How to Get Away with Robbery under Duress?

The surprising acquittal of the defendant after “robbing” a bank highlighted the complexities of duress and shed light on the thin line of coercion.

In HKSAR v Lau Wai Keung [2019] 4 HKC 159, the appellant was convicted after trial of attempted robbery after trying to hold up a bank with bottles of flammable liquid. 

However, there is something bizarre about this case.

As he made his intention known to the bank teller, he also claimed that he didn’t really want to do it, only because he owed a considerable sum to loan sharks. He even asked the teller to call the police.

As the police arrived, the appellant repeated his story. After they made contact and escorted the wife and children to the police station, he surrendered. He even kneeled and apologised to the bank tellers.

At trial, the appellant claimed that he entered the bank seeking help from the police, not to commit robbery. The jury rejected his account and found him guilty. He was sentenced to ten years in prison.

An interesting issue was raised on appeal that the judge misdirected the jury on “duress”.

The Court of Appeal discussed the differences between “duress by threats” and “duress by circumstances”. The former is threats from another person to commit a crime, while the latter refers to being driven to crime by external circumstances. Both are valid and complete defences subject to reasonableness.

However, there is one key difference. There are two additional limitations to duress by threats but not by circumstances. That (1) the person failed to escape from the threat when he could and should have, and (2) he put himself in such a position that he is likely subjected to threats. Hence, for a defence on circumstances, giving directions on the two limitations to the jury is unnecessary. This is also made clear under the Specimen Direction in Jury Trials.

In this case, the appellant argued that he had no intention of committing robbery. But even if he had, he had been subjected to long-term threats from loan sharks and was in a “duress by circumstances” situation. The judge’s direction to the jury on the two limitations was thus inappropriate. 

The Court of Appeal found that it was unreasonable to expect the appellant to make a police report or stay with his family all day long in the face of a prolonged threat. However, the judge’s mention of the two possible actions would have influenced the jury to think he should have done so.

As a result, the Court of Appeal found that the conviction was unsafe and quashed it.

This case highlighted the intricate mental state when a person is coerced into committing a crime. Often, it is on a thin line and a difficult question for the jury.

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How to Get Away with Robbery under Duress?
Gordon Chan avatar
Gordon Chan, Esq

Barrister-at-law, Archbold Hong Kong Editor on Public Health, and Member of the Bar Association's Committee on Criminal Law and Procedure. Specialised in medical, technology and criminal law.

Jennifer Liu

Science and Law Student at the University of Hong Kong

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