THE QUEEN v. WONG PUI SHA BELSA

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL NO. 191 OF 1992

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BETWEEN

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J U D G M E N T

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1. The appellant was jointly charged with another with four offences of robbery. On 17th December 1991 she was convicted after trial and sentenced to 100 hours of Community Service. She now appeals against her convictions.

2. The Crown case was that the 4 victims, a boy and three girls, aged from 15 to 17, were in a fast food shop when they were approached by a male and the appellant. These two said that the 4 victims would be beaten if they did not pay some money. As a result, the 4 victims handed over small sums of money, some $20 or $30. It was also alleged that the male hit one of the victims with his elbow.

3. The defence was that the appellant went to the shop to meet her friend. The friend was not there. She sat at a table with the male, whom she knew slightly. She then concentrated on the door, looking for her friend. When she looked round, the male had gone to another table at which the 4 victims were sitting. The appellant then went to that table because she saw that there was a Game Boy there, something with which she had always wanted to play. She borrowed and played with it for a short while.

4. For the appellant, Mr. Sakhrani argued 6 grounds of appeal. First, he complained that the magistrate failed to give any consideration to the fact that the appellant had denied involvement in the robbery in a cautioned statement taken the same day. He said that it is trite that a denial, albeit self-serving, which shows an appellant's early reaction to an allegation against him or her, is admissible to show consistency. Further, he argued that a magistrate is under a duty to remind himself of it. He referred to Attorney General v. LEE Siu-nam [1989] 2 HKLR 370 where at p.374 Silke V.P. said :

"It is necessary for juries to be reminded, and judges sitting alone to be seen to remind themselves, in clear and careful terms of the basis upon which a self-serving statement is before them and the use to which they may put it."

5. The magistrate did not do that. In fact all he said about the appellant in his Statement of Findings was :

"7.     The conduct of the Defendant in relation to the Game Boy machine was irrelevant.

8.    The evidence of the Defendant was incredible in that it was exaggerated in that it was that she had not heard nor seen anything of the robbery. For example, had she said that she had seen money being handed over but did not know why, then her evidence might have been more credible."

6. That passage disposed of the appellant in fairly short order. Nonetheless, I would not be disposed to say that the conviction was bad upon the basis of this ground alone.

7. The next ground was that the magistrate erred in law and fact in holding that he did not have to decide whether one of the victims was assaulted by the male robber while accepting that actual violence or force is not itself an essential ingredient of the offence of robbery, Mr. Sakhrani said that the alleged blow was an important factor in the victims being frightened into handing over money. Although the magistrate said he did not have to decide, in fact he went on to say he was not satisfied so that he was sure that the victim had been hit. Mr. Sakhrani said that this rejection was a matter which the magistrate should have taken into account in his overall assessment of the credibility of the 4 victims.

8. That 2nd ground overlapped with the 3rd ground which was that the magistrate failed to reconcile his acceptance of the evidence of the victims with his finding that he could not be sure that a blow had been struck. In turn that overlapped with the 4th ground which was that the magistrate failed adequately or at all to evaluate the evidence of the victims and to reconcile discrepancies arising in their evidence.

9. The magistrate convicted the appellant upon the basis that she had knowingly participated in the robbery by being present throughout and by orally reinforcing the male robber's threat. The magistrate found each of the victims to have said in varying terms that the appellant had either mentioned beating them up or scolded them. The evidence of each victim, however, was to some extent inconsistent in itself and inconsistent with the evidence of the others. The magistrate resolved this in the following manner :

"5.     There were discrepancies between the evidence of the four complainants. I was satisfied that these were caused by innocent mistakes as between the witnesses caused by :-

(a)     They were young, between 15 and 17 years.

(b)    They were frightened by the events in the said shop.

(c)    They all gave their statements to the police at around midnight on the 4th June 1991.

(d)    Obviously they had talked to each other about the case.

(e)    They were giving evidence in December about events in the previous June. Six months is a long time to young people.

(f)    They were not able to express themselves very well."

10. This, said Mr. Sakhrani, was unsatisfactory because the victims all gave different versions as to what the appellant said or did and, because this was not dealt with by the magistrate, there was no express finding of the appellant's exact role in the robbery.

11. Further, Mr. Sakhrani said that the factors relied upon by the magistrate were either valueless or were matters which should have been raised at trial so that counsel could have had an opportunity of dealing with them.

12. In my view, this is one of those unfortunate situations where a magistrate, in straining to explain his thought processes, has really gone too far. If the magistrate had simply said that he was satisfied that the inconsistencies were because of the confusion inherent in such an incident and the lapse of six months after the incident took place, he could probably not be challenged. The age of the victims was not, however, a matter of obvious value, particularly as the appellant herself was of like age but no allowance seems to have been given to her for this. Then, if the victims were frightened by the events in the shop, which caused them to have difficulty in remembering exactly what was said and done, that was a reason which they could have advanced when they were being cross-examined but they did not do so. The fact that the victims gave statements to the Police later the same day, and that they had talked to each other about the case does not, to me at any rate, explain why there should have been inconsistencies. I accept that six months after the event can cause anyone difficulty in remembering exactly what took place. In spite of Mr. Sakhrani's observation from the bar that the victims seemed able to express themselves without difficulty, I do not think it permissible to go behind the magistrate's final reason.

13. I do not think that any criticism can be directed at the magistrate for finding that the appellant participated in the light of his finding as to the thrust of each victim's evidence. The question, however, is whether the magistrate was justified in those findings having regard to the manner in which he dealt with the discrepancies. Again, I have to say that, taken on its own, the manner in which the magistrate dealt with this would not cause me to say that the conviction was unsafe.

14. Mr. Sakhrani faintly pressed the next ground of appeal which was that the magistrate failed to direct himself on the question of corroboration before accepting the evidence of the 4 victims. Young though two of the victims were, I do not think there is anything in this ground.

15. Finally, Mr. Sakhrani argued that the magistrate was wrong and misdirected himself on the nature of the appellant's case when he held that the appellant's conduct in relation to the Game Boy machine was irrelevant. As I have outlined above, the appellant's case fell into two parts, The Game Boy was her explanation for being at the victims' table. Plainly it was relevant and could not simply be brushed aside.

16. As I have indicated, none of the grounds of appeal taken in isolation cause me to have any doubt about the propriety of the conviction. Apart from ground 5, however, taking the grounds together, I am left feeling that the conviction was indeed unsafe and unsatisfactory. Accordingly, the appeal is allowed, the conviction quashed and the sentence set aside: I will hear counsel upon whether there should be a re-trial.