HKSAR v. WONG CHING YAN

IN THE COURT OF APPEAL

1996, No. 627
(Criminal)

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J U D G M E N T

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Mortimer, J.A. (giving judgment of the Court):

1. On 26 September 1996 the applicant was convicted after trial by His Honour Judge Longley in the District Court of conspiracy to rob a taxi-driver. The offence took place on 18 January 1996. She was later sentenced to a period in a girl's home and to probation. She now applies for leave to appeal against her conviction.

The facts

2. At about 9.30 pm of 18 January 1996 a taxi-driver picked up the applicant and two others in Kwun Tong. They wanted to go to Tseung Kwan O. A young man called Fok was in the front seat and the applicant was in the back seat with another young man. Fok had a paper-cutter as did the applicant.

3. On the journey Fok began to open his paper-cutter and the driver became frightened. When that happened, this applicant intervened and told him not to be frightened. She explained that the knife was for art work whereupon the paper-cutter was either thrown or passed into the back-seat. A little later when Fok asked the driver to go up a hill in Tseung Kwan O he made an excuse that it was necessary to get permission to go there and drove to the police station where he reported the matter. The three in the taxi were seen by the police.

4. The evidence was that Fok had previously pleaded guilty to an offence of conspiracy to rob. He gave evidence at the trial that he had met the applicant at an amusement centre in the afternoon. He had been out and bought the two paper-cutters. Outside the amusement centre he asked the applicant if she would come with him and commit a taxi robbery. She refused. He told her, according to his evidence, that he would commit the robbery even if she did not accompany him. According to him, she thought for a while, went into the amusement centre and returned with the other young man who was called Yiu. There was some conversation as to where they would sit in the taxi. At that stage Fok gave one of the cutters to the applicant and the taxi was hailed.

5. When the applicant was seen by the police, she said at the outset when cautioned for an offence of attempted robbery:

"I thought they were joking, but in fact they took it seriously to commit robbery."

She made then a statement in the presence of her mother in which she said that Fok bought the cutters at "Pricerite" and gave one to her. She knew that before she got into the taxi there was an intention to commit robbery and she knew Fok had a cutter. She said that she passed the cutter she had to her co-accused, and then described the incident when the taxi-driver became anxious as Fok opened the cutter.

6. In her statement she was asked the question:

"When did you know that you were going to Lo Lup people and who told you that?

She said:

"About one or two minutes before getting onboard the taxi. It was FOK Kwong-yee who told me that."

The Trial

7. At the trial neither the applicant nor her co-accused - the other youth who was in the back of the taxi - gave evidence. The other youth was acquitted by the judge but this applicant was convicted.

The application

8. Mr Hoosen who has advanced everything that could be said on behalf of this applicant makes this central submission. The evidence was not sufficient for the judge to convict and therefore the conviction was unsafe and unsatisfactory. He relies particularly on two points:

First, that the inference that the applicant had agreed to participate in the robbery - the conspiracy - was not the only and the overwhelming inference that could be drawn from the whole of the evidence and therefore she was entitled to be acquitted. Secondly, the judge when assessing the evidence misunderstood its effect. The applicant said when first asked "I thought that they were joking." The whole of the interview and thereafter the cautioned statement were to be understood in the light of that answer. So the judge relied upon some of those answers but he should not have done so.

Conclusion

9. We turn to those submissions. Mr Hoosen has been careful to emphasise that he does not ask this Court to retry the case - to re-assess the evidence. Nevertheless he says the judge did not properly assess the evidence. First, he points to the judge's description of the applicant's behaviour when she made the excuse after the taxi-driver had noticed Fok unfolding the paper-cutter, in these terms:

"despite her years, [she was] a girl of considerable presence of mind and ability to dissimulate."

Mr Hoosen says by that the judge was forming a view as to the applicant's credibility when she had not given evidence. With the greatest respect, that is not the situation. This judge did not fall into that elementary trap. He was simply explaining or evaluating what she had done. When one looks at what she did, it was open to the judge to take this view. She was, of course, very young. She showed presence of mind in explaining what Fok was doing and she was lying. She said the cutter was for use in art work.

10. The judge was careful about Fok's evidence, part of which we have set out. He did not rely on it. The nub of his judgment appears at p. 10 of his reasons A-M, he said this:

"An aspect of FOK's evidence I did accept was his evidence that he bought the cutter with the intention of going to commit a robbery. The 2nd defendant (i.e. the applicant) admitted that he had told her he was going to rob. Her comments to the taxi driver about the cutter being for making play things or art-work were therefore a clever attempt to diffuse the situation and conceal what she must have known was FOK's real intention. I accept that FOK had bought the cutters with intent to rob. I believe the 2nd defendant's admission that, before entering the taxi, FOK had told her of his purpose and handed her a cutter keeping one for himself. From this evidence the inference is overwhelming and inescapable that the 2nd defendant, when she entered the taxi with him, was entering into a conspiracy with FOK to rob the taxi driver of the taxi they hailed, which in this case turned out to be Mr WONG."

It is the view of this Court that the judge's reasoning was impeccable. Without any explanation from the applicant, the inference from the whole of the evidence was overwhelming. It was inescapable that when she got onboard the taxi with FOK, each armed with a paper-cutter, that there was a conspiracy to rob. On those grounds, the application is refused.