R. v. Ronald George Milhench

CACC000356/1995

IN THE COURT OF APPEAL

1995, No 356
(Criminal)

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Coram: Hon. Power, Acting C.J., Mayo and Ching, JJA.

Date of hearing: 20 September 1995

Date of delivery of judgment: 5 October 1995

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J U D G M E N T

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Ching, J.A. :

1. At his trial, the applicant produced a report from Dr. Singer which was relied upon to the extent that mitigation was based upon it. He now seeks to have admitted a further report from Dr. Green which we have read de bene esse.

2. In the circumstances of this case we are quite satisfied that the admission of this further evidence would not, in the words of s.83(d) of the Criminal Procedural Ordinance Cap.221, be necessary or expedient in the interests of justice. In addition the report could clearly have been obtained at the trial for use at the trial and no proper explanation to which we can give any weight for its not having been produced then has been proffered. In the circumstances, we refuse the application.

3. The applicant pleaded guilty to the first and third charges brought against him. The first was that on 25th October, 1994, he was in possession of a .22 revolver and 34 rounds of live ammunition without a licence contrary to section 13 of the Firearms and Ammunition Ordinance, Cap.238. The third was that on the same day he was in possession of a forged British passport in the name of Peter Ronald Chinneny contrary to sections 42(2)(c)(i) and 42(4)(a) of the Immigration Ordinance, Cap.115. The second charge was that on the same day he had also been in possession of a number of false seals contrary to section 75(1) of the Crimes Ordinance, Cap.200. That charge was ordered to be left on the file, not to be proceeded with without the leave of the High Court or of the Court of Appeal. He was sentenced to imprisonment for four and a half years on the first charge and for six months on the third, the sentences to be served consecutively. He applies for leave to appeal against those sentences, complaining that the first was manifestly excessive and that the other ought to have been ordered to be served concurrently with the first.

4. The sentences were imposed after a lengthy plea in mitigation. The plea was based upon numerous assertions of fact and upon a psychiatric report prepared by Dr. K. Singer. The report was compiled largely from what the applicant told Dr. Singer in a single three-hour interview. Almost none of the facts put forward by counsel or told to Dr. Singer was agreed with the prosecution or was made the subject of viva voce evidence. The Judge below rejected those facts almost in toto. He cannot be faulted for doing that, for those facts were incredible.

5. There is doubt as to the applicant's age. It is said that he holds a genuine British passport in his own name and which gives his year of birth as being 1947 but in the Court below and to Dr. Singer he was said to have been born in December 1937. It is said that he joined the Royal Engineers at the age of 15½ years and that he was honourably discharged at the age of 28 years by which time he had attained the rank of Company Sergeant Major. It is said that during his service he conceived an interest in firearms. There was before the Court a Firearm Certificate dated 12th May, 1970, and a Firearms Dealer Certificate dated 17th August, 1973. It was a condition of the latter certificate that his firearms should be kept in a room in his home known as the study. In his time he is said to have been involved in a number of occupations. One of his children is a daughter who is married to an officer of the armed forces of the United States of America with whom she lives in Florida.

6. In England in 1974 the applicant was convicted of offences of fraud and deception and in relation to firearms. There is a report in the issue of The Times newspaper for 9th November, 1974, which is not entirely clear. It was put forward by the applicant. From it, it appears that he pleaded guilty to eight charges and that seven others were allowed to lie on the file. His counsel told the Judge below that

"He was convicted of three offences of forging documents with intent to deceive, two offences of attempting to obtain property by deception, one offence of uttering false document with intent, one offence of the possession of firearms designed or adapted that if pressure is applied to the trigger missiles continue to be discharged, and one offence of carrying firearms and ammunition in a public place."

The report in The Times refers to his having had a sten gun. The Firearm Certificate does not refer to such a gun. The Judge below was told that when the police searched the home of the applicant and his friends, it was found that there was a gun for which he had no licence, there was another gun in his car which was parked in the street and there were two others in a locked wardrobe at the home of a friend. He was sentenced to imprisonment for six months on the firearms charges, to run concurrently with a sentence imposed for the fraud and deception offences.

7. The Times report mentions that the applicant had tried to persuade his accountant to falsify his annual income by about 10 times so that he could obtain a bank loan. It is not clear whether that was the subject of any charge. It is clear, however, that having obtained a signed photograph of Mr. Harold Wilson, as he then was, the applicant traced the signature and forged it upon a letter typed upon the letter paper of the House of Commons. His counsel in England asserted that the applicant had a political motive and had decided to deliver a body blow to the Labour Party. If he indeed had that motive it was not altogether altruistic, for he attempted to sell the forged letter to the Daily Mail for ￡ 25,000. For the fraud and deception offences he was sentenced to imprisonment for a term of three years.

8. It appears that he served 17 months of his sentence and was then released on parole. He eventually found his way to the Philippines where he settled. By the date of the present offences he is said to have owned valuable real estate, a hotel in Angeles City near Mount Pinatubo, a one third share of a gold mine and other interests including a number of yachts with which he ran a chartering business. He became a lieutenant in the Philippine Coast Guard Auxiliary in which, according to letters from the Coast Guard Investigating Service dated 24th March, 1995, he was at one time an Operation and Intelligence Officer and First Officer, Communication and Electronics Services. The letters state that the applicant assisted in confidential investigations but his counsel told the Judge below that nothing he supplied to the authorities has resulted in an arrest and that : "It is something he would like to think that he is doing, but the reality is that he is not doing it."

9. The applicant was put forward as a man who fantasised living a James Bond type of life. This the Judge below accepted. It was said that he would therefore take unnecessary risks. Thus, when his hotel was threatened by the eruption of Mount Pinatubo he would not leave. It is said that in the late 1980's he became acquainted with the third Lord Moynihan, who died in 1991, at a time when that gentleman had ceased his activities as a drug runner and was assisting the American Drug Enforcement Agency. In effect it is alleged that Lord Moynihan recruited the applicant and, when he was planning an undercover operation, gave the applicant the false passport in question. The planned operation never came about but the applicant kept the passport. Then in 1994 the applicant says that he was approached in the Philippines by a group of Filipinos whom he has not named or otherwise particularised. Having regard to his possession of yachts he was approached to take part in the smuggling of illegal immigrants. It was then arranged that, for some unexplained reason, he would come to Hong Kong to meet with the group. He came to Hong Kong, it is said, without official sanction. He brought the forged passport with him to show that he had the means of assuming a false identity. He met the group here and even lent them US$500. He has never seen them again and he has not been repaid. As security for the loan he was given the false seals the subject of the second charge. At some time and for an unexplained reason he used them to imprint stamps onto pages of the false passport. He put the false passport and the false seals into a safe deposit box which he had rented at the head office of the Hong Kong & Shanghai Banking Corporation, Ltd.

10. The story about the false passport may or may not have been worthy of inclusion in the Boys' Own Paper but it is an affront to intelligence. It is supported by nothing. The letters of 24th March, 1995, can hardly assist having regard to what his counsel said about them. Dr. Singer's report, suffering as it does for the reasons mentioned, goes only so far as to say that the applicant suffers from Hypomania and that it is likely that this impaired his judgment regarding the gravity of the offence. There is no assertion that the applicant ever considered the offence, far less the gravity of it. No complaint is made as to the length of the sentence. It is only argued that it ought to have been ordered to be served concurrently with the sentence imposed on the first charge, the circumstances of which we now examine.

11. The story on the gun is that in 1994 the applicant visited his daughter and her family in Florida. In the usual way he bought gifts to take back with him to the Philippines. His daughter had become worried about a series of shootings of unaccompanied females in Florida and determined to buy a handgun. She consulted her father about it and together they went to buy the gun and the ammunition in question. Then an approaching hurricane made it necessary to evacuate the daughter's home quickly. In the rush the gun and the ammunition became mixed with the gifts he had bought. Not until he arrived in Hong Kong did he realise that somehow the gun and the ammunition had passed undetected through the airport checks and that he had them, still in their original wrappings. He was in a quandary and as an interim measure put them into the same safe deposit box already mentioned.

12. When he found that he had the gun and the ammunition he claims that he was worried that a check might be made on his daughter and she might then find herself in trouble for not having them. He telephoned her and told her that he had somehow solved the problem. It is not apparent how this would assist her or why she could not tell the simple truth if questions should arise. He claims that he also considered dismantling the gun and sending her the pieces but this he did not do. He says he considered throwing the gun into the harbour but to a gun enthusiast that, to use the words of his counsel below, 'would be almost sacrilegious' and would not solve his daughter's problem. He thought of going to the police but remembering his 1974 experience he feared that they might not believe him and that they might arrest him. It may be observed that this does not sit well with any theory that he may not have realised the gravity of the offence. The report of Dr. Singer is therefore of no assistance to him.

13. The Judge below rejected this story. He sentenced the applicant for this offence on the basis that possession of the gun and the ammunition were part of the applicant's fantasies. It is true that the documents relating to the purchase were all in the name of the daughter but that does not necessarily mean that she purchased the gun and the ammunition for herself. One of the documents contains questions to be answered by the purchaser. One of the questions asks whether the purchaser has been convicted of a crime punishable by a term of imprisonment for a term exceeding one year and whether or not the purchaser has been prohibited from receiving or possessing any firearm. It is not apparent whether the applicant could have purchased a firearm in Florida. However that may be, the offences for which the applicant was convicted were offences of strict liability. He was to be sentenced upon the basis of his admitted possession and once his explanations were rejected it became necessary to see what other matters there may have been in mitigation.

14. The applicant pleaded guilty to the two charges but he could hardly have done otherwise. It was argued, however, that he had in effect voluntarily surrendered himself. He had left Hong Kong and had returned to the Philippines whence there can be no extradition for offences such as these. He received a letter dated 14th November, 1994, from the bank informing him that his rental of the safe deposit box would be terminated and that he would be required to return the keys within two weeks failing which the box would be broken into. Clearly by then the police had already had access to the box, for the date of the offences is 25th October, 1994. It is claimed that the applicant's financial dealings with the bank, of which no details were given, had always been impeccable and that the letter was odd, which made him suspect that the police had already had access to the box. He need not have returned. Instead he telephoned the bank to tell them that he was coming and when he was coming. He was arrested upon arrival. In the Court below it was said that his return was another example of his risk-taking together with his wish to have the matter cleared up for the sake of his daughter. Those motives, if true, could hardly be consistent with surrendering himself. It is to be noted that even at that stage, however late, he did not write to tell the police of the presence of the gun, the ammunition and the passport in the box. What he might have done if he had not been arrested has not been vouchsafed to the Court.

15. It was urged upon us that the gun was a ladies' gun, a defensive weapon and that had not been fired. That is so, but the fact remains that the applicant was in possession of it and it was found to have been in his possession as part of his fantasies. Reference was made to R. v. Ng Kwok Ying (Unreported, Cr. App. 109/86). That was a case very different on its facts. In that case a Derringer type pistol and a large amount of ammunition was found in a safe deposit box of which both the husband and the wife were the lessees. The husband was acquitted of the charge of possession but the wife was convicted. On the wife's appeal the Court clearly thought that it was the husband who had really been in control and that there were other personal matters of mitigation.

16. Finally, it was argued that the gun and the ammunition had been kept secure in the safe deposit box. That again is true, but the applicant had free access to it and the gun had been loaded with five of the 34 rounds. There were no finger prints found upon the gun but that in itself is meaningless. The gun must have been carried through the streets to the safe deposit box. Since the applicant did not inform the police of his possession so that secure provision could have been made for it to be taken away, it was possible for the applicant to attempt to remove it. At the bottom of a very serious degree of danger, guns and ammunition can go astray. The carrying of a gun, especially a loaded one, brings with it not only fear and the chance that it may be discharged however accidentally but it invites the presence and use of other guns by law enforcement officers. In these circumstances perhaps the only real point which could be made in mitigation is that the Judge below accepted that the applicant had no intention of using the gun for the purpose of some violent criminal enterprise in Hong Kong.

17. All of the factors explored above were put clearly and forcefully to the Judge below. In sentencing the applicant on the first charge, the Judge said that but for the plea of guilty he would have started from a point of 12 years. We do not disagree with that. Because of the plea he said that he started from a point of eight years. In the circumstances that was a more than generous discount. Finally, having regard to all of the circumstances he imposed the sentence of four and a half years. We do not disagree with that.

18. The application for leave to appeal against the sentence on the first charge is dismissed. There are no grounds for ordering the sentence on the third charge to be served concurrently with that of the first, for no connection of any sort is shown between the two offences. Leave to appeal against the sentence on the third charge is therefore also dismissed.

Representation:

Mr. I.G. Cross, Q.C. & Mr. W.S. Cheung, S.A.C.P., for Crown/Respondent.

Mr. Plowman, Q.C. and Mr. John McNamara instructed by M/s Crawford, Miller & Peart for Applicant