HKSAR v. Tse Koon-kit

CACC000388/1997

IN THE COURT OF APPEAL

1997, No. 388

(Criminal)

HEADNOTE

Possession of arms - section 13 of the Firearms and Ammunition Ordinance, Cap.238 - whether duplicity - guilt established in two different ways - standard majority direction insufficient - necessity for jury to be directed that at least five must be sure guilt established on one or other evidential basis - no miscarriage of justice - proviso.

IN THE COURT OF APPEAL

1997, No. 388

(Criminal)

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Coram: Power, V.-P., Mayo, J.A. & Stuart-Moore, J.

Date of hearing: 29 October 1997

Date of delivery of judgment: 13 November 1997

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J U D G M E N T

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Stuart-Moore, J. (giving the judgment of the Court):

1. On 27th June 1997 this Applicant was convicted, following a trial before Deputy Judge Longley and a jury in the High Court, of possession of arms without a licence contrary to section 13 of the Firearms and Ammunition Ordinance, Cap. 238. The particulars of the offence were that, in Yaumatei, the Applicant had in his possession an unlicensed electronic stun gun fitted with a spray canister for discharging noxious liquid. He now seeks leave to appeal against his conviction.

2. The grounds of appeal can be put very shortly. Mr. Watson, who appeared for the Applicant in the court below, submits that the charge was duplicitous. He says that in the form it went to the jury, it alleged two offences. In this context he submits that the jury was not adequately directed when they were told that they could convict if the weapon in the Applicant's possession was either a stun gun or a spray canister for discharging noxious fluid. Although other grounds were argued to which attention will be turned later on, this was the principal matter for our consideration.

3. The meaning of 'arms' in section 2(1)(c) of the Ordinance is defined as:

'Any portable device which is designed or adapted to stun or disable a person by means of an electric shock applied either with or without direct contact with that person'.

4. By the terms of section 2(1)(e), 'arms' means, insofar as it is relevant to this case:

'Any weapon for the discharge of any noxious liquid ...'

The learned Deputy Judge told the jury that to constitute 'arms' the prosecution must make them sure that the weapon fitted into one or other of these categories in the Ordinance . He provided the jury with a copy of the wording of the Ordinance and explained the relevant provisions with meticulous care and clarity.

5. The submission that this charge was duplicitous is misconceived. This did not charge two separate offences. It charged one offence which was proved if the evidence established guilt on one or both of two different footings. For practical purposes, it did not matter on which basis the jury found the Applicant guilty, provided they were satisfied that at least one of the bases had been proved. The verdict of the jury does not, however, necessarily show that they were so satisfied. Mr. Tam reminded us, on behalf of the Respondent, of R. v. Brown (1984) Cr. App. R. 115 which was cited with approval in R. v. Mitchell, in the Law Report of the 'Independent' Newspaper dated 2nd June 1993. Mitchell's case, being an English decision, related to a jury of twelve. The jury in England, unlike Hong Kong, is initially directed in the summing up that they must be unanimous, and to put out of their minds what they may have heard of majority verdicts. With that difference in mind, the English Court of Appeal applied the following principles:

"(1) Where a number of different matters were set out in a single count, a judge should consider whether to give the jury a direction that they must all be agreed on the particular ingredient which they rely on to find the defendant guilty of the offence charged: See Brown (1984) 79 Cr.App.R. 115.

(2) Such a direction would be necessary only in comparatively rare cases. In the great majority of cases, particularly cases alleging dishonesty or where the allegations stood or fell together, it would not be necessary.

It was of first importance that directions to the jury should not be overburdened with unnecessary warnings and directions which only served to confuse them: See Price (1991) Crim.L.R. 465 and More (1988) Cr.App.R. 234.

(3) However in an appropriate case, where there was a realistic danger that the jury might not appreciate that they must all be agreed on the particular ingredient on which they relied to found their verdict of guilty on the count, and might return a guilty verdict on the basis that some had found one ingredient and others another, so they were not unanimous as to the ingredient which proved the offence, a direction should be given that they must be unanimous as to the proof of that ingredient: See More per Lord Ackner at 252.

In the present case, there was a real risk that, unless otherwise directed, the jury might have thought that so long as all 12 were agreed the defendant had committed one of the acts alleged, even though they were not all agreed as to which act, they could and should convict.

The recorder should have directed the jury that they should be unanimous as to proof of the particular ingredient relied upon to found their verdict of guilty. No such direction was given.'

6. Returning to the present case, for practical purposes, if the jury were minded to convict, it did not matter on which basis the jury found the Applicant guilty. However, in our view, this was a case where the jury should have been directed along the lines that, before they could convict, at least five of the jury would have to be satisfied so that they were sure, that this weapon was a stun gun as defined in the Ordinance or, alternatively, that at least five of the jury would have to be satisfied that this was a weapon for the discharge of the noxious fluid, or both. No such direction was given in an otherwise impeccable summing-up and, to that extent, the directions given by the learned Deputy Judge were at fault. The jury was given a standard majority direction, but in the particular circumstances of this case that was not sufficient.

7. This was a material irregularity, and we have had to consider whether, under section 83(1) of the Criminal Procedure Ordinance, Cap.221 we should apply the proviso. Before turning to that issue we have considered the other submissions made by Mr. Watson. In particular, he has submitted that the evidence adduced during the trial from expert witnesses failed to prove that this weapon or device was capable of stunning or disabling anyone or alternatively that it could, to any appreciable degree or distance, discharge a noxious liquid. It is perfectly true that Mr. Lai Yen-on, who was called as an expert to provide evidence that this was a stun gun, was a witness who was far from satisfactory. The trial judge drew attention to some of the shortcomings of his evidence. We accept that the jury may possibly not have been satisfied that this device fell within the definition of arms under section 2(c).

8. It is unfortunate that at no time did Mr. Watson ask for a transcript of his cross-examination of the experts to be made available for the purposes of the appeal. Accordingly, we have had to proceed on the basis of what the judge's summing-up can tell us about the evidence given by those experts. Using this approach, it is apparent that the evidence of the second expert, Dr. Anna Leung Chan, who was called by the prosecution to establish that this was a weapon for the discharge of a noxious liquid, went largely unchallenged. Quoting from the summing-up:

"She said that that canister will fit inside the device in such a way that if one pushes the button on the device, the liquid in the aerosol container will be ejected in a spray form through that small hole between the two electrodes. She says that she did eject a small quantity of the liquid in the canister and found that the liquid contained 1 to 2% by weight of capsaicin."

As we found out during the hearing of the application, the device still works. When a small squirt of the liquid was inadvertently released from this device in court, the effects were felt by a number of people in court. Whilst this has no bearing on the decision we need to make on this application, it is apparent that there was very sensibly no dispute during the trial that the device worked in the way described by the expert. The evidence that the Applicant was in possession of a spray canister designed to and capable of discharging a noxious liquid was overwhelming.

9. It is with this in mind that we are satisfied that no actual miscarriage of justice has in the circumstances of this case occurred as a result of the irregularity to which we have referred. We shall allow the application for leave to appeal but, treating the hearing as the hearing of the appeal, and applying the proviso to section 83(1) of the Criminal Procedure Ordinance, dismiss the appeal.

Representation:

Mr. Tam Sze-lok (D.P.P.) for the Respondent.

Mr. Geoffrey Watson assigned by D.L.A. for the Applicant.