HKSAR v. Chou Shih Bin

HCMA202/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.202 OF 2004

(ON APPEAL FROM TWCC 3006 OF 2003)

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Coram: Deputy High Court Judge Fung in Court

Date of Hearing: 30 April 2004

Date of Judgment: 21 May 2004

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J U D G M E N T

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1.The appellant Chou Shih Bin was convicted after trial before a magistrate of one charge of possession of arms and ammunition without licence, contrary to section 13 of the Firearms and Ammunition Ordinance, Cap.238, and was sentenced to six months' imprisonment. He now appeals against conviction only.

THE PROSECUTION CASE

2.The evidence of the prosecution was largely unchallenged.

3.On 13 June 2003 at 5:50 p.m., the appellant entered Hong Kong from the Mainland at Lok Ma Chau. At 7:15 p.m., he was at the Hong Kong Airport and about to fly to Taiwan. He presented his hand-carry baggage (exhibit P1) for X-ray screening and something arousing suspicion was observed. The airport security guard found an anti-riot gun of Chinese origin (exhibit P2) and a cartridge with five chambers (exhibit P3). It was admitted that exhibit P2 is a firearm under Cap.238, and exhibit P3 is an ammunition. The battery of the gun was not functioning and the gun was inoperative.

4.Sergeant 49430 (PW1) said he went to the security screening area. He asked the appellant in Cantonese what the purpose of the gun was. The appellant said in non-fluent Cantonese the gun was for self-defence. The defendant also said something which PW1 could not understand.

THE DEFENCE CASE

5.The appellant gave evidence at trial. He is a Taiwanese owning a substantial factory in Dongguan, China. He employed 3,000 workers and the annual turnover was US$40 million. His wife and four children lived in Taiwan.

6.In the morning of 13 June at about 9 a.m., he packed his baggage (exhibit P1). There were some items of clothing, two bags of candy, his personal organizer, a small personal bag with credit cards, cheques, and a chop. His passport, identity card and air tickets were placed in the front pocket of exhibit P1. He did not pack exhibits P2 and P3 and had no knowledge of them.

7.He then went to his office which was on the G/F of the administration building. He placed his bag next to the desk in his office. On that day he left his office at least on two occasions. He left his office unattended and unlocked. But about 20 people would have access to his office regularly. There were four entrances on the G/F, two at the front, two at the back. The front doors led to a reception area, and the rear doors led to an open plan work area of the design and computer department. On 12 June he had told his senior staff he would be leaving for Taiwan the following day.

8.At 3 p.m., he asked his assistant Zhu Zhong to place his baggage in the boot of his car.

9.When he crossed the border at 5:50 p.m., neither the baggage nor the car was inspected. He produced his Hong Kong identity card which was kept in his car.

10.He denied ever telling PW1 he possessed the gun for self-defence.

11.He thought someone might bear a grudge against him as he had recently fired some staff. In April 2003, 700 to 800 workers had taken part in a strike. His deputy manager told him that one staff member had warned the general managers and the managers to be careful as they might get killed. He would pick up his family personally at the airport because he was concerned about their safety.

12.Zhu Zhong (DW2) gave evidence. He never saw the appellant with a gun. On 15 June, the appellant asked him to investigate the incident. Two employees were suspected but no report was made to the Mainland police as the incident did not occur on the Mainland.

13.The appellant is of clear record and evidence of positive good character was also called. Secretary Li is the General Secretary of the local administration in Dongguan. He has known the appellant for 10 to 11 years and he is a "good guy", contributing to local charities and sports. Thomas Tan is the Director of Canadian International School in Singapore. He had known the appellant for 12 years and he found him to be honest and upright and the appellant had made substantial donations. The statement of Lin Chun Deng was admitted under section 65B, Criminal Procedure Ordinance, Cap.221. He has known the appellant for two years and the appellant is honest, reliable and of good conduct.

REASONS OF THE MAGISTRATE

14.The magistrate placed no weight on what the appellant had said to PW1 as the magistrate could not be sure that the appellant uttered the words "self-defence" and PW1 could have been mistaken.

15.The magistrate rejected the explanation of the appellant and he stated the following considerations :

(1) The magistrate was sure the appellant did say something to PW1 at the airport and the appellant was lying when he claimed he said nothing. His evidence as to what occurred at this juncture was vague and he gave different versions.

(2) The appellant was vague as to the packing of the hand baggage in which the gun was found.

(3) The magistrate took into account the appellant's action when he returned to the Mainland after his release on bail.

(4) Whilst on the Mainland, the appellant had concerns for his personal safety and that of his family who visited him on a regular basis.

(5) The gun was inoperative.

16.The magistrate drew the irresistible inference that the appellant was aware that the gun was in his baggage.

GROUNDS OF APPEAL

17.Mr Macrae, SC approached the appeal in two ways :

(1) The magistrate erred in law in misunderstanding the appellant's case or attaching significance to trifling matters in coming to his conclusions.

(2) Even if the magistrate has not erred, there is a lurking doubt so that the conviction is unsafe and unsatisfactory.

18.In dealing with point (1), Mr Macrae referred to different points in the evidence of the appellant.

(i) Packing of the bag

19.Mr Macrae said while it is true that the appellant was unable to remember such details as to the nature and the number of shirts he packed in the baggage for his use in Taiwan, or whether clothings were returned to them by the police while he was in custody, they were unimportant details and inconsequential. The packing was done in June 2003 and the appellant were asked about them in January 2004. Further, clothings were not touched on by the prosecution or defence on the closing speeches. It was unfair for the magistrate to use these inconsistencies.

(ii) Did the appellant say anything at the airport

20.Mr Macrae referred to two comments on this point by the magistrate in the Statement of Findings at p.16 :

"He was questioned closely about what happened and what, if anything, was said when the gun was found at the airport. I found his evidence again to be extremely vague and unconvincing and I was sure that he was not telling me the truth about what he had said at the airport."

and at p.18 :

"I did not believe the defendant's evidence as to what transpired at the airport when the gun was found. I was sure he did say something to PW3 and that he was lying when he claimed he said nothing. His evidence as to what occurred a this juncture was vague and he gave different versions."

21.Mr Macrae submitted that, properly understood, the effect of the appellant's evidence was that the appellant said he was scared and he said nothing to the security officials, and he could not recall what was said to PW1.

22.Mr Macrae had referred to the transcript of evidence of the appellant. In chief, the appellant was questioned about his encounter with the officials at the security area. The appellant said when he saw the gun, he knew the gravity of the situation, he was very nervous and very scared. The magistrate asked : "Did you say anything?" The appellant answered : "No, I didn't say anything." (Transcript p.50A-J)

23.Then the appellant was referred to when the police sergeant who testified came to the scene. He was asked whether he recalled a police officer asking him questions at scene. The appellant said : "I don't have any memory of that." (Transcript p.50L-R)

24.Under cross-examination (Transcript p.97U-98L) :

"Q. Did you try to explain your innocence, at that time?

A. Didn't.

Q: Why?

A. I was already scared.

Q. Why didn't you tell the security officers that, 'Well, it is not related to me. It was none of my business'?

A. As I said, I was very scared, at that time.

COURT: So you said nothing; is that what you're saying?

A. Correct.

Q. How about at the moment when the sergeant arrived?

A. I don't remember what happened, at that stage.

COURT: 'I don't remember.'

Q. You don't remember whether you have said anything, at that time?

A. I don't remember

Q. I put it to you that you told the sergeant that the gun was for self defence.

A. Didn't say so.

Q. Earlier on, you said you can't remember what you said, at that time.

A. As they said, I didn't say anything. I didn't know how.

COURT: Did you try to say something in Putonghua?

A. Didn't.

COURT: Well, why was that?

A. I was very scared. There were many people. About 30 people."

25.Mr Macrae submitted that "earlier on" could perhaps have directed the appellant's attention to the encounter with the security staff. Properly read, the appellant did not give different resources of evidence.

26.Further, it was submitted that it was surprising for the magistrate to disbelieve something as a lie if PW1 could not tell him what the appellant had actually said.

(iii) The appellant's conduct upon his return to the mainland after release on bail

27.Mr Macrae submitted that upon return to the Mainland, the appellant immediately instructed his assistant Zhu Zhong to investigate. The fact that the appellant did something was consistent with someone putting the gun into his baggage. It would only have been remarkable if the appellant had done nothing upon his return to the Mainland.

28.As to the failure of the appellant or DW2 to report the matter to the police in the Mainland, or that the appellant failed to mention the matter to Secretary Li earlier, Mr Macrae submitted that allowance must be made for cultural differences amongst Hong Kong, Taiwan and the Mainland. Perhaps if the appellant did report that he had been arrested in Hong Kong for having possessed a Chinese made anti-riot pistol, it would have put himself in double jeopardy of possession of firearm in the Mainland.

(iv) Reference to the appellant's personal safety and the safety of his family

29.Mr Macrae submitted that while the magistrate referred to regular visits of the appellant's family, the evidence was that they had only visited him twice (Transcript p.85H).

30.Further, while the magistrate stated that the appellant was aware that threats had been made against him and that persons had grudges against him, the evidence was the words of threats were only uttered to the deputy general manager, but not the appellant directly.

31.Mr Macrae submitted while on the one hand the magistrate said he placed no weight on the alleged verbal of "self-defence", he must have been considering the innuendo of self-defence while referring to the appellant's concern for personal safety and safety of his family.

32.On the lurking doubt point, the magistrate described the appellant as a man of positive character, man of substance, a family man and obviously a man of intelligence. He was familiar with the security arrangements at the airport. He also noted that the gun was inoperative.

33.Mr Macrae submitted that having considered the background of the appellant, the alleged possession of an inoperative anti-riot gun by the appellant must be so out of character to cause one to have a feeling of unease about the conviction.

CONSIDERATION UPON APPEAL

34.In HKSAR v. Cheung Ho Ying [1999] 3 HKLRD 45, Woo J cited R. v. Hui Kee Fung (Mag. App. No.196 of 1994, unrep.) per Keith J :

"... Secondly, appeals from decisions of magistrates on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts."

His Lordship further cited R. v. Yip Kam Lam (Mag. App. No.731 of 1996) per Stock J :

"... Under our system of law, the Appeal Court examines the record and decides whether the magistrate has made any obvious error as to law or whether he has come to the decision which was irrational in the light of the evidence that was given."

35.Mr Macrae submitted that the magistrate misunderstood the evidence of the appellant so as to make his decision in rejecting the evidence of the appellant irrational.

36.I shall now come to the points raised by Mr Macrae.

37.As to whether the appellant had uttered anything to PW1, it is evident from the transcript that when the appellant was asked about this, either in-chief or under cross-examination, his attention was drawn specifically to the encounter either with the security staff or PW1. He did say at first he had no memory of the questions PW1 asked him at scene, and later he said he did not say anything. The magistrate did not rely on any contents of any utterances by the appellant when he found the appellant to be lying. The magistrate is entitled to the view he formed of the appellant and cannot be criticized on it. The same can be said about the magistrate's evaluation of the evidence on packing the baggage.

38.As to the appellant's conduct after he returned to the Mainland, the appellant was asked whether DW2 tell him what steps DW2 had taken to investigate into the matter. The appellant answered : "He said he made an investigation into it. I didn't ask." The magistrate commented : "I didn't ask?" The appellant answered : "I didn't ask deep into it." The magistrate was entitled to consider the steps taken on the investigation and the appellant's involvement. He cannot be criticized on this.

39.As to the threats, the evidence of the appellant was that something like "Be careful, we might kill you" were uttered to the deputy general manager as well as some supervisors. He said the threat was uttered to the people in the managing position, as well as the deputy general manager. The specific threat was uttered to the deputy general manager who had told him. The magistrate is entitled to take that the threat was addressed to the people in the managing position and the appellant had concern for his own safety.

40.No doubt the magistrate had placed no weight on the alleged verbal of "self-defence" as said by PW1. However, the evidence relating to the threats and the appellant's concern for the safety of his family came from the month of the appellant himself, and the magistrate is entitled to take that into account.

41.As to the lurking doubt point, as Mr Cheung for the respondent had pointed out, the magistrate took into account the appellant's clear record and positive good character, and reminded himself of the Berrada direction. The magistrate has taken into account all the circumstances including the inherent probabilities of the planting of the gun in the appellant's baggage. The magistrate is entitled to come to a conclusion on the facts which a court exercising appellate jurisdiction should not lightly disturb. I see no occasion to intervene in this case in the basis of a lurking doubt.

PRESUMPTION

42.For the sake of completeness Mr Cheung mentioned that section 24 of the Firearms and Ammunition Ordinance, Cap.238 provides that :

"(1) Any person who is proved to have had in his physical possession-

(a) anything containing arms or ammunition, or both;

(b) the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar containers containing arms or ammunition, or both,

shall, until the contrary is proved, be presumed to have had the arms or ammunition, or both, as the case may be, in his possession.

(2) Any person who is proved or presumed to have had arms or ammunition, or both, in his possession shall, until the contrary is proved, be presumed to have known the nature of such arms or ammunition, or both, as the case may be.

..."

43.Mr Cheung referred to R. v. Wu Man Choi [1979] HKLR 174 and submitted that where the facts which give rise to the presumption are established, that presumption operates whether it is mentioned or not.

44.It is common ground that the presumption under section 24 was not referred to at trial and the magistrate did not rely on it. Both Mr Macrae and Mr Cheung agreed that since the magistrate had set himself the higher standard and approached the matter by way of an inference of guilt, and the issue here is the magistrate's rejection of the appellant's evidence, the presumption is not a relevant matter upon appeal.

CONCLUSION

45.I hereby dismiss the appeal. I thank Mr Macrae and Mr Cheung for their helpful submissions.

Representation:

Mr Cheung Wai Sun, Patrick, SADPP and Ms Sally Yam, GC of the Department of Justice, for the Respondent

Mr A. Macrae, SC, instructed by Messrs Burke, Fung & Li, for the Appellant