HKSAR v. WU YEE KI

CACC 513/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 513 OF 2005

(ON APPEAL FROM DCCC NO. 641 OF 2005)

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

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

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

J U D G M E N T

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

Hon Stock JA (giving the judgment of the Court):

Introduction

1. This is an application for leave to appeal against conviction and sentence.  On 15 November 2005 the applicant was convicted in the District Court by Deputy Judge Chainrai of the offence of robbery and sentenced to a term of three years' imprisonment.

2. The charge was that on or about 20 January 2000 at Room 1406 New San Diego Hotel in Yau Ma Tei, the applicant together with other persons robbed Leung Chi-shan of one mobile telephone and $23,100 cash.

3. That Mr Leung was robbed at that room was common ground and it was also common ground that the applicant was present when he was robbed, but the issue was whether she was party to that robbery.  The essence of the prosecution case was that she was part of a plan to lure Leung to a place where he was to be robbed.  The suggestion was that she posed as someone interested in Leung, so that the two would meet and that thereafter her boyfriend and others would be in a position to confront Leung as someone interfering in an established relationship, and force him to a place where he could be used with violence and robbed.  Her case, on the other hand, was that she was dissatisfied with her boyfriend, had met Leung but that her whereabouts with Leung was discovered by reason of an innocent telephone call that she had made to a friend, and that her enraged boyfriend had then come to where she and Leung were and had there exacted his anger upon Leung by robbing him.

Mr Leung's evidence

4. Mr Leung's account, which for the most part was not in issue, ran as follows.  He had met the applicant through a chat line and first saw her face to face on 18 January 2000 and that on 20 January he arranged to meet her again.  She was alone and they went for a drive in his car.  She told him that she was upset and did not want to go home because she had just broken up with her boyfriend.  Mr Leung suggested that they rent a room for her at an hotel in which she could stay overnight and she agreed.  He chose the San Diego Hotel in Jordan, and a room was booked, Room 1406.  The room was registered in his name and he paid for it.  Having checked in, he said he had to go to work, and she told him that she would ask a friend named Ah Ching to come and stay with her in the room.  She used her mobile telephone and said something to this effect: “Ah Ching, where are you?  Can you come over here to accompany me tonight?  I'm now in the San Diego Hotel.”  Then the two, Leung and the applicant, went to a restaurant near to the hotel.

5. Whilst in the restaurant a male approached and spoke briefly to the applicant.  He left.  The applicant then suggested that they go back to the hotel to wait for Ah Ching.  They left the restaurant and at the entrance to the hotel they were approached by two men, one wearing sunglasses and another who was described in the course of the evidence as “the fat man”.  It became evident that the man with sunglasses was the applicant's boyfriend.  Outside the hotel entrance, Mr Leung was told that they had all to go up to the room reserved otherwise he would be beaten, and the man with sunglasses asked him why he, the applicant, had courted his girlfriend.  The applicant was present and said nothing.

6. The four went up to the room.  In the lift, the man in the sunglasses asked Leung whether he had “tampered with his girlfriend” to which suggestion the applicant did not react, and when the lift door opened, the same man pushed the applicant and she said “You didn't have to do that”.

7. Once in the room, the man with sunglasses took the applicant into the toilet.  What there transpired Leung was not able to say, save that she did not appear reluctant to go there.  According to the statement made by Leung to the police, there was a stage in the room, quite when is not clear, when the applicant received a call on her mobile telephone and she said: “Ah Ching, why did you tell Ah Yip I was here?”  And after the call one of the men in the room said: “She did it for your benefit only.”  After the applicant emerged from the toilet, the man with the sunglasses pushed Mr Leung into the toilet where he searched Leung and told him that more people were coming.  A ring was removed from his finger but returned to him.  They emerged from the toilet and three other men were then in the hotel room.  The applicant appeared to know them.  Then Leung's wallet was taken and its contents removed, including cash as well as ATM and credit cards.  Leung was told that the applicant owed the man with sunglasses a lot of money, and he was asked whether he was keen to repay the money on her behalf.  The fat man produced a flick knife and punched Leung about the head and chest and told him to disclose the PIN numbers for the ATM cards.  Leung did so, and the three men who had latterly arrived went downstairs.  All the while the applicant sat on the sofa, appearing calm and normal.

8. When the men returned, they said they had been unable to secure anything by the use of the PIN number.  There was an attempt to take Leung's necklace and watch, and when he resisted he was hit about the face.  Food was ordered and all the men, other than Leung, partook of it but the applicant did not.  Leung was then forced to provide his telephone number and address and the men left, taking with them Leung's mobile telephone.  The applicant left together with the five men.  Soon thereafter, Leung left the hotel, saw a police vehicle and made a report.

9. The applicant was not apprehended for some years.  When she was, Leung was unable to identify her but, in the event, that mattered not for the purpose of the trial, because her fingerprints had been found in the hotel room and on Leung's car and it was accepted at trial that she had been with Leung in his car that day, in the restaurant in question, and also in the hotel room, and that he was robbed by her boyfriend or former boyfriend, together with other men.  The issue, as we say, was whether she was party to that robbery, for the prosecution case, which she denied, was that she was all along a willing part of a scheme by which to lure Leung to a place where he would be accused of an association with the applicant as a prelude to robbery.

The applicant's evidence

10. The applicant herself gave evidence, the only other oral testimony adduced.  She was aged 15 years at the date of the robbery.  She had a boyfriend but they had quarrels, and when that happened she welcomed the company of Leung with whom she had established contact over the chat line.  She met him on 20 January because she had had a quarrel with her boyfriend.  Leung suggested booking a room, although she conceded that that was only after she had told him that she did not want to go home that night.  The reason, she said, that she did not want to go home was because her boyfriend tended to wait for her outside her home.

11. She said that when she learned that Leung could not stay with her, she suggested that she contact a friend, a female called Ah Ching, and she did so.  She and Leung went to the restaurant nearby the hotel and there met this male who told her that Ah Ching had informed her boyfriend of her plans.  They then met her boyfriend at the hotel entrance and were told to go up to the room.  Her boyfriend was fierce.  He pushed her at the lift.  When Ah Ching telephoned her whilst she was in the hotel room, she, the applicant, remonstrated with her for calling her boyfriend.  She was asked by her boyfriend to go into the toilet, where she was questioned about her relationship with Leung.  He slapped her.

12. She denied that she was party to any plan to rob Leung.  She went home that night.  It had not occurred to her, she said in cross-examination, to go to stay with a friend instead of at the hotel room because her friends had to attend school the next day.  Nor did she tell her parents that she would be staying out that night: it did not occur to her to do so.  She said that her boyfriend was a man given to violence, who had previously beaten her.  She stayed in the hotel room and sat still whilst the robbery progressed because that is what she had been instructed to do.

Reasons for Verdict

13. In her Reasons for Verdict, the judge has recited the evidence in some considerable detail.  She said that she found Leung to be an honest and credible witness and in particular she accepted his testimony that the applicant appeared calm and did not seem to be nervous throughout the time she was in the room with her boyfriend and that the applicant left voluntarily with them without being asked to do so.  She found that the applicant went into the toilet voluntarily and that when she emerged she did not behave differently and did not appear to be nervous.  As to the suggestion that the applicant had been pushed, she noted that Leung had only assumed that she had been pushed because he saw her stumble.  It was common ground that the applicant had disclosed through a telephone conversation with a friend that she was with Leung and where they were.  The judge did not believe the applicant's testimony and found her evasive when answering questions.  As to the telephone conversation in which she asked her friend why the friend had told others where she and Leung were, the judge said: “In my view, that was neither here nor there.  Clearly, she was there willingly and [Leung] was being set up.”

Grounds

14. The only ground of appeal now pursued by Mr Kan amongst a number in the perfected Grounds of Appeal is, in essence, that the conviction is unsafe since the conclusion that the applicant was party to the robbery was not the only reasonable inference available on the evidence as it emerged.

15. This case has all the hallmarks of a set up in which a young lady is used by others to lure a man to a place where he can be accused of interfering in an established relationship between a female and her boyfriend, an accusation that is made as a prelude to demands for monetary satisfaction.  The question in this application is whether the judge, in excluding the alternative scenario as a reasonable possibility, has done so on a rational and acceptable basis.  The alternative scenario to which we refer is one in which the men found out that the applicant was with another man and themselves then decided, without the applicant's foreknowledge, to descend upon the couple and to rob Leung.

Analysis

16. In support of this alternative or exculpatory scenario the points might be made, as no doubt they were at trial, that the suggestion of going to the hotel in question was Leung's suggestion, not the applicant's, that there was evidence that she only telephoned Ah Ching after Leung himself said that he would not be available to keep the applicant company at the hotel, that there was evidence from Leung himself that the applicant was or seem to have been pushed when emerging from the lift, and that the applicant's reaction when Ah Ching called was consistent with innocence.

17. As against those factors, Mr Tam for the respondent, in his written arguments, points to cogent indicia of guilt.  He notes that it was the applicant who called Leung and suggested that they go out that day.  It was she who said, rather unusually one might think, that she did not want to go home that night and there must then have been an expectation on her part that he would spend the night with her.  That he chose where it was that they would go is a matter of scant significance, given that any realistic plan would envisage flexibility as to where and when the robbery would take place.  The venue having been determined by him, it was she who immediately thereafter notified a third party as to where they could be found.  She it was who suggested going from the restaurant back to wait at the hotel lobby purportedly for Ah Ching, but in fact the very place where her boyfriend was.  She did not notify anyone of her plan to stay away from home that night, a fact consistent with the assertion that there had never been an intention on her part to do so.  Throughout the episode that followed, her demeanour did not fit with someone who was in fear or who was a reluctant participant or who had been the subject herself of an assault.  In so far as it may be said that her suggested fear of her boyfriend accounts for her lack of comment or protest when it was suggested that Leung and the applicant were courting and when assaults took place, and when it was suggested that Leung had to put it in the words with the boyfriend “tampered with her”, one notes the applicant's own suggestion that when, allegedly, she was pushed from the lift she protested at that.  Why, one asks, if she could do that, did she offer no hint of protest or concern or overt stress at any stage of the events that ensued?  These factors, taken together, make, so it seems to us, a powerful case.

18. There is, however, one matter that has caused us concern and that is whether the judge has paid any, or sufficient, regard to the applicant's response when the person called Ah Ching called, once the robbery was under way.  Unless the call and its response was staged to support a defence should one become necessary (and in this regard it is to be remembered that the applicant had been part of a chat room and was identifiable by Leung), then the applicant's remark might clearly be said to be indicative of innocence.  All the judge has said in this regard is this: “In my view [the call and her comment in response] … was neither here nor there.  Clearly, she was there willingly and PW1 was being set up.”  This, with respect to the judge, was a slightly odd way of putting it because the telephone call, and the applicant's comment during it, was very much here as well as there, because it went to the central question in the case, which was whether what had happened was with or without the applicant's consent.  On one view, the judge's remark may be read as putting cart before the horse in the sense that one had first to assess the true import of the comment before deciding whether the applicant was there willingly.

19. That said, that line of reasoning, namely, that the judge was brushing aside the remark without adequate cause, does not sit realistically with the judge's analysis as a whole.  It is clear that the judge did not think that the remark in question was irrelevant.  We see that it was a matter specifically drawn out in examination and cross-examination in order to make a point on behalf of the applicant almost too obvious to have to explain; specifically highlighted in the closing submission by defence counsel; and further mentioned by the judge in that part of her Reasons for Verdict as a material matter that required consideration.  Why otherwise would she have drawn attention to it in the way she did?  What, in our judgment, the judge was saying was that the evidence as a whole made her sure that the applicant was not an innocent party and that the telephone remark, in the context of the evidence as a whole, did not cast doubt in her mind; in other words, she was not troubled by it.  This is the only way in which one can make sense of what the judge said and what the judge found.

Conviction: Conclusion

20. We are satisfied in the circumstances that there is no valid basis upon which the conviction can be upset and, accordingly, the application for leave to appeal against conviction is dismissed.

Sentence

21. The applicant seeks leave to appeal against sentence.  She was aged 15 years and 10 months at the time of the offence and is now aged 22 years.  The judge sentenced her to a term of three years' imprisonment and declined to suspend that sentence.

22. The judge noted the seriousness of the offence in question, and in particular that Leung had been subjected to violence and that a knife had been used in the course of the robbery.  She took a starting point of five years' imprisonment but “in view of the age of the defendant at the time of the offence and the background, and having considered that she had changed herself in the ensuing years since the robbery although she has been convicted after trial and showed no remorse, I will adopt a lower starting point.  The defendant will be sentenced to three years' imprisonment.”

23. We are not quite sure what the judge meant when she said that she would adopt a lower starting point for she has not stated what that lower starting point was, unless she meant, inappropriately, to describe the ultimate sentence reached as being the same as the starting point.  We proceed on the assumption that the judge adopted a starting point of five years' imprisonment given the circumstances of the robbery and that despite the fact that this was a conviction after trial, the applicant's age and her conduct since the offence were mitigating factors such as to warrant a sentence that was significantly lower.

24. In the grounds of appeal and in his oral submissions today, Mr Kan suggested that the judge failed to give adequate consideration to the mitigating factors, namely, the age of the applicant at the date of the offence and her conduct in the long intervening period between offence and sentence.

25. There is strength in Mr Tam's written submissions that the starting point adopted by the judge was low.  This was not only a case in which a person had been lured to private premises and in which those committing the robbery had brandished a knife, it was also a case in which five men were in the room with the victim, those numbers adding to the terror which the victim no doubt felt, and in which physical violence was used.  Applying the guideline in Mo Kwong-sang [1981] HKLR 610, no one could reasonably have quarreled with a starting point in the circumstances of this case of seven years' imprisonment.  One had then to look at the circumstances of the individual offender, her role and of course her age, and at such influence or pressure as may be assumed to have been visited upon her by the older group with whom she then kept company.

26. One starts from the principle that no young person should be sentenced to imprisonment if he or she can suitably be dealt with in another way: section 11 Juvenile Offenders Ordinance, Cap. 226.  But as this Court pointed out in HKSAR v Law Ka-kit [2003] 2 HKC 178, the nature or prevalence of an offence may be such as to demand an immediate custodial sentence despite the youth of the offender.  Robbery has for long been recognized as an offence within that category.  It is within a band of cases where youth is not a strong mitigating factor.  In this particular case, despite her youth, the active, prolonged and central role played so well by this applicant in the setting of a trap was such that an immediate custodial sentence was warranted.  The procurement of a female to play the role that the applicant played is central to a plan of this type and the sentencing process for such an offence must contain a suitable deterrent element.  The only question that remains in this case is whether the sentence was manifestly excessive or wrong in principle given the applicant's progress since the commission of the offence, namely, between January 2000 and the date of her apprehension in 2005.

27. We see from the probation report that the applicant obtained employment in a boutique as a sales lady from 2000 to 2002, and that she subsequently secured two further jobs earning a decent salary.  Prior to her incarceration for this offence she was employed in a clerical position at a salary of $7,000 per month.

28. The fact in the applicant's favour that deserves particular consideration is the fact that she is now aged 22 years and has led a lawful and useful life since the commission of this offence some five years after her apprehension.  That said, however, the fact that the trial took place five years or so after the offence is not a fact that lies in any way at the door of the investigating or prosecuting authorities.  It is simply that the applicant evaded apprehension and she must at all times have appreciated that the day might come when she would have to answer for her crime.  There is no evidence of remorse such as might be indicated by a plea of guilty or by information to the police which might assist them in the apprehension and prosecution of the male culprits.  No such assistance has been offered.  We think in the circumstances and given in particular an appropriate starting point for an offence of this nature in the region of seven years' imprisonment, that the resulting sentence of three years' imprisonment adequately reflects the mitigating factors as against the gravity of the offence and, accordingly, the application for leave to appeal against sentence is dismissed.