R. v. CHIM KONG PUN and Another

IN THE COURT OF APPEAL

1995, No. 138
(Criminal)

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J U D G M E N T

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

1. The 1st applicant (A1) seeks leave to appeal against his convictions and sentences for having arms and ammunition with intent to commit an arrestable offence, possession of arms and ammunition without a licence and conspiracy to rob. He was sentenced to 15 years' imprisonment on the first charge, 12 on the second and 9 on the third. The first two sentences were ordered to run concurrently but two years on the third count was ordered to run consecutively to the first count thus giving a total sentence of 17 years to be served.

2. The second applicant (A2) pleaded guilty to the first charge after the trial judge made a ruling on the admissibility of the statement he made. He was sentenced to 10 years' imprisonment and seeks leave to appeal against this.

3. The first applicant, the second applicant and the first defendant (D1) in the proceedings below all came from China illegally.

4. At about 6.30am on 11 April 1994 a police party conducted a raid in Room 908 of an apartment house trading under the name of the Sky Dragon Guest House in Nathan Road. According to the prosecution case all three men were sleeping in the room.

5. A search was conducted in the room and the arms and ammunition described in the charges were found concealed behind a false ceiling.

6. One of the arresting officers recorded an admission allegedly made by A1 that the guns were his. Later at the police station A1 made a full statement in which he admitted that he and the other men had brought the pistols into Hong Kong from China and that the purpose of their visit was to rob a shop in Central District. They had anticipated that the proceeds of the robbery would amount to $10 million and that each man would get $2 million. The balance would go to Ah Keung who was the person who had organised the robbery and made the arrangements for the men to come to Hong Kong.

7. A1 made a third statement in answer to the charges laid against him. He admitted putting the guns in the false ceiling but claimed that they belonged to Ah Keung.

8. At the trial the admissibility of these statements was contested. It was the defence case that the police officers concerned had beaten the statements out of A1. Deputy Judge Beeson ruled the statements to be admissible.

9. The other main source of evidence against A1 was the evidence of D1 in the trial below. He gave evidence as an accomplice and gave details of the background and the plans and what had transpired up to the time of the raid.

10. A1 did give evidence. The gist of his evidence was that he accompanied the other men to Hong Kong. His intention had been to come here as an illegal immigrant to work here. He had not known about the guns or robbery plans. The reason why he had been in the apartment house with the other men was that he had not yet had an opportunity of making his own arrangements.

11. The first two grounds in the perfected grounds of appeal were abandoned.

12. The third ground is that the directions which Beeson DJ gave to the jury on what the prosecution had to prove in order to establish possession were inadequate and wrong.

13. In her summing-up Beeson DJ described what the first two offences were. She did not however give sufficient assistance to the jury on what constituted possession. In fact she did not even mention the word possession in respect of the first charge.

14. She did however deal with the subject in the following way at p26 of the summing-up:

" Later he gives a statement in answer to the charge in which he continues to say that the guns were put into the ceiling by him but he says that he was told to do that by Ah Keung and that the guns were not his. He disputes ownership of the guns but you have to make a distinction between ownership and possession. He is not charged with ownership of the guns, he is charged with possession of the guns, having them in his custody and control.

And in that room the three men were there. They were not prisoners in that room. You will note that there was a key to the room found by the police on the inside of the room so they were free, effectively, to come and go. Each of them had access to the roof. There was no special lock on the roof, it was just a matter of pushing the panels. And the guns can be said, if you accept the evidence, to be in their custody and control, in other words, that is sufficient for you to find that they were in possession of the guns."

15. At the conclusion of the summing-up counsel for the applicant and for the prosecution both, after the jury had left the court, submitted to the judge that the directions which had been given in this connection were unsatisfactory. They agreed that further directions were required.

16. The judge also agreed. She brought the jury back and gave them further directions.

17. Amongst the directions she said at p57 to p58:

" So unless you are satisfied beyond reasonable doubt that he had knowledge that they possessed the guns, you cannot find him guilty of the charges. The custody and control can perhaps be imputed from the fact that he was asleep in the room, with the guns in the ceiling, and they had access that way to the guns. But if he does not know they are there, he cannot be said to have them in his possession.

So in respect of the two offences, that is, the offence of possession with intent to commit an arrestable offence or the possession of the arms and ammunition without a licence, you have to effectively insert the word 'knowingly' in the charges - that he knew about the guns, that he knew they were there, he knew their nature, and that he himself had possession of them."

18. She did not however give any directions upon joint possession or upon having an intention to possess the arms.

19. We agree with the submission made by Mr Macrae that this was not a satisfactory direction.

20. What needs to be considered though is whether notwithstanding this the conviction is safe and satisfactory and hence the proviso can be exercised.

21. The jury clearly accepted that the statements made by A1 did reflect the true situation and it was very clear from the contents of particularly the second statement that A1 was in possession of the pistols.

22. This was also manifest from the evidence of D1 in the proceedings below.

23. The failure to properly direct the jury on possession amounted to a material misdirection. However the evidence as a whole was so overwhelming that even had the jury been properly directed it would have been inevitable that A1 would have been convicted as charged.

24. This leads to the final ground concerning the disciplinary action which had been taken against the police officer who took A1's statement. This action related to matters unconnected with this case.

25. In the summing-up Beeson DJ directed the jury that they should not conclude simply because of the proceedings that there was any substance to the complaints which had been made against the officer. These directions were clearly wrong. This was another matter which was drawn to the judge's attention at the conclusion of the summing-up.

26. Further directions were given to the jury.

27. Mr Macrae complains that the further directions were insufficiently robust. Beeson DJ said at p60:

" But in view of the fact that this officer is a policeman and you are judging his credibility, I think it is probably safer to deal with him as Mr Dinan suggested and perhaps just assume the worst scenario in respect of this officer, assume that in fact he is guilty of these disciplinary charges. Having worked from that basis, then decide what effect you consider that has on his credibility and the value of his evidence.

I think I may have left you with the impression of what I said earlier, that in fact it does not matter. But that is not the case at all. It does have a bearing on his evidence. As I said, he is under a cloud because of the disciplinary charges, so you can consider those perhaps more safely if you just assume, for the sake of argument, that he has been found guilty of them or is guilty of them, and then assess what you think of his evidence, and what you assess of his credibility."

28. While these further directions were not ideal we are satisfied that the jury did receive a sufficient warning to enable them to discharge their duties properly.

29. We do not consider that A1's convictions were either unsafe or unsatisfactory and this application is dismissed.

30. Turning to A1's application to appeal against sentence we consider that 15 years' imprisonment was the correct starting point on the first charge. However having regard to the facts which have been outlined we consider that the sentences imposed on both the second and third charges should have been ordered to run concurrently. This is because the surrounding circumstances were inextricably interwound.

31. We would grant leave to the first applicant to appeal against the sentences which were imposed and treating the application as the substantive appeal would order that all of the sentences should run concurrently. The effect of this is to reduce the total sentence from 17 years to 15 years.

32. So far as A2 is concerned we do not accept the submission that the sentence which was imposed was excessive. 15 years was the correct starting point and A2 was given a 33 1/3% reduction for his guilty plea. His application is dismissed.