HKSAR v. CHAN YEE YAN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 439
(Criminal)

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. On 11 July 1997 the applicant, who was the 1st defendant at the trial in the District Court, was convicted by His Honour Judge W.C. Li of two charges. The first was of aiding and abetting an indecent assault on a woman, contrary to s. 122(1) of the Crimes Ordinance (Cap. 200) and s. 89 of the Criminal Procedure Ordinance (Cap. 221) in that the applicant, to whom we shall refer as D1, and the 2nd defendant charged with her on a day unknown in July 1996 at Mongkok aided and abetted three persons known as "Ah Fai", "Ah Hang" and "Ah Fung" to indecently assault a girl of the age of 15, known as Jay.

2. The 2nd charge was of blackmail, contrary to s. 23(1) and (3) of the Theft Ordinance (Cap. 210) in that D1 on or about 20 October 1996 in Hong Kong together with two persons known as "Ah Fai" and "Ah Hang" with a view to gaining for themselves, made an unwarranted demand of HK$600,000 from Jay's mother with menaces.

3. The 1st defendant was convicted on both charges and sent to a training centre. She now applies for leave to appeal against both her conviction and sentence.

4. The facts are that on one evening in July 1996, the victim Jay, then a schoolgirl of 15 encountered a former classmate Cindy who introduced her to a group of 5 persons at a karaoke lounge in Prat Avenue, Tsimshatsui. Jay stayed with the group at the karaoke lounge until about 6 a.m. the following morning, when they went to an amusement game centre where D1 worked and consequently had a key. She let them into the amusement game centre. There one of the males and D2 gave Jay some tablets which she took. She became unconscious shortly afterwards and vomited, and was taken to the toilet.

5. Later, the party left the amusement centre and took Jay to a room in an apartment in Mongkok. Subsequently Jay woke up and found herself alone in the room. She was still a bit dizzy but was properly dressed as she had been earlier. Her rucksack which contained money, keys and a personal notebook with addresses and telephone numbers of her school, home and friends was missing. She made her way home.

6. A few days later, she met D1 in Tsimshatsui and asked her what had happened to her when she passed out. D1, she testified, did not answer her. Jay met D1 again sometime later in Tsimshatsui. This time, she says, D1 told her that photographs were taken of her on that night. Jay did not quite understand what D1 was saying then. Sometime about the end of July, Jay recovered her rucksack with the help of Cindy but her money, all the photos in her wallet and her personal notebook were never returned to her.

7. On 20 October 1996 Jay's mother received several phone calls from an unknown male who asked to talk to her husband. He told her he had nude photographs of her daughter and asked for $600,000 for the pictures. He also mentioned her former address and threatened to send the nude pictures to her daughter's school and to display the photographs near her home if the money was not paid. Jay's mother told the caller she had no money and the caller could do what he pleased and she hung up. Three days later the principal of Jay's school received in the mail five nude pictures of Jay. She reported to the police who contacted Jay and her mother.

8. Upon investigation the police arrested D1 at her home on 14 November. They conducted a house search and found inside a drawer two nude photographs of PW1. On the same day D2 was also arrested. D1 made two statements, one post-recorded. The other under caution was subsequently admitted in evidence by the Deputy Judge, after a voir dire, as Exhibit P2.

9. D2 likewise made two statements - Exhibits P5 and P6. From these statements and evidence given by the two defendants, it is plain that Jay was taken in an unconscious condition by the five to the apartment in Mongkok where she awoke. There she was striped naked and photographs were taken of her by the three males mentioned, who do not appear to have been brought to book.

10. Among the witnesses for the prosecution were Jay, her mother, Cindy, and the police officers who arrested the two defendants, who found and seized the two nude photographs at D1's home and who took the defendants' cautioned statements or were present on those occasions.

11. The judge, having recounted the evidence, concluded his judgment in the following way:

"Having considered all the evidence before the court, I found all the prosecution witnesses truthful and it was safe and reliable for the court to rely on the evidence.

On the other hand the evidence of D1 and D2 is incredible. Both defendants made admissions under caution in their respective statements. On the one hand they were trying to play down their roles when they narrated the events in their statements, and on the other hand their statements showed that both defendants were willing and active participants in the whole enterprise.

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The two photos ... in D1's possession, were strong evidence that D1 was actively involved in the scheme to blackmail PW2's [Jay's] parents. She had a share in the money to be received and she met up with the other two male blackmailers to view the photos and to discuss the action and she were not to meet them again until things succeeded and she would then receive her share of the money.

D1 and D2 in their admission in their respective statements, amply showed their state of mind at the time. I place full weight on their statements. The evidence was quite overwhelming to show that both D1 and D2 were active participants in a joint enterprise to get PW2 drunk and to take PW2 to the apartment house to be indecently assaulted and photographed. The involvement of D1 went further and she was involved in the scheme to blackmail [Jay's] parents.

I therefore find D1 guilty and convict her on both charges 1 and 2 and D2 guilty and convict her on charge."

12. The applicant's first perfected ground of appeal is this:

"(1) The learned trial judge wholly failed to and/or adequately consider the effect of alcohol on the mens rea of the appellant."

There was clear evidence that D1 had quite a lot to drink. The judge accurately summarised that part of the evidence towards the end of his judgment in the following way:

"D1 gave evidence in her defence that she had drunk seven to eight cans of Heineken at the karaoke and another one to two cans of beer at the amusement games centre and she was a bit tipsy when they went to the apartment house. She testified that she did not know what was going to happen and a person called "Ah Hang" had the keys to the apartment house and Ah Hang opened the door to let them in. She maintained that she was tired, sleepy and tipsy and she just sat down."

13. Miss Munira Moosdeen, who also appeared for D1 below, does not pursue the usual point that would seem to be the thrust of ground (1) i.e. that the effect of alcohol might have prevented the necessary mens rea on the part of the appellant. What she does submit is that the effect of the alcohol would have diminished D1's appreciation of what was going on and rendered her less likely to have taken part in what was going on. She complains that the judge merely recited the evidence and made no findings of fact. We find no merit in this ground. D1 was plainly able to appreciated what was going on. That is apparent from her description of what took place. Moreover, the Deputy Judge could not have overlooked the amount of alcohol she took. He fully described it and outlined the evidence.

14. The second perfected ground of appeal was that:

"(2) The learned trial judge erred in that he had apparently compared the contexts of Ex. P2 [D1's caution statement] with that of Ex. P5 and P6 [being D2's statement] to convict the appellant."

Miss Moosdeen was not able to point to any particular piece of evidence from a statement of one defendant that was so used against the other defendant. She conceded that she relied entirely upon impression. We find no merit in this ground.

15. Ground (3) was that:

"The learned trial judge erred in placing full weight on the contents of ex. P2."

As mentioned, the Deputy Judge after a voir dire admitted the statement. He was perfectly entitled to place full weight upon its contents, particularly as some of those he relied upon were confirmed by the 1st defendant in her evidence before him, as will be seen. This ground, too, has no merit in it.

16. We turn to ground (4):

"The learned trial judge misdirected himself both in law and on facts in concluding that the appellant was a willing and active participant in the whole enterprise."

This was pursued upon the basis that there was no evidence that D1 willingly and actively participated in the alleged joint enterprise. We have to say that unlike the other grounds referred to, we have found it necessary to consider this ground carefully.

17. Mr A.A. Bruce SC for the respondent helpfully identified two pieces of evidence which are crucial in the case against the 1st defendant. Both items of evidence emerged from the 1st defendant's own words, first in her cautioned statement and second in her evidence at the trial. The first piece of evidence is contained in the 1st defendant's cautioned statement. In describing what happened in the amusement centre, this is what she said:

"I switched on the game machines form to play with. After playing for a while, I saw Sai Fai and Ah Yee [D2] sit aside to chat. Then, Ah Yee went to Jay's front, gave Jay some pills and told Jay to take them with Ah Yee. Jay was not willing to take them. Later on, Ah Yee took the pills in front of Jay first and told Jay to take them. Then, Jay took the pills."

We pause here to observe that in her evidence Jay was to question whether D2 really did swallow those pills or simply pretended to do so. Reverting to D1, she was asked what kind of pill it was and she stated "Sap Chi Ka". She was questioned what happened after Jay took the pills and said "Jay vomited". She then said this:

"Then I helped Jay to walk into the toilet and let her vomit there. Then, Sai Fai and Ah Fung told me not to let Jay vomit because Jay would awake after she vomited, so I let Jay sleep by putting her onto the floor."

It is plain from that passage that the 1st defendant was perfectly aware of the nature of the pills, even their name. She was told by Sai Fai and Ah Fung not to let Jay vomit because she would awake, presumably recover consciousness, if she vomited. So, in her own words, she let Jay sleep by putting her onto the floor.

18. In our view, the judge was entitled upon that admission in the context of the entire circumstances and the remainder of the evidence to conclude that she was a party to Jay being rendered unconscious and that it was part of the enterprise for photographs to be taken of her and that D1 must have known that. In our view, he was also entitled to conclude that the striping naked of this 15-year-old victim was an assault.

19. We turn then to the second crucial piece of evidence. When the 1st defendant was asked by the police how she came to be in possession of the two photographs, she said that about a fortnight or half a month after the incident, Sai Fai and Ah Fung contacted her and that when she went to meet them she was shown certain nude photographs. She said in evidence that she took two photographs "just to keep them". She denied that she knew anything of any attempt to blackmail Jay's parents. She maintained that line in her evidence in chief until it came to her cross-examination. It was put to her that the reason she took the two photographs was to ensure that she would get paid a share of the money that Ah Fai was going to extort on the strength of the photographs. She disagreed. It was then put to her that Ah Fai told her "not to see him in the nearest future until the thing could be fixed up, then [she would] be given a share of the money extorted". Her reply was that "[Ah Fai] said that. I just listened but I ignored him." Plainly, in that answer she admitted that in fact she was told by Ah Fai that she was not to see him in the near future until the matter was fixed up and that she would then receive a share of the money extorted. Upon this piece of evidence, again in the context of the circumstances and the remainder of the evidence and given his understandable rejection of her explanation of her possession of the two photographs, we think the judge was entitled to conclude that D1 was a party to the blackmail offence.

20. In those circumstances we do not find the conviction unsafe or unsatisfactory which is the burden of the fifth ground of appeal. We accordingly refuse leave to appeal against conviction.

The applicant also applies for leave to appeal against the training centre order imposed by the judge. We have given careful consideration to the matter, as indeed, the judge did. He found himself in a difficult position. Probation was not recommended. He could send her to prison or he could send her to a training centre. The latter was recommended. It certainly has the merit that it might rehabilitate the applicant and in that way seems the right sentence. We see no reason for interfering with the order. We refuse leave to appeal against sentence.