Chan Hoi Ngam v. HKSAR

FAMC000019/2002

FAMC No. 19 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 19 OF 2002 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 243 OF 1999)

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Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ

Date of Hearing: 7 June 2002

Date of Determination: 7 June 2002

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D E T E R M I N A T I O N

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Mr Justice Chan PJ :

1.At the Court of First Instance, the applicant, who was then represented by counsel, pleaded guilty to a charge of possession of arms and ammunition without a licence. Upon a search of his office by the police, he was found to be in possession of a 9 mm short calibre self-loading pistol, two magazines and a silencer designed for such pistol, a metal aerosol canister containing CS gas, and some rounds of ammunition.

2.In his oral admission to the police upon arrest and two subsequent video interviews, he admitted possession of these arms and ammunition but said that he had them for self-defence. According to him, he had been threatened and harassed several times by some members of a triad society and had previously complained to the police and the ICAC.

3.In view of his allegations, the trial judge conducted a Newton inquiry before passing sentence on him. After the inquiry, the judge made certain findings of fact in his favour but found that he had not been subject to actual renewed threats in 1998 and that he had never mentioned the threats to the authorities or indeed to anyone. The judge also found him to be a gun enthusiast. In effect, the judge was prepared for the purpose of sentencing the applicant to assume that he did nurture some fear of attack. However, the judge did not consider that the applicant was justified to arm himself as he did and that this provided little mitigation. The judge adopted a starting point of 11 years of imprisonment and following previous authorities such as R v Ho Chun (1992) 1 HKCLR 86, finally sentenced the applicant to 7 years and 4 months imprisonment.

4.The applicant appealed to the Court of Appeal and was represented by the same counsel. Initially, he appealed against both conviction and sentence but later his appeal against conviction was abandoned. His appeal against sentence was dismissed by the Court of Appeal which took the view that there were aggravating circumstances, including the fact that he had carried the loaded pistol on his person in public places and that the presence of a silencer was inconsistent with his self-defence claim. They also said that he was not frank with the police as to the reasons why he had possession of the arms and ammunition.

5.The applicant, now acting in person, applies for leave to appeal to the Court of Final Appeal on the substantial and grave injustice ground. He in fact seeks to overturn the conviction as well as the sentence. In other words, he wants to re-open the whole case.

6.His main complaints can be summarised as follows: (1) he pleaded guilty to the charge on the incorrect and incompetent advice of his former counsel; (2) his oral admission and statements to the police during his video interviews were made involuntarily as a result of police misconduct; (3) there was new evidence to show that the evidence of a Miss Chan who was then his staff and who had testified for the prosecution was not telling the truth; and (4) the judge had failed to properly consider his case.

7.It is not disputed, even now, that the applicant was in possession of the arms and ammunition in question without a licence. There was ample evidence from the police officers who searched his office and his person and found the arms and ammunition. Miss Chan's evidence did not advance the prosecution's case. Nor were the applicant's oral admission and his statements given during the interviews necessary to prove the charge against him. In fact, his statements given at the interviews formed the basis of the trial judge's concern and led to the Newton inquiry. There is therefore no question of his having been wrongly advised or having wrongly pleaded guilty to the charge, or his oral admission and his statements having been wrongly admitted in evidence. The reasons given by the sentencing judge after he had carefully considered the applicant's evidence during the inquiry were examined at length and upheld by the Court of Appeal. His explanation in mitigation for possessing the arms and ammunition was simply not accepted.

8.There is therefore absolutely no merit in his application. We do not see any injustice at all in this case. The application is dismissed.

Representation:

Applicant, Mr CHAN Hoi-ngam, in person

Mr CHEUNG Wai-sun and Miss Polly WAN of the Department of Justice for the respondent