R. v. SO SAI PING

IN THE COURT OF APPEAL

1995, No. 814
(Criminal)

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J U D G M E N T

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Nazareth, V.-P. (giving the Judgment of the Court) :

1. The applicant, So Sai-ping, was convicted by His Honour Judge Kilgour on 3rd November 1995 of carrying an imitation firearm with criminal intent, contrary to s.18(1) of the Firearms and Ammunition Ordinance. On 16th November, he was sentenced to imprisonment for 2 years and 9 months. He now seeks leave to appeal against his conviction, having abandoned his original application also for leave to appeal against sentence.

2. The facts can be stated quite briefly. On 26th April 1995 at about 6:15 pm, two police constables were patrolling in plainclothes on the second floor of the Tai Po Centre Phase II. Their evidence was that he appeared to be loitering, walking to and fro outside an amusement games centre. Their suspicions were aroused, even more by the jacket he was wearing despite the hot weather. Moreover, they saw the applicant enter the amusement centre which was restricted for use by young persons. They then saw him look around. They followed him inside and asked him to go outside where they searched him. They found an air pistol tucked into the rear of his waistband, and also, in one of his pockets, a Coca Cola plastic bottle containing some purple liquid which was subsequently found to be paint thinners. Questioned about these items he said of the air pistol, "I only took it for having fun" and of the bottle, "I got it from home". Subsequently, he told the police officer that the air pistol was a toy gun which he intended to use for robbing people of money and that the bottle contained kerosene to frighten people during the robbery. They arrested him and under caution he said he intended to commit robbery because he was in debt with a bank.

3. It was upon subsequent examination by the Government Chemist that the contents of the bottle were established to be paint thinners.

4. The applicant elected to give evidence at his trial. What he said of relevance was that he went to the amusement games centre to find his nephew So Ho-chiu. He did that because that morning his nephew had asked him if he had seen his nephew's toy pistol. After working at the family food store that day, the applicant said he went home about 5:30 and had a bath. That made him feel a bit chilly so he took a jacket with him. When he got to the amusement centre, because there was air conditioning there, he put on his jacket and found there was a pistol in it. Because his nephew frequented the amusement centre, he went in to give the pistol back. He was told it was a children's centre by the female staff there, but they allowed him in to search for his nephew. He noticed something in a plastic bag; it was the bottle with purple fluid in it. One of the staff told him it was thinners and he should discard it in a rubbish bin, but he decided to keep it and place it in his jacket pocket, from which it protruded.

5. Then the policemen appeared and took him outside, then asked him what the bottle was. He explained that he was told it was thinners. The pistol was also protruding from another pocket. One of the constables touched it and it fell out. He denied that he had said anything about using those items for a robbery.

6. The judge rejected the applicant's evidence, which he understandably found incredible in the several respects he mentioned. In contrast, he found the two constables' evidence credible. He then went on to deal with the evidence of the only defence witness the applicant called, So Ho-chiu, his nephew, aged about 10, who stated firmly that the pistol was not his and that he had not seen it before. The judge said :

".... The defendant's case was not advanced by this evidence. Indeed the only effect of it was to undermine further the defendant's very weak credibility. And it seemed to me possible that he had been caught out in an outright lie."

7. The first complaint the applicant had, which he originally made in his written notice of application, and which he enlarged before us, was that the judge was prejudiced against him, blamed him for delays, did not let him instruct a lawyer of his own choice, so that against his will, the trial started with a legal aid lawyer who came into the matter so late that he was not able to give sufficient instructions. At the same time, he says his bail was revoked which caused him difficulty in finding his defence witnesses.

8. He went on to claim that the legal aid lawyer had told him there was not enough time to get instructions. He asked the lawyer whether he had any confidence in the matter and the lawyer replied that he had none and that there was no time, moreover he had given the judge a bad impression. The applicant said he therefore asked the lawyer not to represent him. But he did request him to tell the judge of what he had said to the applicant. He complained that on the following day he renewed his request for an adjournment, but the judge gave him two alternatives, either to represent himself, or for the legal aid lawyer to represent him. So he had no alternative.

9. The factual background to those complaints appears to be as follows. After the offence and his arrest on 26th April 1995, the applicant was granted a legal aid certificate on 12th June 1995. But two weeks later, on 26th June 1995, the legal aid certificate was discharged because the applicant failed to attend. The case was listed for trial on 11th August 1995. On that day, the applicant appeared in person. It was noted that the applicant had discharged the legal aid certificate. He stated he wanted to engage a private lawyer. Accordingly, the hearing date was re-fixed for 13th September 1995 and the applicant was warned that no further adjournment of the trial day would be granted to enable him to obtain legal representation. The applicant did instruct solicitors, Messrs Howell & Co. They briefed Mr Michael Leung of counsel, who attended on 13th September 1995. Unfortunately, no judge was available and the trial was re-fixed for 30th October.

10. Before us the applicant understandably complains of having to meet the legal costs of that aborted hearing. A few days before 30th October, Messrs Howell & Co notified the Court first that they had not received any further instructions; also that the applicant had specifically informed them he would not instruct them to represent him at the trial and would act in person. Finally, they produced a notice signed by the applicant that he would act in person. At the trial before His Honour Judge Kilgour, the applicant first suggested that his counsel could not appear because he was engaged in another case all of a sudden. It was pointed out to him that he in fact had withdrawn instructions. That being the fourth time he had appeared before the Court, he was then given the option by the judge of either representing himself in which event the trial would be proceeded with or, alternatively, of being provided with legal aid immediately so that the trial could proceed with representation so provided. The applicant opted for legal aid which the judge then arranged for. A legal aid certificate was granted that same day and Mr James Li of James Li & Co Solicitors represented him.

11. In the light of those facts, it can be seen that the applicant has no good grounds for his complaint that he was not able to choose his own legal representative.

12. This brings us to his next complaint which was that Mr Li did not have enough time to take instructions and in particular that this resulted in statements he had made to the police not being produced, thereby denying the defence an opportunity to challenge those statements and for the court to listen to the defence version of the matter.

13. We find no substance in the complaint that Mr Li did not have enough time to take instructions. First of all, the case was a relatively simple one which would not from its very nature require more time than Mr Li was given to take instructions. The judge gave consideration to that matter and reached that conclusion with which we see no reason to disagree. Moreover, Mr Li himself considered the matter and reserved his right to ask for an adjournment and in the event he did not seek an adjournment.

14. Finally, it is difficult to see what more Mr Li could have done that he did not do. As to the applicant's statements, the Prosecution were entitled to adopt the course they did of not relying upon those written statements. It is in any case difficult to see what prejudice the applicant thereby sustained by the evidence relating to the written statements not being canvassed.

15. Before us, the applicant also stated that in addition to saying that there was not enough time to get instructions, Mr Li had told him he had no confidence in the applicant's case and that he had given the judge a bad impression, as we have mentioned. Accordingly, the applicant said, he asked Mr Li not to represent him and to inform the judge of what Mr Li had told the applicant. We will return to those complaints.

16. The applicant's third ground was that he intended to call two witnesses, first, Madam Wong, the caretaker or supervisor from the amusement games centre and second, his nephew. But in the event, because bail was revoked (as indeed it was on 30th October, the first day of the trial) he was not able to secure Madam Wong's presence and secondly, that the wrong nephew came to give evidence. The judge in fact adjourned the hearing overnight to give the applicant time to procure with the aid of his relatives the attendance of the two witnesses. There should have been no difficulty about procuring such attendance because the amusement games centre was on the applicant's own evidence some two minutes away from the family home, and the nephew in question resided in the family home. No further adjournment was applied for to procure Madam Wong's presence and no objection was made to the attendance of the nephew who attended. So no blame can be attached to the judge for having proceeded with the case.

17. As to the nephew, the applicant stated clearly under cross-examination that his nephew was then in primary two, aged about 7 years. Later, when the question of defence witnesses was being addressed, Mr Li is recorded as saying that the applicant wish to call "the nephew, Master So Tai-ping - So Ho-man to come to give evidence that the gun belonged to him and was left in the pocket". In relation to the nephew's attendance, the judge asked the Correctional Services Officers to give the applicant a few minutes to talk to family members before he was taken away. The applicant confirmed to us he was given that opportunity. The following morning, Mr Li called So Ho-cheung. He turned out to be nine or ten years old and the elder brother of the younger nephew the applicant had referred to. Asked why he did not intervene, the applicant told us that he did in fact raise his hand but was told by Correctional Services Officers to be quiet. But he admits that Mr Li did speak to him immediately after the judge adjourned to write up his judgment. He claims, however, that he did immediately after the adjournment tell Mr Li of the error but would nonetheless have us believe that Mr Li did nothing about it.

18. The applicant has during the adjournment sought and received a letter from Mr Li, which he has supplied to this Court. What Mr Li says is that during the trial he was not able to make to make a record of what was said. Thus he is not able to give any comments about the wrong witness having been called. As far as he recalls, no such thing happened in the trial. He says that after the trial was finished and while they were waiting for a judgment, he did ask why So Ho-cheung, the witness who was a boy, said in evidence that the model pistol which was exhibited was not the one he mentioned earlier that day. He admits that the applicant said the wrong witness was called. However, at that moment, the trial was already finished and to his understanding the witness was not wrongly called. It seemed to him that there were other reasons behind what had happened (with that we agree) and he therefore did not request the judge to re-open the trial. He concludes that if the applicant is legally represented in the appeal, his lawyer could be requested to provide Mr Li with a copy of the trial record so that his memory could be refreshed.

19. It is reasonably plain from that, that Mr Li would be able to provide little of assistance to this Court. It is no less plain that the wrong nephew was brought to court by the applicant's relatives. What the younger nephew would have said that might have made a difference in the way of persuading the judge to alter the view he took is difficult to see, give his unqualified rejection of the applicant's evidence.

20. We turn then to the reasons he gave in his judgment in rejecting the evidence of the applicant:

"I have had an opportunity to assess the defendant's credibility throughout his evidence. I am bound to say, I have found him unimpressive on the following features. Firstly, as to how the gun had come to be on him at all. And secondly, his version of how he says, it was lodged in his jacket pocket. Thirdly, I found equally incredible, his explanation as to how the thinners came to be in his pocket."

21. There were also other incredible features in his evidence: requiring a jacket in April; not noticing the pistol in the jacket pocket despite its weight, size and that it protruded from the pocket; taking it to the amusement centre instead of home where he and the nephew lived. The pistol was produced to the judge as it was to us. Its size and weight, which impressed us, could not have escaped him. That the evidence of a 7-year-old boy more than 6 months after the event might somehow yet have materially affected the judge's conclusion is absurd. However all that may be, the applicant was afforded an opportunity by this Court to call his nephew and he elected not to. Likewise as to the absence of Madam Wong, the applicant has not chosen to pursue that matter further before us. Moreover, the judge expressly accepted the evidence of the two police officers.

22. In the result, we find no substance in the applicant's complaint in respect of his lawyer, Mr Li. Nor do we find anything that would be of material assistance to the applicant in his complaint of the absence of his nephew and Madam Wong. Clearly, the judge was entitled to come to the conclusion he did. There is nothing before us that would warrant interference with his verdict.

23. In a letter the applicant sent to the court, he has also made the suggestion that he has been in prison long enough. But in respect of that, we have to again observe that he withdrew his original application made for leave to appeal against sentence, as long ago as March this year. However that may be, we feel bound to say that the sentence was not manifestly excessive or wrong in principle, nor is there any other reason that would warrant the intervention of this Court.

24. For the reasons we have given, the application for leave to appeal against conviction is refused.