The Queen v. Ma Shui-tai

CACC000393/1985

IN THE COURT OF APPEAL

BETWEEN

Coram:  Hon. Li, V.-P., Kempster, J.A. & Hunter, J.

Date of Hearing: 26th November 1985

Date of Judgment: 26th November 1985

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JUDGMENT

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Kempster, J.A.:

1. On 8th December 1983 at about 12.30 in the afternoon MAN Fook-tong, a fish-hawker, made a telephone call to a flat on 13th floor of 62 Main Street East, Shaukeiwan, the home of Madam FUNG So-mui, with a view to effecting a sale. He received what he described as a funny answer and thought he must have dialled the wrong number. He phoned again five minutes later and found the line engaged. He phoned a third time and spoke to Madam Fung who, in a husky voice, asked him to come and rescue her. He at once went round to the flat and she opened the door to him. Her face was covered with blood and she seemed to him to be in a coma. He called the police and a constable arrived just before 1 o'clock that afternoon. Madam Fung was taken to hospital and examined. She was found to have eight wounds over the face and scalp, a ruptured eyeball, loose teeth and fractured ribs. She still suffers retrograde amnesia with regard to the events of that morning. She does not know the circumstances in which she sustained these injuries.

2. At about half-past one that same afternoon a person who produced either the applicant's identity card or an identity card in his name visited a pawn-shop and there pawned some items of jewellery including a platinum necklace engraved "FUNG So-mui". They were Madam Fung's property.

3. On 2nd January 1984 at about 5.30 p.m. the police told the applicant he was wanted for enquiries and arrested him at about 7 a.m. on the following morning. He made a number of cautioned statements and in due course was charged both with robbing Madam Fung and with wounding her with intent to cause her grievous bodily harm. He was tried before Deputy Judge Evans and a jury and on 20th July was convicted by the jury of robbery but acquitted of wounding. Against his conviction he seeks leave to appeal.

4. At the trial the facts already outlined were put before the jury and Madam Fung herself gave evidence as did one of her daughters. The effect of their evidence was summarized by the Deputy Judge when summing-up to the jury in a rather fuller version of these words:

"She told you that she'd known the accused well as brother and sister over a period of some four years. She lent money to him as she had with others, and he indeed owed her some 70 thousand dollars. On the 8th (i.e. the day when she sustained these injuries; 8th December 1983) she went out some time after 9 in the morning with her daughter. They went downstairs from the 13th floor and met the applicant at the lift entrance. The daughter said that the applicant indicated to them that he wanted to pay a visit to their flat. After a little while Madam Fung returned to her home and saw the applicant again. This was just after 10 o'clock. The applicant had followed her into the lift as did others and she saw someone elso also leave the lift on the 13th floor. She went into a bed-room in the flat and took off her coat while the applicant who had followed her in made a telephone call. He was still standing there, looking out to sea. And he said the boats had not returned. She didn't understand this. Then, he left the flat. She was in the kitchen doorway. Apparently he didn't close the door and grill when he left and she ask him why he hadn't done this and would he do so. Apparently her remarks were ignored so she walked out to the entrance of her flat and she was struck. "

There was independent confirmation that the doors of Madam Fung's flat had been left open at the material time.

5. In the first of the amended grounds of appeal it is asserted that the learned judge ought to have withdrawn the case from the jury in that the evidence available against him either completely exonerated him or at the very most was so tenuous as to render any conviction based on such evidence unsafe and unsatisfactory. Pausing there, that contention seems to us in the light of the evidence which we have just recounted quite unsustainable. Alternatively it is asserted that the Particulars of Offence should so have been amplified as to disclose with greater clarity the real nature of the case which the accused had to answer; namely that of being an aider and abettor of the commission of the crime alleged. The first count of the indictment reads:

"Robbery, contrary to section 10 of the Theft Ordinance, Cap. 210.

Particulars of Offence

MA Shui-tai, on the 8th day of December, 1983 at Flat A, 13th floor, 62 Main Street East, Shaukeiwan, in this Colony, together with another person unknown, robbed FUNG So-mui of one platinum necklace, one platinum bracelet, one gold pendant, one 'Tudor' wrist watch, one platinum pendant and one jade pendant. "

In our view, and it has not seriously been contested by Mr. Eddis who has said all that could possibly have been said on behalf of the applicant, that count is perfectly good in form and gave the applicant adequate information as to the case he had to meet. He had also before him copies of the depositions and it would have been apparent at least to counsel who appeared on his behalf at trial that he was charged as a participant in a robbery. And we will come to the directions of the Deputy Judge in that context shortly. We find nothing warranting criticism in the terms of the first count of the indictment.

6. The next ground of the appeal is that the learned judge misdirected and/or confused the jury in the course of his summing-up when giving his direction in relation to what is described as the "unparticularised case of aiding and abetting against the accused". Mr. Eddis went so far as to describe the direction as "one big muddle". The direction was as follows:

"Now the accused is charged with committing the robbery with a person unknown. It is quite proper in a case like this to charge him that way. You are not here to establish the identity of that other person, nor, indeed, are you concerned with the guilt or innocence of that other person, if there was another person. You are concerned with the accused and with the accused only. What you are concerned with is to find out and determine, so as to be sure about it, whether the accused committed the act of robbery in company with another person whose real identity is not known, that is your mission.

Now members of the jury, if you are satisfied so as to be sure that the accused was with another person, and that both of them were acting in concert together with a common goal or with' a common purpose of effecting a robbery of Madam Fung, just because one of them had a chopper and the other didn't, if that were the case, say, or one actually applied force and the other didn't, or one of them acted as a decoy, or was the instrument to gain entry, let's say, to the flat by some ploy, or played some other particular part of role, if participation, if participation in an illegal joint enterprise is proved, the person proved participating is nonetheless guilty of the charge, no matter what his role. That you will think' at the end of the' day, members of the jury, is common sense. "

We find that direction in relation to the part alleged to have been played by the applicant perfectly correct and readily comprehensible by the jury.

The third ground of appeal reads:

"The evidence adduced in respect of the unparticularised case of aiding and abetting was so confused and/or tenuous as to provide at the very least a lurking doubt as to what participation if any the accused played in the incident. "

Here the concern of the draftsman of the Notice of Appeal was the evidence adduced in relation to the complicity of the applicant. Some reliance was placed, however, on matters referred to in the opening address of counsel for the Crown which were not borne out in evidence. But the jury were directed in terms to come to their conclusions on the evidence:

"Now arrive at your verdicts on the evidence that you have seen and you have heard in this courtroom and not otherwise. In this trial this point might be important, do not speculate, do not speculate on what a fact might be, nor indeed add to the facts. Consider all the evidence, as I have said, but just the evidence. "

It is also pointed out to us that Madam Fung was suffering from a degree of amnesia and that, for example, she suggests that on a visit which the applicant had paid to her flat two days earlier, according to her, he had again been looking out to sea and commenting on the return of a ship. Well, that evidence was heard by the jury and they would have taken it into account in the discharge of their responsibilities. It went to credibility as to which they alone were the judges.

7. The fourth and last ground of appeal is based on the suggestion that the verdict of guilty on the charge of robbery was inconsistent with the acquittal of the applicant on the charge of wounding with intent to cause Madam Fung grievous bodily harm. A number of authorities have been cited to us in that context. Again, going back to the summing-up, the learned judge told the jury that these were two separate offences which warranted separate consideration and that they should be satisfied as regards each that the constituents were established before verdicts of guilty could be returned.  In relation to robbery he described the constituents as theft accompanied by circumstances of violence and in relation to wounding he said:

"Now the wounding must also have been inflicted with intent, with a specific intention, it must have been inflicted with intent to cause Madam Fung grievous bodily harm. What that means is really simple, no mystery in it at all. It means really serious bodily harm. That's it. It's for you to decide what is really serious bodily harm. "

So in our view it was open to the jury to be satisfied so that they were sure that the applicant had the necessary intention to participate in a robbery, involving the use of force, but was in no way fixed with an intention, in or about the commission of that robbery, to inflict serious bodily harm on Madam Fung. The verdict of the jury is readily explicable on that footing and it cannot be accepted for a moment that the applicant has discharged the burden which rests on him in relation to this ground of appeal of showing that no reasonable jury which had properly applied their minds to the facts of the case could have returned the verdicts they did.

8. In the circumstances the application for leave to appeal against conviction fails.

9. By necessary inference we have granted leave to apply for leave to appeal against conviction out of time and likewise we now grant leave in relation to the application for leave to appeal against sentence.

10. The applicant was convicted of the robbery of a lady who had treated him with considerable generosity and forbearance. We take into the account the fact that the jury expressly negatived any suggestion that he intended that the victim should be subjected to the very serious attack that was in fact made upon her. Further, from the way he spoke when passing sentence we are not fully satisfied that the learned trial judge was able to put the circumstances of the wounding out of his mind when passing sentence for robbery. The applicant, a man who had reached the age of 47 years with a clear record, was and is entitled to be sentenced on the footing of robbery alone.

In the circumstances outlined we think the justice of the case will be met and the interests of the public properly be served if we grant leave to appeal, as we do, treat this as the hearing of the appeal and reduce the sentence of imprisonment passed upon the applicant from 10 to 8 years.

Representation:

Mr. F. Eddis, Q.C. & Mrs. L. Yew (D.L.A.) for applicant

Mr. James O'Mahony for D.P.P.