The Queen v. Jim Chong Shing
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CACC000079/1988
__________ Coram: Hon. Yang, C.J. Silke, V,-P. & Penlington, J.A. Date of hearing. 4 & 6 Arpil 1989 Date of delivery of judgment: 28 April 1989 _______________ J U D G M E N T _______________ Penlington, J.A. delivered the judgment of the Court: 1. The applicant herein was convicted by Bewley J. and a jury on the 2nd February 1988 on a count of unlawful possession of arms and ammunition contrary to Section 13(1) of the Firearms and Ammunition Ordinance Cap. 238 and was sentenced to imprisonment for a period of 5 years. He now seeks leave to appeal against conviction. 2. The background of this matter is somewhat unusual. It was not in dispute at the trial that the police had for sometime been anxious to interview the applicant in connection with certain matters, including an offence of murder. His wife and family members had been interviewed on several occasions and had made statements to the police. In June 1987 information was received by the police that the applicant might be found in the Windsor Carpark at Causeway Bay and that he might be armed. At half past seven on the evening of the 11th August 1987 Inspector Wong Fook Lam received more information and went to the carpark at about 8 p.m. He went up to the 1st floor where he saw a Mercedes Benz motorcar which he understood belonged to the applicant. At 8,10 p.m. Chief Inspector Barnes arrived together with a woman police constable and a further detachment of police officers from Kowloon Headquarters. Some of these officers were posted at the ticket-office on the ground floor, one of them equipped with a walkie-talkie radio. At 9.30 p.m. the applicant and his wife arrived on the ground floor of the carpark and a message was sent to Inspector Wong. The applicant entered a lift and eventually it reached the 1st floor. There Inspector bong and his team were waiting and, when the lift doors were opened, they saw that the only people in the lift were the applicant and his wife. Inspector Wong gave evidence that when the defendant saw him, together with a police constable 13044, the Inspector called out "Police! Don't move!". The Inspector said that the applicant had two Sogo shopping bags in his right hand and in his left hand a Louis Vuitton man's handbag, the zipper of which was almost fully open. There was a portable telephone under the applicant's left arm above the bag. Inspector Wong's evidence was that the defendant then dropped the shopping bags and stepped back. The put his right hand into the handbag and the Inspector rushed into the lift. He said he grabbed the handbag and the applicant's left arm while constable 13044 held his right hand. The rest of the police team followed them into the lift and a violent struggle then took place. The Inspector gave evidence, which was supported by another police constable, 16156, that the applicant endeavoured to reach into the handbag on several occasions, that he was behaving very violently and was kicking at the police party. Suddenly a black object fell from the bag to the floor of the lift and constable 16156 shouted "Be careful! There is a gun". The applicant was eventually pushed to the floor of the lift where he was handcuffed, both his hands and ankles being secured. Constuble 16156 said he then seized the revolver and put it back in the handbag. It was found to be loaded with 5 rounds of ammunition. 3. At 10.15 p.m. Inspector Wong took the defendant back to the Yaumati Police Station, arriving at 11.56. At 12.23 the applicant was examined for gun particles on his hands, a test which proved to be negative, and there then followed an interview with an Inspector Leung Kam Wing of the Regional Crime Unit. Inspector Wong was not present at this as he had been instructed by a Superintendent Dowie, very correctly, not to question the applicant because he had taken part in the arrest which had involved violence. At 1.10 a.m. in the presence of Inspector Leung and Superintendent Dowie the applicant made a cautioned statement in which he said, "Ah Sir, the gun is mine. It has nothing to do with my wife at all." 4. On the basis of this evidence the applicant was indicted for 3 offences contrary to the Firearms and Ammunition Ordinance Cap. 238, the counts being without objection at the trial. The first count was attempting to use arms and ammunition with intent to resist arrest, contrary to Subsection 17(1) of the Ordinance. To prove this charge the Crown had to show that firstly the applicant was in possession of the revolver in the life of the carpark; secondly that he resisted arrest; and thirdly that he attempted to use the revolver in order to do so. The maximum penalty for an offence contrary to that subsection is life imprisonment. 5. The second count was that of carrying arms and ammunition with criminal intent, contrary to Section 18 of the ordinance. This was on the basis that again the applicant was in possession of the revolver and that he was carrying it with the intention of resisting arrest. It was not however necessary for the Crown to prove that he did in fact so attempt to use the revolver. This offence also carries a maximum penalty of life imprisonment. 6. The third count was one of simple possession of arms and ammunition without a licence, contrary to Section 13(1) of the Ordinance. To prove this charge the Crown had only to show that the applicant was in possession of the revolver in the lift in the carpark but did not have to prove that he resisted arrest or that he was carrying the revolver for that purpose. This offence carries maximum penalty of 14 years' imprisonment. 7. However at the trial Crown Counsel took the view that the jury might decide that the applicant was in possession of the revolver and he did resist arrest but chat he was not carrying the revolver for that purpose and did not in fact attempt to so use it. This seems a fine distinction but if this was the conclusion the jury came to they could convict of an alternative charge to Section 17(1) contained in Section 17(2) of the ordinance which provides that a person who at the time of committing an offence under any of the provisions in the schedule to the ordinance (resisting arrest being one of them), has in his possession any arms or ammunition, commits an offence unless he shows that he had the arms in his possession for a lawful object. On that basis a count was drafted in the form of a separate charge in the indictment and this was placed before the jury during Crown Counsel's closing address. The applicant was not arraigned on this count or asked to plead to it. It was not signed by or on behalf of the Attorney General. 8. It is the first ground of complain that the Crown instead of including the three counts in the indictment and then introducing the fourth alternative in the course of the trial should have relied on section 51(2) of the Criminal Procedure Ordinance which provides that if the jury was not satisfied that all the necessary ingredients of an offence as charged had been proved may nevertheless find an accused guilty of another offence of which the essential ingredients had been so proved. 9. It was argued that it is not proper for the Crown to place three separate and distinct counts before the jury and to say that the jury can select one or the other of those counts treating them as alternatives. This was the way the Crown opened, how the trial was run, and how the judge directed the jury. Each count in an indictment must be treated as a separate indictment. R. V. Boyle 1954 2 Q.B. 292. While several counts may be included in the same indictment, if they come within the Indictment Rules, they should not be considered as alternatives in the manner in which the jury were invited to do here. Mr. Howard submitted that the whole course of conduct in laying the three alternative counts, together with the fourth alternative which was placed before the jury at the closing stages of the trial, could only cause confusion in the minds of the jury and vitiated a fair trial. The manner in which the verdict was eventually taken, and this is the subject of a separate ground, emphasized the confusion in everyone's mind. 10. We are satisfied that there was no confusion here and that the course adopted was designed to prevent such confusion. While it may be that the Crown was acting from an abundance of caution in anticipating the various alternatives available to the jury there were, on the evidence called here, clearly Several possible offences. While these could have been related to the jury by the trial judge in his summing-up we consider that having these "alternatives" set out in the form of separate counts only served to enable the jury to study them. This particularly so far as the actual alternative count tendered by the Crown in the concluding stages which simply acted as an aide memoire. It was a statutory alternative and there was no requirement for it to be put to the applicant or for the taking of a plea on it. It clearly never formed part of the indictment. It was at all times emphasized that these were in reality alternatives depending on what view the jury took of the evidence. We see nothing wrong in that. It is true that is did involve the jury being directed on what were very find points of distinction between the counts and the trial judge understandably had doubts as to whether this was necessary but we do not consider that any such confusion as alleged was caused and certainly there was noting here which prevented the applicant receiving a fair trial. These resulted no prejudice to him. The central issue to all the counts was his possession of the gun. Once the jury accepted that he had them it was for them to consider what, if any, intention he had by so possessing and what, if any attempt he made to use it. 11. They were satified am they were entitled to be, that he had possession. The course the trial took, on the indictment as laid, did not result in any material irregularity. 12. The second ground taken is that there was no specifie ruling by him trial judge as to the admissibility of the confession statement. 13. The course which was taken in the trial was one contemplated in Ajodha v. The State 1981 3 W.L.R. 11. At 13 Lord bridge, who delivered the advice of the Privy Council, referred to the alternatives available where confession statement is to be challenged. The first the is that adopted in the vast majority of trials where defending counsel objects to admissibility. It is then not referred to by the Crown in its opening one at an appropriate time the judge will conduct an inquiry, or voir dire, to decide its legal admissibility. This would normally so done in the absence of the jury but only as the request or with the consent of defence: R. V. Anderson (1929) 21 Crim App. R. 178-though the validity of Anderson has recently been doubted. Evidence is then called by the prosecution in relation to the taking of the statement and the accused may, if he so wishes, give evidence on that narrow issue of admissibility. The judge will then give a ruling on that point after which trial will proceed on the general issue. This is the procedure suggested in R. v. Keung Siu Chi Cr.app. 965/83, unreported and approved in R. v. Wong Yun Fat 1985 H.K.L.R. 5. 14. The second alternative is where defending counsel:
15. This second alternative course was chosen by the defence here and it is the last sentence in Lord Bridge's dicta which is relied on. There was no objection taken when the confession statement was introduced and there was no submission made at any stage that the trial judge should withdraw the statement from the jury or tell them that they should entirely disregard it, on the basis that it had not been shown to be voluntary. It is however submitted that the judge should have nevertheless made a ruling as to whether he found the statement was voluntary. 16. We do not think there is any substance in this argument. We are quite satisfied that if, at the conclusion of the Crown's evidence, or alternatively when all the evidence had concluded relating to the statement, the judge had been of the view in the absence of any submission that he was not satisfied it was voluntary he would have directed the jury to disregard it. We do not consider that in Ajodha Lord Bridge meant that in all instances where the second alternative procedure is followed the judge must give a ruling on admissibility whether or not a submission is made, but to do so only when he considers, on the evidence, that he should. 17. The next ground of appeal was that certain exhibits had not been made available to the jury. These exhibits were firstly a photograph of somebody, apparently not the applicant, who was in the background to a photograph which was of the applicant as he was being placed in a police van and wearing a hood. We are satisfied that the photograph clearly was not relevent to the jury's consideration. It was in fact never formally produced having been carefully excised from the exhibit which was. The second exhibit is a statement made by the applicant in relation to the murder in respect of which the police wanted to interview him. Again we are quite satisfied that the judge was quite right in not allowing the jury to see that statement which could have been prejudicial to the applicant and at the very least would not have been in his favour. Defence counsel at the trial appeared to share that view. The third exhibit is the contents of the handbag in which the Crown alleged that the gun was being carried by the applicant. The bag itself was made available. Again we cannot see how the contents were relevant. We are satisfied there is no cause for complaint in this ground of appeal. 18. A further ground argued is that Crown Counsel was permitted to cross-examine the applicant relating to certain communications between him and his then solicitors as to the injuries which he was alleged to have received at the hands of the police when being interviewed at the police station prior to making his statement. He has complained that these were confidential communications between him and his legal adviser, as such were privileged and no evidence should have been allowed in relation to them. Reliance is placed on dicta of Cons V.-P. In R. v. Keung Sai Cheung & Others 1986 H.K.L.R. 833, at 841 -
19. Here the position was that after the applicant had made the statement he was interviewed by his then solicitor regarding a possible complaint to CAPO as to the injuries which the applicant undoubtedly had. It was the case for the Crown however that these resulted from what took place in the carpark lift and were entirely due to the applicant's resisting arrest, whereas he alleged that some of them at any rate were incurred in the police station. A police officer was present when he was being interviewed by his solicitor, apparently without objection. It was put to the applicant in cross-examination that he had made no complaint to his solicitor of being assaulted in the police station. This the applicant denied. Objection was taken to this line of cross-examination on the basis of privilege but it was allowed. 20. While clearly most communications between a suspect and his legal adviser are privileged and no evidence may be given about them, this privilege relates to communications which are confidential. If, unknown to the suspect, they are overheard by a police officer, whether by design or by accident, they may still be subject to such privilege. It was so held In R. v. Uljee 1982 1 N.Z.L.K. 561. At 576 McMullin J. Said -
21. Here clearly the applicant was perfectly award of the presence of the police officer and that being so we are satisfied that the communication between him and his solicitor was not intended to be a confidential one such as to entitle him to claim privilege. We entirely agree with what was said in Keung Sai Cheung regarding cross-examination of accused persons as to communications between them and their legal advisers but we are satisfied that here the cross-examination which took place was not improper. 22. The next ground of appeal concerns the manner in which the jury's verdict was taken. Again the events were somewhat unusual. 23. After the jury had retired for a considerable time they sent a note to the trial judge which read as follows:-
It is clear that the "alternative" referred to by the jury was the aide memoire introduced by Crown Counsel during his closing address, the statutory alternative contained in Subsection 17(2) of the Ordinance. Quite properly counsel were shown this note and the trial judge discussed with them the question of whether he should afford the jury more time for consideration of the other counts. Clearly it was the view of both counsel that a verdict should be taken to Count 3 alone. The trial judge agreed and the jury was not then given the opportunity of further time for consideration. When they came back into the court the trial judge addressed them as follows -
To this the Foreman replied "Yes, my Lord". The jury were therefore not asked to return verdicts on Counts 1 and 2 nor was any order made discharging them from reaching such verdicts. Mr. Howard complains that this procedure was contrary to Section 5 of the Jury Ordinance Cap. 3. The section provides that -
Here it is clear that the exact procedure detailed in the section was not followed but also that the foreman of the jury was asked if, on the basis of the note which had been sent to the judge, they had a verdict of guilty on Count 3. This was after they had been told that they could only return such a verdict by a majority of at least 5 to 2. The note also clearly sets out that they were unanimous. The Foreman in the presence of the rest of the jury and of the accused, stated that they had reached such a verdict. This being so, we consider that there was no fatal breach of the requirements of the Jury Ordinance in the manner in which the verdict was taken. So far as the other counts were concerned it would have been preferable to have asked the jury to return formal verdicts of not guilty or to have discharged them in respect of these counts but there have discharged them in respect of these count but there has been no prejudice to the accused by the procedure which was in fact adopted. If anything it was to his advantage. 24. The next ground of appeal is that it was clear that the question for the jury to decide was whether they could accept the evidence given by the police officers relating to the events which took place inside the carpark. It is submitted that, as they were not satisfied as to whether or not the accused was resisting arrest or attempting to get his gun out of the handbag in order to do so, then they must have been in doubt as to whether they could accept the evidence that he had the gun at all. It was the defence in this case that the gun was in fact planted on him and was never in his possession. The first time he saw it was at the police station. It is pointed out that indeed Crown counsel at one stage said:
Clearly however this remark was in connection with the possibility of the applicant being in joint possession of the gun together with his wife, who was also in the lift. Crown Counsel conceded that if the jury were doubtful as to who had the bag with the gun in it, it must mean they had doubts as to all the police evidence and should acquit on all the counts. We do not think that there was any suggestion or agreement that if the police evidence could not be accepted as proving beyond reasonable doubt that the applicant, knowing that the persons confronting him when the lift door opened were police officers, resisted them in their efforts to arrest him that must be fatal to their accepting that he had possession of the gun. This is shown very clearly by the fact that the trial judge himself appears to have had considerable doubts as to whether, even if the police officers had behaved in a manner in which they said they did, the applicant might simply not have realised who they were and might have struggled nevertheless in the way alleged. He reminded the jury foreibly that the police officers were clearly prepared for a confrontation with an armed man and understandably may have not given him very much opportunity to surrender himself. We do not think that this was by any means an "all or nothing" situation and that the jury were perfectly entitled to reach the conclusion that the applicant was in possession of the gun but they were not satisfied that he had any particular intention for being in such possession or that he resisted arrest, either with or without attempting to use the gun, because, he did not realise who the police officers were. 25. The final point taken by Mr. Howard for the applicant is that the jury were not directed on a question of whether the applicant may have been in possession of the gun jointly with his wife. This was a suggestion made by the trial judge to which Crown Counsel specifically said that it was not any part of the Crown's case. It was also not a question raised by the defence at any stage and the applicant's whole case was that the gun never existed in his possession joint or otherwise. If his cautioned statement were to be given weight by the jury then this issue never arose. We do not consider that on the evidence and the manner in which the case was conducted by both the Crown and the defence there was any need for a direction from the judge as to the question of joint possession. This ground must also fail. 26. For the reasons given above we do not consider that there was any material irregularity in the course of this trial and we have no doubts as to the conviction being safe and satisfactory. The application for leave to appeal against conviction is therefore refused.
Representation: Mr. William Howard, Q.C. & Brian Van Buuren (D.L.A.) for Applicant (who did not appear in the court below) Mr. A.A. Bruce, Senior Crown Counsel for Crown/Respondent |