HKSAR v. So Chi Man

CACC 306/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 306 OF 2004

(ON APPEAL FROM HCCC 270 of 2003)

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BETWEEN

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Before: Hon Stuart-Moore VP and Stock JA

Date of Hearing: 22 April 2005

Date of Judgment: 22 April 2005

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J U D G M E N T 

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

Background

1.In this application for leave to appeal against the 8-year sentence imposed by Nguyen J on 16 June 2004 in respect of the possession of an American-made self-loading pistol in full working order and 50 live rounds of 0.38 ammunition without a licence, it was submitted that the judge failed to accord the applicant an opportunity to give evidence on a Newton hearing in circumstances which either called for the adoption of such a course or, failing this, required the judge to take the most favourable view open to him on the facts about the applicant’s criminality.

2.The facts can be described very briefly.  Police carried out an observation on 9 June 2003 on a 1^st floor flat at 274 Tai Nam Street in Sham Shui Po.  At about 9:25 p.m., after the curtains were drawn back in such a way as to enable the police to see into the flat, they saw the applicant and two other men, all of whom were wearing gloves, in what appeared to be the process of cleaning the premises.  Those men left the building at about 11 p.m.

3.On the following day at about 5:25 p.m., police broke into the flat which they had been watching the day before.  It had been secured at the front with an iron grille and a wooden front door.  It was immediately discovered that the door and light switch fittings inside the flat had all been covered with adhesive tape.  No one was occupying the flat at the time of the raid and it was largely unfurnished.

4.The police found the Walter PPK self-loading pistol and the 50 rounds ammunition which were suitable for use in the pistol, on top of the refrigerator.  These items were inside a box where they had been wrapped in a towel.  A melon knife with a blade measuring about 33 cms in length was also found in the same vicinity as the pistol.  Its particular significance was that its handle had been wrapped in white gauze and there was a paper sheath for the blade elsewhere in the kitchen.  In the other parts of flat, the police found two thick canes each of which had been made by tying three canes together with adhesive tape, two packets of plastic cable ties, 6 packets of surgical gloves, several pairs of working gloves and some rolls of adhesive tape.

5.Subsequent fingerprint examination revealed the applicant’s palmprint on one of the surfaces of the outer grille door.

6.The applicant was arrested at his home address on the Pak Tin Estate, Shek Kip Mei, within minutes of the discovery of the pistol.  His immediate response was that he had helped someone he called “Ah Chuen” to “collect payment” and that he knew nothing else.  The set of keys he had in his possession fitted the locks to both doors at the front of the flat where the firearm and ammunition were discovered.

7.The applicant was interviewed at length and a video recording was made of his questioning.  We do not need to dwell on the details save to say that the applicant sought to put himself in a relatively minor role in respect of his involvement with the pistol by saying in effect that Ah Chuen, whose whereabouts and telephone numbers were unknown to him, had given him the keys to the flat where he had tidied up.  Then, on a later occasion, he had been asked by Ah Chuen to take a plastic bag to the flat which Ah Chuen had left openly by a staircase in a public area of a building.  It was only his curiosity, he said, which led him to look inside the bag once he had arrived at the flat.  When he opened the box which was inside, he found out for the first time that he had carried a pistol to the flat.  He then put the box on top of the refrigerator with the pistol inside it and left the flat intending to return the keys to Ah Chuen.

8.Later investigation revealed that the flat itself had been rented by someone who had been paid $500 to do so.  That person had then passed the keys to the flat to someone else.

Mitigation

9.The explanation provided by the applicant to the police was relied on by Senior Counsel in the court below in an endeavour to persuade the judge to reduce the usual 12-year starting point for such cases as this.  In the light of various decisions of this court where reduced sentences for firearms have been sanctioned where the offenders have had substantial mitigation, the applicant was put forward, on the strength of his account to the police, as someone whose involvement was “relatively minor”.  With this in mind, the judge viewed the entirety of the applicant’s video-recorded interview.

10.At the conclusion of the speech in mitigation, there was the following dialogue between the judge and counsel for the defence:

“	COURT:	Mr Cheng, the position is – even though Miss Chan says that she has no evidence to contradict the defendant as regards what he said to the police, and therefore she doesn’t want to cross-examine him – the position is still that I’m not bound by what he said to the police, is that not right?
	MR CHENG:	That’s correct.
	COURT:	Yes.
	MR CHENG:	My Lord,… can I put it in two ways.  I think the defendant has tendered his plea also on the basis of what he told the police.  Your Lordship need not accept what he told the police, but my Lord, bearing in mind that Miss Chan did not wish to cross-examine the defendant, and there’s nothing to contradict the defendant, I think it may well be that – and I respectfully submit that in the absence of anything to the contrary – it may well be that one should accept his evidence as to how, in the circumstances, he came to possess the gun and ammunition, even though one may take it with a pinch of salt.
		But the reality of the situation is that your Lordship would not need to accept anything, but the broad picture, I urge your Lordship to accept it.  My Lord, those are my respectful submissions.
	COURT:	Yes, thank you.” (Appeal bundle p. 14)

In itself, this dialogue provided a fairly clear indication as to the way the judge’s mind was working.

Sentencing

11.In passing sentence two days after he had heard mitigation, having summarised the principal facts in the case which the applicant had admitted after he had entered his plea, and having made reference to some of the firearms cases to which he had been referred, the judge commented that although a version of the background circumstances had been put before the court in mitigation, based on the applicant’s earlier interview, this was not binding on the court.  He went on to say:

“Your counsel submitted that the circumstances as revealed in your interview were quite exceptional and he implied that you had been tricked by others into going to the flat on four occasions and on one of those occasions, taking the gun contained in the plastic bag to the flat.

I have heard the tape of the interview and I have read the transcript.  I do not agree that there is anything exceptional in the way that you claimed you came to be in possession of the pistol and the ammunition.  Your account to the police I do not find to be credible.  On the contrary, I find it suspicious that you talked of assisting another in the collection of a gambling debt, and that is coupled with the way that the flat was rented and how the door lock, the door knobs and the light switches in the flat had to be all covered with adhesive tape.

There were things found in the flat which could have been used to subdue or restrain a person such as the pistol, the melon knife, two thick canes, plastic cable ties, surgical and labour gloves, adhesive tape …

My view is that the pistol was not innocently placed in the flat, and you did not innocently become involved with the flat and the things stored therein.” (Appeal bundle p. 19)

The application

12.With this background, Mr Choy on behalf of the applicant complained that in circumstances where the prosecution had made no challenge to the version put before the court by the applicant’s counsel in the court below, the judge ought, if he did not require a Newton hearing to decide the issue, to have taken the most favourable view on the facts from the standpoint of the applicant.  In saying this, Mr Choy made it plain to us that there was no material difference between the mitigation in the court below and the contents of the police interview.  In fact, Mr Choy described the mitigation as a synopsis or précis of the explanation given in the interview.

13.In addition, it was contended that the judge ought to have indicated to counsel what the judge had called the “suspicious” circumstances which led him to disbelieve the applicant’s version so that counsel could have had the opportunity to deal with them more specifically.  We do not need to dwell on this submission because, having already cited the passage in the transcript relevant to this, if the judge had not found those aspects of the case which he said gave rise to suspicions about the credibility of the applicant’s story it would have been most surprising.

14.The issue raised by Mr Choy is one that relates to circumstances which not infrequently arise.  In Archbold 2005at paragraph 5-75 on page 552, under the heading ‘matters of dispute not requiring resolution’, there is the following passage:

“The cases establish three situations where although there is a dispute as to the facts of the case, the court is not obliged to hear evidence under the principles laid down in Newton.  The first is where the difference in the two versions of the facts is immaterial to the sentence (see R. v. Hall, 6 Cr. App. R.(S.) 321, CA; R. v. Bent, 8 Cr. App. R.(S.)19, CA).  If the sentencer does not hear evidence, he should specifically proceed on the defendant’s versions: R v Hall, ante; see also R. v. Sweeting, 9 Cr. App. R.(S.) 372, CA.
The second exception is where the defence version can be described as “manifestly false” or “wholly implausible” (see R. v. Hawkins, 7 Cr. App. R.(S.) 351, CA; R. v. Bilinski, 9 Cr. App. R.(S.) 360, CA; R. v. Walton, ibid. at 107, CA; R. v. Mudd, 10 Cr. App. R.(S.) 22, CA).  See also R. v. Palmer, 15 Cr. App. R.(S.) 123, CA and R. v. Broderick, idid. at 476, CA (couriers claiming to believe that they were carrying cannabis as opposed to a Class A drug).
The third exception is the case where the matters put forward by the defendant do not amount to a contradiction of the prosecution case, but rather to extraneous mitigation explaining the background of the offence or other circumstances which may lessen the sentence.  These matters are likely to be outside the knowledge of the prosecution: see R. v. Broderick, ante.  Where the facts put forward by the defence do not contradict the prosecution evidence, the cases justify the following propositions.
(a)	The defendant may seek to establish his mitigation through counsel or by calling evidence.  The decision whether to call evidence is his responsibility, and there is no entitlement to an indication from the court that the mitigation is not accepted (Gross v. O’Toole, 4 Cr. App. R.(S.) 283, DC); but such an indication is desirable (R. v. Tolera [1999] 1 Cr. App. R. 29, CA).
(b)	The prosecution are not bound to challenge the matter put forward by the defendant, by cross-examination or otherwise (R. v. Kerr, 2 Cr. App. R.(S.) 54, CA), but may do so (R. v. Ghandi, 8 Cr. App. R.(S.) 391, CA; R. v. Tolera, ante).
(c)	The court is not bound to accept the truth of the matters put forward by the defendant, whether or not they are challenged by the prosecution (Kerr, ante): see R. v. Broderick, ante.
(d)	In relation to extraneous matters of mitigation raised by the defendant, a civil burden of proof rests on the defendant, although in the general run of cases the court would accept the accuracy of counsel’s statement: R. v. Guppy, 16 Cr. App. R.(S.) 25, CA.”

15.In the present case, the mitigation was far-fetched in the extreme.  The judge had given no hint of acceptance of the story he had been given and his words, cited earlier, at the conclusion of the mitigation to the effect that he was not bound by what the applicant had said to the police, and Senior Counsel’s response that the judge did not need to accept what he had been told, made it very clear that the judge had taken on board the issues which he had to consider. 

16.We have no doubt, in the light of ample authority, that the judge was entitled to decide the issue without the benefit of a Newton hearing.  In this case not only was the account which the applicant related to police highly improbable, the judge had actually viewed the whole of the video interview.  There would have been little purpose, unless there were specific questions to which the judge required specific answers, to have invited the applicant to give evidence before him when the whole matter had been gone into in depth by the police and the judge had availed himself of the opportunity to gauge the applicant’s response to the allegation made against him within a short time of his arrest.

17.There was ample scope for the judge to have reached the conclusion to which he came.  Aside from all other considerations, those who were connected to the flat had gone to unusual lengths to avoid fingerprints being left at the scene.  The notion, with the apparent sophistication of the operation we have outlined, that the applicant would have been allowed to visit the flat without any knowledge of what was going on, is not an inference which can sensibly be reached.  The applicant clearly did know what was going on.

18.There is, before we turn to one further aspect to this case, no suggestion that the starting point of 12 years’ imprisonment was too high for a case of this kind.  In HKSAR v Chan Hoi-ngam [2000] 1 HKC 618 at pages 625-626, this court said that a starting point of 12 years “will normally be appropriate for those who arm themselves with weapons of this kind in working condition and with ammunition available for use”.  The plea of guilty alone reduced the sentence that would otherwise have been imposed by a third.  The sentence, therefore, was, aside from other considerations, entirely appropriate.

19.We come, finally, to a development in the case which occurred during the hearing of the application.  The most that could possibly have been offered in the applicant’s favour insofar as these proceedings were concerned was a Newton hearing in this court.  The tentative offer of such a hearing resulted, however, in a hasty conference between Mr Choy and the applicant, followed by an application to abandon these proceedings.  In other words, when offered the very facility which the applicant had been complaining he was denied in the court below, he rejected the offer.  This smacks, we have to say, of a game being played on the applicant’s part with the court and it is not one to which we are prepared to become a party.

20.In the circumstances, we did not accede to the application to abandon these proceedings.  We intimated to Mr Choy, and asked him to assume, that we were not prepared to accept from the Bar table the mitigation advanced.  We were, in other words, making the clear intimation which it is said by this application for leave was not made by the sentencing judge.  In the face of that intimation, no application was made by Mr Choy to call the applicant.  Rather, he invited us to say that in the event we should dismiss the appeal. 

21.It may be that the course taken by the applicant was influenced by a concern that if his account on oath or affirmation was disbelieved, the one-third discount for his plea of guilty might be affected.  However, this is a risk which he would have faced in the court below if had he given evidence, the opportunity for which he now says was denied to him.  The fact remains that he has presented this application on the basis that he was denied that opportunity and yet he refused the opportunity when it was presented to him.  The notion that this court would have significantly reduced his sentence on the basis of the account given without an opportunity of testing that account is, with respect, fanciful. 

Conclusion

22.The application for leave to appeal is dismissed.

23.The manner in which the applicant has ‘played’ this application is not attractive, and in the circumstances, there having been no merit whatever to the application, we heard Mr Choy as to the exercise of our powers under section 83W of the Criminal Procedure Ordinance, Cap. 221.  In the event, we shall order that 4 months of the time served, pending this application, shall not count towards the applicant’s sentence.

Mr Simon Tam, SGC, of the Department of Justice, for the Respondent.

Mr Edwin Choy, instructed by Messrs Yaddy Cheung & Co, for the Applicant.