The Queen v. Tong Siu Wa

CACC000028/1985

IN THE COURT OF APPEAL

BETWEEN

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Coram: Roberts, C. J., McMullin, V.-P. & Silke, J. A.

Date of hearing: 10th May, 1985.

Date of judgment: 10th May, 1985.

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JUDGMENT

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McMullin, V.-P. :

1. The applicant, TONG Siu-wa, was convicted in the District Court of being in possession of a .45 revolver loaded with cartridges contrary to the provisions of Section 13 of the Arms and Ammunition Ordinance.

2. The case for the Crown was borne principally upon the testimony of a police officer PC Tam who, together with some six other officers, was on surveillance duty at Boundary Street on the 4th May, 1984 between 6:40 and 8:00 p.m. The party had a report from some source which caused them to go to Ho Tung Road and where they found a car parked with three men in it.

3. The nature of their business led them to question these men, two were sitting in the front and one in the rear, the man in the rear was the present applicant. The men were searched. The constable, discovered what he described as six "bullet like objects" in the left shirt-pocket of the applicant. In his trousers-pocket he discovered a bunch of six keys and some money. The three men were arrested. It is common ground that they were arrested on suspicion of being involved in a robbery. It may be said that nothing further had been heard about that and that aspect of the matter is of no concern at the present.

4. The three, including the applicant, were taken to Yau Ma Tei Police Station and there the detective Tam interviewed and interrogated this applicant. The applicant made a statement, it would seem principally in the form of question and answer, and at one stage, it was sought by the Crown to introduce this in evidence but objection was taken, principally upon the ground that the statement, which was a fairly lengthy one, contained irrelevant matters, some of which were prejudicial. Eventually the Crown did not tender the statement and the prosecution proceeded on the basis that such portions of it as might be of interest to the charge before the Court, could  be elicited by way of oral testimony.

5. The police officer went on to say that subsequent to the taking of the statement the applicant led him and other police officers, including Inspector Buckley, to room 1 in Block 63, Ha Kwai Chung Temporary Housing Area. On the way there he said to the officer that the six bullet like objects found on him had nothing to do with the others. He then went on to say that he had a converted pistol at the address to which they were going.

6. The party got there at about 2 o'clock in the morning. According to DC Tam, the applicant himself used one of his keys to open a padlock thus admitting the party to the interior of the apartment. The apartment was searched. It was sparsely furnished and according to the officer the applicant at once pointed to a wall-cabinet which was somewhat high upon one of the walls. The constable, standing on a chair, managed to open it but. seeing nothing immediately in view which attracted his attention, he was then directed by the applicant to lift a piece of wood at the bottom of the cabinet which seemed to form the bottom of it. Upon doing so he saw within a plastic bundle of some kind appearing to contain clothing. This he removed and handed to Inspector Buckley who opened it. Within was discovered some woolen clothing and wrapped in the clothing there was a pistol, contained three rounds of ammunition. These are the subject of the charge against the applicant.

7. The constable went on to say in cross-examination that the accused had made some remarks to the effect that he had been frightened about having the six bullets in his possession. It was put to the constable that part of his evidence was untrue in that when the gun was discovered there were rounds within it and that this tended to conflict with his statement that the applicant had told him that he had the six rounds of bullet like objects for the "converted pistol". He agreed that he had taken the applicant to certain other addresses that night and he said that the applicant had told him that the keys of the apartment in which the gun had been found had been given to him for custody by a person called FUNG Ching.

8. He described the apartment where the gun was found and said that it was almost bare of furnishings, having a chair with cheat of drawers and a fan in addition to the wall cabinet. He agreed that there was nothing to connect the applicant with the premises other than the keys which he possessed. He was the only witness called for the Crown.

9. The defendant gave evidence. He said that he had come to Hong Kong in 1980 and thereafter lived with a girl in the premises at Fa Yuen Street and by her had a child who, at the time of these events, was about five months old.

10. He described his arrest in very much the same terms as the police officer and he said he had been, at that time, joy-riding with his friends and that they had been arrested on suspicion of being connected with a robbery. He denied having had possession of six bullets or bullet like objects but admitted that he was in possession of the keys which had been taken from his trousers and which subsequently were used to open the door of No. 1, Block 63. Two of the keys on that bunch were for the apartment at the Kwai Chung premises and the others were for his apartment at Fa Yuen Street. He said that these keys had been given to him by the occupier or tenant of the apartment in which the gun was found, who he referred to as LAW Yau-yin. He said he had been asked by Law to keep watch on the place while he, Law, was. in Macau towards the. end of 1983. He went on to say that he had only visited the premises twice. On each occasion he had seen a man there who, he assumed, was a friend of Law's. He himself had never lived in those premises and he had no property there. He denied having said anything about having a converted pistol or having shown the police the hiding place of the pistol when the police entered with him on the night in question.

11. His story therefore on that most important matter was totally  different from the story told by the police officer. He denied. that he had told the police officer that he had been given use of that apartment to reside in by somebody called FLING Ching. He said that on remand he had met the man whom he had previously seen at No. 1 Kwai Chung Temporary Housing Estate and he found that he was called TAM Kin-ming. He told this man that he was being held at that time in connection with possession of arms. He said that Tam admitted that he had lived at the premises but they did not speak further about the matter and the question of the pistol and the manner of its discovery was not discussed between them. He said that his family had tried to locate Law in Macau without success.

12. TAM Kin-ming gave evidence and said that he had lived at No. 1 Block 63 together with Mr. Law in November. He claimed that it was he who had put the pistol in the cabinet. He said that it had been given to him by somebody called CHAN She-sang at the beginning of 1984 to keep while Chan went to Mainland China which was where, accordingly to Chan, he had originally got the pistol.

13. The witness was then shown the pistol, which was exhibit 4 in the case, and at first he said that it was not the pistol to which he had been referring. He was also shown the three bullets which were in the chambers of the pistol, and he said they were not the bullets which he knew were in the chambers of the pistol to which he had originally referred.

14. Immediately after that he asked to look again at the pistol and the bullets and he went back upon the evidence he had given and said that they were indeed the pistol and the bullets to which he had originally referred. The ones given to him by Chan.

15. The record of the evidence of this point shows a note by the judge to the effect that between his first statement about the pistol. and the subsequent contention that it was indeed the one he had been talking about, he had cast what the judge called an agonized glance in the direction of the prisoner.

16. The witness went on to say that there had been four bullets originally in the chambers and he had taken one of them out. He took it because he found it interesting and he taped it on the floor behind the door inside the room. This odd piece of evidence was never clarified by anything said by any other witness.

17. He said that Law had been introduced to him by the defendant as Wah Chi and that he had seen him only twice at the Kwai Chung Building. This differs from the evidence given by the applicant who never mentioned having been introduced to the witness before. he met him when they were both on remand. The witness then went on to say that the defendant told him that he was. in custody for being in possession of arms but that they never discussed the pistol which, according to the witness, he knew was concealed in the cabinet in the apartment.

18. That was the evidence in the case and in his closing speech counsel for the Crown made it clear that the Crown was relying not only upon the direct evidence of PC Tam but also upon the presumption as to possession contained in Section 24 of the Arms and Ammunition Ordinance Cap. 238.

19. It was never in dispute that the applicant was in possession of the keys which opened the padlock on the door of the apartment and it is common ground before us today that on that piece of evidence the presumption would on the mere operation of law have been raised. It is with regard to that, however, that Mr. Keane takes the first of his points. He points out that the judge nowhere in his reasons for verdict expressly states whether or not he is considering the question of these presumption. It would seem perhaps unlikely that he had not got. that in mind since he was addressed upon it by counsel and since it was common ground that the possession of the keys would indeed raise the presumption. However, bearing in mind the decision in MAK Chung v. Reg. ⁽¹⁾ , we think that it is best in the present case that we should deal with the appeal upon the basis that the judge did not consider the presumptions and did not therefore, at any stage, direct his mind to the specific question - was the presumption having been raised rebutted upon the balance of probability?

20. In his judgment the trial judge set out in quite sufficient detail the actual circumstances disclosed by the evidence given by the two witnesses. Sofaras that is concerned, there is certainly no fault. to be found in the reasons for decision and they do not come into collision with the provisions of Section 80 of the District Court Ordinance. But Mr. Keane's objection, of course, goes wider than the suggestion that insufficient basic facts are disclosed by the note of the judge's reasons. He points out that the judge having recited the evidence of P. W. 1 states that he stood up well in cross-examination. He then goes onto consider the evidence of the applicant and having given that in some detail, he adds, "He stood up, quite well in cross-examination."

21. He then went on to consider the evidence given by TAM Kin-ming. He described the incident when the gun was presented to the witness and he went back upon his evidence. He referred to his coritemporary note in relation to the "agonized glance" and he said that Tam was completely. discredited. Having considered that evidence a little further he concluded with these words: "

"The accused produced his ace, a man who had lived in the premises and admitted he was looking after the weapon for a Mr. Chan. Unfortunately for the accused, the man for whatever reason ire would probably never know, completely disowned the weapon produced that as the one he had been looking after. He subsequently changed his mind but did so. in such a way as to make things, if anything, worse for the accused. I was satisfied so that I was sure that the accused was guilty as charged."

22. Two major points are taken upon the appeal. Mr. Keane says, firstly, that it must be noted that the first prosecution witness, the police constable, gave evidence which was in its most material aspect, quite the contrary of that given by the defendant inasmuch as the defendant wholly denied that it was he who had discovered the gun and the ammunition for the police officers. It is true that the judge nowhere has said positively that he accepted P. W. 1 or that he did not believe, the defendant. Both  according to him had held up reasonably in cross-examination. Mr. Keane says that he eventually found what the . prosecution witness had told them to be true because he rejected Tam's evidence and only thus the defendant's explanation.

23. Mr. Keane referred us to cases such as R. v. Lucas ⁽²⁾ and R. v. Keane⁽³⁾ which establish the familiar principles as to what weight may be given to lies or fabricated alibis put forward by defendants in criminal cases, either in relation to the question of corroboration or as substantive evidence of guilt. Lies should not be regarded as proof of guilt unless the principles laid down in these cases are held in mind by the judge. Counsel says that this is especially so where the lie has been told not by the defendant himself but by his witness. In particular he pointed out the passage in Lucas⁽²⁾ where the court in dealing with the various alternative possibilities that arise in relation to false testimony refers to the possibility of a defendant lying in support of what he may regard as a just cause. This, counsel says, is a possibility which should have been borne in mind by the judge and nothing said by him in the course of his reasons indicates that he had it in mind.

24. Clearly it would seem from the way he expressed himself that the judge did suspect a dishonest collusion between the defendant and his witness. That would seem to be borne out by the fact - stressed by Mr. Dale for the Crown - that the judge emphasized the agonized look given by the witness to the applicant and, possibly also, by a passage in the evidence where it is said by the applicant that he knew what evidence this witness would give.

25. It may be said however that if we were in doubt to whether the judge himself had some misgivings about the evidence of P. W. 1 and had believed that evidence solely because he thought that it was confirmed by the fact that the defence witness had lied, we might be compelled to say that he had proceeded upon a wrong principle so that we might have been impelled to interfere.

26. Mr. Keane stresses the fact that the judge has not expressly warned himself of the need to probe the reasons for which the lie - in his opinion - had been given or the motive behind it.

27. It seems from the way he expressed himself that the judge must have concluded that there was collusion between the applicant and his witness and that that told against the truth of their evidence. There is nothing wrong with that. It may be that a somewhat heavy emphasis was given to this particular aspect of the case, but we do not think that the judge was doing more than test the evidence of P. W. 1 which he found credible and acceptable in itself against the explanation given by the defendant and his witness, as it was his duty to do, for the purpose of considering whether a reasonable doubt had nevertheless been raised. Regarded in that light the collapse as he saw it of the witness Tam was merely a fortifying feature in the conclusion that he was left without a reason for doubt.

28. Secondly, Mr. Keane says that even if the judge relied justifiably and wholly upon the first prosecution witness nevertheless that evidence only goes as far as showing knowledge and that, he says, is not enough to bring home the charge.

29. It is true that the applicant was not the tenant of the premises; that he had no personal possessions there,(disregarding for the moment the question of the gun itself); that he had no connection with the premises other than as demonstrated by possession of the key. Mr. Keane referred us to Lam Kei Wan v. R. ⁽⁴⁾. That was also a case involving the possession of a gun with ammunition. Four persons had been charged, one pleaded guilty, two were acquitted on the basis that they had rebutted the presumption under S. 24. One was convicted after trial and he appealed. The evidence against him was simply the fact that he had been in common occupancy with the other three of a cubicle in which a brief case, having a combination lock, had been found. Coupled with that was a statement made by him in which he admitted having seen one of his companions put the gun and the ammunition in the brief case and lock it by using the combination lock. He himself had no access to the case and did not know the combination.

30. In concluding that the evidence amounted only to knowledge and was in itself not sufficient, Li, J. A. referring to the trial judge said:-

"He disbelieved him, that he had no knowledge and therefore he said he was not satisfied that the presumption was rebutted. As I said before the presumption in the premises was a weak one so was the rebuttal. However, all the evidence there was was that the applicant merely have knowledge, there is no evidence he has access control of custody of the arms and ammunition and in the circumstance the court left impelled to interfere."

31. There is however a very considerable difference between that case and the present case on the facts. We must stress that on this question of knowledge in relation to possession. the individual circumstances of the given case are always of the very greatest importance.

32. Here we have the following circumstances. Firstly, the applicant is arrested and discovered to have something described as "bullet like objects" in his shirt pocket, he is taken to the police station where he makes statement and subsequently he leads the police officers to the premises where the gun is discovered. On the way he makes a remark of great significance when he exonerates his colleagues in respect of the bullets from the apartment and. adds that he has a converted pistol in the premises to which they were going. He then uses the key to open the door and at once points to the cabinet and when nothing is discovered within it, goes to the extent of pointing out that the offending item is concealed under a board at the bottom of it.

33. This sequence of circumstances, especially the oral admission regarding possession of a pistol, was in the opinion of this court, quite sufficient to support the District Judge's conclusion that the case had been proved to his satisfaction and beyond reasonable doubt. We are satisfied that even upon that basis and leaving aside all questions relating to presumptions that the conviction was sound. The application must be refused.

(1)    Cr. App. No. 106 of 1972

(2)    (1981) 73 Crim. App. R. 159

(3)    (1977) 65 Crim. App. R. 247

(4)    (1983) Cr. App. No. 216 of 1983

Representation:

Mr. Desmond Keane, Q. C. & Mr. Peter Lee (Clifford Young & Co.) for Applicant.

Mr. P. J. Dale for Respondent/D.P.P.