Rex v Yang Yu Zhen [2009] TOSC 15; CR 50-2009 (11 December 2009)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

NO. CR. 50 of 2009

REX

-V-

YANG YU ZHEN

BEFORE THE HON. CHIEF JUSTICE FORD:

Mr Sisifa/Ms Finau/Ms Lafaiali’i for the Crown and
Mr Niu for the accused

Dates of hearing: 20, 21, 24, 25 August;
3, 4 September and 5, 6, 7, 9, 13, 14, 20 October 2009.

Dates of submissions: 10, 26 November and
7 December 2009.

Date of Judgment: 11 December 2009.

JUDGMENT

The charges

[1] The accused is a 59-year-old Chinese grandmother and retired storekeeper. She was originally charged with attempted murder and other offences relating to possession of arms and ammunition. In this court she faced one count of discharging a firearm with intent to intimidate, one count of possession of arms without a licence, two counts of possession of ammunition without a licence and one count of common assault. The offences were alleged to have occurred on 29 and 30 January 2009.

[2] The complainant, 40-year-old Feng Zheng, was a former close friend and business partner of the accused. The accused was said to have regarded him as a son. He now operates a vegetable plantation on an allotment at Tokomololo. That is where the firearm incident and assault is alleged to have occurred.

[3] For her part, the accused denies all the charges and alleges, in effect, that she was the victim of an elaborate and concerted scheme played out by Feng Zheng between 25 December 2008 and 30 January 2009 to have her imprisoned or confined to an institution. She denies ever using the firearm and ammunition in question and claims that they belonged to Feng Zheng and that it was he who used the pistol and fired the shots that resulted in the charges. When asked why he would have done that to her when she had treated him like a son, the accused answered:

"I think he used me in the beginning. Now he doesn't need me. I became useless for the business and he does not like me going to the farm."

[4] Against that background, it was inevitable that the evidence was going to focus on other events apart from the immediate incidents on 29 and 30 January 2009 which gave rise to the charges in the indictment. In effect, we ended up having several mini trials within the trial itself. For this reason, the hearing took considerably longer than had been anticipated. Before turning to the prosecution case, it is necessary to say something more about the historical relationship between the accused and Feng Zheng ("the complainant").

Background

[5] Both the accused and the complainant came to Tonga from China in 1996. They emigrated separately. The complainant said that he came "to do business". The accused said that she came to Tonga because she knew other Chinese people who were living in Tonga, including her brother. She is estranged from her husband who lives back in China. He has apparently made two trips out to Tonga. The couple have a 33-year-old son, Chen, who gave evidence at the trial and a daughter whose evidence was taken before a magistrate prior to trial because it was necessary for her to travel back to China.

[6] In that same year, 1996, the accused opened a small shop near Vaiola Hospital and she was assisted by her daughter, her son and the complainant. The accused explained that the complainant had become a friend. He wanted to open his own store and he had approached her for assistance. She gave him money to buy a vehicle and, although the evidence was vague on detail, she appears to have given him other financial assistance. The complainant then set up his own store at Ma'ufanga. In 1999 the accused moved into a larger store opposite Vaiola Hospital and around that same time she and the complainant became business partners in a company called Xiang Long Trade Co Ltd. The company operated the large store together with the store at Ma'ufanga. The accused held 51% of the shares and the complainant 49%.

[7] Initially neither the accused nor the complainant could speak the English language but the complainant soon became conversant in English and picked up some knowledge of Tongan. The business began to expand and other stores were acquired. The complainant set up the stores and did the buying of the produce. The accused, whose knowledge of the Tongan and English languages was restricted to the usage necessary to deal with shop customers, worked behind the counter. Within a few years the company operated five stores and in about 2001 it also started a vegetable plantation on an allotment at Tokomololo which belonged to the landlord of the Vaiola store. Apparently, the landlord let the company operate the vegetable plantation without any additional rent having to be paid over and above the rental on the store. On the farm, the couple also raised chickens and ducks.

[8] Before they established the large Vaiola store, the accused and the complainant lived in the house next door. The accused had her room upstairs and the complainant lived downstairs. When the new store was opened in 1999, the accused moved to a bedroom at the back of the store and the complainant stayed on in the house next door until he married for the first time in 2005. At that point they swapped accommodation. The complainant and his wife moved into the bedroom at the back of the Vaiola store and the accused went to live in the house next door. After about one year, the complainant's wife returned to China. He also then returned to China, obtained a divorce and in 2007 married again. After he returned to Tonga, the complainant and his new wife moved into a house at Pahu where they have remained.

[9] In 2006 there came an important development. The complainant suggested to the accused that they separate their business operations so that he would take over the farm at Tokomololo and she could have the store. It is not clear from the evidence how many stores the accused was left with at that stage but all the focus was on the large Vaiola store opposite the hospital. The accused agreed to the proposal on condition that she would own the chickens, ducks and bananas that were all in a special enclosed area at the farm. In evidence that area was often referred to simply as "the duck pond". The accused estimated that she had between 200 - 300 ducks and over a 100 chickens. She would feed them every day.

[10] Even though they had separated their activities, up until the end of 2008 the accused and the complainant continued to be good friends. Every day the markets were open, the complainant would take vegetables in to sell at the market and then between 5 and 6 p.m. he would pick the accused up from the Vaiola store and take her out to the farm to feed her ducks and chickens. They would then return to the store where the accused would cook a meal and the complainant would help out in the shop until closing time. He would then go back to his home at Pahu.

[11] Another important development in the narrative occurred in 2007 when some of the complainant's immediate family emigrated from China to help him out with his vegetable plantation at the farm. They included his brother Zheng Biao with his wife and child, his sister Zheng Yin and her husband and his nephew, Huang Bin, the 21-year-old son of his sister. The nephew lives with the complainant. The others reside on the farm. They do not speak English or Tongan.

[12] Earlier, in around 2005, the complainant's parents had come out to Tonga and stayed at the farm for a period. During their stay there was an unfortunate incident when they were badly beaten up by Tongan youths who also killed the chickens and ducks. Following on from that incident, the complainant decided that he needed protection against a similar occurrence and so he acquired a licence and purchased a .12 rifle.

[13] There was much evidence also about an incident on Christmas Day 2008 when the accused was alleged by the complainant to have deliberately taken a deadly poison. The Court was told that the poison in question is made from the roots of a Chinese herb and apparently it can kill a person within a very short space of time. The complainant admitted that he had brought the poison plant in from China and he said that he had given some to the accused around 2005 for medicinal purposes. He explained that it can cure certain types of skin problems. The accused denied that she had ever been given the product and her son said in evidence that the complainant had told him at the time that the reason he had acquired the poison was because he wanted to do something at the farm in connection with the attack on his parents by the Tongan youths. The complainant was recalled and he denied that proposition. The poison incident did, however, figure prominently in evidence.

The shooting incident

[14] The case as outlined by Crown counsel in opening was that on Thursday 29 January 2009 between 6 pm and 7 pm the accused had driven out to the farm to feed the chickens and ducks. The complainant with his nephew was in an area adjacent to the pigsty measuring out a small piece of land for the storage of a container. The accused followed the complainant around and told him that there was no point in doing what he was doing. As the complainant was then bending down taking a measurement, the accused got out a pistol and fired one shot. The complainant was pushed aside by his nephew and the shot missed. She then fired again but the second shot also missed. At the same time the complainant and his nephew moved towards the accused and struggled to remove the pistol from her hand. During the struggle the accused bit the complainant on his hand but he did manage to remove the pistol. The police were then called and the pistol was handed to them. The complainant told the police that the accused had also thrown a plastic bag of bullets into the mud. The accused was arrested. She held no firearms or ammunition licence.

[15] In his evidence, the complainant said that on the evening in question he was at the farm with his nephew measuring an area for a container to be placed into position. The accused followed him around. At one point she told him not to do anything stupid but he did not know what she meant. As he went to take the last measurement, he said he felt someone push him and then he heard a gunshot. The complainant said it was his nephew who had pushed him and when he was pushed aside he looked up and saw that the accused had a pistol in her hand and then he heard the second gunshot. He said that she was aiming the pistol at him. He then started to take the gun away from her. He held her hand and his nephew and brother came to help. When his brother opened her hand, the complainant took the pistol from the accused. He then called the police and telephoned the Chinese embassy reporting that someone had attempted to shoot him.

[16] In cross-examination the complainant said that before the accused fired the first shot, his nephew pushed him away, he fell down and the bullet missed him. After the accused fired the first shot he saw the accused holding the gun in one hand by her waist and then he heard the second shot, "very fast, bang, bang". He went to her to take the gun away. He pulled her hand up and while he was still holding her hand he threw her down. He hit her once on the body. He said that he, his nephew, his sister and brother all helped to take the gun off her. He said his sister pulled her hair.

[17] In the area between where the incident is supposed to have taken place and the pigsty there was quite a large patch of muddy effluent from the pigsty. On 30 January 2009 the police recovered from that area a small plastic bag containing 15 live bullets. They had been told about the bag of bullets by the complainant the previous evening. One of the police officers said that the complainant had informed him that the accused had thrown an object into the mud and "it was bullets in a plastic bag." The officer looked into the mud but he was unable to work out what the object was. It was getting dark at the time although there was some light from the pigsty and the police vehicle. The police told the complainant to leave the object where it was and it was recovered the following morning.

[18] In his evidence, the complainant's nephew said that he had been helping his uncle with the measurements and next thing he saw was the accused holding a gun pointed at his uncle. He pushed his uncle aside just before the first gunshot and then there was the second gunshot. He said he was shocked and he helped his uncle and his uncle's sister take the gun away from the accused.

[19] The complainant's sister told the court that she had just come out of the vegetable plantation and she saw the accused following her brother. As she watched, she saw the accused bend down and pull something out of her gumboot. She was not sure what it was but she then heard two gunshots fired. She joined in the struggle with her son and the complainant to recover the gun from the accused and she recalled pulling the accused's hair. She said that after the complainant called the police she noticed the accused take something from her pocket and throw it into the mud. She did not know what it was but she told the complainant about it. In cross-examination it was put to the witness that on the Crown case, although the accused had been subdued and they were all standing around waiting for the police to arrive, neither the complainant or her other brother or her son had seen the accused throw any object into the mud. The witness, nevertheless, insisted that she had seen the accused throw the object into the mud which turned out to be the plastic packet of bullets.

[20] The fourth eye witness called for the Crown was the complainant's 37-year-old brother, Zheng Biao. He resides at the farm with his wife and third child. Their two other children are back in China. He told the court that at the time of the incident he was doing something in the plantation and he heard two gunshots and the complainant call out for help. He said that he ran over and saw the accused holding a gun and his brother was trying to take the gun away from her with the help of his nephew and his sister. He tried to open the complainant's hand to take the gun away but she bit his hand. He said that he pulled the accused's hand and the complainant took the gun off her. The witness said that he remained with the others until the police arrived at the scene. In cross-examination, he said that he had not seen the accused throw anything away but his sister told him that she had seen her throw a plastic bag into the mud. He explained that he could see the top of the bag in the mud but he did not know there were bullets inside until the police removed the bag the following day.

[21] The police removed two dead shells and four live bullets from the magazine of the pistol. They did not, however, test the pistol or the bullets for fingerprints or rather, if they did, no evidence was given about the results of any such tests. Understandably, the police at the scene relied and acted upon the information given to them by the complainant who was the only witness at the scene who could converse with them in the English language. His siblings and nephew could only speak in the Chinese language and the accused told the court that she had limited understanding of English and she only knew "shopkeeper's language" in Tongan. The police officers who attended the scene told the court that the accused had been able to say to them that, they (the complainant and the others) were all lying because they were all related and she was the only person not related. She told them that it was the complainant who had fired the shots from the pistol.

[22] Apart from the shooting incident on 29 January 2009 and the earlier poisoning incident on 25 December 2008, when the complainant alleged that the accused had tried to poison herself, evidence was given about a motor vehicle accident on 27 December 2008 when, according to the complainant, the accused had said to him, "I just want to hit you and kill you." Then on 28 December 2008 there was another incident involving the recovery of a rifle from the accused's Vaiola store and charges being laid in the magistrate's court. The police on that occasion acted on a tipoff from the complainant. Finally, in the narrative, much evidence was given about a search of the accused's Vaiola store by the police pursuant to a search warrant on 30 January 2009, the day after the shooting incident, when the police recovered from the pocket of a leather jacket hanging in the accused's bedroom a box of bullets containing 36 live .22 bullets and a plastic bag which also contained 36 live .22 bullets. The accused said that she knew nothing whatsoever about the bullets but the jacket belonged to the complainant. He had bought it from the market for his first wife along with another leather jacket (both of which were produced in evidence) when he was living at the Vaiola store but his wife had never worn them. Counsel for the accused submitted that the complainant had planted the bullets in the pocket of the jacket. For his part, the complainant denied any knowledge of either the leather jackets or the bullets. I now deal briefly with each of these incidents.

The poisoning incident

[23] In his examination in chief, the complainant referred to this incident only briefly. It was put to him that it happened on 24 December 2008 but the medical records confirm that the date was 25 December 2008. The complainant said that the accused's daughter had called him by phone at the farm and told him that the accused had taken a poison herb and told her that she was wanting to commit suicide. He said that the daughter asked him to go and look for the accused at the farm. The complainant said that he went to the area of the chicken farm (the duck pond) and saw that the accused had some of the herb and he took it away from her hand. He then called the daughter and told her to take the accused to hospital. Later in his evidence, the complainant said that the poison was in a Coca-Cola can. He said he tore the can in half and saw the poison roots inside. The daughter came and took the mother to hospital. The complainant followed in his vehicle. The accused strongly denied having taken any poisonous substance. She claimed that the complainant had made up the whole story.

[24] The Senior Medical Officer who examined the accused and made out a report on that occasion, Mr 'Alauna Fuka, gave evidence. He described the various tests carried out on the accused at the hospital and he confirmed that they had revealed nothing whatsoever to suggest that the accused had consumed any type of poison. The Medical Officer said that the complainant who accompanied the accused (the Medical Officer wrongly thought that he was the woman's husband) told him that the accused had tried to commit suicide. He told the Medical Officer that she had used sticks which were part of a very poisonous plant in China. She had soaked parts of this very poisonous plant in Coca-Cola and drank the liquid. The complainant was recalled and he denied giving that information to the witness. The Medical Officer's hospital notes were produced as exhibits, however, and they confirmed his evidence that the complainant had told him that the accused had put the poison inside the Coke container and drank it.

[25] The complainant confirmed that on the day of the alleged poisoning incident he had told the accused that he did not want to come to her store to help anymore. He was asked in examination in chief if he knew why she would have taken the poison. He replied that she told him that if something happened to her then her children would do something to him. The accused said that she was released from hospital immediately but when she returned to the farm the following day to feed her chickens and ducks everyone at the farm thought that she had tried to kill herself. The complainant denied in cross-examination telling them any such thing. The accused said that she was angry over what the complainant had done to her.

The motor vehicle incident

[26] The next day, 26 December 2008, the accused drove herself out to the farm to feed the chickens and ducks. She did the same the following day, Saturday 27 December. The motor vehicle incident happened on 27 December just after the accused had finished her chores at the farm and was driving back along the narrow side road that ran from the farm out onto the main road. In his examination in chief, the complainant said that at the same time he was returning to the farm and their vehicles met along the side road. The complainant said in evidence that the accused drove her van into his vehicle. She then reversed her van and drove into the driver's side of his vehicle for the second time. He said that he jumped out and stopped her ramming into his vehicle a third time by entering her van through the passenger door and taking the keys out of her van. He claimed that as he did so, she said to him, "I just want to hit you and kill you." The complainant said that he reported the matter to the police but he just wanted the police to give the accused a warning - not charge her.

[27] Details of the incident were pursued further with the complainant by Mr Niu in cross-examination. Counsel put it to the witness that it was he, the complainant, who had deliberately swerved his vehicle towards the accused's van resulting in a glancing collision between the two vehicles and then he had swerved his vehicle back to his side of the road with the front of his van ending up in the tall grass to the side of the road and the rear part still positioned on the roadway. The complainant denied that scenario. Counsel put it to the complainant that after he entered the passenger side of the accused's vehicle he punched the accused on her face and head while his sister, who had also been in his vehicle, grabbed and pulled the accused's hair through the driver's door and his brother tried to break the window screen wiper of the accused's van and his nephew released air from the front tyre. Mr Niu then put it to the complainant that there was no second impact. The complainant denied all of these allegations. He did, however, agree that there had also been a red coloured vehicle on the same road which his van had passed just before the collision and Tongan people from that van had come back and attended at the scene.

[28] The complainant's nephew and siblings were also questioned in cross-examination about the motor vehicle incident. The nephew said that the accused deliberately swerved her van and hit the complainant's van. She then reversed some 7 or 8 meters and came at them again ramming the same side of the complainant's van for the second time. The witness said that he got out of his uncle's vehicle and stopped the engine of the accused's van by turning off the key and taking it away. It was put to the witness that the complainant had claimed that he (the complainant) had been the one who had taken the key out of the accused's vehicle but the witness was adamant that it was he who had removed the key.

[29] The complainant's sister said that the accused had reversed her van 2 or 3 meters before hitting their vehicle on the second occasion. The witness said that it was the complainant who had gone over and taken the keys from the accused's van. She claimed that she had stood by her vehicle after the incident and she denied having gone over and pulled the accused's hair.

[30] The complainant's brother also said that the accused had reversed her van 2 or 3 meters before hitting them for the second time. He said that it was the complainant who took the key off the accused but when he was asked whether the complainant was inside or outside the van when he took the keys the witness answered, "I forget". He said that he did not see his sister pulling the accused's hair nor did he or anyone else try to damage the wiper blade of the accused's vehicle." In cross-examination both the sister and brother were asked to demonstrate what they meant by "2 or 3 meters". It was significant that the distances they each pointed out in relation to certain points in the courtroom differed considerably.

[31] The police were called after the motor vehicle incident and the accused was taken to the Central Police Station. The complainant also went to the police station and the accused overheard him tell the police that she had hit his vehicle and tried to kill him. A number of Chinese friends of the accused who had heard of the incident then arrived at the police station and persuaded the complainant not to take the matter to court. The accused was released and allowed to go back to her store at Vaiola.

The rifle incident

[32] The next day, Sunday 28 December, the accused drove to the farm between 9 a.m. and 10 a.m. to feed her chickens and ducks. When she arrived at the farm the police were waiting for her and they asked her whether she had a gun at her home. She told the police that she did and so after she had finished feeding the chickens and ducks Police Officer Latu Lavaki followed her back to the Vaiola store and the policeman waited outside while the accused went and got the gun from the wardrobe in her bedroom and gave it to the officer.

[33] When the accused gave evidence she was asked in examination in chief how she came to have the rifle in her possession. She said that it had been given to her by her brother to mind about a year before because he was going back to China. He had not given her any bullets. The accused said that the complainant knew that she had the gun in her room at the store because he had been with her when her brother gave it to her to look after in his absence (although the accused referred to the owner of the gun as her brother, she said that their mothers were sisters and so he would have been her first cousin).

[34] Corporal Lavaki was called by the Crown and he said in evidence that he recalled receiving a complaint from the complainant on Sunday 28 December 2008. The complainant told the officer that he had a problem with a woman who was a business partner of his and it was his general belief that the woman would shoot him if she came into possession of any firearms. The complainant made reference to the motor vehicle incident the previous day and he told the officer that he was afraid to go back to his farm because the woman had some chickens and ducks at the farm and she might cause him injury. He therefore asked the officer if he could go across to Tokomololo and he would meet him at the side road that led into the farm. He wanted the officer to assist him by giving him protection because he believed that the woman (the accused) did, in fact, have a gun.

[35] The police officer travelled across to Tokomololo and found the complainant waiting for him at the intersection. While they were talking, a vehicle drove past into the farm and the complainant told him that that was the woman he was afraid of. The officer told the complainant to follow him and he would escort him back to the farm. When they arrived at the farm the officer could not see the woman driver but there was someone else in the van who told him that the driver (the accused) was feeding the ducks. When the accused returned back to the van the officer told her that he wanted to search her vehicle in case she had a gun. He searched but could not find a gun. He then asked her if there was anything else and the accused had volunteered that she had a gun in her premises opposite the hospital which belonged to someone else. He followed the woman back to the Vaiola store and she went inside and brought out a .22 rifle. After checking with the Police Armourer the officer found that the rifle was not licensed and so he charged the accused with possession of an unlicensed firearm. She pleaded guilty to the charge in the magistrate's court and was placed on probation for two years.

[36] In cross-examination the officer was asked whether he had believed at the time that the accused was innocently simply holding the gun on behalf of the person who had gone overseas as she had claimed and the officer replied, "yes". The officer was also asked whether, when the complainant had told him to check the accused's store to see if there was a gun, he, the complainant, had said that he had seen a gun in a room at the store. The officer answered, "yes, he said he recalled seeing a gun at her house but he could not confirm whether she was carrying it around in the van."

The search warrant incident

[37] The shooting incident referred to earlier occurred on Thursday 29 January 2009. That evening the accused was taken into custody and kept in the police cells overnight. The following morning she was taken to court. The police wanted her kept in custody but, because of the condition she was in, the magistrate requested the police to take her to the hospital and he ordered her release on bail. She returned to her home at the Vaiola store and had a bath and something to eat and then the police arrived at her premises with a search warrant allowing them to search the premises for arms and ammunition.

[38] The officer in charge of the search was Corporal Lavaki who also gave evidence in relation to the rifle incident. It was during the search that one of the police officers found in the pocket of the leather jacket hanging in the bedroom the box and the plastic bag each of which contained 36 live bullets. Corporal Lavaki was cross-examined at length about the search and it was put to him that as the room where the jacket was found was formerly the complainant's bedroom and the jacket was the complainant's, the complainant would have been the only person to know about the bullets in the pocket of the jacket. Counsel endeavoured to obtain an admission from the officer that it had been the complainant who had suggested to the police that they take out a search warrant of the premises. Corporal Lavaki originally agreed that there had been a complaint about arms and bullets but when asked by defence counsel to produce the police records relating to the complaint, the officer contradicted his earlier evidence and said that there had not been a complaint but it was normal police procedure after an incident like the shooting incident at the farm the day before to carry out such a search.

[39] After discovery of the bullets in the leather jacket, the police again took the accused to the police station and back to the magistrates court where she was charged with having possession of ammunition without a licence -- one of the charges in the indictment before the court. Again, the police wanted the accused remanded in custody but, after being taken to the hospital for treatment and observation, the magistrate released her on bail.

The defence

[40] The accused gave evidence herself and called other witnesses on her behalf. I have already referred to the evidence given by the medical officer in relation to the poisoning incident. Other evidence relating to this incident was given by the accused's 33-year-old son Chen Zhining who has been referred to earlier in this judgment. Chen recalled receiving a telephone call from the complainant on the day of the incident telling him that his mother had some poison at the farm and to go there at once. The witness said that he went to the farm with his sister and he saw the complainant holding a broken Coke can. The complainant told Chen that there was some poison inside the can and his (Chen's) mother had drunk it. Chen told the court that he looked inside the can and he saw what seemed to be tree leaves with some liquid. The colour looked like Coke but there wasn't much in the can. The complainant told him that he had taken the can from his mother's hands but she had already drunk the poison. The complainant told Chen that he should take her to the hospital right away. Chen said that they were speaking in Chinese and his mother was standing beside him. He told the court that his mother said, "don't believe him -- it's not true. I didn't drink no poison." Chen said that he did not think that his mother wanted to kill herself and he felt terrible but he thought that he should take her to hospital to have the claim checked out.

[41] Mr Niu also called evidence from the four Tongan occupants of the red van mentioned in relation to the motor vehicle incident. That van had been travelling along the side road heading out towards the main road and it passed the complainant's van just before its collision with the accused's van. Although there were some understandable conflicts in their evidence in relation to minor matters of detail, what clearly emerged from the evidence of these independent witnesses was that there was no second collision. Contrary to the evidence given for the Crown by the complainant and his three relatives, there was just the one initial impact. The Tongan witnesses also confirmed that the complainant's sister had pulled the accused's hair and one of the Chinese men had tried to damage the window screen wiper on her van.

[42] In relation to the shooting incident on 29 January 2009, the accused told the court that on that day she went as usual to feed her chickens and ducks. Earlier she had noted that some of the bananas in the duck pond area had ripened and so she took with her a cardboard box and a knife to cut the ripe bananas. On the pathway to the duck pond there was a corner and as she came around the corner she turned and saw the complainant, his nephew, his brother and his sister near the pigsty. She said they all came towards her and it looked like something was going to happen. The complainant stood in front of her and she asked him what they were going to do. He answered, "doing what"? The accused then put the cardboard box down on the ground. Nothing else was said but the complainant pushed her hard on the chest and she fell to the ground in the area where the effluent emerged from the pigsty. He was wearing boots and he then kicked her and beat her. The others joined in. She said she struggled and her clothes were torn. She tried to roll away and she thought that maybe they were just going to beat her to death and bury her on the farm. She tried to get her mobile phone to call her daughter and ask her to ring the police but the complainant saw her getting out her mobile and he shouted, "stop her -- don't let her call." They then took away her mobile phone. The accused admitted that in the struggle over the mobile phone she may have bitten the hand of the complainant and his brother.

[43] The accused told the court that she then heard two gunshots. They came from the direction where the complainant was standing and she looked up and saw him holding a pistol. At that point the sister, brother and nephew were still holding on to the accused. After the complainant fired the second shot he walked up to the accused and said: "last time I did not put you in prison but this time you will go to prison. How you will die you'll never know. You won't know how you die." The accused said that the complainant then called the Chinese Embassy and Inspector Kainga Hia (whose home number he knew) and told them that the accused had used a gun and tried to kill him.

[44] Later, as already indicated, the accused was taken to hospital where her injuries were treated and she was given medication to relieve her pain. Evidence was given by a medical officer about the nature of the injuries she had received during the struggle in the course of the shooting incident and the medical report written up at the time was produced as an exhibit. Helpful photographs taken the following day showing the nature of the accused's injuries were also produced as an exhibit. The clothing she had been wearing was produced in evidence at the preliminary inquiry in the Magistrates' Court but it was not produced at the trial. Counsel were in agreement, however, that it was "dirty and torn".

[45] The accused also gave evidence about the bullets found the following day in the pocket of the leather jacket hanging in her bedroom at the Vaiola store. She told the court that the complainant had bought the jacket at the market in 2005 as a gift for his first wife. The accused had been with him at the time and she lent him the money for the purchase. She said that the complainant was concerned that his wife would not bring any winter clothing with her from China and he did not want her to catch a cold. At that stage his wife had not yet arrived in Tonga but, in any event, the accused said that the complainant's wife never wore the jacket and it was left stored in a box in the bedroom at the back of the Vaiola store which at the time was the complainant's bedroom. The accused produced a similar leather jacket with silver buttons which she said the complainant had also purchased at the market two years earlier and a teddy bear which she said belonged to him and he had used it as a pillow. The accused claimed that the two jackets and the teddy bear all belonged to the complainant and he left them in the bedroom at the Vaiola store.

[46] The accused then related to the court how, during a period of heavy rain, flooding caused damage to items stored at the back of her Vaiola shop including the leather jacket which was still packed away in the box. She said that that happened in 2007 prior to the complainant's second marriage. The complainant was still in China at the time and the accused was using the bedroom. She said that she took the jacket out of the box, washed it and hung it up on a coat hanger in the bedroom where it remained until it was taken down by the police on 30 January 2009. The accused said that when the complainant returned to Tonga with his second wife and went to live at Pahu she told him to remove his belongings from the room at the store and he did so apart from the two jackets and the teddy bear. The accused was adamant that she knew nothing about the bullets found in the pocket of the jacket. She told the court that the complainant had access to her bedroom right up until the time of the motor vehicle incident on 27 December 2008 because he worked at the Vaiola store each evening and he would walk past the bedroom to the bathroom each night to take a bath.

The law

[47] There were a total of seventy two .22 calibre bullets found in the pocket of the leather jacket and one of the charges the accused faces arising out of that discovery is unlawful possession of ammunition contrary to section 4(1) of the Arms and Ammunition Act (Cap 39). That section provides that no person shall possess ammunition except under a licence.

[48] In R v Tau anors [2005] Tonga LR 418,420 it was necessary for me to consider the meaning of the word "possession" in a drugs trial where the accused were charged with possession of cannabis leaves and seeds. There is no special statutory definition of the word possession and what I held in that case would have equal application to a charge of possession of a firearm or ammunition under the Arms and Ammunition Act. In Tau I adopted a passage from the 2005 edition of Archbold (para 26.61) which stated:

"A person is in possession of something when he has knowledge of its presence and some control over it; but he would not have possession unless he either knew, or the circumstances were such that he had the opportunity, whether he availed himself of it or not, to learn or to discover in a general way, what the items were."

[49] That passage has been restated in the 2009 edition of Archbold at para 27.61 under the heading "Drugs found in premises occupied by/ associated with defendant". In R v McNamara, 87 Cr. App.R.246 the Court of Appeal acknowledged the general difficulty in expressing the concept of "possession". In Tau (supra) I went on to state:

"The question to be answered in each case is whether on the facts the accused was proved to have or ought to have imputed to him (or her) the intention to possess or the knowledge that he or she did possess what was in fact a prohibited substance."

[50] In the present case, for the words "a prohibited substance" one can substitute "unlicensed ammunition". On the accused's version of events, she should not have imputed to her an intention to possess or knowledge that she did in fact possess the unlicensed ammunition because she had no knowledge of its presence. As was stated by the Court of Appeal in McNamara (supra): "A man does not have possession of something which has been put into his pocket or house without his knowledge."

Discussion

[51] During the trial I inspected the scene of the shooting incident at the farm and I also had the opportunity to inspect the vans belonging to the accused and the complainant which were involved in the motor vehicle incident. No repair work had been carried out since the incident. It was clear to me from my observations that the complainant's van had not been hit a second time as he and his siblings and nephew had alleged. In this regard, I accept the unqualified evidence of the four Tongan witnesses who were travelling in the third van at the scene. It was also clear from my observations that the graze marks on the complainant's van were consistent with defence counsel's proposition that it had been the complainant who had deliberately driven his van into the side of the accused's van in a glancing manoeuvre rather than the accused having driven into his vehicle.

[52] I found the evidence regarding the plastic bag of live bullets discovered in the muddy effluent by the pigsty to be most revealing. The evidence was that even though the complainant and the three others were allegedly all standing around the accused at the time, with at least two of them actually holding on to her, it was only the complainant's sister who claimed to have seen the accused take the bag from her pocket and throw it into the mud. On top of that, the evidence was that it was not possible to tell what was in the bag simply by looking into the mud and yet when the police arrived on the scene the complainant was able to tell them that the accused had thrown a bag of bullets into the mud. That statement was made by police constable 'Etuate Siale in evidence which I accept.

[53] On the evidence, the only way it was possible for the complainant to have known what was inside the plastic bag was if he, in fact, had been the one who had planted it in the muddy effluent. That is my finding. Similarly, I have reached the firm conclusion that it was the complainant who had placed the live bullets in the pocket of the leather jacket which he had purchased for his first wife and left hanging in the bedroom at the Vaiola store. As stated above, in those circumstances it cannot be said that the accused had possession of the ammunition.

[54] I have earlier observed how the complainant was caught out in his evidence relating to the poisoning incident. The medical officer took careful notes of what the complainant had told him and I accept that evidence rather than the complainant's denials. I am equally satisfied that the complainant has lied about virtually every other aspect of this case. Worst of all, being in a position where he had and still has enormous influence over his siblings and nephew who are relatively recent arrivals from China, he has abused that position and persuaded them also to come before this court and lie on oath.

Conclusions

[55] I regret that there is only one conclusion open to me on the evidence in this quite bizarre case and that is that the principal witnesses relied upon by the Crown, namely, the complainant Feng Zheng, his nephew Huang Bin, his sister Zheng Yin and his brother Zheng Biao have all got together and concocted a saga full of lies and then had the audacity to go into the witness box and give false evidence on oath. I reject their evidence completely.

[56] On the other hand, I found the accused, Yang Yu Zheng, and her son, Chen Zhining, to be refreshingly honest witnesses. I accept their evidence completely. It is difficult to begin to imagine the total humiliation and disgrace the accused would have endured as a result of the wrongs inflicted on her by the complainant and his cohorts. They conspired to set her up by planting evidence and committing perjury. For whatever reason, they wanted her out of the way. They nearly succeeded.

[57] I stress that in no way am I being critical of Crown counsel or of the police who had to investigate this sordid case. They were entitled to proceed on the basis that the complainant and his witnesses were being candid and truthful. Sadly, that was far from the position.

[58] Finally, I think it is appropriate for the court to take the unusual step of acknowledging publicly the role played by defence counsel. It may have been tempting for counsel, given the fact that he had a client who had very limited understanding of the English and Tongan languages, to perhaps take an easier course, particularly when the prosecution appeared on the face of it to have ample corroboration, but, in the finest traditions of the Bar, Mr Niu persevered and through his diligence and a prolonged and painstaking cross-examination of each of the key prosecution witnesses he was able to ensure that truth and justice prevailed.

[59] The accused is acquitted on all counts.

NUKU'ALOFA: 11 DECEMBER 2009.

CHIEF JUSTICE