HKSAR v. HUANG NANHUA

CACC 234/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 234 OF 2008

(ON APPEAL FROM HCCC NO. 11 OF 2009)

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BETWEEN

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J U D G M E N T

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Hon Stock VP:

Introduction

1.  On 3 July 2009 the applicant was convicted after trial in the Court of First Instance before Deputy Judge Line, as he then was, and a jury of the offence of carrying arms and ammunition with intent to commit an arrestable offence, contrary to s. 18(1) and (3) of the Firearms and Ammunition Ordinance, Cap. 238. He was sentenced to 16 years’ imprisonment. He now seeks leave to appeal both conviction and sentence.

2.  There were two counts on the indictment. The first count, of which he was convicted, alleged that between 13 and 14 August 2008 in Hong Kong the applicant had with him arms and ammunition, namely, a home-made self-loading pistol and 5 rounds of 7.62mm type 64 calibre ammunition, with intent to commit an arrestable offence. Count 2 was proffered in the alternative and alleged possession of arms and ammunition without a licence, namely, the pistol and five rounds of ammunition.

3.  It was an admitted fact that the applicant was arrested at 10:20 p.m. on 14 August 2008 in Dundas Street, Mongkok and that in a shoulder bag which he carried was found a pistol. The magazine was not loaded but in separate transparent bags were found the five rounds of ammunition. The pistol was in working order and the five bullets were live rounds suitable to be discharged by that pistol.

The prosecution evidence

4.  The evidence of one of the arresting officers was that in a wallet carried by the applicant was found a piece of paper upon which were written in Chinese characters seven Hong Kong addresses and also a photograph of the chairman of a well-known media company, Mr Jimmy Lai Chee-ying. In the shoulder bag was found another piece of paper on which was the address and telephone number of the North Point office of the Democratic Party, the chairman of which was Mr Martin Lee. Both these gentlemen gave evidence to the effect that six out of the seven locations written on the piece of paper found in the applicant’s wallet were locations – restaurants and a clinic – which they had visited and that the last item on that list was Mr Lai’s residential address which Mr Lee had visited quite frequently. The piece of paper on the back of which were written the seven addresses was a restaurant order form and the restaurant was in Buji which was where the applicant lived; indeed the applicant said that the restaurant was downstairs from his own place.

5.  The prosecution case was that the applicant was part of a plan to come to Hong Kong to cause harm to Mr Lee. That was his intention, they said, at the time he carried the gun.

6.  Apart from the documentary evidence to which we have referred, the prosecution relied on the testimony of two friends of the applicant, as well as on statements made by the applicant to the police.

7.  Ho Wai-kam, one of the two friends, had pleaded guilty to possession of the pistol and bullets. He testified that in July or August 2008, the applicant had telephoned him and asked him to find Mr Lee’s office address, but was told by Ho that it could be found from the Internet. According to this evidence, when Ho was in Shenzhen on 12 August 2008, the applicant gave him a bag containing the pistol and ammunition and asked him to bring it into Hong Kong. He did so and the applicant met him the following morning and retrieved the shoulder bag with the pistol and ammunition.

8.  The prosecution case, drawn also from statements made by the applicant, was that after retrieving the pistol and ammunition, the applicant met two males with whom he went to North Point near the Democratic Party offices.

9.  The other acquaintance of the applicant upon whose evidence the prosecution relied was a man called Chan Yuk-por. There were a series of telephone calls between the two men on 14 August 2008 and they met that day in Tai Kok Tsui. The applicant told him that he, the applicant, was to return to the Mainland in several days and wanted Chan to keep some food for him in the meantime, to which Chan agreed and they walked towards his vehicle parked nearby. The applicant placed three bags in the boot of that vehicle and took from his shoulder bag an object wrapped in a plastic bag which he tossed into the boot and when it landed, the object made a loud noise prompting Chan to ask what it was, to which the applicant replied that “it was iron”; and that “it’s the iron for doing something … Chai Lo said that after doing that something, this stuff should be thrown into the sea.” Chai Lo was a common acquaintance. Chan was under the impression that the applicant had said that the gun was for “holding somebody”. Chan refused to keep the gun and the applicant took it away.

10.  The applicant then took a taxi and it was the taxi that was stopped at a roadblock in Dundas Street where, after a struggle, the applicant was arrested and the pistol and ammunition were found.

11.  There were a number of interviews thereafter. In his first interview he said that he had come to Hong Kong to shop, had been asked by Ah Shing to “carry something for him” but that he, the applicant, did not know what it was he was carrying. In a second interview he said that he had been asked to carry the thing to Temple Street; for what purpose he did not know and he never opened the bag to see what was inside. He had been told that once at Temple Street “someone would come and bump against me” and he was then to give the bag to that person.

12.  In the final interview, he was told that police enquiries revealed that on 13 August he had been seen to go with two males from Tsim Sha Tsui to the ferry pier. He said that with the two of them he went to the place “where the person who was to be taught a lesson would turn up, to show them his face and identity.” He had been instructed to view a place in Hong Kong “for the purpose of teaching someone a lesson, but that it was necessary to beat and injure him but not to put him to death but that the pistol had nothing to do with the issue.” He took them to view “the place” and said it was up to them whether they would do it or not and they were to give the boss a reply. He said that he was not sure whether they did it or not. The boss had suggested stabbing and wounding the buttock of that person with a sharp weapon but not putting that person to death. He did not want to reveal the identity of the boss.

The defence evidence

13.  The applicant testified at trial. He denied having met Ho on 12 August and said that he, the applicant, had come to Hong Kong to shop. He had arranged to meet Ho in Hong Kong that day because Ho owed him money. After they met in Hong Kong, Ho asked him to deliver a bag of electronic parts to a person called Ah Wai in Mongkok. He agreed. He had been told that Ah Wai would in due course call him, but that never happened. He never looked inside the bag. He went then to visit a cousin and after that met two friends at Tsim Sha Tsui. Hewent with them to Central where they split up and he decided to go to North Point to purchase some souvenirs for an aunt and then he returned to Kowloon to visit his aunt. He stayed that night in a guesthouse and the following day he called Ho who told him to bring the package back to Shenzhen. He then took the train to Lowu and that whilst on the train Chan called him saying that he had money by which to make a repayment due to the applicant. The applicant left the train and met Chan in Tai Kok Tsui and then took a taxi which is the taxi that was stopped in Dundas Street.

14.  He denied making incriminating remarks to the police in his interviews and alleged that he had been maltreated by them. As for the photograph of Mr Lai and the pieces of paper with the addresses, he had never seen them. He had never dropped a heavy object into Chan’s vehicle nor had any conversation with Chan about criminal activities.

15.  The applicant’s defence, in short, was that although he carried the pistol, he was not aware of the fact that it was a pistol that he was carrying.

Conviction: the grounds

16.  In relation to conviction, the applicant represents himself. We have from him five sets of written representation. In summary, his grounds of appeal are these:

(1)	that whereas his trial commenced before the jury in mid-June 2009, there was very considerable adverse publicity in the media given to his case between about 30 May and 5 June 2009, much of it factually inaccurate and that, accordingly, he could not receive a fair trial, at least until the case was adjourned or had been adjourned for some time.  A request for an adjournment was declined by the judge and it is this exercise of the judge’s discretion which the applicant challenges;
(2)	that the prospect of a fair trial for him were undermined by the incompetence of his counsel;
(3)	that on 19 June 2009 part of a hearing concerning his case took place in his absence;
(4)	that he was treated unfairly by the judge who was guilty of racial discrimination; and
(5)	that the judge refused to allow his counsel to cross-examine these two witnesses about the fact that they owed him money.

17.  In the course of his oral representations to us today, he has advanced some further matters in most part constituting a repetition of his defence to the indictment.

Publicity

18.  Only a short while before the trial commenced, there was, as the judge put it in his ruling on this issue:

“…a great deal of publicity concerning the case in the local press and mediaand the substance of it all was that a plot to assassinate Martin Lee had been revealed and had been foiled by the police and ... anyone becoming acquainted with the facts in this case would immediately put two and two together and realise this case is the one involved.”

19.  The judge remarked that the way the case was going to be presented was not at all along the lines that there had been a plot to assassinate Martin Lee even though Mr Lee would figure in the case. Much of what had been reported was factually inaccurate including the suggestion that the applicant had sought to flee from the roadblock and that a co-accused’s computer had been checked and revealed that the co-accused had searched for named persons including Mr Lee.

20.  The applicant complains that counsel only made the application for an adjournment at the applicant’s insistence, counsel suggesting that such prejudice as might have been occasioned could sufficiently be counteracted by adequate directions from the judge. Be that as it may, counsel made the application the effect of which was to suggest that the adverse publicity would be too fresh in the minds of the jury and that the case should be adjourned for at least several months.

21.  The judge concluded that “such is the well-known high profile of Mr Martin Lee that whenever this case falls to be tried, the jurors will inevitably be reminded of what was in the press only two or three weeks ago. In my judgment, adjourning the matter for three of four months will not have the result of the jury having forgotten about that. It will be the case there’s a trial taking place at that time would oblige me to warn the jury in fairly detailed terms about their proper approach to pre-trial publicity which would merely resurface the whole question of what had been in the press.” The defence had been asked by the judge to identify specific matters that might be cured by an adjournment. There were three matters suggested, in respect of which the judge noted that the factual inaccuracies in the reports would be corrected by the evidence that would be led and that, in relation to the presentation of a “foiled plot to assassinate Martin Lee” that would have to be dealt with by directions to the jury.

22.  The judge ruled against the application for an adjournment but indicated that he would proffer clear directions to the jury. He was satisfied that “this jury, I shall do my best, will be sure that they’re doing the most serious job, quite different from the job of the press, which is to find out what is established by evidence. Once they[the jury] realise that they have the importance of that job to undertake, and the whole drama of the trial, that will concentrate their minds where their minds should properly be concentrated. And in those circumstances … any impressions they may have had from the press coverage, I think will have been so diminished as to have no effect on the trial.”

23.  We see nothing in the reasoning there revealed that would cause us to say that the judge wrongly exercised his discretion. More particularly, we note the great care which he took in his instructions to the jury on the question of publicity:

(1)	On the day upon which the jury was empanelled, the judge said this:
	“ ... this case has attracted publicity.  I’d be very surprised if you haven’t made the link between what’s been read out, the indictment, what you know about the case already and what you’ve seen in the press about assassination plots to assassinate Martin Lee – because Martin Lee is the first witness in this case.
	Now, I can’t emphasise this enough.  You must put aside anything that you’ve read in the press.  The press have a completely different job to do than we have in this court.  Put aside anything that you’ve learnt about, or heard in relation to this case from newspapers; the Internet; television and the like.  And not only that, even if all had been reported there – and of course the reports are tiny summaries – we’re going to stay 10 days together, at least, probably, looking at the evidence, discussing it, having it examined in detail and what do you see in the press, you see a couple of columns. So even if it was always reported correctly, it could never hope to give an accurate picture – and, of course, I can tell you, as lawyers we know, we see cases reported in the press sometimes which we’re in discussing it there, and you wouldn’t recognize sometimes that they were two of the same things.
	And not only that, as I understand it, the reporting that’s occurred in this case has been factually inaccurate. There’s going to be an opening quite soon from Mr Chapman, he’s going to tell you what his case is.  And his case is nothing like that which has appeared in the press in its more lurid form – let me put it like that.  And maybe there’s been some mischief in what’s been reported in the press and that’s to have people commenting about the case as if it were established that there had been a plot to assassinate Martin Lee. That, as I understand it, is not what Mr Chapman is going to suggest in this case.
	So please put out of your mind completely anything you’ve heard or seen in the media or anyone who has had a conversation about the topic at all.  And I shall be reminding you again of this in due course.”
(2)	The judge returned to the theme on 24 June as result of something he had seen on his television the night before, in relation to the case.  What was happening, he said, was that it seemed that the celebrity of the alleged victims had led the press into a form of sensationalism of a kind which resulted in inaccurate reporting. He was mentioning that, he said, because it was his judgment that the jury were intelligent enough not to be consciously swayed by that sort of publicity. Suggestions that there had been “a plot to murder” did not accord with the case as presented. He warned them how important it was to honour their oath and to act on the evidence that they heard in court.  They were to be alert to the risk of being unconsciously swayed.
(3)	Twice in the course of his summing-up, he reminded the jury to decide the case only on the evidence and to remember the warnings he had given to them about publicity.

24.  It seems to us in all circumstances that the judge was correct in his assessment that an adjournment was unlikely to prevent a revival of publicity and in his assessment that the evidence and appropriate directions would suffice to cure inaccurate reporting that had taken place; and it seems to us further that the strong and sensible directions given by the judge to the jury, with repeated reminders as to the inaccuracy of the publicity and the dangers that come with relatively short press reports, was such as to ensure that there was embedded in this jury’s mind the grave responsibility of concentrating upon the evidence and not upon media reports. We are satisfied that this ground must fail.

25.  For what it is worth in practical terms, we would endorse the judge’s considerable disquiet about sensationalist and inaccurate reporting about a pending case. The media, which rightly holds itself out as a vehicle for advancing the public interest, does not serve that interest by reporting of this kind.

Counsel’s conduct of the trial

26.  In relation to his counsel’s conduct, the applicant asserts that counsel:

(1)	failed tomake a timely application for an adjournment of the trial;
(2)	pressed him to plead not guilty, alternatively to plead guilty when he, counsel, should not have done so; and
(3)	failed to highlight factors in his favour, in particular that forensic evidence (DNA, fingerprints, telephone numbers on computers) connected the two main prosecution witnesses with the gun; that the two intended victims of the alleged planned attack had testified that they had received no threats; that the substantial sum of money which the applicant had in his possession upon arrest supported his contention that he had come to Hong Kong for shopping; and that a police officer had testified that the pistol which had been shown to him in court was not the one found upon the applicant’s arrest.

27.  We have dealt with the adjournment issue. Counsel made the application and, for reasons which we have explained, it failed. Insofar as counsel is criticised for his reticence in the first place about making the application, we have his affidavit in which he explains that he advised the applicant that a case of this nature was bound to attract publicity and that the judge would be in a position to provide such directions as would safeguard the applicant’s legitimate interests. An adjournment, he advised, would not help because the media was bound to report the case again whenever it was heard. But because the applicant was adamant in his wish for an adjournment, the application was in fact made. We do not think that counsel can justly be criticized.

28.  In his affidavit, counsel denies that he had any stage sought to persuade the applicant to plead guilty and states that at all stages the applicant said that he did not know that he was in possession of a pistol, and accordingly,says counsel, “the only possible plea that I was able to advise[the applicant] to enter into was one of not guilty.” As to the question of an adjournment, counsel had advised him that the case was of a kind that was bound to attract publicity and that the judge would be in a position to give the jury an appropriate direction to counteract the impact of such publicity.

29.  It has not, in the event, proved necessary to require counsel’s attendance for the purpose of cross-examination, for we are satisfied that on the face of the papers, there is nothing in the applicant’s complaints about counsel.

30.  The applicant’s assertions as to the advice he received as to the plea to be tendered are contradictory. In his representation dated 10 October 2009 he asserts that he was “misled by my defence counsel and was told to admit all the offences but I admitted none. .... I admit that I was in possession of the weapons innocently.” Yet in his letter dated 20 October 2009, he asserts that his counsel asked him to plead not guilty but that in response to that suggestion or advice, the applicant said that “as the gun was on me, it was impossible to plead not guilty;” and that then his counsel told him to plead guilty. In his letter dated 1 December 2009, he says that his counsel told him to plead not guilty to both charges or to plead guilty to both. In his latest representation dated 17 January 2010, he says that all along he had told his counsel that he had no idea that the gun was inside the bag and that that is why he instructed his counsel to fight the case. In short, not only are these assertions self-contradictory but the key fact is that the applicant’s case all along was that he was not aware that inside the bag was a gun. Accordingly, the only proper advice that could be given was that he should plead not guilty. That is the plea which he in fact tendered and, in the light of the instructions he gave, that was the appropriate plea. In the event, there is self-evidently nothing in this part of his complaint against counsel.

31.  We have examined the contentions about the matters that counsel allegedly failed to highlight. There were matters not touched upon by counsel in his speech to the jury, such as the DNA evidence connecting the two prime prosecution witnesses with the bag containing the gun; but this fact carried the defendant’s case little further, given that both those witnesses explained how they had come into contact with the bag. There is nothing in the point about the officer’salleged misidentification of the pistol shown to him from a photograph, for it was an admitted fact that the applicant had the pistol in his custody at the time of the arrest; the only question was whether he knew what it was that he was carrying. There is nothing in the other particularised complaints about counsel.

The 19^th June episode

32.  On 19 June 2009, the hearing as to the admissibility of the various interviews concluded and after the judge ruled the evidence to be admissible and in the presence of the applicant, he made comments disapproving of the practice of only switching on video-recording equipment well after a suspect is brought into an interview room to be interviewed. Having made these comments, the court adjourned at 3:56 p.m. but resumed, at the invitation of counsel, at 4:04 p.m. when counsel asked for clarification of the judge’s comments and the judge provided that clarification. The court adjourned again at 4:08 p.m.

33.  The transcript shows that when the court resumed at 4:04p.m., the applicant was present. That is not accurate. The applicant had been taken to the detention facility in the court and was brought back to the courtroom after the resumption of the hearing of 4:04 p.m., so that he was not present throughout that four-minute session. The applicant complains about this.

34.  Although it would have been better had the entire discussion taken place in the applicant’s presence, the matter discussed was of no consequence to the trial at hand, counsel for the applicant was present to protect the applicant’s interests and there is no conceivable prejudice that was occasioned to the applicant. So, in the event, there is nothing in this ground.

Other complaints

35.  We see nothing before us which in any way supports the applicant’s contention that he was treated unfairly by the trial judge.

36.  Finally, as far as concerns the application relating to conviction, the applicant's complaint that the judge refused to allow his counsel to cross-examine witnesses about the fact that they owed him money is contradicted by the transcript which shows extensive cross-examination on the subject. It may be that the applicant has in mind criticism levelled by the judge against his counsel for not adequately explaining to the court, in the absence of the jury, the relevance of that cross-examination. In the event this did not preclude the cross-examination from proceeding once the jury returned.

37.  We heard the applicant orally today much of it, as we say, was to repeat his defence and also to allege that he was set up by one of the two main prosecution witnesses. Nothing he adds today makes any difference to the view we take of the merits of the application in relation to conviction.

The arrestable offence

38.  Counsel for the prosecution has properly drawn to our attention a point that was raised by the trial judge at one of the pre-trial reviews. It was the question whether, in relation to Count 1, the prosecution had to specify in the indictment the intended arrestable offence and whether there was a need for the jury to agree on the arrestable offence intended, assuming ofcourse that they found that such an intention was nursed. The judge apparently took the view that either requirement would be contrary to common sense. We are told that counsel for the defence agreed. Prosecuting counsel has placed before us a number of authorities, although these relate to somewhat dissimilar offences. The point is not raised by the applicant but it appears to us nonetheless that the judge’s view was correct.

Conclusion

39.  The application for leave to appeal against conviction is dismissed.

Sentence

40.  The applicant was aged 47 years at the date of the offence. He had a number of previous convictions but none serious and all over 20 years ago.

41.  The judge imposed a sentence of 16 years’ imprisonment. He said that anyone guilty of conduct that threatened a public figure because of his participation in either politics or his profession committed a grave crime and that if the threat involved a firearm, a long sentence of imprisonment was required. Moreover, the applicant had come to Hong Kong in order that such a person be targeted and be “taught a lesson.” The judge acknowledged that the motive of those who had paid the applicant was not known but that “commonsense tells us that it must relate either to [the victim’s] politics or his profession.” He added:

“The prospect of opponents in either setting settling their grievances, real or imagined, by hiring men like you to do organised personal violence damages the fabric of our society and casts a shadow on our freedom and security. No one must fear for their safety by reason of their legitimate political activity or the representation of citizens in our courts.

…

The verdict of the jury establishes that you intended an arrestable offence of a kind that would involve violence, whether by the deliberate infliction of injury or in the course of some kind of abduction or restraint, or both.

... on the evidence, I find the possession of the pistol and the plan to be related. Why else carried pistol whilst you went about executing the plan? Why else have live ammunition for it? And why else would your boss, as you revealed, speak of disposing it after the job was done by throwing it into the sea?

I cannot find, on the evidence, that your settled intention was that someone be shot, but I do find that you contemplated the use of a loaded pistol as and when the occasion arose in the execution of the plan.

…

I deal with you on the basis that you intended to commit a serious crime involving violence to the person of Martin Lee. The exact nature of that violence does not matter. However, the evidence of what you told the police indicated a high level of threat to him, as you spoke of injury and wounding in the contextof not putting him to death.

I remember the evidence that suggested that the two men whom you were recruiting may have declined the enterprise, but you did not know for sure, and your intended action of returning to your boss in the mainland, leaving the pistol and bullets available to you here, indicated willing intent to continue the plan.

Nonetheless, my sentence does acknowledge the prospect that the plan may have come to nothing, though not through any scruple on your part.”

42.  The judge noted that the starting point adopted for an offence of possession of arms and ammunition without a licence was normally one of 12 years’ imprisonment and that, whilst he appreciated that “the mischief of the pistol in your case is much absorbed by the initial 12 years of the sentence in contemplation”, the sentence required to be greater because of the criminal intent which accompanied its possession.

43.  Mr Poon, who appears for the applicant in relation to sentence, has drawn our attention to a number of cases involving firearms which he says, by comparison, illustrate that the sentence imposed in this case was manifestly excessive. We do not, with respect, think that the cases are of much assistance. Their facts are different not only one from the other, but manifestly different in character from the facts of the present offence. One case simply states what sentence was imposed in the court below but it is a case involving nothing more than an application to treat an abandonment of an appeal as a nullity, in which the court has not pronounced upon the adequacy or otherwise of the sentence passed at first instance. Another case involves an imitation firearm. Another shows an overall sentence of 18 years’ imprisonment for very serious conduct but the facts are wholly unlike the facts of this case.

44.  Section 13 of the Firearms and Ammunition Ordinance provides a maximum sentence of 14 years’ imprisonment for an offence of possession of arms and ammunition without a licence. With such seriousness do the courts view such an offence that a 12-year starting point is normally appropriate “for those who have armed themselves with weapons of this kind in working condition and with ammunition available for use”: HKSAR v Chan Hoi Ngam [2000] 1 HKC 618 at 625. See also the cases reviewed in HKSAR v Yau Siu-kai[2001] 1 HKC 427.

45.  In the case of possession of firearms and ammunition without a licence with intent to commit an arrestable offence, the legislature has provided that an offender shall be liable to life imprisonment: s. 18(3) Firearms and Ammunition Ordinance, Cap. 238.

46.  What sentence should in any particular case be passed is not a matter of applying a mathematical formula. It is a question of looking at the gravity of the offence in the round and at its particular overall circumstances.

47.  One is first to note that the factual basis upon which the judge sentenced in this case is not challenged. That is not surprising, for the basis upon which he proceeded seems to us to be entirely unimpeachable.

48.  That factual basis reveals an offence of the utmost seriousness. The particular factors to note in this case were these:

(1)	the pistol in question was in working order;
(2)	the ammunition was live ammunition;
(3)	the applicant brought the gun and the ammunition from the Mainland into Hong Kong, conduct which in itself calls for particular deterrence;
(4)	it was intended to cause real harm to the victim or victims, harm described as the teaching of a lesson short of death;
(5)	it is clear, as the judge correctly found, that the applicant “contemplated the use of the pistol as and when occasion arose in the execution of the plan”;
(6)	the offence was committed against a background of considerable planning, clearly involving not merely the applicant but at least one “boss” and others whom he was to recruit in Hong Kong;
(7)	the planned harm was directed at entirely innocent targets;
(8)	the person or persons who conceived of this plan decided to use a person from the Mainland to execute it or to help in its execution, a deliberate device in the expectation that it would render detection and apprehension more difficult;
(9)	the planned harm was directed at a public figure or figures, such that one can only conclude, as the judge rightly concluded, that it was intended to avenge some grievance, real or imagined, in connection with the intended victim’s public or professional role or to dissuade him, and perhaps others, from pursing his or their public or professional goals.  The seriousness of such conduct speaks for itself.  It calls for action that will make it clear to those who would commit such offences, and to those who would hire others to commit such offences, that the courts will visit upon the offender heavy sentences intended to deter.

49.  In the circumstances which we have thus described, we reject the suggestion that the sentence imposed was manifestly excessive. Accordingly, the application for leave to appeal against sentence is also dismissed.