THE QUEEN v. YAN YUEN YEE

IN THE COURT OF APPEAL

1987, No. 93
(Criminal)

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JUDGMENT

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Power, J.A.:

1. The applicant YAN Yuen-yee was charged that she did with 2 males MARK Chi-kwong and CHANG Wing-tat on board taxi CF 8251 at Ping Ting Road, Kowloon on 28th August 1986 rob CHAN Wing-yin of $280 Hong Kong currency. She pleaded not guilty to that charge and was convicted after trial and sentenced to 2½ years. She now seeks leave to appeal against conviction or, alternatively, sentence. She contends in relation to conviction that she did not take part and when presenting her application before this court simply said that she did not do it and had not taken any money and did not either use or own the knife.

2. The victim of the robbery is a taxi driver and the evidence was that the applicant and the two men boarded his taxi. She sat in the front seat and the two men sat in the back seat. One of these men produced a knife and the victim was forced to hand over his money. The three persons then left the taxi.

3. The applicant in her evidence said that she did not know the robbery was to take place and that she did not participate therein.

4. The evidence against the applicant came principally from the victim but there was also evidence from two other taxi drivers who were the 2nd and 3rd prosecution witnesses. The victim said that after he had handed over about $160 the applicant said “Why so little” and patted his right trousers pocket. He said he then took out a further amount of money, which was about $60, and handed it over. He also said that during the robbery his coin box was taken. He did not suggest that he had actually handed any money to the applicant.

5. The 2nd prosecution witness, another taxi driver, said that he saw the applicant holding a black plastic bag after the three had left the taxi of the victim and the 3rd prosecution witness said that he saw the applicant holding a plastic bag and also a handbag.

6. The findings of the trial judge state that the handbag was found to contain a round tin in which there were coins and also 16 $10 bills. He was satisfied that the plastic bag contained a knife and. paper sheath.

7. The trial judge was satisfied that the prosecution witnesses were truthful and honest witnesses who gave their evidence to the best of their recollections honestly and fairly. He said that each witness had impressed him as being an honest witness who did his best to tell what occurred as far as he recalled the event fairly and accurately and he added that P.W.1, the victim, was a particularly impressive witness who had carefully answered questions particularly in cross-examination. He said that he had no doubt as to .the honesty of that witness.

8. As to the applicant the trial judge said:

“I have assessed the credibility of accused as a witness. I was not impressed by her. I gave consideration to whether her story could be true but I was left in no doubt as to the credibility of the evidence of P.W.1, P.W.2 and P.W.3. Nothing she said caused me to doubt the accuracy of the evidence of P.W.1, P.W.2 and P.W.3. I simply did not believe accused and I was left in no doubt that her evidence was not the truth.”

9. The trial judge having been satisfied that the applicant had said "Why so little" and had patted the trouser pocket of the victim and that she was carrying the stolen money in her handbag and the knife in the black plastic bag said:

“Taking into regard all the evidence I am sure that this accused was a willing participant in the robbery. She must have known that there was this knife, whether she carried it in her handbag or it was carried by one of the boys in the handbag or somewhere in his body. I am left in no doubt that she knew beforehand that a robbery was to be committed, whether or not she was to take an active part and that in the taxi she was there knowing that a robbery was to be committed and willing that it should be committed and took an active part in it.”

10. The trial judge was perfectly entitled to accept the evidence of the prosecution witnesses as he did and, on the basis of that evidence, to come to the conclusion to which he did come. Nothing has been raised by the applicant to suggest that there is any ground for interferring on this conviction.

11. The application for leave to appeal against conviction will therefore be dismissed.

12. The applicant contended that her sentence of 2½ years was too severe. When addressing this court she said that the sentence was too heavy and that she had never been in prison.

13. The trial judge observed that the appropriate sentence for armed robbery was 5 to 6 years but made allowance for the minor role the applicant had played in the robbery and for her clear record. It is also plain from his reasons that he had in mind the fact that she is of weak character and is easily led.

14. Again nothing has been urged before us to suggest that the sentence was not an entirely appropriate one. The application for leave to appeal against sentence is also dismissed.