HKSAR v. YUNG TING CHUN

CACC 164/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 164 OF 1999

(ON APPEAL FROM DCCC 1417 OF 1998)

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

1. On 2 March 1999 Yung Ting Chun ("D2") was convicted of possession of arms without a licence contrary to s.13(1) and (2) of the Firearms and Ammunition Ordinance, Cap. 238 by His Honour Judge de Souza in the District Court.

2. The arm in question was a stun gun. On 5 March he was sentenced after trial to imprisonment for 2 1/2 years. He now seeks leave to appeal against conviction and sentence.

3. Charged with him as D1 was Lau Bing Yuen. He pleaded guilty to that same charge and was sentenced to one year and five months imprisonment.

4. The facts are that D1 and D2 were observed by the police when walking together at Sassoon Road on Hong Kong Island shortly before 5 pm on 26 November 1998. The police observed them for a couple of minutes and noted their interest in the surrounding buildings. They were then stopped, questioned and subsequently arrested. In the possession of D1 in a rucksack was found the stun gun. Later, D2 made both oral statements which were post-recorded and also written interview statements.

5. The defendant's case was that although the stun gun was his, D1 had borrowed his rucksack in China for the purpose of their tourist trip to Hong Kong. Unbeknown to him, the stun gun happened to be in the rucksack when D1 brought it along with him. When they arrived, they went to a hotel. D2 was surprised at bath time to discover it with D1. He promptly instructed D1 to dispose of it.

6. The prosecution put in evidence against him the oral post-recorded statements made before and after caution. These became Exhibit P2. Also put in were the two later records of interviews under caution. These became Exhibits P4 and P6. D2 in the context of his statements made allegations at his trial of ill treatment by the police at Western Police Station. It thus became very clear at his trial that there were two major questions. The first related to the statements he made, and second, whether he knew that the stun gun was in the possession of D1. The judge was very conscious that these were the two questions. He proceeded directly to them and he very carefully considered the matter of the admissibility of the three statements exhibited.

7. At this point, it is convenient to turn to the applicant's grounds in his application for leave to appeal against conviction and sentence. This was originally submitted on 23 March 1999. His grounds of appeal with which we will deal first contained two major grounds. The first was that the judge was prejudiced against him and took in only the words of the police. He complains that he was said to be lying when there were no witnesses or proof and that the judge disallowed him to call the first witness. Second, he complains that the police gave false evidence; the first witness, PW1, he says, gave two versions of evidence inconsistent with that of another witness. The prisoner's movement record, he says, would show the third witness to have been lying. The judge convicted him when there was no evidence to prove that he was lying. He also complains that it could not be proved that he knew the 1st defendant had the stun gun on him.

8. Before us today, he has pursued these and other grounds also. He has asked for the prisoner's movement register to be produced but it is plain that the register would not take the appeal much further. He intended to use it simply to show, as he says, that the police were lying. His main attack has been upon the 1st prosecution witness, PC53372, who he claims was lying and that the judge should therefore have rejected the case against him. PC53372 was in fact the first prosecution witness who had the applicant under surveillance and arrested him. He also interviewed him and took the 1st post-recorded statement which became exhibit P2. The judge found he was an honest witness. Indeed he made a clear admission that he had omitted to record an important part of D1's statement. In the end, the judge concluded that his evidence was unreliable because he had difficulty in recalling the events and on that account, declined to accept it and did not use it against D2. Nonetheless, D2 insists before us that the entire case should have been dismissed on this account, and notwithstanding that the judge went on to carefully consider the evidence of the other police officers who recorded statements which he accepted. One of those statements, Exhibit P4, was taken by PC53359. The judge carefully considered this, and accepted it. What is of significance in that statement are Question 9 and the answer to that question. These were as follows:

"Question 9: When did you know LAU Bing-yuen took the electric stun-gun to Hong Kong?

Answer 9: On the night of the 25th, we arrived Hong Kong and LAU Bing-yuen took the things out of the bag, LAU Bing-yuen and I only knew it then. We intended to keep (it) in the bag for the time being and took (it) back to China."

The judge, having examined all the evidence, at the end of his reasons for verdict said this:

"Whilst in the Special Administrative Region he had in the circumstances of the case custody and control of it inasmuch as he could dictate its fate. He had admitted after all that 'we intended to keep (it) in the bag and took (it) back to China' (supra). The fact that the 1st accused had physical possession of it when stopped did not in any way weaken the prosecution case one iota."

It is quite clear from that admission which the judge accepted that whatever might have gone on earlier, at that stage they had jointly agreed to take it back to China; although it was in the physical possession of D1, it was in the joint possession of both, and on that basis D2 had knowledge and possession.

9. We find nothing in any of the other grounds mentioned by the applicant. We refuse leave to appeal against conviction.

10. Turning to his appeal against sentence, in his notice of application what he gave as his grounds were as follows:

"1. I did not know the first defendant had an electric gun on him.

2. Similar case. The sentence of the first defendant in this case was not as heavy, term of sentence is excessive.

3. The judge was biased and unfair against me."

Before us today, he has in relation to sentence said that the several authorities that the judge referred to were related to offenders who had direct physical possession. He submits that in his case he was sentenced only upon the basis that he had knowledge that D1 had the stun gun. He adds that he did not know D1 was taking the stun gun and moreover that he had already told him to dispose of it. It has to be said that on the law it matters not that D1 had physical possession. There is nothing in his point that he should not have been found guilty because he did not know that D1 was taking the stun gun, which goes to conviction. The judge dealt with the matter of sentence very carefully. He not only considered the level of sentence, examining several previous cases. He also carefully considered the circumstances here. It is true that he awarded D1 a sentence only of one year and five months but D1 had pleaded guilty from the outset. The judge would have been seriously wrong had he not given him a discount of the order of a third. On that basis, it is not open to the 2nd defendant to claim that his sentence was substantially excessive in relation to that of D1. When the discount is taken into consideration, the sentences are not that dissimilar.

11. The possession of such arms, this Court has said in previous cases is a serious offence. Varying sentences have been imposed, in one (R v Lai Chi-fai CrApp 480 of 1995) a starting point of four years was adopted by this Court in respect of a stun gun that was nowhere as powerful as this one was, i.e. only capable of producing 4,800 volts as opposed to the 75,000 volts here, the highest in the several cases brought to our attention. Plainly the sentence was in order. We accordingly refuse leave to appeal against sentence.

12. The applications being totally devoid of merit, we order that three months be disallowed in the calculation of the time D2 has spent in custody.