HKSAR v. Suen Wai Leong

CACC188/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 188 OF 2007

(ON APPEAL FROM HCCC NO. 260 OF 2006)

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BETWEEN

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Before : Hon Stock JA, Wright and Saw JJ in Court

Date of Hearing : 7 January 2009

Date of Judgment : 7 January 2009

Date of Handing down Reasons for Judgment : 12 February 2009

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REASONS FOR JUDGMENT

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Saw J (giving the judgment of the Court) :

1.The applicant appeared before Beeson J on an amended indictment which contained two counts :

(1)     Count 1 was a charge of using a firearm with intent to resist lawful arrest or detention, contrary to section 17(1) of the Firearms and Ammunition Ordinance, Cap. 238; and

(2)     Count 2 was a charge of wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212.

He was convicted of Count 1 and acquitted of Count 2.  He was sentenced to be imprisoned for five years.  He applied for leave to appeal conviction and sentence.  He subsequently abandoned his sentence appeal.

2.On 7 January, 2009, we dismissed his application for leave to appeal conviction and said that we would hand down our reasons at a later date.  These are our reasons.

3.The events which gave rise to the charges took place on 6 September 2006.  The applicant was then a serving police officer in the Hong Kong Police Force.  He was 39 years of age.

4.On that day he was not on duty.  He had earlier been involved in a traffic accident and had been taken to hospital for treatment.  He had left hospital in the company of his younger sister.  It was the prosecution’s case that shortly after this he had run from the taxi in which they had been travelling.  He was still then in hospital clothing.  A report was made to the police by his younger sister that he was a “missing person”.  Late in the afternoon of the same day, a party of police officers including Ng Chiu Chung (“PW1”), a police constable, was despatched from the Aberdeen Police Station to look for him.

5.As they left the police station, they received a message that other officers were in pursuit of a suspect running from police custody in the vicinity of Wu Nam Street in Aberdeen, close to the pedestrian subway and the Aberdeen Praya Road.  As will be seen, this report was in fact not correct.  PW1 together with Sergeant Wong Siu Pang (“Sgt Wong”) and others drove to the pedestrian subway at Aberdeen Praya Road.

6.As they alighted the police vehicle, they saw a man running towards them from the pedestrian subway.  Sgt Wong was in the vanguard and attempted to apprehend this man assuming, as did the other officers, that he was the same person fleeing from the police that they had been told about earlier.  That man was the applicant.

7.The evidence of PW1 and to an extent that of Ip Ping Chuen, (“PW2”) (another police constable), was that the applicant was seen running from the pedestrian subway weaving in and out of other pedestrians.  There were also behind him other police officers, in uniform, apparently in pursuit of him. 

8.Sgt Wong attempted to restrain the applicant.  PW1, and in turn PW2, went to his assistance.  In the ensuing struggle, PW1’s service revolver was removed from its holster and discharged.  The bullet struck Sgt Wong in the right thigh passing through it and grazing the right side of his scrotum.  Sgt Wong subsequently died, not of the bullet wound, but from natural causes.  The applicant was arrested at the scene.

9.The other group of police officers was led by Station Sergeant Sham (“PW3”).  They were aware that the person they were pursuing was the police officer earlier reported missing by his younger sister.  They had entered the pedestrian subway from the opposite end from that PW1, PW2 and Sgt Wong had taken.  One of their number had spoken to the applicant, who had replied but then fled.  It was PW3’s evidence that his group of police officers was halfway through the pedestrian subway when he heard the sound of a gunshot.

10.Thus there were two groups of uniformed police officers, one at each end of the pedestrian subway.  One group tried to approach the applicant as he had been reported as a missing person.  The other group was not aware that the applicant was in fact the missing person they had been sent to locate.  That group led by Sgt Wong thought that he was the “fleeing suspect” they had been alerted to.  As it transpired, PW3 had reported their sighting of the applicant but that report had been relayed to Sgt Wong’s group, not as a report that they were in pursuit of the missing person, but that they were in pursuit of a person running from police custody.

11.The defence case as it emerged from the cross-examination of the prosecution witnesses and from the applicant’s evidence was that at no time was he running from the pedestrian subway.  He had seen and greeted the police party led by PW3 after which he continued, as he described it, “hastily” and eventually entered the pedestrian subway.  None of these police officers attempted to stop or intercept him.

12.Inside the pedestrian subway he saw a uniformed police officer (Sgt Wong, it seems) whom he bumped into.  That officer made no attempt to stop him.  Shortly after this, he said that he slipped and bumped into yet another police officer in uniform.  That officer (PW1) then shouted to the others, “I’ve got the suspect.”  He said that he was then pushed to the ground and a struggle ensued. 

13.The judge in her summing-up quoted the following passage from his evidence-in-chief (at p. 38, H-K) :

“ ‘I didn’t know what was going on, then I heard a bang.  I never hit the police officer when he was restraining me.  We struggled.  I tried to rise when we were pushing and pulling at each other.  Before the bang, he pushed me to the ground.  I tried to rise and we struggled, we struggled for several seconds.  Sergeant Wong did not participate in the struggle.  After the bang, I saw PW1 climb over the upper part of my body, he picked up the gun from the ground before putting it in the holster.’ ”

It was also the applicant’s evidence that PW1 had drawn his firearm himself but he, the applicant, had not known how it came to be discharged.

14.The issues for the jury were stark.  PW1 and PW2 had described an attempt to apprehend and detain a person they suspected to be fleeing from other police officers.  In the course of that struggle the applicant was said to have removed PW1’s service revolver from its holster and, as he and the applicant fought over the possession of it, the gun discharged. 

15.If that version of events were correct, then the applicant had removed the service revolver from PW1’s holster whilst PW1 was attempting to restrain him.  In which case it was open to the jury to conclude that he did so as part of the process of resisting his lawful detention.  On the other hand, if what the applicant said were or may have been correct, then the service revolver had been removed from the holster by PW1 in circumstances which would not have been justified.  If that were or may have been the case, then the jury had been told that they must acquit the applicant of charge 1.  It follows that he would also have been acquitted of charge 2.

16.The jury’s verdict properly understood means that they accepted the evidence of the police officers, and in particular PW1, that the applicant had removed the service revolver from PW1’s holster and that it then discharged in the course of a struggle for its possession.

17.The verdict of acquittal on Count 2 meant that they were not satisfied that the applicant had pulled the trigger or if he had, he did not intend that Sgt Wong should be wounded as a consequence.

THE APPEAL

Ground 1

18.This perfected ground of appeal alleged that the applicant was “gravely prejudiced and was deprived of a fair trial” in effect because his counsel in the trial did not conduct the cross-examination of the principal prosecution witness in the way that the applicant’s counsel in this application now says he should have.  If it was intended by this ground of appeal to assert that counsel acting at trial was flagrantly incompetent, it should have been said in terms.  If that was not the intention of the ground of appeal, then it is impossible to see upon what basis the ground had any prospect of success.  It has long been accepted by this court and appellate courts generally that the decisions made by counsel in the trial will justify the interference of the appellate courts only in the most exceptional of circumstances.

19.In HKSAR v. Chong Ching Yuen, [2004] 7 HKCFAR 126, 132, the Court of Final Appeal cited with approval the following passage from R. v. Birks [1990] 48 A. Crim.R. 385, 392, per Gleeson CJ :

“As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.”

20.The Court of Final Appeal observed that :

“Certainly defence incompetence can cause or contribute to the creation of a state of affairs in which a conviction has to be regarded as unsafe or unsatisfactory. …”

21.However the Court of Final Appeal emphasised that the test to be applied, even if the allegation of incompetence on the part of trial counsel could be sustained, is whether or not the applicant had received a fair trial.  These considerations only become relevant if it is established that the applicant’s counsel’s conduct of his trial was such as to be properly described as incompetent. 

22.In the instant case the issue in the trial in the main part was the truthfulness of the evidence of the principal prosecution witness PW1. 

23.It was PW1’s service revolver which was discharged in the attempt to apprehend the applicant.  It was his evidence that the applicant had managed to remove the service revolver from its holster whilst he and the applicant struggled.  It was his evidence that in the latter stages of that struggle he was attempting to ensure that the service revolver, then held by the applicant, was pointed towards the ground and not discharged.  It was his evidence that when the applicant was finally subdued he was able to pry the applicant’s fingers open and remove the service revolver from them. 

24.The applicant’s case, and he gave evidence to this effect, was that PW1 had himself removed his service revolver from its holster and had either accidentally or intentionally pulled the trigger during the course of their struggle.

25.In the course of his cross-examination of PW1 the applicant’s counsel established that PW1 and his colleagues believed that in the vicinity of the pedestrian subway where the applicant was apprehended there was then being pursued by other officers a “suspect on the loose” and that when they came upon the applicant emerging from the pedestrian subway they naturally believed that the applicant was that escaping suspect.

26.It was suggested in cross-examination to PW1 that his first encounter with the applicant was accidental, that is to say that the applicant bumped into the officer.  This suggestion was rejected, as was the suggestion that he did not tell the applicant to “freeze” at the point in time when he attempted to prevent him leaving.  His counsel established that the witness did not recall which hand the applicant had used to remove the service revolver from its holster but that when he ultimately pried it from the applicant’s grasp it was in his right hand.  The applicant’s case that it was the police officer who took the service revolver from its holster was put to and rejected by the officer.

27.So up to this point it is clear that the applicant’s case was properly put to the principal prosecution witness.

28.What is said by Mr A.A. Hoosen on the applicant’s behalf is that it was incumbent upon his counsel in the trial to emphasise discrepancies which it is said existed in the evidence of PW1 in the trial and an earlier witness statement he had made.  These discrepancies, if they exist, are said to have been so significant, so material, that they must inevitably have caused the jury to doubt the veracity of PW1.  We must then consider whether there were discrepancies and, if so, were they of such a magnitude and what, if anything, would or must the jury have made of them.

29.The substance of the alleged discrepancy was as to when PW2 came to PW1’s assistance.  Was it whilst PW1 was still struggling with the applicant trying to wrest the service revolver from his grip (as he said in evidence) or after he had subdued the applicant and had him pinned to the ground as he is alleged to have said in his statement?

30.Having examined the transcript of the evidence of PW1 and the witness statement we consider that any difference in the descriptions of events was of such little significance that not to pursue that line of cross-examination was entirely understandable.  It is apparent that the situation was both chaotic and dangerous.  On PW1’s evidence he was engaged in a struggle to retrieve his service revolver from the hand of a person he was attempting to detain.

31.Whether or not the officer who assisted PW1 to subdue the applicant arrived on the scene earlier or later in the struggle was not of any moment in the circumstances.

32.PW2, the officer who came to the assistance of PW1, told the jury that when he did so it was after the service revolver had been discharged and at a time when PW1 was on the ground.  He saw the service revolver in the applicant’s right hand and with his finger inside the trigger guard. 

33.The judge gave the jury directions on how to approach discrepancies in the evidence of witnesses (from p. 13, L to p. 14, U) :

“        A lot of the evidence has not been directly challenged by the defence but important parts have been.  There is a conflict of evidence in respect of the account of the chase that resulted in the police officers going into the subway.  There is a denial by the defendant that he was intercepted in the manner that the police say that he was.  He denies taking the gun, although the police evidence is to the contrary, and he denies firing the gun, and again, the police evidence conflicts with that.  It has also been suggested that PW1 is being protected by PW2 because he had drawn his gun wrongly and that the police are not telling the truth about what happened at the subway.  So those are the areas of evidence which are under direct challenge and which you have to consider.

When you are assessing the evidence of witnesses, consider whether what one witness said is consistent with evidence given on the same matters by other witnesses, or whether a witness has given evidence at one time which might be inconsistent with what he said at another time.  There might be contradictions between the evidence a witness gives in-chief and what that witness said when he was cross-examined, or

re-examined.

If you find that there are inconsistencies or inaccuracies, try and see if there is any explanation for them.  Is the witness forgetful, perhaps because of the lapse of time?  It is almost nine months since these events took place.  Is it because the events which the witness recalls took place in confused circumstances, or at a time when the witness was involved in many things?  You will refer, in that instance, to the description of these events as ‘chaotic’ by at least one of the witnesses.  Also note that the events within the subway took place within a very short time.

Is a witness genuinely mistaken about what he says?  Is the witness lying, as the defendant lying, as the defendant suggests some of the witnesses are?  If you decide that a witness is lying, consider whether the lie is told to establish or strengthen the case against the accused, or whether it is a lie told to get the witness out of the some personal difficulty which is not really connected with the case.

Assess what each witness has said by referring to what other witnesses have said, or by referring to the plans, or the photographs, or the Admitted Facts, or the physical exhibits.  Do not think that because a police officer has special training, that he must be a better or more honest witness than a lay person.  Similarly, a police training does not mean, necessarily, that a police officer is better or more accurate at details of face or clothing, or of the scene, than anybody else.

Your task as jurors is to assess the evidence of each of the witnesses carefully by concentrating on what is said and whether what is said is consistent with what other witnesses have said, or consistent with the facts you have decided are correct or rational in terms of what has occurred.  As I told you earlier, you can accept all, or none, or part of what a witness says.”

Nothing more was required.

34.As is the norm when allegations of this nature are made against an applicant’s trial counsel, they are invited to comment upon same.  Mr Bruce Tse who appeared for the applicant in the trial has done so in an affirmation dated 22 April 2008.  Having reviewed his own notes and the grounds of appeal, he submits that when it was that PW2 arrived to assist PW1 was not a matter upon which the credibility of PW1 turned.  We agree.  There was no inconsistency let alone a material inconsistency.  The witness statement and the evidence of PW1 in the trial are consistent.

35.Mr Kevin Zervos SC, Deputy Director of Public Prosecution, in his helpful written submissions brought to our attention that the earlier statement made by PW1 which was said to be inconsistent with the oral evidence of that witness had not been properly placed before this court.  No application had been made to adduce that document pursuant to section 83V, Criminal Procedure Ordinance, Cap. 221.  The document first emerged in these proceedings appended to the written submissions of the applicant’s counsel.  This was not a certified translation of PW1’s witness statement which had been made originally in the Chinese language.

36.Where in proceedings before this court those acting for an applicant wish to refer the court to material not placed before the jury, they must ensure that the procedures provided for such a course are followed.

37.This did not happen on this occasion but in the final analysis that fact did not hinder the conduct of the application.

38.This court has on previous occasions deprecated the apparent readiness with which allegations of incompetence are, for the purpose of an appeal, made against trial counsel.  This is not to dissuade counsel from advancing his client’s interests where such an allegation can properly be made but it is strongly to discourage counsel from making such an allegation unless there is cogent reason for doing so.  It is too easily done and it is too often done, frequently as a desperate avenue of last resort.  Where the assertion has no foundation, it not only wastes the court’s time, as it has in this case, but occasions embarrassment to counsel concerned and puts him or her to the extensive trouble of uncovering the detail of a case long past and of testifying in affidavit or affirmation form – sometimes orally as well – why he or she did take or did not take a particular course. 

Ground 2

39.Ground 2 of the applicant’s perfected grounds of appeal was to the effect that the judge’s directions on the requisite intent to be proved by the prosecution for the count of using a firearm with intent to resist lawful arrest or detention were insufficient inasmuch as they did not specifically address the way in which it was said that the applicant made use of the service revolver to resist arrest.

40.When considering this ground of appeal, it must be remembered that the jury acquitted the applicant of the 2^nd count on the indictment which was the wounding count, the consequences of this verdict being that they were not satisfied that the applicant intentionally discharged the service revolver in the course of his struggle with PW1.  Similarly the conviction of the applicant on Count 1 must mean that the jury accepted the evidence of PW1 that the applicant had deliberately removed the service revolver from its holster as he tried to detain him.

41.At the outset the judge said this (at p. 4, R–T) :

“        Your main point in the 1^st charge is to decide whether, at the time of this incident, the defendant intended to resist the lawful arrest or detention of himself.”

It is correct to say that there is no mention of the use of the service revolver in this passage.

42.However, shortly after this she said (at p. 5, B–C) :

“        In respect of the 1^st charge, using the firearm, the word ‘using’ is simple.  It does not necessarily mean that the gun has to be fired, but there has to be use made of the firearm. …”

and a little later (at p. 5, E–F) :

“… Was the firearm being used intentionally for the purpose which is prohibited under the section?”

43.Towards the end of the summing-up, the jury were told (at p. 42, M-P) :

“        The burden stays on the prosecution.  Any doubt that you have as to whether the accused used the gun, intending to resist his own lawful arrest or detention, would mean that the prosecution has not made you sure of the guilt of the accused …”

and shortly after this (at p. 43, A-C) :

“… You have to be satisfied that he used the gun in respect of charge 1.  Any use of the gun is relevant, and it is not confined just to firing it.  It has to be done with the intention of resisting the lawful arrest or detention of himself. …”

We were satisfied that there was no merit in the applicant’s complaint.  The prosecution must prove that the applicant did the acts which they say amount to resisting lawful arrest or detention and, in doing those acts, intended to resist what was happening to him. 

44.PW1 intended to detain the applicant, of this there is no doubt.  It was the evidence of PW1, supported in part by PW2, that the applicant had removed the service revolver from its holster in the course of the struggle with PW1.  The act of the applicant in removing the service revolver from its holster was directly referable to his resisting PW1’s attempt to detain him.  There could be no other possible reason for him to do this.  There was evidence that the holster was designed to render difficult the removal of the service revolver from it by a person untrained in the proper procedures.  The applicant was then a serving police officer who had received that training.  Either the service revolver was taken out of the holster by PW1 or the applicant.  If it was, as the jury found, taken out by the applicant it could only have been done in furtherance of his resisting his detention.

Ground 3

45.Ground 3 of the perfected grounds of appeal asserted that the judge :

“erred in directing that the police action towards the Appellant was a lawful arrest or apprehension as the evidence was that the Appellant was not told why he was being stopped or arrested or even told that he was under arrest”

46.In his written submissions Mr Hoosen suggested that even accepting that the police officers were acting under an innocent mistaken belief (that the applicant was a fleeing suspect) for the arrest to be lawful there had to be a declaration by the police officers that they were arresting or detaining the applicant.

47.The judge directed the jury in the following terms (at p. 5, K-O) :

“        You have to be satisfied that at the time of this incident, the police were acting lawfully in respect of what they were doing in relation to the defendant.  If you accept the evidence of PW1 and PW2, it will follow that PW1 and Sergeant WONG were involved at the time in lawful apprehension of a person that they had cause to believe was an escaping suspect.  At that stage they did not make the connection that this was the missing police officer”

48.The jury was told that it is lawful for a police officer to apprehend a person he reasonably believed will be charged or who has committed an imprisonable offence.  Similarly it was told that for such an arrest to be lawful the amount of force used to effect a lawful arrest must be reasonable in all of the circumstances.  No issue can be properly taken with that direction.  The jury were then directed as follows (from p. 6, N to p. 7, D) :

“        In this case, PW1 told that court that he believed the person running in the subway was an escaping suspect.  If you accepted that evidence, that belief would be strengthened by his seeing the defendant shake off the attempts by Station Sergeant Wong to stop him.  That is what he said in his evidence-in-chief, he saw the suspect running; he saw Sergeant Wong try to apprehend him; he saw Sergeant Wong’s hand thrown off and the suspect kept running, at which point he steps forward with his hands out, to stop him.

You will recall that the evidence that was given showed that this was a short incident and it was a chaotic incident because of the nature of the incident itself and also because of the number of people in the subway.  Circumstances did not permit PW1 to tell the defendant why he was being stopped or arrested, but he put up his hands to stop him because, at that stage, he was nearly out of the subway.  If you accept that evidence, you would probably find that the amount of force used by the first witness was reasonable, and if you accepted the evidence in its entirety, you would find that this was a lawful apprehension of the person who had been reported as a suspect escaping.”

49.Nothing more was required.  The applicant had, if the evidence of PW1 and PW2 had been accepted, brushed aside the attempt by Sgt Wong, in uniform, to detain him.  Thereafter PW1 and PW2, both in uniform, made it abundantly clear that he was to be detained.  It was not incumbent upon the officers to declare that they were detaining the applicant.  Their conduct made that apparent.

50.In Inwood 57 Cr.App.R. 529, 536 Stephenson LJ observed on the matter of what is required to establish that a person is in the process of or has been arrested :

“… It all depends upon the circumstances of any particular case whether in fact it has been shown that a man has been arrested and the Court considers it unwise to say that there should be any particular formula followed.  No formula will suit every case and it may well be that different procedures might have to be followed with different persons depending on their age, ethnic origin, knowledge of English, intellectual qualities, physical or mental disabilities.  There is no magic formula; only the obligation to make it plain to the suspect by what is said and done that he is no longer a free man.  However, what we think is clear is that it is a question of fact, not of law, and it must be left to the jury to decide whether a person has been arrested or not, at least where there is a real dispute as to the question whether the defendant understood that he was being arrested.”

It is not, nor has it ever been the case, that for a person to be lawfully arrested, a declaration to that effect must be made.

51.The circumstances will vary from case to case.  The fact that this applicant was struggling with three uniformed police officers in a short space of time is relevant to this issue, as is the fact that he was himself a police officer.  The judge did not direct the jury that the detention of the applicant was lawful.  She directed them that from the evidence, if they accepted it, they could draw that conclusion.  Nothing more was required. 

52.There was, we are satisfied, an abundance of evidence from which the jury could conclude that the applicant had the requisite intent for the offence charged in Count 1.  That the jury acquitted the applicant of the 2^nd count underscores the fact that they were acutely aware of the need to determine the requisite intent for each count as directed.

53.There was no merit in any of the grounds of appeal.

Mr Kevin P. Zervos SC, DDPP and Ms Sheroy Tam, PP, for the Respondent

Mr A.A. Hoosen, Counsel, instructed by Messrs Herman H.M. Hui & Co., assigned by DLA, for the Applicant