Hon Leong JA (giving the judgment of the Court):
上訴法庭法官梁紹中宣讀上訴法庭判案書:

On 25 February this year, the applicant for leave to appeal, Ng Wing Hang, was charged before the District Court with one count of robbery.  Particulars of the offence stated that on 8 September 1999, in Wanchai Road and together with Ho Chi Wai (何志徫) (i.e. D1) and Li Wai Yip (李偉業) (i.e. D2), the applicant robbed one Chow Ka Yin (周嘉賢) of cash in the sum of HK$60 and a multi-purpose bankcard.  The applicant was convicted after trial, and Her Honour District Judge Toh sentenced him to imprisonment for 40 months.  He now seeks leave to appeal against conviction and sentence.
上訴許可申請人吳永恒於本年2月25日在區域法院被控一項搶劫罪名，罪行詳情指申請人在1999年9月8日，在灣仔道與何志偉（即本案之第一被告）及李偉業（即本案之第二被告）搶劫周嘉賢，劫去現金港幣60元及一張萬用戶口卡。經審訊後，申請人其後被裁定罪名成立。區域法院杜麗冰法官判申請人入獄40個月。申請人現申請許可上訴，要求推翻判罪及減刑。

On the prosecution’s evidence, the circumstances of the offence are as follows:
根據控方証據，案發經過如下：

On 8 September 1999, the victim Chow Ka Yin (i.e. PW1) was walking along Wanchai Road after work.  D1 bumped against the victim, then stopped him and asked him who his “big brother” was.  At the same time, D2 and applicant also approached.  D2 asked the victim whether he had a “big brother”.  The victim replied, “No.”  D2 further asked the victim if he had any money on him.  The victim also replied, “No.”  D1 and D2 then assaulted and kicked the victim.  Thereafter, the victim handed his wallet to D2.  D2 took from the wallet the property referred to in the charge, including three $20 banknotes.  At that time, D1 wanted to take away the victim’s mobile phone, but the applicant told D1 not to do so.  D1 listened to the applicant and did not take away the victim’s phone.  Later, two traffic policemen turned up and the three defendants immediately fled.  The applicant jumped on board a taxi, but the taxi was stopped by the police.  The applicant was arrested, and the police found a $20 banknote on his person.  He admitted that the $20 banknote was part of the money obtained from the robbery.  The victim subsequently identified the applicant as one of the three robbers who had intercepted him.  The police cautioned the applicant for the robbery.  Under caution, the applicant said, “I admit, but I did not intend it.  It’s just that my two friends thrust twenty dollars into my pocket after they robbed the guy!”
1999年9月8日，受害人周嘉賢（即控方第一証人）下班後，行經灣仔道，第一被告向他碰撞，把他截停及質問他，他的『大佬』是誰。當時第二被告和申請人亦趨前。第二被告問受害人有沒有『大佬』，受害人回答：『沒有』。第二被告又問受害人身上有沒有錢，受害人答：『沒有』。於是第一和第二被告就毆打及用腳踢受害人，其後，受害人將錢包交給第二被告。第二被告從錢包內，拿走控罪所指的財物包括三張港幣20元紙幣。當時，第一被告想拿走受害人的手提電話，但申請人叫第一被告不要這樣做，第一被告聽從申請人沒有把受害人的電話拿走。後來有兩名交通警員出現，三名被告遂即時逃跑。申請人逃上一輛的士，但該的士被警員截停。申請人被拘捕後，警員在他身上找出一張港幣20元紙幣，申請人承認該港幣20元紙幣是搶劫得來的部份款項。受害人其後認出申請人是三名截停他的賊人之一。警員就該搶劫罪向申請人警誡，在警誡下，申請人說：『我認。但是我係唔想。我兩個friend笠完條友，夾硬塞廿蚊落我袋咋！』

At trial, the applicant testified that on the day in question, before he met D1 and D2 in Wanchai Road, he had no knowledge whatsoever of the robbery.  He also testified that, prior to his arrival, D1 and D2 had already assaulted and demanded money from the victim.
原審時，申請人作供稱，當日他與第一和第二被告在灣仔道會面前，對搶劫一事全不知情。而且在他到場前，第一和第二被告經已毆打受害人和向受害人要錢。

Judge Toh disbelieved the applicant’s testimony and believed the victim’s evidence.  She concluded that the applicant approached the victim with D2 and that the applicant was present when the victim was assaulted by the two defendants.  The applicant had never intervened or told the other two defendants not to rob.  When the applicant saw the policemen, he immediately fled and took off his jacket in the course in order to avoid detection.  In the end, Judge Toh ruled that the applicant did take part in the robbery and therefore convicted him of robbery.
杜法官不相信申請人的証供。她相信受害人的証供。她的結論是申請人和第二被告一同走到受害人面前，受害人被兩名被告毆打時，申請人亦在場。申請人從沒有制止或叫其他兩名被告不要搶劫。而申請人見警員出現，立即逃跑，並且在逃跑時脫掉外衣避免偵查。杜法官最終的結論是申請人有參與搶劫，裁定他搶劫罪罪名成立。

The first and second grounds of appeal mainly complain that Judge Toh erred in ruling, on the sole basis that the applicant was present at the scene, that he and the other two defendants were accomplices in the robbery.  Since Judge Toh did not rule that the applicant’s presence at the scene was pursuant to an agreement or premeditated plan between the applicant and the other two defendants, the conviction of the applicant was unsatisfactory.
上訴理由的第一點和第二點主要是指杜法官單憑申請人被發現於案件現場，錯誤地裁定申請人與同案另外兩人在有關劫案中是同一夥，但杜法官沒有裁定申請人出現在場是基於他與其他兩人有協議或預謀，而定申請人罪是不當的。

The third ground of appeal is that the trial judge erred in inferring the applicant’s guilt from the mere fact that he had fled and taken off his jacket in the course.
第三點上訴理由是原審法官單憑申請人的逃跑和脫衣行徑錯誤推斷他有罪。

The fourth ground of appeal is, even if the applicant were guilty, he should only have been guilty of handling stolen property.  Judge Toh should not have failed to consider this alternative charge.
第四點上訴理由是申請人即使有罪，亦只是接贓罪。杜法官不應沒有考慮此交替性罪名。

There is an abundance of judicial authorities on the legal concepts of “joint enterprise” and “aiding and abetting”.  One of the principles that emerge is this: where it is necessary to prove that a defendant aided and abetted another to commit a crime on the basis that the defendant encouraged another to commit a crime, the prosecution must prove that the defendant intentionally and wilfully encouraged another to commit a crime.  The mere fact that the defendant was present at the scene of his own accord when the other person committed a crime, even if such presence was not by chance, is not tantamount to encouraging another to commit a crime.  If the defendant voluntarily and purposefully placed himself at the scene and witnessed the commission of the crime, he would naturally be expected to stop the crime from occurring to the extent that he was able to do so.  Under certain circumstances, however, if he did not object to or dissent from the commission of the crime, this may constitute cogent evidence from which the jury may conclude that the defendant has aided or abetted another to commit a crime.  The foregoing sums up the views expressed in two cases: R v Kwan Kwok-hing [1977] HKLR 159 and R v Clarkson and Ors 55 Cr App R 445.
有關共同犯罪和協助及教唆的法律概念，已經有多個案例予以解釋。其中一點是如有需要以被告鼓勵他人犯罪為依據，証明被告協助及教唆他人犯罪，控方必須証明被告意圖及故意鼓勵他人犯案。如果被告只是在其他人犯案時自願置身於現場，即使是非意外地在場，這並不相等於被告鼓勵他人犯罪。如果被告是自願的及有目的地置身於現場，目擊犯案經過，順理成章的，別人會預料他會制止案件發生，而他亦有能力如此做，但是如他並沒有提出反對或表示不同意犯案，在某些情況下，這是可以構成陪審團可以倚賴的強力証據，結論被告有協助或教唆別人犯罪。以上是女皇訴關國慶（1）（譯音）及女皇訴嘉信（2）（譯音）及其他人兩案的綜合意見。

This Court is of the view that the trial judge did not convict the applicant solely on the basis that he was present at the scene.  The conviction was based on the following evidence: after D1 intercepted the victim, the applicant and D2 approached the victim; when the victim was assaulted by D1 and D2 and, later on, when D2 took away property from the victim’s wallet, the applicant was beside him, and all along the applicant neither intervened nor expressed disapproval of what the other two defendants were doing; subsequently, the applicant told D1 not to take away the victim’s mobile phone, and this indicates that the applicant thought that enough had been taken from the victim; D1 also followed the applicant’s instruction; and when applicant saw the policemen, he immediately fled with the other two defendants and took off his jacket with intent to avoid detection.
本庭認為原審法官不是單憑申請人在現場的証據而裁定申請人有罪，原審法官是依據以下的証據定申請人有罪：即第一被告截停受害人，申請人與第二被告一同趨近受害人；受害人被第一和第二被告毆打時及後來第二被告從受害人錢包拿走財物時，申請人一直在旁，並未制止亦沒有表示不同意兩人所做的；申請人及後叫第一被告不要拿走受害人的手機，顯示申請人認為所拿去的財物已足夠；而第一被告亦聽從申請人之指示；申請人見到警員出現，立即與其他兩人一同逃跑，並脫去外衣以圖避別人的偵查。

The above evidence does not serve to prove any prior agreement between the applicant and the other two defendants to rob the victim or other people, but it does prove that the applicant’s presence at the scene was neither by sheer chance nor for no reason whatsoever.  His approaching the victim with D2 was plainly related to D1’s intercepting the victim.  Judge Toh could infer from the applicant’s behaviour at the scene that he had encouraged the other two defendants to commit the offence.  She could also infer from the evidence of his instructing the other two defendants not to take away the victim’s mobile phone that the applicant actually took part in the robbery.  The applicant alleged that the reason for his taking to his heels when policemen appeared was that he was frightened.  Nevertheless, this explanation, which might, if accepted, have provided an “innocent” motive for fleeing, had been rejected by the judge.  On this basis, Judge Toh was quite entitled to draw an inference adverse to the applicant.  (See  R v Mo Shiu-shing [1992] 2 HKLRD 155).
以上的証據，雖然不能証明申請人與其他兩名被告事先有協議，合謀搶劫受害人或其他人，但可以証明他出現於現場不是偶爾的，亦不是無緣故的。他是跟第二被告一同上前面對受害人，明顯地是與第一被告截停受害人有關。杜法官是可以從申請人在案發現場的表現，推斷他在鼓勵其他兩人犯案；從他指示兩人不要拿走受害人的手提電話的証據，杜法官可以推斷申請人有實際參予搶劫行動。申請人稱他在警員出現時，發足奔逃原因是他受驚，但是這個可以顯示他有『清白』動機逃跑的解釋，沒有被法官接納。憑這點証據杜法官可以作出對他不利的推斷。〔參考香港特別行政區訴巫紹盛（3）（譯音）一案〕。

This Court comes to the conclusion that the trial judge has not erred in law or in fact in her judgment.  There is sufficient evidence of the applicant having committed the offence to support Judge Toh’s verdict that the applicant was guilty.  The application for leave to appeal against conviction is accordingly refused.
本庭的結論是不論在法理上或事實方面，法官的判斷都沒有不對的地方。指証申請人犯案的証據是足夠支持杜法官的裁決申請人有罪。本庭拒絕申請許可上訴推翻判罪。

Turning to the application for leave to appeal against sentence, this is a case where three people acted in concert to commit robbery, and violence was involved.  The starting point of 4 years as adopted by Judge Toh is in accord with the general sentencing guideline for this type of offence.  The discount given to the applicant and the eventual sentence of imprisonment for 40 months show that the trial judge had been lenient to the applicant.  In our view, this sentence is neither excessive nor wrong in principle.  The application for leave to appeal against sentence is therefore also refused.
至於申請許可上訴減刑，本案是一宗三人合夥行動，使用暴力的搶劫案。杜法官以4年為刑期起點沒有違反此類案件一般判刑的指引。而法官給予申請人減刑，以致最終判申請人入獄40個月，顯示法官已寬大處理申請人。40個月的刑期，本庭認為毫不過重，亦未違反原則，申請許可上訴減刑亦予以拒絕。

Ms. E. Chan, Senior Assistant Director of Public Prosecutions, for the respondent.
答辯人：由陳月好高級助理刑事檢控專員代表

Mr. Patrick Szeto, instructed by T. C. Lau & Co, for the applicant for leave to appeal.
上訴許可申請人：由劉大潛律師行委派司徒栢大律師代表