would be beaten up. As a result, the complainant took off his wrist watch; the appellant and the companion of the complainant went to a pawnshop and pawned the watch for $10, leaving the complainant and the appellant's companion at the place of the original demand. It appears that some indication of what was going on was conveyed to a detective, who, as a result, approached the two who had remained and enquired what was happening. He then contacted two uniformed constables, who were patrolling in the vicinity, and who went to look for the two who had gone off to pawn the watch. They met the two and, as a result, the appellant was arrested and the $10 which he obtained from pawning the watch was found on him. He had, however, handed over the pawn ticket to the complainant's companion.

3. Substantially the magistrate has found the facts in the case in accordance with the evidence given for the prosecution and did not believe the somewhat different version of the facts given by the appellant. He has, however, in his full and careful statement of the facts and reasons for the conviction expressed some doubt as to whether in the circumstances the offence of robbery had been established. When I say he expressed doubt perhaps it would be more correct to say he had questioned in his own mind whether the offence of robbery had occurred, but, having looked at certain authorities, finally came to the conclusion that it did.

4. In this court I have had the benefit of legal argument from counsel for the Crown on this question as to whether the offence of robbery had been established. There has not, unfortunately, been argument on the other side, but I believe I have been referred to all the relevant authorities.

5. Counsel first drew attention to the case of R. v. Medland⁽¹⁾, where the headnote reads:-

"On a charge of larceny, it was proved that the prisoner had taken property from ready-furnished lodgings that were let to her, and had pawned it: Held, that the fact that she had frequently pawned and afterwards redeemed portions of the same property, was no answer to the charge. There must not only be the intent, but also the ability to redeem, to render such defence available.".

6. Counsel then mentioned the case of Reg. v. Tynn⁽²⁾ where the headnote reads:-

7. Counsel laid particular stress on the judgment of Denman, J. in that case which had been reserved by the trial judge for the opinion of other judges on the Bench. Denman, J. said:-

"The only circumstance that in my mind could have raised any doubt in the mind of the jury was that, at the time the prisoner pledged the first watch, he told the person with whom he pledged it that he only wanted the money temporarily; and that, when he pledged the other watch, he asked the person with whom he pledged it not to part with it, as it was not his property. As against the latter statement, however, which is the stronger statement in favour of the prisoner, is the fact that he never did go near the place again, and that the watch was ultimately disposed of by the person with whom it was pledged. Taking it altogether, therefore, I think that there was evidence of a fraudulent conversion of the watches by the prisoner, and, that being so, I am of opinion that the conviction must be sustained.".

8. My attention was drawn next to an Australian case of R. v. Johnson,⁽³⁾ of which we do not have a full report but which is mentioned in the Australian Digest (p.562) where Stephen C.J. is reported as follows:-

"He who unlawfully takes a chattel for the temporary use of it merely, and who does not assume any ownership therein, is not guilty of larceny. But if he pawns the chattel, for example, he assumes the ownership, and thereby manifests an intention to vest the property in himself, for he assumes to transfer the ownership, though qualifiedly, to another. An intention eventually to return an equivalent amount cannot purge the offence.".

9. That is a very clear and categorical statement but it looks from the report as if it must have been obiter dictum in that particular case. It goes further than the English case of Reg. v. Phetheon⁽⁴⁾ where the headnote reads:-

"(The defence to a charge of stealing, that the prisoner pledged the property,...