HKSAR v. TANG YIU KWONG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.207
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 25th March 1998, the Applicant was convicted, following a trial before Judge Wilson in the District Court, of possessing arms, namely a stun gun, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap.238. He now seeks leave to appeal against his conviction.

2. The facts could not have been more straightforward. For reasons which it is not necessary to go into, save to say that the Applicant had been with others who had been up to no good, police approached the Applicant and asked him to get out of the car in which he was sitting. He did as he was told and carried a bag with him as he did so. When this bag was searched, the stun gun, as it is described in the charge, was found. Whilst that description is reasonably apt, it was a weapon that had been made to appear as if it was an ordinary torch. When asked about it later, the Applicant said to the police, using a phrase they themselves had used earlier on when speaking to him, that "the electric rod", to use the literal translation from the Chinese "modified from a torch" had been given to him by a friend to keep, in the sense that he was to look after it for his friend.

3. His defence at trial was that his friend had slipped something into his bag. The Applicant's case was that he had no idea what it was, albeit he knew that something had been put into his bag, until the police found it. This story which related in effect to the sole live issue in the case was not believed by the judge.

4. There are six written grounds of appeal which have been advanced by Miss Draycott on the Applicant's behalf, which she briefly developed in argument. It should be said that Miss Draycott did not appear in the court below.

5. The first ground effectively sets the scene for the remainder, and cannot in itself provide a basis for giving leave to appeal. It is that the cautioned statement (Exh.P3) was incorrectly translated in Exh.P3A. Throughout Exh.P3, the stun gun (Exh.P2) was described as "a stun gun modified from a torch". The correct translation in each instance should be "electric torch modified into an electric rod (or bar)". Pausing there for a moment, the Respondent agrees with this contention merely pointing out that it is curious that no point was taken on this aspect in the District Court, when this might have been expected if there was any substance to that point at all.

6. Directly arising from that first ground, grounds 2-5 and ground 7 can be looked at together.

"2. The judge relied on the statement (Exh.P3) to show that by implication the Applicant knew the nature of Exh.P2. Such implication as could be drawn from those passages is greatly weakened by the mistranslation.

3. As the Applicant in the passages referred to in ground 2 merely repeats the police officer's descriptive formula 'stun gun modified from a torch' no implication of knowledge should have been drawn from his words.

4. The judge in assessing the weight to be ascribed to the Applicant's use of the police officer's phrase 'stun gun modified from a torch', failed to take into account the evidence that the defendant had not rested properly for over 30 hours when he made the statement.

5. The judge erred when he asserted that the applicant had admitted in Exh.P3 that he knew what the object was. P3 contains no such admission.

7. In the premises there was no or no sufficient evidence that the Applicant knew or ought to have known that Exh.P2 was a 'stun gun'."

7. The prosecution had produced evidence at the trial that the weapon, however it is described, was capable of discharging a peak output of over 20,000 volts. Whilst "stun gun" was established by expert evidence to have been an appropriate term to describe the object which was found in the Applicant's bag, nevertheless it was not on a literal translation into the English language the way in which it was described by the Applicant during his interview with the police. The judge was, however, given the impression that he had referred to the weapon as a "stun gun".

8. Turning to the admissions made by the Applicant in his interview, Mr. Saw, S.C. for the Respondent, has carefully analysed what these were taking the freshly agreed literal translation. From the answers given by the Applicant, Mr. Saw submits that it was open to the judge to find that the Applicant knew what he had been given was a stun gun, or an instrument of that general kind, so that his possession of it was unlawful. These admissions now read, in the light of the literal translation from the Chinese:

"In relation to that electric torch modified into electric rod (or bar) found by the policemen, it was given to me by my friend Lee Cheung at Shatin near the ground level of Lai Shing Garden to keep."

A little later:

"Q. Why did Lee Cheung give you the electric torch modified into electric rod (or bar)?

A. I do not know. He only asked me to keep it for him."

And then later again during the course of a lengthy answer given by the Applicant:

"At about 10 a.m., Lee Cheung handed that electric torch modified into electric rod (or bar) to me to keep. I conveniently put it in the greyish blue bag."

9. Putting this in simple terms, in those few passages the Applicant was apparently accepting that he knew that Lee Cheung had handed to him a torch that had been modified into an electric rod (or bar) which he had then put into his bag. It is right to say, as Miss Draycott points out, that the weapon was at that stage itself inside a small zipped-up bag.

10. The trial judge, on account of the difference in translation, had heard an admission made by the Applicant in terms of the article being a stun gun. The question we have had to ask ourselves is whether or not if the term "electric rod" or "electric bar" had been used in its place, this might have made any difference to the outcome of the trial. We can say without any hesitation that, in the context of the words used by the Applicant in his statement to the police, the description that he adopted of the weapon handed to him by Lee Cheung was equally damaging whichever way it is described in the English language.

11. Miss Draycott's argument was developed to include a submission that the oddity of the phrase "torch modified into an electric rod (or bar)" was perhaps indicative of police jargon or phraseology because a person admitting the possession of a stun gun would have simply said "stun gun" incorporating the Chinese word for gun. We were not impressed by this submission which was to the effect that in some way the Applicant may have found himself merely repeating the description given to him by police of this weapon.

12. An issue concerning the voluntariness of the interview had been raised in the trial, and the Applicant had denied making the admissions to which reference has already been made. The Applicant had said that he was very tired when the statement was taken.

13. The Applicant's account of what was said at the interview on this point was rejected by the judge. It would be quite wrong of this court now to embark on a retrial of that issue. We have proceeded upon the basis that the police officer has faithfully recorded a statement that records what the Applicant voluntarily told him, and that in the circumstances where the Applicant used this description of the weapon, he was, as the judge found, inferentially admitting a knowledge of what it was in his possession.

14. There is, therefore, nothing in any of these grounds. Of course, we can say that it would have been otherwise if the Applicant had merely referred in the interview to the weapon as a torch and no more.

15. The remaining ground is a short point:

"6. The judge failed to consider that there was no evidence that Exh.P2 had been modified in any way. The police officer's description of it as adopted by the Applicant was therefore inaccurate, misleading and prejudicial."

16. It is quite clear that what matters is not whether the stun gun was modified, as the police and the Applicant seemed to think, from a torch, but whether the weapon fell within the statutory definition of arms in section 2 of the Firearms and Ammunition Ordinance. "Arms" are defined in sub-paragraph (c) of that section as:

"any portable device which is designed or adapted to stun or disable a person by means of an electric shock applied either with or without direct contact with that person."

17. Clearly this weapon came within that definition.

18. As the application has no merit, it must be dismissed.