HKSAR v. CHUNG CHI PIU AND OTHERS

1997, No. 453
(Criminal)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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J U D G M E N T

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Rogers, J.A. (delivering the judgment of the Court) :

1. In these applications, the three Applicants seek leave to appeal against convictions.

2. The three Applicants were originally charged with three offences. The first was trespassing with arms and ammunition, contrary to section 19(1) and (2) of the Firearms and Ammunition Ordinance, Cap. 238. The particulars of that offence were that the three Applicants :-

"on the 9th day of August, 1996 were in a place known as Flat B, 17th Floor, Nos. 17-21, Tung On Street, Yaumatei, Kowloon, in Hong Kong, as trespassers and without reasonable excuse, while they had with them arms and ammunition, namely two 12 Bore pump action shotguns and 48 rounds of live 12 Bore shotgun ammunition."

3. The second charge was one of possession of arms and ammunition without a licence, contrary to section 13 of the same Ordinance. The particulars of that offence were that the three Applicants on the same date and at the same place had in their possession the same quantity of arms and ammunition as in the first charge.

4. The third charge was one of aggravated burglary, contrary to section 12(1) and (3) of the Theft Ordinance, Cap. 210. The particulars of that offence were that the three Applicants, on the same date, having entered as trespassers the same flat as in the first charge, attempted to steal and at the time of committing the burglary had with them a weapon of offence, namely a knife.

5. The 3 Applicants were represented at the trial by different counsel from those representing them on this Appeal. All 3 Applicants were acquitted on the first charge but convicted on the remaining 2 charges.

The Facts

6. The three Applicants had been apprehended outside the block of flats in question early in the morning on the date specified in the charge. They were arrested because the occupant of the flat who had just returned to his flat saw a person whom he later identified as the 2nd Applicant in the mirror when he opened the door; he immediately fled and alerted 2 passing policemen. When the police searched the premises, they found the arms and ammunition which feature in the 1st and 2nd charges. They also found the knife which features in the 3rd charge. In addition, they found a roll of adhesive tape which had been put on a table which contained a finger-print of the 3rd Applicant.

7. All three Applicants gave statements under caution. The 1st Applicant gave statements which were videotaped. In those statements, the 1st Applicant described how the three Applicants had come to Hong Kong for a short stay which had been arranged for the purpose of their securing the repayment of a debt of $100,000 said to be owed by Mr. Lam, who was the occupant of the flat. In those statements, the 1st Applicant had admitted the purchase of the knife referred to in the 3rd charge but had consistently denied that the guns and ammunition belonged to the three Applicants. He said that having entered the flat on the night in question, he and the 2 other Applicants had waited for Mr. Lam but had begun to think that he would not return. Whilst waiting, they had searched the flat for something to steal and had come across the guns and boxes of ammunition at the top of a cupboard and when he pulled them down these had fallen to the floor and the ammunition scattered. The 1st Applicant said that he had looked at the gun and had operated the loading mechanism but that only he and the 2nd Applicant had in fact touched either of the guns or the ammunition. A chemical test carried out on the 1st Applicant's hands showed results which were consistent with the 1st Applicant having handled unprotected metal which could have been either of the guns in question. The 1st Applicant had said under caution that the guns had simply been left there and one of the reasons that they had not been replaced where they had been found was that he was too short to reach the top of the cupboard.

8. The 2nd Applicant in his caution statement denied ever being in the flat. The 3rd Applicant in his statement under caution admitted having been in the flat but denied going there for the purposes of burglary or robbery or possessing the knife.

9. When a search was conducted of the hotel room which had been occupied by the three Applicants, the police found a card in the 1st Applicant's wallet of a shop which had sold a knife which was the same as the one found in the flat.

Appeal in respect of Count 2

10. Turning to the 1st count, there was evidence, therefore, that the three Applicants had been in the flat. If they had been in the flat on that day, they had clearly been there as trespassers. One of the crucial issues in the whole case was whether the three Applicants brought the guns with them or whether they found them in the flat. Clearly, on the basis that they had never been in the flat at all, the guns and ammunition would not have belonged to the three Applicants and on the version of the events which can be put together from the three videotaped statements under caution by the 1st Applicant, the guns and ammunition had also been in the flat and did not belong to the three Applicants. In relation to that, it was the prosecution's case throughout that the guns and ammunition had been brought by the three Applicants.

11. In giving the directions to the jury, the Judge, Deputy Judge Hartmann (as he then was), said :-

"If there is a reasonable doubt in your mind concerning this matter (whether they had with them the two shotguns and the 48 cartridges); if for example, as it has been stated by the 1st Accused in his video caution statements, you find that the 1st Accused may have discovered the arms and ammunition in the apartment after he had entered, then it is your duty to acquit him. And flowing from that, in the circumstances in this particular case, the other two Accused as well. The offence in the factual context of this case is quite clearly, members of the jury, entering with the arms and ammunition not finding them inside."

12. In relation to the 2nd charge, whilst dealing with the question of possession, the Judge reminded the jury of what he had already told them about possession in relation to the 1st charge. There were other passages in the summing-up to the like effect and the direction of the Judge can be summarised in his own words used after the verdicts were returned :-

"And, in fact, my direction to the jury was exactly that; that if they came across them (the arms and ammunition) in the flat that would have to lead to an acquittal because they wouldn't be in possession. They would merely have looked at something in somebody else's possession."

13. It is not disputed that there was sufficient evidence for the jury to convict as it did all three Applicants in relation to the 3rd charge namely that of aggravated burglary, the weapon in question being a knife. The ingredients of that count included the fact that the three Applicants were trespassers and had attempted to steal. The only ingredient in the 1st count which was not present in the 3rd count was the possession of arms and ammunition. The only basis, therefore, on which the jury could have returned a verdict of not guilty in respect of the 1st count and guilty in respect of the 3rd count is that they were not satisfied as to possession of the arms and ammunition.

14. The only conclusion from the analysis of the three counts and the jury's verdicts in respect of them that can be arrived at is that there is an inconsistency in the jury's verdicts upon the 1st and 2nd counts. The jury must have acquitted on the 1st count on the basis that the 3 Applicants had not been in possession of the arms and ammunition and yet the 2nd count was precisely that, namely being in possession of the same arms and ammunition on the same occasion. Logic and reasonableness lead to no other conclusion.

15. Applying the test laid down by Devlin, J. in .R v. Stone (unreported) 13th December 1954, CCA (Eng.), as cited in the case of Adrian MacKenzie (1996) 90 A.Crim. R. 468 at 482 :-

"He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand."

16. Counsel for the prosecution relied upon other statements in the MacKenzie case to suggest that the jury's acquittal in respect of the 1st count might have been caused because they took a merciful view of the facts. We do not consider however that in this case there is scope for such a conclusion. The charge under section 13 was left as an alternative charge to that under section 19. Offences under those sections carry the same maximum penalty namely that of 14 years imprisonment. The scope for thinking that a jury may have been merciful exists where there is a clear difference in the gravity of offences and level of punishment. In the circumstances, the verdict of the jury on the 2nd charge was clearly inconsistent and incompatible with that under the 1st and the conviction on the 2nd count must be quashed. We cannot, in any event, see the justification for an indictment containing counts 1 and 2 to have gone to the jury when the only realistic issue to be decided was possession in count 2. The Judge should have ordered severance at the outset to prevent an over-burdened indictment from going to the jury and the muddled verdict which has resulted from it. Count 1 added nothing.

Appeal by 1st and 2nd Applicants in respect of the 3rd Count

17. Counsel for the 1st and 2nd Applicants sought leave to appeal on a further ground. During the course of trial, the 1st Applicant was the only accused to give evidence. His evidence was at variance with his statements under caution. In his oral evidence, he denied that either he or any of the other Applicants had been in the flat in question. Whilst of course his evidence was challenged by the prosecution, it was not challenged by either of the other two Applicants. However, counsel for the 1st Applicant complains that counsel for the 3rd Applicant at the trial, who did not appear on the appeal, made submissions which undermined the evidence given by the 1st Applicant and suggested that the 1st Applicant had not been telling the truth when giving oral evidence. At the commencement of his submissions to the jury, counsel for the 3rd Applicant was clearly proceeding on the premise that the 3 Applicants' primary case was that they had not been in the flat. The first part of the counsel's submissions were directed to show the unlikelihood of the Applicants having ever had possession of arms and ammunition. Counsel's submission however in the second part went on thus :-

"So, members of the jury, I submit it's inconceivable that these weapons were brought there by the defendants. I ask you to accept that and I'll just go through with you the scenario which appears to the 3rd defendant to be the most likely one. Well, it appears, on the evidence of the Crown - I don't - I can't say that it appears to the 3rd defendant. But let me just show you what, on the Crown's case, you might make of the evidence.

These three come to - from China on holiday, as before. I say 'as before', I mean as in scenario one. D1 has a loan to collect from his boss. He says so. He makes several visits to the debtor's flat. ....."

18. The remainder of counsel's submissions really goes to show the inherent likelihood of the truth of the version of events in the 1st Applicant's caution statements and there would have been a distinct likelihood that the jury might have lost sight of the fact that the submission was being made on the basis of the jury having rejected the accuseds' primary case.

19. Counsel who appeared for the 1st Applicant at the trial took immediate objection, in the absence of the jury, to what had taken place and as a result, at the commencement of the summing-up, the Judge explained to the jury that they should understand the submissions of counsel for the 3rd Applicant as having been made in the alternative and were made upon the basis that the jury had rejected the Applicants' primary case. In doing so, the Judge also pointed out that the 3rd Applicant had never asked one question of the 1st Applicant to put to the 1st Applicant that in fact the video interviews were a reflection of the truth. As a result, the 1st Applicant had had no opportunity to answer the suggestions.

20. Having considered the Judge's directions to the jury, we consider that he did dispel any unfortunate misimpression which the submissions of counsel for the 3rd Applicant might have given. We would add that even if we had not been so satisfied, we consider that the facts of the case in relation to the 3rd charge against all the Applicants were so strong that it would have necessitated the application of the proviso to section 83 of the Criminal Procedure Ordinance, Cap. 221 as there had been no miscarriage of justice.

21. We would, however, observe that as stated by Lord Lane, C.J. in R. v. Fenlon, 71 Cr. App. R. 307 at 313 :-

"It is the duty of counsel who intends to suggest that a witness is not telling the truth to make it clear to the witness in cross-examination that he challenges his veracity and to give the witness an opportunity of replying. It need not be done in minute detail, but it is the duty of counsel to make it plain to the witness, albeit he may be a co-defendant, that his evidence is not accepted and in what respects it is not accepted."

22. The lapse in this case however appears to be in the use of direct terminology and what might have been such highly persuasive advocacy as to have raised the danger that the jury might lose sight of the fact that the submission being made was one in the alternative. The effect of such a submission from a co-accused would, of course, be far greater than if it had come from counsel for the prosecution.

23. In conclusion, therefore, we grant leave to all 3 Applicants to appeal against conviction on the 2nd charge namely that under section 13 of the Firearms and Ammunition Ordinance. We allow the Appeals and accordingly quash the convictions under that charge.