The Queen v. Cheung Hon Kwong and Others

CACC000503/1989

BETWEEN

Coram: Hon. Sir Derek Cons, Acting C.J., Clough J.A. and Barnes J.

Date of Hearing: 3 August 1990

Date of delivery of judgment: 14 August 1990

----------------

JUDGMENT

-----------------

Sir Derek Cons, Acting C.J.:

1. This is the judgment of the court. It has been prepared by my Lord Clough J.A., who is unable to be present today.

2. The three applicants Cheung Hon Kwong (D1), Wang Your Kwong (D2) and Chiu Shut, a woman, (D3) were originally joined on one indictment containing four counts. D1 was charged separately on the first and second counts. On the first count he was charged with shooting with intent to resist lawful apprehension on the 2nd August 1987 contrary to section 17(b) of the offences against the Person Ordinance (Cap. 212). On the second count he was charged with possession on the 31st January 1989 of five rounds of .38 ammunition without a licence contrary to section 13 of the Firearms and Ammunition Ordinance (Cap. 238). On the third count D1 and D2 were jointly charged under section 13 of the latter Ordinance with possession on the latter date of a .38 calibre revolver and 27 rounds of .38 ammunition without a licence. On the fourth court D1 and D3 were jointly charged under section 13 with possession on the same date of a .38 calibre revolver and five rounds of .38 ammunition without a licence.

3. D1 pleaded guilty to all the four courts. He was sentenced by Hopkinson J. to 9 years imprisonment on the first court and six years imprisonment on each of the second, third and fourth counts, the sentences on the three possession counts being concurrent but consecutive to the sentence on the first count. D1 applies for leave to appeal against this effective sentence of 15 years imprisonment.

4. D2 and D3 were tried and convicted before Hopkinson J. and a jury on what were originally the third and fourth counts respectively of the indictment but for the purposes of the trial of D1 and D2 the indictment had been amended so as to isolate those joint counts in which D1 and D2 were respectively charged with a possession offence jointly with D1. D2 was sentenced to 7 years imprisonment. He now applies for leave to appeal against both conviction and sentence. D3 was sentenced to 5 years imprisonment. She also applies for leave to appeal against both conviction and sentence.

Background

5. On the 20th July 1987 D1 had absconded whilst on bail in connection with a deception allegedly committed in the course of business. On the 2nd August 1987 he was spotted in Yuen Long by a member of the public who informed a police constable. The constable approached D1 and asked him for his identity card. D1 claimed to be an officer in the Homicide Bureau. When the constable asked to see his warrant card D1 produced a loaded revolver from his waist bag, pointed it at the constable and told him not to move. D1 then made off in the direction of Sai Ching Street playground, pursued by the constable who called for assistance on his radio.

6. In response to the constable's call two sergeants began a search of the area. D1 suddenly appeared from the side exit of a building, presented a revolver at them and threatened them with it. The officers retreated to find cover, but D1 fired a shot. Fire was not returned by the officers because there were pedestrians in the vicinity. D1 then ran off and threatened a man in a nearby car park in his goods vehicle (with his wife and child) with the revolver, ordering him at gun point to drive him away at once. The driver very courageously turned into a blind alley after driving only a short distance, whereupon D1 got out of the vehicle and fled. The shooting incident on the 2nd August 1987 was the subject of the first count in the original indictment.

7. The police lost track of D1 until the 24th January 1989 when they received information that he was carrying on a trading business in Hanhow Road. At 3.05 pm on the 31st January they raided this address and found D1 and D2 there with two female staff. D1 and D2 were arrested in connection with the deception case and the shooting incident. The police search of the premises in Hanhow Road produced a briefcase which D1 admitted belonged to him. This contained the 5 rounds of .38 ammunition which was the subject of the second count in the original indictment.

8. Both D1 and D2 were cautioned at this time and separately interrogated by the police. D1 admitted his part in the shooting incident and told the police that the revolver he had used in that incident was concealed at D2's home in Choi Hung Estate. He also admitted that he had another revolver hidden at his girl friend's, D3's home. At about 4.40 p.m. on the same day the police escorted D2 to his home where, under a wooden bed, they found a brief case containing the .38 revolver and 27 rounds of .38 ammunition which was the subject of the third count in the original indictment and of the first count in the amended indictment.

9. At about 5.45 pm D3 had gone to D1's place of business at Hanhow Road where she was arrested. At about 7.30 pm she was taken by the police together with D1 to her home in Nassau Road. D1 there showed the police where to find the .38 calibre revolver and the 5 rounds of .38 ammunition which were the subject of the fourth count in the original indictment and of the second count in the amended indictment. The revolver was found wrapped in a paper bag in a hand bag in D3's room. The ammunition was found in a spectacles case in a wall unit in the sitting room.

10. At the trial of D2 and D3 they both gave evidence in their defence and D1 was called to support their denials of guilt. It was not disputed that the revolvers and ammunition were respectively arms and ammunition within the meaning of section 2(1) of the Firearms and Ammunition Ordinance, nor was it alleged by the defence that either D2 or D3 possessed any licence in respect of the relevant arms and ammunition. The sole issue in the case of each of the two defendants was whether or not they were knowingly in possession of the relevant arms and ammunition at the relevant time. In this connection the Crown relied on the presumption of possession which arose under section 24 of the Ordinance by virtue of the fact that the relevant arms and ammunition were in each case found in premises belonging to and in the possession of D1 and D2 respectively, being premises in respect of which they respectively possessed the keys.

11. The Crown relied on a cautioned statement of D2 allegedly made soon after about 4.40 pm at the time the revolver and ammunition were found at his home by the police. He was alleged to have told Detective Constable 798, Luk Wing-man (PW2) that "The gun and ammunition were. given to me by Cheung Hon-Kwong [D1], for safe-keeping." D2 was alleged to have acknowledged this statement to PW2 when PW2 had finished "post-recording" it at 11 pm on the 31st January 1989. Immediately thereafter D2 allegedly wrote down a further cautioned statement to the same effect and added that he had been keeping the arms and ammunition for D1 temporarily for a few days. The admissibility of these statements of D2 was challenged by the defence but they were held to be admissible as voluntary statements by the judge at the conclusion of a voir dire. However on the resumption of the trial in the presence of the jury the truthfulness of the statements was challenged by D2 on a number of grounds including the allegation that D2 had been induced to make his first statement and to write out his second statement (by copying it from what PW2 had written on another piece of paper) by threats from PW2 that if he did not co-operate his wife and her grandfather (whom D2 had told the police lived with him) would also be arrested.

12. PW2 gave evidence (which had evidently been foreshadowed in his witness statement) that at the time when the police had gone to D2' s home to search for D1's revolver and ammunition D2 had said to him all of a sudden "Ah sir, no need to carry out a search, the gun given to me by CHEUNG [D1] for keeping was kept underneath the bed.". This allegation which was denied by D2 (who in his evidence said he had merely told the police that ".... the case that CHEUNG Hon-kwong had left behind was under the bed") was the subject of pertinacious cross-examination of PW2 by Mr. Remedios, D2's counsel arising out of the fact that the alleged statement had not been "post-recorded" in PW2's notebook. We will return to this matter when dealing below with D2's appeal.

13. In the case of D3 the Crown adduced police evidence of two statements made by her under caution. At about 10.50 pm on the 31st January 1989 (the day of her arrest) Detective Police Constable 20422 Tai Ka-ming (PW4) had "post-recorded that she had merely said "I understand" at the time (about 7.30 pm) when cautioned after the police had found the revolver and ammunition at her flat. PW4 also adduced as evidence a further statement made by D3 and her answers to his questions immediately after the "post recording" of her first statement. D3 had said to him:

"The rounds of ammunition and the pistol are not mine. It was CHEUNG Hon-Kwong who placed (them) at my home secretly. (They) have nothing to do with me."

In answer to PW4's questions D3 had thereafter told him that she lived alone in the flat which she had purchased, but that D1 often came to pay her a visit. She said that there was one set of Keys to the flat which she was then using she told PW4 that she had known D1 since around October 1988 and had associated with him since then. She said that at the beginning of 1989 they had established a trading company at Hanhow Road.

D2's application for leave to appeal against conviction

14. The Crown's case against D2 was based on the clear confession of guilt in his cautioned statements and also upon the presumption arising in the circumstances indicated above under section 24 of the Ordinance requiring him to prove on the balance of probabilities that the revolver and ammunition found on his premises were not in his possession at the material time. The main thrust of D2's application is concerned with his confession statements and the credibility of PW2. The latter was the Crown witness concerned with the taking of those statements. He denied D2's allegations that inter alia PW4 had threatened him that if he did not co-operate with the police they would arrest D2's wife and her grandfather who lived in the flat with D2.

15. The substance of Mr. Remedios's argument was that, when the trial proceeded after the voir dire, PW4 demonstrably lied under cross-examination when he claimed to have "post-recorded" in his notebook D2's alleged statement ("D2's oral statement") - "Ah sir, no need to carry out a search, the gun given to me by CHEUNG for keeping was kept underneath the bed." This lie, Mr. Remedios contended, should have caused the judge to reconsider his ruling in the voir dire that D2's statements were admissible in evidence and to exclude those statements. In the alternative, Mr. Remedios submitted, in effect, that the judge failed to give an adequate direction to the jury on this matter so that D2 was deprived of his entitlement of proper consideration by the jury of his allegation that he had been induced to make his statements by inter alia PW2's threat that his wife and her grandfather would be arrested if he did not co-operate.

16. It is clear from the transcript that, under cross-examination by Mr. Remedios about D2's oral statement, PW2 categorically asserted that he had "post-recorded" D2's oral statement in accordance with normal police practice. When it was pointed out to him that there was no trace of this in the statements of D2 adduced as evidence by the Crown PW2 said he had made a mistake and that he had recorded D2's oral statement in another statement (i.e. his subsequent witness statement). The position so far was that there was material upon which the judge or the jury might reasonably conclude that PW2 had either been caught out when telling a deliberate lie on the spur of the moment or that he had simply made an honest mistake in his evidence.

17. Mr. Gerber, counsel for the Crown intervened to suggest that there could have been a misunderstanding because D2's oral statement had not been given under caution and therefore not appropriate for the usual "post-recording" procedure. When it came to re-examination Mr. Gerber proceeded to dig a forensic grave for himself by seeking to support his view of this incident in PW2's evidence by a succession of blatant leading questions to PW2 which the judge wrongly permitted notwithstanding repeated objections from Mr. Remedios. These questions from Mr. Gerber resulted in PW2 (who had previously said that he had subsequently recorded D2's oral statement in his witness statement) being led into saying (which was untrue) that he had also recorded D2's oral statement in notebook. The relevant passage in the transcript is a model of grossly unfair and inept conduct on the part of prosecuting counsel to which the judge (who subsequently rightly prevented Mr. Remedios from asking his client leading questions) should have put a stop at its inception. We set it out in full:

18. At the end of the day Mr. Remedios obtained access to PW2's notebook. It transpired that D2's oral statement had not been recorded in the notebook and that, as the judge subsequently observed, PW2 had been "pushed" by Mr. Gerber into saying that it had been so entered. At Mr. Gerber's instigation PW2 was recalled on this matter. PW2 explained that he had been "rather confused" on the previous day when giving evidence and said that in fact D2's oral statement had been recorded in his witness statement dated the 3rd February. The position now was that, as PW2 acknowledged under further cross-examination, that he had given "incorrect" evidence (albeit in response to leading questions) when he had said that he had recorded D2's oral statement in his notebook and also when he had said he had done this on the same day as the statement was allegedly made.

19. We do not accept Mr. Remedios argument that the judge did hot consider his ruling on the admissibility of D2's statements as a result of this part of PW2's evidence before the jury. The transcript shows that at the instigation of Mr. Remedios the judge clearly did consider his ruling in the light of Watson [1980] 70 Cr. App. Rep. 273 (C.A.). He gave an oral ruling on the matter in the absence of the jury. He indicated that he did not accept that PW2 had told a deliberate lie when stating that D2's oral statement had been recorded in his notebook. In the judge's view this did not affect PW2's general credibility. It was, the judge considered ".... just a mistake, and as I think I mentioned earlier today, I think he was pushed into it by crown counsel in re-examination yesterday." In our judgment the judge, who had seen and heard the evidence, was fully entitled in all the circumstances to come to this conclusion and to uphold his previous ruling in the voir dire regarding the admissibility of D2's cautioned statements.

20. However, the incident concerning PW2's evidence had taken place before the jury whose duty it was to consider the credibility of PW2 when assessing the weight, if any, to be given to all D2's statements. It is on this aspect of the application that we have felt concern. The matter was, we think, unfortunately to some degree obfuscated by Mr. Remedios' emphasis in his speech to the jury on the fact that D2 alleged that his wife and her grandfather had a key to D2's flat and on the consequential presumption arising from section 24(1) (a) (iii) of the Ordinance. Mr. Remedios was evidently induced to put this emphasis on the statutory presumption (in relation to D2's wife and grandfather) by the fact that Mr. Gerber had suggested to D2 under cross-examination, in relation to D2's allegations of police threats to arrest his wife and her grandfather, that they had not been involved in the relevant offences.  Mr Remedios had gone so far as to submit to the jury that by reason of the presumption it was "pure luck" that D2's wife and grandfather were not in the dock and that if they were found to be in possession of the keys of D2's flat ".... they have every right, every reason to be up there".

21. The effect of all this was that the judge seems to have become understandably concerned in his summing up with indicating, correctly, to the jury that the statutory presumption was not concerned with the police powers of arrest. However, in our opinion he failed to address his summing up sufficiently to the real question for the jury which was whether the threats in question were in fact made to D2 and, if so, whether they influenced him. Connected with this question was the credibility of PW2 which had been attacked in the manner indicated above.

22. When dealing with the statements of D2 and D3 generally the judge fairly put the salient issues to the jury regarding D2's statements. He said the question of straight fact was whether the statement was made by him or whether it was invented or fabricated by the detective and whether D2 was made to copy it. He added that it should be "quite easy" for the jury to make up their minds about that. He dwelt on the question how much or how little had been written by D2 himself and rightly directed the jury to consider all the relevant circumstances "including any allegations of threats or force or inducements." He correctly told the jury that if they thought the allegations might be true or not adequately accounted for they might attach little or even no weight to the statements.

23. At the stage' where the judge dealt specifically With D2's case he said in relation to D2's statements :

"He also, of course, denies ever making that cautioned statement. At least he denies CHEUNG giving him the gun for safe-keeping. He says that he was made to copy out that passage from something written out by the detective as a result of threats and force....".

24. Later he touched on the alleged threat to arrest D2's wife and her grandfather saying:

"Of course, he says that there were threats made by the detective that his girlfriend and her grandfather would be arrested. But I do not know what evidence there was to suggest that those people were involved with this.

25. The judge went on to tell the jury to disregard the whole written statement of D2 if they concluded that he had been made to copy it out. He rightly directed them that if they thought D2's allegations had been adequately dealt with by the detectives and that D2's admissions were true, they were very telling. He added:

"And those admissions themselves would be sufficient on their own for you to be satisfied beyond reasonable doubt as to his guilt and would be sufficient for you to convict him without reference to the statutory presumption."

26. The question of PW2's credibility regarding D2's oral statement and the failure to record it in PW2's notebook was dealt with in the following passage of the summing up:

"As for the alleged verbal on entry, 'Ah Sir, it is not necessary for you to search - they are under the bed', of course his version is that 'the briefcase is under the bed,' whereas the police officers all say that he said 'the gun and ammunition.'

They tell a consistent story, but there is no written record taken at the time. Nobody seems to have recorded that in his notebook.

And the detective was undoubtedly incorrect when he was asked by Mr. Gerber about this and he at one stage in the afternoon, I think it was, he said that he had made such a note that same afternoon. Of course it turned out the next day that there wasn't such a thing.

Bearing in mind that there isn't a contemporaneous note, I think you may not want to attach much weight to that aspect of the evidence or as to what he said on entry. So I suggest you don't waste much time on that part of the evidence. Don't attach weight to it, I suggest."

27. Thus it seems to us that it cannot be said that the allegations of D2 and the notebook incident concerning PW2 were withdrawn from the jury. All the salient matters were put in the summing up. However in directing the jury not to attach weight to D2's oral statement because there was no contemporaneous police note of it and PW2 had been "undoubtedly incorrect" when stating that he had made a note of D2's oral statement on the day it was made, we consider that the judge should have pointed out to the jury that the defence contended that PW2 had lied when giving evidence about that statement, both under cross-examination (when he said he had "post-recorded" the statement in question) and under re-examination when he allowed himself to be led into saying that he had "post-recorded" the statement in his notebook on the day it was made.

28. It was for the jury to decide whether or not PW2 had lied or merely been honestly mistaken about these important matters. They were never directed in terms by the judge to do so, but only directed to give no weight to the oral statement of D2. This left the very telling admissions of D2 in his written statement. If PW2 was not to be believed concerning D2's oral statement, and if the jury, when directed to do so, had concluded that PW2 had lied on this matter, they should have been directed to go on to consider whether this affected PW2's credibility generally in relation to the written statement and the allegations made by D2 in relation thereto.

29. In our judgment the jury was not sufficiently reminded of the defence case on these matters and the jury might reasonably have taken a different view on them, if they had been fully put by the judge in the summing up. If that had been done the jury might reasonably have given no weight to the statements of D2. This would not necessarily have resulted in an acquittal of D2 because he had to surmount the statutory presumption. However the judge had directed the jury that if they were satisfied the admissions of D2 in the statements were true they could be satisfied beyond reasonable doubt of his guilt and that that would be sufficient for them to convict him without reference to the statutory presumption. We have no means of knowing whether the jury, in arriving at its verdict of guilty against D2, relied on the presumption at all or whether they convicted D2 after giving full weight to the statements and without having further regard to the evidence relating to the statutory presumption.

30. We therefore conclude that the summing up was inadequate on the above matters and that the conviction of D2 was unsafe and unsatisfactory. We were not impressed by the remaining grounds of appeal raised on behalf of D2 but in the circumstances do not find it necessary to deal with them specifically. In our judgment this is clearly not a case for the application of the proviso to section 83(1) of the Criminal Procedure Ordinance (Cap. 221). However in all the circumstances we consider that the interests of justice require that D2 be retried pursuant to section 83E of that Ordinance. We therefore propose to allow D2's application, and treating his application for leave as the hearing of the appeal, to quash his conviction, but to order a retrial in his case.

D3's application for leave to appeal against conviction

31. The first two grounds of appeal advanced on behalf of D3 by her leading counsel Mr. Cheng Huan related to D3's cautioned statement which had been admitted in evidence without challenge by the defence. In this connection junior counsel who originally settled D3's notice of appeal described her cautioned statement in the first ground as being "entirely" exculpatory. If this were so it would be hearsay and not of course be admissible as evidence of the truth of the facts it asserted: se Reg v. Sharp [1988] 1 WLR 7 (P.C.) per Lord Havers at p.11G. Mr. Cheng and his junior amended the first ground so as to describe the statement as "essentially" exculpatory. This seems to us to produce no material change of meaning. However Mr. Cheng contended in argument that the statement was a mixed statement and not totally explicatory because of the admission by D3 that she possessed the keys of the flat which belonged to her. Thus, he contended, without assessing the credibility of the police witnesses, the production of D3's statement by the Crown raised the presumption under section 24 against D3. For the crown Mr. Duckett contended that the statement was entirely exculpatory because it contained a disclaimer by D3 of any knowledge of the revolver and ammunition. He also said that the crown had not relied on D3's unchallenged statement as part of the prosecution evidence because it did not require any additional evidence that the Nassau Road flat was D3's premises or that she had its key. It was common ground that D3 had opened the iron gate and main door of the flat with her own key to admit the police when they went to search the premises. Mr. Duckett further contended that the statement was produced by the Crown at the trial in accordance with the accepted fair practice of fairness in disclosing the course of police process, (a practice shich Mr. Cheng denied to exist).

32. On the footing that D3's statement was a mixed statement (for the reasons he advanced), that it was produced by the Crown at the trial as part of its case and that D3 had given evidence consistent with her "explanation" in her cautioned statement, Mr. Cheng criticised, as erroneous in law, the following passage in the judge's summing up relating generally to cautioned statements by accused persons:

"As for any explanations or anything else which an accused person has put forward which are not admissions, they are somewhat different. An accused may explain why he did something or he may qualify what he did or seek to put the blame on somebody else or say he did not know or he did not do something. Well, you should appreciate that they are not made against his own interests and they are not tested on oath. So there is less weight to be attached to such an explanation than there is to the admission."

33. Assuming, but not deciding, against the Crown that D3's statement was a mixed statement and that the Crown cannot be heard to say that it was not relied upon as evidence raising the presumption under section 24, we consider this passage in the summing up was unnecessary because it would only be in point if D3 had elected not to give evidence. In that event the jury would have required assistance in the summing up on the way to assess the admissions and self serving parts of D3's statement. For that purpose the passage cited would have been correct: see Reg v. Duncan [1981] 73 Cr. App. R. 359 per Lord Lance C.J. at p.365 approved in Sharp at pp.11-12 per Lord Havers.

34. However, both Duncan and Sharp are concerned with mixed statements where the defendant has elected not to give evidence and our understanding of those cases is that they are not intended to apply where the defendant has actually given evidence on oath in his defence. As Mr. Duckett rightly contended the real question in such cases is what weight is to be given to the defendant's evidence.

35. Mr. Cheng contended that because D3 had given evidence on oath which had been tested the judge should have left it to the jury to decide at the end of the day after hearing her evidence, what weight to give to the exculpatory passage in her statement. This argument really was an expression of D3's second ground of appeal, based on Sharp, to the effect that since D3 had given evidence consistent with her explanation in her statement (which was contended to be part of the Crown's case) the explanation given in her cautioned statement was evidence upon which the jury could rely if they so wished.

36. In our judgment this argument is not sound. It seeks to introduce a new element into the Sharp line of cases which was not present in those cases at all, namely the evidence of the defendant. If such evidence is present as it was in the present case it seems to us that the case is not within the Sharp line of cases and the self serving part of the statement, which was not made on oath or tested by cross-examination cannot be treated as evidence of its contents. At the most it can be taken into account by the jury when considering D3's evidence, as the judge directed, as evidence of the reaction of D3 to police interrogation within hours of the arrest and to evidence of her consistency of denial : c.f. R. v. Pearce (1979) 69 Cr. App. R. 365 and Reg. Tooke (C.A.) (Times Newspaper, 25th October 1989).

37. The third ground of appeal advanced on D3's behalf complained of the following passage in the introductory part of the summing up where the judge was referring to the fact that D1 had pleaded guilty to inter alia the counts upon which D2 and D3 were respectively being tried jointly with D1:

"Well, any plea of 'Guilty' by him is completely inadmissible against these accused. So put the fact that he may have pleaded guilty completely out of your mind when you consider their cases. It has absolutely no bearing whatsoever on the guilt of these two defendants. The prosecution have to prove their case against them to exactly the same extent as if that man CHEUNG had not pleaded guilty."

38. Mr. Cheng accepted that a plea of guilty was normally irrelevant, but he criticised the judge's use of the expression "absolutely no bearing" in the present case where there were what he called special features. These were that D1 and D3 were jointly charged on the same count; that D1 had given evidence for D3's defence which included evidence that the revolver and ammunition belonged to him and had been put in D3's handbag by D1 without D3's knowledge; and that D1 has made the same admissions and given the same explanation in his cautioned statement upon his arrest.

39. We are unable to see any substance in this ground. We are satisfied that the passage in the summing up cited above was intended, and must have been understood by the jury to be, no more than a warning not to assume the guilt of D3 merely because D1 her co-accused had pleaded guilty to the same count. He made it quite clear later in his summing up that his evidence in D3's favour was admissible. It may be that he should have told the jury that as he had admitted his own guilt at an early stage any pleaded guilty to the joint count the jury might regard this as indicative of his sincerity but we cannot fault him on the ground advanced on D3's behalf.

40. A number of other matters were relied upon by D3 in support of the contention that her conviction was unsafe and unsatisfactory. Thus it was contended that the judge had suggested to the jury that the burden of proof was on D3 when he said in his summing up in relation to the presumption arising under section 24:

"Insofar as the onus of proof shifts to the defence to rebut this presumption of possession, well, then it is an exception to the general rule that an accused person has nothing to prove."

41. In support of this point Mr. Cheng cited Wu Man-Choi v. The Queen [1979] HKLR 174, a case concerned with the presumptions arising under the Dangerous Drugs Ordinance (Cap. 134) where the trial judge was faulted by another division of this court for suggesting to a jury that a trial relating to a dangerous drug offence was not a normal criminal trial because it might give the jury the impression that the onus was on the accused to prove his innocence when in fact the onus of proving guilt was always on the Crown. In that case the trial judge was understandably criticised at pp.180 and 181 for passages in his summing up such as:

"In a normal case an accused person is presumed to be innocent but in cases involving dangerous drugs, the position is reversed in certain circumstances."; and

"A legal presumption is a provision which, if it applies, does away with the need for proof."

42. In the present case no such absurdities occurred. The trial judge had given a correct indication of the onus and standard of proof in the introductory part of the summing up. He was obliged to explain the presumption raised by section 24 and its effect. In our opinion he did this in practical language which the jury could  be expected to understand and did not fall into the error of suggesting that the overall burden or standard of proof was shifted by the presumption. In particular he was at pains to emphasise the lighter burden of proof imposed on D3 under the presumption when he said:

"But even then it is not so difficult as you might think, because whereas the standard of proof - when the prosecution have to prove something, it's always to prove to your satisfaction beyond reasonable doubt. The accused's burden of proof is not nearly so high and he need only rebut the presumption on the balance of probabilities that he was not in possession of the arms and ammunition - he was not knowingly in possession of the arms and ammunition.

And the degree of probability is the minimum which will tip the scales in his favour. He must prove that it is more likely than not that he didn't have the arms or ammunition knowingly in his possession. If he succeeds in doing this, then the presumption ceases to apply and the inference of possession cannot drawn."

43. Then it was contended on D3's behalf that whilst the judge had drawn the jury's attention to several inconsistencies between the evidence of D1 and D3, he had failed to direct the jury that nevertheless those inconsistencies did not necessarily arise from the fact that D3 was lying.  It was submitted that the inconsistencies could have arisen from the fact that D3 was telling the truth but that D1 was lying.

44. The inconsistencies in question were in connection with (1) a story about her going off to buy a cargo vessel, in Switzerland according to D3 but in Korea according to D1, (2) whether or not D1 and D3 were lovers, D3 having denied it and D1 having, in effect, admitted it, (3) what D1 had told D3 about what was in the handbag, D3 saying "Didn't know" and D1 saying he had told D3 he had placed documents in her handbag.

45. In our judgment it was perfectly proper for the judge to draw the jury's attention to these inconsistencies in the evidence of D1 and D3 when assisting them to assess their credibility. We cannot accept that the jury might have been misled into attributing these inconsistencies to the fact that D3 must have been lying. He had earlier made it clear to the jury that whilst they might wish to put little weight on D1's evidence ".... what about hers." He emphasised her consistent denials several times and properly referred to her good character as being primarily relevant to her credibility.

46. On this issue reliance was sought to be placed on the dicta of Lord Devlin at p.457 in Broadhurst v. The Queen [1964] AC 441 (P.C.) on the duty of the judge to warn juries against the natural tendency to think that if an accused is lying it must be because he is guilty. In the present case the circumstances were far removed from those in Broadhurst. We cannot accept that it would have peen of any assistance in the present case to give the jury a Broadhurst direction. The issue for the jury was a straight forward credibility issue and there was no realistic danger that the jury might erroneously conclude that D3 must be guilty merely because one or other or both of them had lied on a peripheral issue.

47. A further point taken on D3's behalf was that the judge had erred when he said in his summing up:

"Has the defence satisfied you at the end of the day that it is more likely than not that the gun was not knowingly in her possession? If as a result of her and his and all the other evidence, for instance, the circumstances in which it was found, they have satisfied you of that on the balance of probabilities, that she didn't know about the gun, then they will have rebutted the presumption of possession and then you will find her Not Guilty."

It was contended by Mr. Cheng that the judge was here giving the jury an inevitable but wrong impression that, in order for D3 to rebut the presumption, not only her evidence but the evidence of D1 called on D3's behalf must also be accepted.

48. We have no hesitation in rejecting this contention. As we have already mentioned, the judge had been at pains to emphasise to the jury that even if they rejected D1's evidence they must consider that of D3 and assess that. Furthermore the suggestion that in the passage cited "they would be understood by the jury to refer to the combined evidence of D1 and D3" does not bear closer scrutiny. In our opinion, the cited passage having begun with the words "has the defence", the expression "they" is naturally to be understood to refer to the defence. Moreover the next paragraph begins with the words "But if the defence have failed to rebut the presumption...."

49. Finally it was submitted that there was a material, irregularity during the trial because the judge had failed to direct the jury to ignore that part of Mr. Gerber's question during his cross-examination of D3 when he had suggested that there was an inconsistency between her evidence and an uncautioned antecedent statement which she had made to the police. The question raised concerned the circumstances in which D3 claimed to have first met D1. In her evidence D3 (who was a masseuse) had said that she had met D1 as a customer whereas it was put to her that in her antecedent statement she had spoken of meeting D1 in a lounge when she was drinking wine there. When D3's counsel had objected to this line of questioning before D3 had answered the question his objection was upheld by the judge and the matter was not pursued by the prosecution.

50. This seems to us to have been a very peripheral matter related to credibility. Moreover it was already apparent to the jury from D3's cautioned statement that she had there stated that she had met D1 "in a social gathering". We cannot think that the judge's failure to refer to this matter had any material affect on the jury's deliberations. Indeed it seems to us that the judge had  taken a sensible course by ignoring it in his summing up.

51. Accordingly we conclude no grounds exist for contending that D3's conviction was unsafe and unsatisfactory and we refuse her application for leave to appeal against conviction. Her application for leave to appeal against sentence will have to be determined on a date to be fixed.

D1's application for leave to appeal against sentence

Mr. Poll, in support of D1's application for leave to appeal against his effective sentence of 15 years imprisonment, did not, as he put it, quarrel with either the sentence of 9 years imprisonment on the shooting count or the concurrent sentence of 6 years imprisonment on the three possession counts after pleas of guilty by D1. However in a succinct and admirable argument, he sought to persuade the court that the circumstances of the case justified a reduction of the totality of the sentences to somewhere in the region of 11 or 12 years.

52. Mr. Poll adopted the grounds framed by his client when he made his application and contended that 15 years imprisonment was excessive, that D3 who had pleaded not guilty had only received a 5 year term and that he should not have received consecutive sentences. D1 had also mentioned that he suffered from chronic asthma.

53. In seeking to persuade the court to reduce the effective sentence in reliance on a totality approach Mr. Poll said everything that could possibly be said on behalf of D1. He stressed that only one shot had been fired in the shooting incident in 1987, that it had not been aimed and no one had been injured. He contended that the possession offences at the time of D1's arrest were to some extent related to the earlier shooting offences. He particularly emphasised the assistance which D1 had given to the police, not only in his immediate admission of his offences and his pleas of guilty but also in implicating D2 and D3. He rightly stressed that it was not in the public interest to impose such heavy penalties where the police had been assisted by the offender. It was, he submitted in the public interest not to deter offenders from helping the police.

54. By way of comparison Mr. Poll cited Attorney General v. Chan Lee Kong [1986] HKLR 1096 (C.A.) where an overall sentence of 20 years was held to be appropriate where an offender had been convicted after trial on counts of robbery, wounding with intent, and using a firearm with intent to resist lawful arrest. These charges were the sequel to a gang robbery of a goldsmith shop where arms had been carried and used toward a police officer and to resist arrest.

55. Looking at the totality of the sentences passed on D1 in the present case (as the court did in Chan Lee Kong following the dictum of Lord Lane C.J. in R v. French (1982) 75 Cr. App. R1 at p.5) we have in the end been constrained to conclude that the effective sentence of 15 years imprisonment passed on D1 is justified in the case of the very serious offences committed by an offender with a bad record. The shooting offence carries a maximum penalty of life imprisonment. It was fortunate that no one was injured or killed, but the public and police officers were undoubtedly put in peril. As regards the possession offences, D1 has shown himself to have stored ammunition and firearms in no less than three places. He unlawfully possessed not one but two revolvers and 37 rounds of ammunition. Furthermore he was found with 5 rounds of ammunition in Hanhow Building.

56. After anxious consideration we conclude that D1 received sufficient credit for his assistance to the police and pleas of guilty when the judge determined the sentences for the individual offences and made the sentences for the possession offences concurrent. We consider that the predominant public interest is that very serious offences of the kind D1 has committed should receive a deterrent effective sentence of the magnitude which the judge imposed. Potential offenders must be made to realise that the unlawful possession and use of firearms in Hong Kong will attract such substantial effective sentences.

57. D1's application for leave to appeal against sentence is accordingly refused.

Representation:

Mr. Michael Poll (Peon & Dissanayake) for 1st Applicant

Mr. Leo Remedios (DLA) for 2nd Applicant

Mr. CHENG Huan, Q.C. & Mr. Joseph Tse (C.K. Mok & Co.) for 3rd Applicant

Mr. A.P. Duckett, Q.C. & Ms Ida Cheung (Crown Prosecutor) for Respondent/Crown