R. v. MA YUEN-CHING

IN THE COURT OF APPEAL

1996, No.391

(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. This applicant faced one charge of robbery which alleged that she and Ting Siu-yan, who was D1 at trial, on 28th day of January 1996, outside East Ocean Centre, Granville Road, Tsim Sha Tsui East, Kowloon, together with persons unknown, robbed Liu Te-shun of one Vacheron Constantin watch inlaid with 12 diamonds. Both she and D1 pleaded not guilty before Judge Britton in the District Court. D1 was acquitted but the applicant was convicted and sentenced to imprisonment for 3½ years. She now appeals against that conviction.

2. It was the prosecution evidence that on 27th January 1996, PW1, a wealthy Taiwanese business man, "bought out" D1, a PR hostess from the Kimberley Palace Night-club where he had been drinking XO brandy with friends. It was his evidence that the party then went to a Chiu Chow restaurant where they drank Mao Tai and that he and D1 then went back to his room at the Shangri-La Hotel where, having partially undressed, they consumed a litre bottle of whisky. During this time D1 made a telephone call to D2 her "sworn sister" using Punti which PW1, who spoke Mandarin, did not understand. This call lasted 20 minutes. Shortly after D2 arrived at the hotel, the time being then about 11:20 p.m., and rang the victim's room from the lobby. The three then went to dine in a nearby Japanese restaurant where there was more drinking - this time of saki. The victim paid and the three then boarded a taxi which took them to the East Ocean Centre at Granville Road. The judge in his reasons for Verdict set out the evidence of the victim as to the events thereafter as follows:

"He recalls being taken to a very dark place and remembered getting out of the taxi at that point. He recalled that at least one of the defendants got out of the taxi with him but was unsure if they both did.

At that point, he said, the defendant or defendants who had got out of the taxi with him suddenly jumped back into it. He heard the door slam and the taxi drove off at once. He was immediately approached by a group of about 10 men and the very first thing they said was to demand his watch."

The judge accepted that evidence stating:

"I find that PW1, whilst inebriated, was taken to a dark and quiet place where robbers lay in ambush for him with the purpose of taking his watch which intention was executed."

It was the Crown case that the only sensible inference to draw from the evidence was that D1 and D2 had "set up" the victim and led him to the ambush.

3. D1 gave evidence denying this. She said that she rang D2 to send for her so that she could take her home as she was feeling unwell and that it was, in fact, the victim who had, at the end of the evening, after they alighted from the taxi, assaulted her when she refused to return to his hotel room.

4. D2 gave no evidence.

5. The trial judge, having carefully set out and analysed the facts, was satisfied that PW1 was a truthful witness and that D1 "had told a number of lies in the course of her evidence". He went on:

"Much of the evidence, then, in this case is circumstantial but circumstantial evidence can be equally as strong as direct evidence. The question for me is this - do the facts I find proved leave me sure that the only reasonable inference which can be drawn is that either or both of the defendants are guilty of the offence charged. The defendants are to be treated quite separately.

I find that PW1, whilst inebriated, was taken to a dark and quiet place where robbers lay in ambush for him with the purpose of taking his watch which intention was executed. The only reasonable inference from this is that he was taken there by someone who knew full well where the robbers would be in waiting and why. Since I find that he did not direct the taxi there himself the only persons who fall within this ambit are the two defendants.

D1 could not possibly have been in contact with the robbers themselves in order to fix the rendezvous for the ambush. She was with PW1 the whole of the time. She made only two phone calls in Punti other than to her pager company. One was to the Club House Karaoke but that conversation lasted well under one minute. It is inconceivable that she would have the time to set up the robbery in such a very short time. The other call was to D2. The only reasonable inference is that the only person who could have made the arrangements with the robbers was D2. I am in no doubt that that was precisely what she did after the telephone conversation with D1. The trip to the Japanese restaurant was clearly twofold: to get more drink inside PW1 and to allow sufficient time for the robbers to get into position.

D2, in doing what she did, is as culpable of this robbery as those who physically perpetrated the offence. I find her guilty.

As to D1 the only reasonable inference is that it was she who appraised D2 of the fact that PW1 was wearing a very valuable watch and was drunk. It is a fact that she persuaded PW1 to go to the Japanese restaurant and was in the taxi on the way to the scene of the robbery. It is a fact that she got out of the taxi, got straight back in and deserted PW1 at that spot. It is a fact that she left without getting paid for her company that night. It is certainly a reasonable inference that she knew full well what was going on and is as guilty as D2.

However, is it the only reasonable inference? D1 was, I find, in a state of intoxication herself. It is possible that the information given in the phone call was extracted from her by D2 and plans made to go out for nightsnacks without D1 necessarily knowing that a robbery was to take place. Given the relationship between the two women and D1's intoxication it is possible that D2 could have exploited D1 in this fashion. I view the fact that D1 drove off in the taxi abandoning PW1, moreover without being paid, as a source of the very deepest suspicion. However, it is just possible that the explanation for this very damaging piece of evidence is that she was befuddled by drink and did not fully or properly appreciate what was going on.

As far as D1 is concerned I have come up to the very dividing line between guilt and innocence, i.e. the point where reasonable doubt ceases and sureness sets in. However, I find I cannot cross that line and the fact that I believe that it is very highly likely that D1 is guilty is not enough. In those circumstances the only proper verdict as far as D1 is concerned is one of not guilty." (Emphasis supplied.)

6. We need refer only to Ground 1 which was that the trial judge failed to give proper appreciation to the "extreme drunkenness" of the victim. At first sight, given the explicit way in which the judge directed himself, this ground appeared to be almost unarguable. He said:

"One problem with his evidence, however, is that at the material time of the incident he was, on his own admission, very drunk indeed. This has affected the clarity with which he recalls exactly what took place and I have to remember this when assessing the reliability of his memory of what happened. There were certain areas where he had little or no recollection, others where the recollection was vague and other areas where his memory was clear. Having approached his evidence with that caution I am well satisfied that he was being truthful in recounting those things which he did recall and that, as far as those matters are concerned, his evidence was reliable."

7. Mr. Loughran, who appeared for the applicant, did not challenge the judge's finding that the witness was truthful but submitted that, given what the witness himself said, no court could be properly satisfied that the evidence was reliable. He acknowledged that the judge was fully aware of the very substantial amount of alcohol which the victim admitted he had drunk but submitted that the judge had, in the outcome, failed to evaluate his evidence and to resolve the inherent contradictions therein.

8. Unarguably the crucial evidence was that which related to the events surrounding the "ambush". Given that the evidence of the victim thereon was sufficiently detailed and explicit to warrant acceptance there was a strong inferential case against the applicant.

9. Before dealing with the victim's recollection of those events, it is pertinent to look at his ability to recall what he says he did after leaving the Japanese restaurant. When asked in cross-examination what had occurred at that time, he said:

"Well, I can't recall that too clearly. And then a few days later when I tried my best to recollect what happened, then it appeared to be such a case -- or seemed to be the case."

When later asked whether he remembered what had happened immediately outside the Japanese restaurant, he said:

"I do not remember what happened after we had come out of the Japanese restaurant."

He went on:

"I was so drunk that I even could not support myself when I was walking."

When asked how he remembered the spot where he was robbed he said:

"Then on the following day I started to make investigations, and then together with my friend I check the bills, so at first I even don't know the name of the Japanese restaurant, but then my friend helped me to check over the bills and then we find out the way. And then further on -- further on to investigate and check and find out where the robbery scene had been -- had been that I'd been robbed."

He later stated:

"... since I realised that the place where I had been robbed was very dark and there was an -- was an open space, so I started to discuss the matter with my friend. Then -- then I described the location to him; for example, I said there were the railings and there was a wall, then eventually, step-by-step, we found out which place that was. ............................ And very important, that is, by the time when I was struck and injured at my right eyebrow, it was so painful that I -- I regained consciousness, I became sober and so I started to fight with them, and then -- and then I realised the spot where I was then at. And then eventually, I had to -- I had to catch a taxi to go all the way back to the Shangri-La Hotel and I found the taxi journey was quite a long one. Yes, quite a long distance. Well, not a particularly long distance but as I've demonstrated to the court. .................................... that the directions were immediately opposite, so it would have been without any reason at all for me to be end up at that location."

10. It is quite clear from this evidence that his "memory" was, in part at least, a reconstruction achieved with the help of his friend in the days following the robbery. It is important to bear this in mind when examining his recollection of what occurred at the scene. As we have already indicated it was essential that the crucial inference drawn by the judge be supported by clear and acceptable evidence establishing that as soon as the victim alighted the watch was targeted in a planned ambush.

11. As we have set out above the judge accepted the following evidence of the victim:

"At that point, he said, the defendant or defendants who had got out of the taxi with him suddenly jumped back into it. He heard the door slam and the taxi drove off at once. He was immediately approached by a group of about 10 men and the very first thing they said was to demand his watch."

12. If this was the evidence of the victim then it established facts that were very telling against the applicant, but was it his evidence? In his evidence in chief he had said:

"... very vaguely I remember all the three of us got off the vehicle, and then once I left the vehicle, the two of them immediately boarded the vehicle again and they were driven away." (Emphasis supplied.)

He went on:

"Then immediately about 10 persons approached and surrounded me. Then they tried to snatch my watch, my wristwatch., I struggled. At first I did not realise -- I did not realise that what was going on, and then somebody started to -- to beat me, and then I was punched and injured .................. Then those people asked me to hand over my watch to them. Then after I had been -- I had been beaten and injured .... I struggled ......... and immediately, when that person came up and he grabbed hold of my left forearm, he intended to take away my wristwatch. ......... I was wearing a suit which is of more or less the same size as the shirt I'm now wearing, the long-sleeved shirt. So when I was standing there, dropping my arms, it would be totally impossible for the other parties to have noticed my wristwatch. .......... they would not have seen my wristwatch even if I had moved my arms .... Then suddenly a person -- snatched my wristwatch away from my wrist." (Emphasis supplied.)

13. The first thing to be noted about this evidence is that the victim was not, at this point, saying that the demand was made as soon as the men approached him. According to this evidence one of the men tried to snatch his watch, he was then beaten and was then asked to hand over the watch.

14. Under cross-examination the victim gave a different version of what had occurred:

"Well, one of the two girls left on board the taxi, then that group of 10-odd persons immediately started to surround me, that is, when I was alighting from the taxi, that group of 10-odd persons approached me and started to surround me, and then the first thing they did on me was to try to snatch my wristwatch. So the very first thing this group said to me was, 'Give me your watch.' That was the first remark they made on me immediately when they came up and surrounded me and they said, 'Give me your watch.'" (Emphasis supplied.)

It is upon this version that the judge seems to have relied but he gave no reason for preferring it to the earlier version nor, indeed, any indication of awareness that it differed from the evidence in chief. It is implicit in both versions that one or both of the girls, having got him out of the taxi, had then immediately reboarded the taxi and abandoned him. Even this, part of his evidence, however, had doubt cast upon it when, later in his cross-examination, he said:

"After I had come out from the Japanese restaurant, I could not recall things clearly, but then I still can remember the next stage, that was, by the time when I got off the taxi and then suddenly there came the sudden attack and it seemed -- just seems to me, vaguely, the girls had been talking with those persons who eventually surrounded me but I can't say for sure. And then immediately they got off -- the girls got off on board the same taxi." (Emphasis supplied.)

We here have a third version of the events said to have occurred at the crucial time in which the victim seems to be saying that the girls alighted from the taxi, spoke to the persons who eventually surrounded him and then left. To this version the judge made no reference at all in his findings.

15. These variations as to these crucial events were never resolved by the judge who, without more, accepted in its entirety the version given in cross-examination.

16. We fully appreciate that the judge had warned himself of the danger of relying upon the evidence of a person who was very intoxicated at the time of the events he was describing. He failed, however, to acknowledge that the victim had given three versions of the occurrence and said nothing to explain why he was prepared to accept the version which was most damaging to the applicant. In the outcome we cannot help but be left with a lurking doubt as to the propriety of the conviction.

17. The hearing of the application will be treated as the hearing of the appeal and the appeal is allowed.