HKSAR v. Wong Fung Kei

CACC000144/1999

CACC 144/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 144 OF 1999

(ON APPEAL FROM HCCC 141 & 230 OF 1998)

______________

______________

Coram: Hon Stuart-Moore VP, Mayo VP & Keith JA

Date of Hearing: 13 June 2000

Date of Judgment: 13 June 2000

_______________

J U D G M E N T

_______________

Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 9 March 1999, the Applicant was convicted on the second count of an indictment, following a trial lasting 23 days before Nguyen J and a jury, of possessing an explosive substance, contrary to section 55(1) of the Crimes Ordinance, Cap. 200. He was acquitted by the jury on the same indictment of the more serious alternative charge of possessing an explosive substance with intent to endanger life or property, contrary to section 54(b) of the Crimes Ordinance. The judge imposed a sentence of twelve years' imprisonment on the Applicant who now seeks leave to appeal against conviction and sentence.

Count 2

2. The Applicant was tried on the same counts with two others (D1 and D3 at trial) both of whom were acquitted altogether. Count 2, on which the Applicant was convicted, was particularised in these terms:

"Chan Sum-yau, Wong Fung-kei and Lau Cheuk-fan, between the 7th day of January, 1998 and the 18th day of January, 1998 in Hong Kong, together with other persons, knowingly had in their possession, custody or control explosive substances, namely 819.373 kilogrammes of explosives, 2,000 non-electric detonators and approximately 1,631 feet of safety fuse."

3. The explosives in question were analysed and found to contain mainly ammonium nitrate. The detonators and safety fuse came within the definition of "explosive substance" in section 52 of the Crimes Ordinance which provides that "explosive substance":

"shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or materials used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; ...."

Prosecution's case

4. We are grateful to Mr Saw, SC, who appears on behalf of the Respondent for providing a synopsis of the case which it is convenient for the purposes of this application to adopt.

5. The prosecution's case was that one of the other persons alleged to have been involved with the Applicant was Cheung Tze-keung ("Cheung") who was, by the date of the trial, a notorious criminal.

6. Acting on information, in early 1998 police conducted a surveillance operation directed at a village house at Lau Shui Heung, Fanling, New Territories (House A). House A consisted of a wooden house in a large compound surrounded by high concrete walls.

7. On 8 January 1998, the Applicant, Cheung and D3's brother Lau Ting-fan (Lau) were observed handling some foam boxes inside the compound. They removed them from inside the house to the compound. At approximately noon, D3 drove a Mercedes Benz, FU 199, into the compound. The Applicant and Cheung were seen loading the foam boxes into this car. That afternoon, these boxes were taken to what was described as a zinc-plated hut (House B) at Ma Tso Lung, Sheung Shui, New Territories. Four similar trips were made during the same afternoon.

8. Outwardly, House B was an ordinary derelict hut. The inside, however, was very different because a secret room, which appeared to have been newly built, was found inside the cockloft.

9. In the first three deliveries, Cheung was the driver whilst the Applicant was the passenger. On each occasion, Cheung and the Applicant returned to House A with an empty car.

10. On the fourth occasion, the delivery was effected by the Applicant, D3 and Lau. Two vehicles were used. The Applicant was seen carrying a travel bag. The police followed them to House B. The Applicant, D3 and Lau were seen moving boxes from the car to the house. At that time no arrest was made.

11. Police continued to keep House B under surveillance from 8 January 1998 until 17 January 1998 except for a break of about 12 hours on 9 January. Nobody was seen entering or leaving House B during the course of that operation until, on 17 January, D1 was seen to drive a vehicle, with the Applicant as his passenger, to House B. They entered the house and came out several minutes later. Both men were then arrested.

12. When the premises were searched, police found forty sealed foam boxes and two travel bags in the cockloft of the secret compartment inside House B. The boxes contained 329 plastic bags containing high explosives. The two travel bags contained detonators and safety fuses. One of these bags resembled the bag which the Applicant had been seen carrying on 8 January 1998.

13. The vehicle which D1 had earlier driven to House B was found to contain 30 plastic barrels. The expert who gave evidence in the trial about explosives testified that the kind of explosives which police had recovered could absorb water and thereby lose efficiency. The expert said that the barrels would have provided a better environment for the storage of the explosives as these would exclude water and humidity.

14. The registered owner of House A was the Applicant's mother. D1 had purchased House B using another person's identity card.

15. The explosives, as we have said already, contained mainly ammonium nitrate. Ammonium and nitrate ions were found on the bodies of the Applicant and D1. Ions were also found, amongst other exhibits, on a belt and a pair of shoes at D3's home.

16. The Applicant did not testify in the trial but D1 and D3 both gave evidence. They denied having any knowledge of the explosives.

Grounds of appeal

17. Against this background, Mr Plowman, SC, on behalf of the Applicant, has raised two grounds of appeal. In his first ground he alleged that:

".... there was a material irregularity or, alternatively, errors of law in the learned trial judge's summing up to the jury, in that:

(i) his directions relating to Count 2 were not in accordance with the provisions of Section 55 subsections (1) and (2) of the Crimes Ordinance Cap. 200, and

(ii) he wrongly directed the jury that 'there was not much difference between the two counts,' when the first count charged an offence contrary to Section 54 of the Crimes Ordinance, Cap. 200 and the second count charged an offence contrary to Section 55 of the same Ordinance."

18. Sections 55(1) and (2), so far as they are material to this application, are in these terms:

"... possession of explosive

(1) Any person who .... whether or not he knows it to be an explosive substance, knowingly has in his possession or custody or under his control anything which is an explosive substance shall, unless he can show that he .... has it in his possession or custody or under his control for a lawful object, be guilty of an offence ...

(2) Where in any prosecution for an offence under subsection (1) it is proved that the accused knowingly had in his possession or custody or under his control anything whatsoever, other than premises, containing any explosive substance, then, unless the accused can show that he had reasonable grounds for believing that the thing did not contain anything or contained only something other than an explosive substance, he shall be presumed knowingly to have had in his possession or custody or under his control the explosive substance contained in that thing."

19. No issue relating either to lawful possession of the explosives or to the fact that the items seized were explosives arose in the trial.

20. In contrast to the provisions of section 55(1) and (2), the relevant parts of section 54(b) of the Crimes Ordinance, under which count 1 was brought, and on which the Applicant was acquitted, are in these terms:

"Any person who unlawfully and maliciously .... has in his possession or under his control any explosive substance with intent by means thereof to endanger life or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property, ... shall be guilty of an offence ..."

21. No presumption is applicable to an offence under section 54(b). Mr Plowman, in the course of his submissions, pointed out that prosecuting counsel at trial had not sought to rely on the presumption which is provided by section 55(2) in relation to the second count. The judge adopted the same course by making no reference in his summing up to the terms of section 55(2). He did, however, direct the jury that there was "not much difference between the two counts". Mr Plowman's contention was that the provisions of section 55(2) cannot simply be ignored just because the prosecution, the defence and the judge all considered that this was an expedient course to take. In these circumstances, he submitted that, as the jury had not been fully directed in accordance with the relevant statutory provisions and had been told they were effectively not much different, this amounted to a misdirection to the jury.

22. This submission, in our view, is misconceived. Section 55(2) creates the presumption that on proof of possession of anything containing explosives, which was the position in this case, a defendant knowingly has the explosive substance in his possession or custody or under his control unless the defence can show that the defendant had reasonable grounds to believe that the thing in question did not contain anything or that it contained something other than explosives. The judge gave lengthy directions on the law relating to both counts which were before the jury. In particular, the jury was directed as to the important additional element in count 1 relating to intent, but in the main the directions focused substantially on the ingredients of "possession" and "control" relevant to both counts and the further ingredient of "custody" in count 2. The judge was clearly mindful that the central issue in the trial was whether the explosives were in the Applicant's possession or under his control with the intent specified in section 54(b) which was alleged in count 1 or, alternatively, if that count was not established, whether it had been proved that the Applicant merely had possession or custody of the explosives or had them under his control. The judge's directions on all of these elements were comprehensive and accurate.

23. As Mr Saw rightly pointed out, the two sections of the Crimes Ordinance with which this case were concerned are essentially possession with intent under section 54(b) and simple possession under section 55, with little other meaningful difference between them. The obvious reason why a section 54(b) offence has no presumption attached to it in the way that a section 55 offence has, is that to possess with the specific intent under section 54 can only sensibly mean that the prosecution must prove knowledge. A person cannot possess explosives with intent to endanger life or cause serious injury to property without actually knowing what it is he possesses. Mr Saw was correct in describing possession and intent as being inextricably entwined in section 54(b).

24. With this in mind, no doubt Mr Arthur, who prosecuted in the court below, sensibly and responsibly considered that by relying on the presumption in section 55 so far as count 2 was concerned, could only create confusion. He was supported in his intended course by the defence who, not surprisingly, were also content that the presumption should not be relied upon. The defendant was caused no prejudice and, to some extent, he was at an advantage by not having the evidential burden of establishing lack of knowledge cast upon him on count 2. The judge, for his part, only needed to address the statutory presumption if it was invoked. It was not invoked and there was no reason or justification for the judge to have embarked upon the presumption. Indeed, by the stage of the trial when the judge summed up it could, for a number of reasons, be said to have been far too late to do so when the presumption had never been raised before.

25. In any event, the presumption is no more and no less, as Mr Saw aptly put it, than an evidential aide and it does not form an integral part of this offence.

26. The judge in summing up to the jury also omitted from his directions any reference to the words which appear in section 55(1) "whether or not he knows it to be an explosive substance". Mr Plowman characterised this omission as a re-writing, on the part of the judge, of this section. We do not agree. The judge addressed all the essential elements of the offence and his directions were not affected in any shape or form by this omission. The summing up was, as it should have been, properly tailored to the circumstances of the case and every necessary ingredient of the offence was fully covered. Without the assistance of the presumption, the case was left to the jury on the basis that the prosecution had to prove the Applicant's knowledge of the contents of the boxes containing the explosives.

27. Finally, on this ground, we need only say, in relation to the criticism of the judge's expression to the effect that there was not much difference between the two counts, that the judge was entitled to say this provided the jury was told in clear terms what difference there was between them. On this topic, the judge had this to say:

".... the difference between the two counts is simply that in the 1st Count, there is the intent which is alleged to endanger life or cause serious injury to property, but apart from that intent, basically there is not much difference between the two counts."

He went on to say:

"The 2nd Charge, as I have said to you, is really very similar to the 1st Charge, apart from the lack of intent, and I have explained to you what possession, custody, and control means. 'Possession' and 'control' features in the 1st Count but in the 2nd Count, there is also 'custody', and I have explained to you what 'custody' means."

28. When directing the jury earlier as to the meaning of "possession", the judge said:

"A person has possession of an object if he knowingly has it in his physical and actual custody. Or otherwise within his physical control. So it is custody or control. And he intends to have custody of it or to exercise control over it as and when the occasion requires."

29. The first ground fails.

30. In the second ground, Mr Plowman alleged that the trial judge had:

"failed either adequately or at all to direct the jury as to the meaning of the concept of custody, which was an ingredient to count 2 but not of count 1."

31. Mr Plowman submitted that the Applicant may have been acquitted on count 1 either because the jury were not satisfied as to intent or because the jury was not satisfied that the Applicant was in possession or control of the explosives but that they were satisfied that he had custody of them. He continued by submitting that the jury might have been left with the impression that "custody" meant, in the words of the judge, "that the object is on or about the individual's person" and that knowledge of the nature of what was in his custody was not relevant. If, he suggested, the jury mistook that as the meaning of "custody", a conviction was inevitable.

32. In our judgment, this argument demonstrates the dangers of quoting passages out of context. Set in context, what the judge actually said in relation to "physical custody" was this:

"Now, what do we mean by possession? It also says that the defendants were unlawfully and maliciously in possession. First, let me deal with possession, members of the jury. A person has possession of an object if he knowingly has it in his physical and actual custody. Or otherwise within his physical control. So it is custody or control. And he intends to have custody of it or to exercise control over it as and when the occasion requires.

Physical custody means that the object is on or about the individual's person. So, if the individual is carrying the object in his hand, or in a pocket of his clothing, he has it in his possession, if (one) he knows it is there, (two) he intends it to be there, (three) he is aware of its nature, and (four) he intends to exercise control over the object as and when required." (Emphasis added).

33. The judge went on to deal with what "control" meant immediately after these passages. It is quite clear to us that in this last cited passage the judge was speaking about physical custody when he made reference to the word "possession". This arose almost immediately after the judge had directed the jury as to possession itself where he had referred to "physical and actual custody". Furthermore, in the written submission adopted by Mr Saw, it is pointed out that the judge directed the jury towards the very end of his summing up in these terms:

"(i) 'Mere suspicion that there might have been some illegal substance in the boxes is not enough to establish guilt.'"

A little later, he said:

" (ii) '... and if at the end of the day you cannot be sure that the inference which the prosecution invite you to draw can be drawn, namely, that D2 (the Applicant) knew that the boxes contained explosives, and you can't be sure that that is the only reasonable inference to draw, then D2 must be acquitted.'

And after that the judge said:

" (iii) 'But on the other hand, if you are satisfied so that you are sure of the matters mentioned, and you are satisfied that the only reasonable inference to draw is that D2, when dealing in the boxes, had knowledge of their contents, then you should find him guilty.'"

34. The jury could have been left in no doubt the prosecution had to prove that the Applicant knew the nature of what was in his custody.

Conclusion

35. What had to be established on count 2 was very clearly and explicitly set out by the judge and there is no substance in either of the grounds of appeal.

36. So far as conviction is concerned, the application is dismissed.

Sentence

37. Mr Plowman's contention in relation to sentence was that bearing in mind the fourteen year maximum for the offence disclosed by count 2, a sentence of twelve years, passed on a man who had not been in trouble for twenty-six years, was excessive.

38. The test, of course, is whether the sentence was manifestly excessive. We can say immediately that we do not think it was, bearing in mind the enormous quantity of explosives in the Applicant's possession and the highly professional nature of the operation with which he was demonstrated, by a skilled exercise in surveillance on the part of the police, to have been associated.

39. The application is without the slightest merit and it is dismissed.

Representation:

Mr D.G. Saw, S.C., DDPP and Mr Derek Lai, GC, of the Department of Justice, for the Respondent.

Mr Gary Plowman, SC and Mr Bruce Tse, instructed by Messrs Wong, Packwood & Co., for the Applicant.