HKSAR v. LIANG CHUNG-MING

CACC 110/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 110 OF 2001

(ON APPEAL FROM DCCC 946 OF 2000)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

Introduction

1. On 3 March 2001, the Applicant, at that time a police constable aged 32, was convicted of five charges, following a trial in the District Court before Judge Geiser. The Applicant was sentenced on 19 March 2001 to terms of imprisonment which amounted in total to fifteen months. He now seeks leave to appeal against his conviction on all the charges.

The charges

2. In summary, the five charges against the Applicant were as follows:

(1) Possession of ammunition without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap. 238. The particulars of this offence alleged that the Applicant, on 10 August 2000, had in his possession five live rounds of 0.38 calibre ammunition without a licence.

(2) Possession of a false instrument, contrary to section 75(2) of the Crimes Ordinance, Cap. 200. The particulars of this offence alleged that on 10 August 2000, inside private car registration no. JJ4780, the Applicant had in his custody or under his control, a police warrant card which was false and which he knew or believed to be false.

(3) Possession of apparatus for radiocommunication without a licence, contrary to sections 8(1)(b) and 20 of the Telecommunications Ordinance, Cap. 106. The particulars of this offence alleged that the Applicant, on 10 August 2000, inside the same private car referred to in the second charge, had in his possession a radio transceiver without a licence.

(4) & (5) The fourth and fifth charges alleged theft, contrary to section 9 of the Theft Ordinance, Cap. 210. The particulars of these charges alleged that the Applicant, on or about 11 August 2000, stole an occurrence book and a police visiting book respectively, the property of the Hong Kong Police Force.

Prosecution's case

3. The prosecution's case, in its general effect, began with events on 10 August 2000 when members of the District Crime Squad of Kwai Ching Police District were investigating offences unconnected with the charges brought in this case. The officers, led by Inspector Tsang Hung-fai (PW1), arrived shortly after 2.00 p.m. on that day at the car park of Lei Muk Shue Police Station, where the Applicant was at that time posted.

4. DSPC 22656 (PW7) and DSPC 2204 (PW10) were instructed to put the Applicant's car, JJ4780, under observation. They did this from a distance of about 20 feet away. While they were watching the car, they noticed the Applicant going towards it. PW7 gave very detailed evidence as to what the Applicant was seen to do. For reasons which will become apparent later, it is necessary to say that at no stage did PW7 see the Applicant stoop down to pick anything up from the ground before he got into his car.

5. PW1 was told about the Applicant's arrival at his car and, as a result, he went with Detective Sergeant 2910 (PW5) to intercept the Applicant who was still inside his car. Both officers said that their purpose at that time was to make inquiries from the Applicant regarding bomb hoaxes. The time at this stage was about 2.30 p.m.

6. Present at the car park were a number of senior officers including the Applicant's own Sub-unit Commander WSIP Lee Lai-mei, his second IC Commander Chiang Chung-man (PW9) and Chief Inspector Fung Ka-ho (PW6). PW6, in fact, was the Staff Relations Officer who looked after police officers' rights in Lei Muk Shue and Tsuen Wan police districts.

7. The Applicant was then taken to Room 106 in the police station where PW5 interviewed him. A notebook entry of what took place in that room was made by that officer. The interview was video-recorded. The transcription of that video and the tape itself were admitted into evidence as exhibits produced by the defence. During the interview, the Applicant was informed that his locker, his car and his residence would be searched.

8. At the conclusion of the notebook entry about the events which had taken place, the Applicant asked if he could go out to the toilet. He was allowed to do this. On his return, he requested to get some medicine from his car as he was not feeling well. The officers then accompanied the Applicant downstairs to his car. The Applicant firstly went to the passenger side of the car, stretching his arm out in the vicinity of the radio and glove box. He retrieved certain objects and put them into the left pocket of his uniform. He then walked to the driver's side of the car, opened the door and again appeared to take something out.

9. After this, the Applicant was taken back inside the police station where it was intended to search his locker. On the way there, PW1 noticed that the Applicant kept his hand inside his left trouser pocket all the time, which he thought looked a little curious.

10. Inside the barrack room, the Applicant was told to take out everything from his pockets. It was at that stage that the Applicant, according to PW1, became quite uncooperative and began to prevaricate. Repeatedly, the Applicant was told to take the items out of his pockets. Eventually, he purported to empty his pockets by taking out several things which included an old and completed notebook. Nowhere amongst these items was there any medicine.

11. However, PW1 noticed that there was still something inside one of the Applicant's pockets. Once again, the Applicant prevaricated when told to empty his pockets. He was then told that he would be subjected to a body search if he did not comply. The Applicant asked that all the junior officers present should leave the room and thereafter he produced for the first time from a pocket (almost two and a half hours since he had first been intercepted at his car) a transparent bag which contained the five bullets, the subject matter of charge 1. He handed the bag and its contents to PW1.

12. After the Applicant had been arrested for the possession of the ammunition without a licence, he then explained that it was not his and that he had picked up the plastic bag on the ground underneath his car door immediately before he was intercepted.

13. The warrant card and the radio transceiver, the subject matter of the second and third charges respectively, were retrieved by the police from the Applicant's car together with numerous other items when it was searched later in the evening.

14. So far as the occurrence book is concerned, the subject of charge 4, this was found at the Applicant's home when it was searched in his presence during the early hours of 11 August 2000. The police visiting book, referred to in the fifth charge, was found in the same premises in the Applicant's presence during a later search.

15. The Applicant had not told police about any of the items in any of the charges before they were discovered in his possession either by being found on him or in his car or at his home.

Defence case

16. At trial, the Applicant elected to give evidence. Essentially, he did not dispute the circumstances in which the items forming the subject matter of the five charges were found. However, he gave an explanation as to how each of these items came to be in his possession.

17. In respect of the first charge, he maintained his story that he had found the rounds of ammunition underneath the driver's door of his car as he was getting into it immediately before his interception. He picked them up intending to notify his Sub-unit Commander about them. As he did not have his beat radio on him, he was unable to inform her straightaway about his find, but he said that he took out his police notebook and was about to make a note of this when he was approached by the police party. The inspector and the detective sergeant who came to the car window told him to get out of his car. Despite, he said, repeatedly asking to know what it was about, he said that he was told simply that he was wanted for certain inquiries. He said that he was then taken up to Room 106. In this room, he alleged that he told his second i/c inspector (PW9) that he had something to tell him. This, he said, was a reference to the ammunition he had found. (In this connection, this suggestion was put to PW9 but it was categorically denied by him.)

18. In respect of the second charge, the Applicant said that the false warrant card was given to him by a colleague in July 1997 in the barrack room. He said that he did not then realize that it was false but he conceded, having heard the scientific evidence and particularly the evidence of Station Sergeant Wong (PW20), that the card was not in fact a genuine warrant card.

19. So far as charge 3 was concerned, the Applicant said that the transceiver was not his and he did not know why it was in his car, save to say that he had lent his car to a friend at some stage and it was possible that it belonged to his friend.

20. In relation to the fourth charge, concerning the occurrence book, the Applicant said that he had taken it from the police station's report room on 9 August 2000 because, some time earlier, he had been under investigation regarding a case concerning telecommunication equipment and he needed the book to see whether his car had gone through the car park gates during a certain period. He admitted that he had not told anyone about taking the book away. The prosecution on this point had called evidence to the effect that it was not permitted to take away the occurrence book from the police station. The Applicant claimed that he had made some form of statement about this to the effect that he was removing the book although no statement was ever found. Mr Y.C. Yeung, on the Applicant's behalf, agreed during today's proceedings that the so-called statement was in the nature of an IOU which replaces, for the time being, money borrowed.

21. In respect of the fifth charge, the Applicant claimed that he had bought the visiting book for $20 from the stall of a hawker near Shamshuipo MTR station at the end of July or the beginning of August. He said that he had bought the book because he was supplying intelligence to the Intelligence Bureau.

Issue at trial

22. Plainly, having regard to the evidence called by each side, the crucial issue at trial was the Applicant's credibility or, to be more precise, whether his explanations had any truth in them bearing in mind the evidence which had been called by the prosecution.

23. The judge did not believe the Applicant and said so in terms when rejecting his evidence "in its entirety as being unworthy of belief".

The application

24. We turn next to the two grounds of appeal which have been advanced by Mr Y.C. Yeung.

25. The first ground criticised what he alleged was the prosecution's attack on the Applicant's credibility by suggesting that because "the Applicant remained silent under caution" in regard to part of his defence, he should not be believed. This ground went on to criticize the judge for compounding the error by failing to stop this line of questioning and using the Applicant's "silence under caution" as a reason for disbelieving the Applicant.

26. The complaint raised in this ground has specific relevance to the first charge. The judge convicted on this charge because he believed the police account, which he described as the "key" evidence, referring to the Applicant not having picked anything up from the ground as he went towards his car. The judge went on to add, without the necessity to do so, that if the Applicant had picked the bullets up from the ground he was satisfied that, acting innocently as the Applicant had wanted the court to believe, he would have informed the police immediately about his discovery. This was the only sensible conclusion the judge could have reached on the evidence. The police who intercepted the Applicant at his car and who later interviewed the Applicant, had no idea that he was in possession of ammunition. If the Applicant had just picked up some bullets from the ground, the kind of reaction mentioned by the judge is exactly what might be expected.

27. This aspect, however, added nothing to the judge's reason for convicting on the first charge because he had accepted that the Applicant had picked up nothing from the ground near his car. We should perhaps add, as the prosecutor was made the subject of wholly unjustified criticism, that the prosecutor was entitled to inquire into why the Applicant chose, when giving explanations about other aspects of his behaviour following his interception at his car, not to tell any of the senior officers present what he had just found on the ground, and why he had allowed the bullets to remain inside his pockets for the better part of two and a half hours until he was ultimately threatened with a body search.

28. Similar questions were asked by the prosecutor in relation to the two books belonging to the police which were found in the Applicant's home. When the Applicant was asked why he had not mentioned the books to police before either of the searches at his home began, he said, making it quite clear that he was not standing on his right to silence, that it would have been useless to have said anything as they were not related to "explosives" which he understood the police were interested in finding.

29. With particular reference to the visiting book, the subject of charge 5, the defence which was raised at trial had never previously been given in any of the Applicant's explanations to police. In effect, he was saying that when he bought the book, while off duty, he was carrying out an investigation intending to report what he had found out to the Intelligence Bureau. He said that he hoped that they would carry out an investigation into those who were selling pre-1997 police equipment. When cross-examined about his omission in his statements to the police to say why he had the visiting book at his home, he again indicated that it had nothing to do with his right of silence. He replied:

"Because I thought that the officers of Kwai Ching District Crime Squad were unfair to me."

The prosecutor then suggested that as the Applicant had not remained silent in answer to the caution, the real explanation for his failure to give police the same story that he gave in the witness box was because he had not been able to think up a cover story at the time of his interview. In other words, the prosecutor was suggesting a recent fabrication or an invention of a defence along the lines which tested the weight to be attached to his explanations in court.

30. It was suggested that the non-disclosure of the defence was itself evidence of the Applicant's guilt when Mr Yeung made his submissions. However, there was no such suggestion at court. Nor was it suggested that inferences of guilt could be drawn from the Applicant's failure to mention his defence earlier. Furthermore, it is abundantly plain that the judge, in concluding that the Applicant was guilty of these offences, effectively relied on the evidence given by PW7 and PW9. What is more significant in the present context, the judge did not rely in any way on the Applicant's failure to reveal his defence when convicting on these charges.

31. The first ground fails.

32. In the second ground of appeal, Mr Yeung submitted that the judge erred in his approach to each of the charges. On the first charge, he contended that if the Applicant had not been a police officer, his defence, to the effect that he had just picked up the five bullets, would not have amounted to a defence. However, as the Applicant was a police officer, he submitted that it still had to be proved against him that the Applicant had no reason to suspect that the ammunition had been abandoned, either deliberately or accidentally.

33. This ground is wholly misconceived. As Mr Simon Tam, in his extremely helpful analysis of the evidence in this case as well as the law which is applicable to it, was able to point out on the Respondent's behalf, if the Applicant's story might have been true in relation to the first charge whether or not he was on duty as a police officer, he would have been entitled to an acquittal, because possession, requiring an intention to possess the item in question, would not have been proved.

34. Plainly on the present facts, the judge was quite entitled to conclude that the Applicant was in unlicensed possession of the ammunition in the first charge.

35. Mr Yeung submitted, so far as the second charge was concerned, that the judge "erred in failing to note that on the face of the instrument (a Royal Hong Kong Police warrant card) it (did) not tell a lie (about itself)" bearing in mind that the Applicant had been a member of the Royal Hong Kong Police before transition and that the warrant card bore his name.

36. The warrant card was examined by experts and was found to be false. This went unchallenged by the defence. At trial, the Applicant's account was that he had no idea that it was false because it appeared to be genuine. Indeed, it does seem to be, on visual examination, an extremely good copy of a genuine warrant card.

37. This charge was brought under the terms of section 75(2) of the Crimes Ordinance, Cap. 200 which merely provides:

"A person who, without lawful authority or excuse, has in his custody or under his control an instrument which is, and which he knows or believes to be, false, commits an offence and is liable on conviction on indictment to imprisonment for 3 years."

38. The judge in summarizing why he convicted on this charge said:

"... I ought briefly to deal with (defence counsel's) point that as a matter of law, the card cannot be considered to be an instrument as it is not valid and therefore somehow it is a contradiction in terms to call it an instrument. With the greatest of respect to counsel, there is no point here. A cursory glance at section 68(1)(a) and (d) of the Crimes Ordinance puts the matter simply. In addition to this, section 69(a) of the Ordinance states that an instrument is false if it purports to have been (ii) made in the form or (iv) made in the terms in which it is made on the authority of a person who did not in fact authorize its making in that form or in those terms.

I am satisfied on the evidence of the forensic scientist, Miss Leung, and also Station Sergeant Wong, that this is not a valid warrant card and therefore not made on the authority of the Commissioner of Police." (Appeal bundle p. 18)

39. The judge was fully entitled to convict on this charge and there was no substance to Mr Yeung's submissions.

40. So far as the third charge was concerned, it was contended that the judge was led into speculating about the Applicant's ownership of the transceiver.

41. This criticism would have involved an effective re-trial of issues which were thoroughly examined in the court below, concluding with a full and fair judgment recording the reasons for each of the verdicts. There was, as the judge found, ample evidence on which to convict on this count. Not only was the item found in the Applicant's car but his account as to how it got there, through the possible actions of some unnamed person, was rejected as untrue. There was some supporting evidence as well because, at the Applicant's home, twenty-four pages of police radio wavelengths were found. The inferences as to the Applicant's possession of this transceiver were overwhelming. The point raised was without any merit.

42. The attack made by Mr Yeung on the judge's approach to the fourth and fifth charges lacked even the barest semblance of any substance. He submitted that the judge erred in:

"finding from the evidence of the Applicant having no permission to take any book that the Applicant stole them, in light of the judge's rejection of the Applicant's evidence as to how he came by the books and in the light of the complete absence of evidence from the prosecution tending to show the Applicant having ever taken any of the books".

43. Mr Yeung submitted also that there were at least two other inferences open to the judge, namely, that the Applicant had come by the books either innocently or that he was guilty of handling them without actually having stolen them. We are not engaged in an exercise in this court to re-try these charges. The judge's painstaking and individual attention to each of the charges was not open, so far as we can see, to any criticism.

Conclusion

44. These convictions can safely stand. The application is dismissed.

Costs

45. Having heard counsel, we make an order that the Applicant must pay the Respondent's costs for this application, to be taxed if not agreed.