Antonia Riva v. The Queen
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CACC000889/1969 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 889 OF 1969 -----------------
CORAM: Full Court (Briggs, Mills-Owens & Huggins JJ.) Date of Judgment: 20 April 1970 ----------------- JUDGMENT ----------------- 1. The appellant is a native of the Philippines and he together with three other Philippinos was tried in the District Court on two charges brought under section 4(1) of the Arms & Ammunition Ordinance. Of the four accused, the first two pleaded guilty, the third failed to surrender to his bail during the course of the trial and the appellant, the 4th accused, was convicted and sentenced to 4 years' imprisonment on each count, the sentences to run concurrently. 2. The appellant applies for leave to appeal against his conviction and, out of time with the leave of the court, against his sentences. 3. The first charge was for being in possession of a large quantity of arms and ammunition of a military nature without a licence. 4. The second charge was for being in possession of a pistol silencer without a licence. It is in fact a barrel and silencer and is therefore an integral part of the weapon. 5. The first and second accused arrived at Kai Tak airport from Saigon on October 19th 1969. They had travelled together and were accompanied by three suitcases. 6. At the Customs Hall the first accused claimed these suitcases. He said he did not want to take the cases out of the airport and he wanted to leave them in the Customs area. He was told that this was not allowed but that if the cases were opened and examined they could be left in a luggage office at the airport outside the Customs area. The first accused said that the suitcases were not his and that he could not unlock them as he had no key. 7. The first accused left the Customs area leaving the suitcases behind. After he had gone the customs officials opened the suitcases using skeleton keys and inside were found the arms and ammunition the subject matter of the first charge. In addition they included a pistol grip, which fits the silencer that is the subject matter of the second charge. 8. The appellant, the third accused and one Tony Ma met the first and second accused at the airport and they all went together to the President Hotel. Mr. Ma who speaks the Philippino language, was acting as a guide to Hong Kong for the third accused. He said that when they met, the appellant and third accused were not introduced to the first and second accused: the inference being that they were already all acquainted. Later they all five had dinner together. 9. That night the third accused and the appellant shared a room at the President Hotel. The 3rd accused was found there by the Police at about 3 p.m. on October 20th. He was taken to Kowloon City Police Station and detained in connexion with this case. Later that evening a police party headed by Detective Inspector Pang went to that room to make a search. By this time the first and second accused were also in custody. 10. The Inspector searched the unlocked suitcase of the appellant which he had left in the room and found therein the pistol silencer which is the subject matter of the second charge. He also found therein three keys which turned out to fit the locks of the 3 suitcases which had been left at the airport by the 1st and 2nd accused the previous day. The keys and the silencer were found in the same compartment or pocket of the appellant's suitcase. 11. The Inspector found these articles at about 7 p.m. on October 20th. The appellant was not present at the time. A watch for him was kept on the room and he arrived there at about 1.40 p.m. on the following day, October, 21st. 12. As soon as he arrived, Detective Inspector Pang was sent for. Upon arrival the Inspector asked the appellant if he was sleeping in that room, which he admitted. He said that he was sharing it with the 3rd accused. He pointed out his suitcase, which was the case from which the Inspector had earlier taken the pistol silencer and the three keys. The Inspector produced the silencer and the appellant admitted that it had been in his suitcase. He was then shown the keys and was asked if he had seen them before. He replied and as a result of his reply he was arrested. 13. At the trial, the appellant chose to give no evidence on oath. But he read a prepared typewritten statement to the court in his defence. In the cross-examination of the police witnesses very serious allegations of misconduct and untruthfulness were made. But such allegations form no part of the prepared statement. 14. In that statement the appellant gives a rather different version of what occurred between Detective Inspector Pang and himself as to the silencer. The appellant said that the Inspector pressed him to admit that the silencer had been in his suitcase and in the end he, the appellant, said "All right, if you say so." He did not deny that the three keys and the silencer were found in his suitcase but he said that he could not explain how the three keys and the silencer came to be where they were found. 15. The pistol silencer is part of a very remarkable weapon, being inaudible when fired, even at very close quarters. Mr. Ewins, a ballistics expert, said that the silencer and pistol grip both of which were exhibited, are undoubtedly part of the same weapon. 16. The appellant further said in his unsworn statement that the first accused wanted to sell the silencer to him but he did not call the first accused as a witness to support this, notwithstanding that the first accused (and the second accused) had already been convicted and sentenced on their change of pleas before the prosecution case was closed. 17. The trial judge held that there was ample evidence that the silencer was in the possession of the appellant. He also held that the appellant by having possession of the keys to the suitcases and the silencer had possession of the three suitcases and their contents. He, therefore, as we have said, convicted the appellant on both charges. In coming to this conclusion no reliance was placed upon the presumption contained in Section 35 of the Arms & Ammunition Ordinance. 18. Various grounds of appeal were filed but it is unnecessary to look into any but the first ground of appeal against the conviction on the first charge. This was that there was insufficient evidence of possession of the arms in the suitcases in the legal sense and in particular that there was no evidence that the appellant knew that the arms were in the suitcases. 19. Section 2(2) of the Arms & Ammunition Ordinance provides that
This subsection is part of the interpretation section of the Ordinance. It is not a subsection which raises a presumption so as to throw the burden of proof that there is no possession on to the defence. In this respect we agree with the following passage in R. v. Choi Lang Hung (1958) H.K.L.R. 261, where the court said:-
20. There are two points to consider here. The first point is was there evidence that the arms in the suitcases were in the control of the appellant: the second point is does the evidence show he knew the arms were there. 21. It was urged on his behalf that the fact that the keys of the suitcases were found in his suitcase was insufficient. The three suitcases containing arms were detained in the Customs Hall and would not be given up to any person even if he had the keys after it was discovered that they contained arms. 22. Various passages in Pollock and Wright on Possession were cited to us. Those passages clearly show that whether the delivery of a key transfers possession or not is a question of fact not of law. Whilst the possession of a key of a locked box does not of itself necessarily prove that the person in possession of the key has possession of the contents of the box, it is evidence, indeed strong evidence, to that effect. 23. On page 65 of Pollock & Wright's book the learned authors point out that the delivery of a key may give not only actual possession in law but it may also give manual control "which is really a matter not of law but of fact." At page 68 they quote a passage from the judgment of Mellish, L.J. in Ancona v. Rogers (1876 1 Ex. Div. 285) as follows:-
24. It is clear therefore that possession of a key of a container may be taken as evidence that the possessor of the key has control of the contents of the container. But it is a question of fact in each case. 25. Counsel for the appellant relied upon R. v. Higginbottom(1912) Cr. App. R. 79 where certain stolen property was found in a box of which the appellant had the key. There was no evidence that he knew the stolen property was there and, moreover, property belonging both to the appellant and to another was found in the box. It was held that in the circumstances the mere possession of the key by the appellant was insufficient evidence of possession of the stolen property found in the box. But nothing was said to throw doubt upon the propriety of inferring possession of the stolen property as a fact from the fact of the possession of the key. 26. In the present case the keys of the suitcases were found in the possession of the appellant and there was no evidence that any one else had any keys to the suitcases. The appellant made no such suggestion in his unsworn statement and, as we have said, at the airport the first accused said he did not have the keys. Together with the keys was found part of a weapon the other part of which was found in one of the suitcases. In addition, the appellant's association with the persons who brought the suitcases to Hong Kong, and the fact that there was no rebutting evidence owing to the equivocal nature of the unsworn statement of the appellant are circumstances from which a reasonable jury could come to the conclusion that the appellant was knowingly in control of the contents of the suitcases. The suitcases were impounded by the Customs Authorities. But this did not defeat the right of the appellant to possession. If the appellant had appeared at the Customs with the keys he would have been entitled to claim the suitcases. As the suitcases had been opened and their contents were known it is probable that if he had gone to claim them the appellant would have been arrested. But that is immaterial. His possession still continued as the arms had not been forfeited under section 32 of the Ordinance. 27. The evidence is sufficient to show that the appellant had knowledge of the contents of the suitcases. This is particularly shown by the fact that there were three keys and three suitcases, two suitcases and keys of one make, and one suitcase and one key of another. The appellant had in his possession part of a weapon which was found in one of the suitcases. There is no evidence that he knew in which suitcase it was. Accordingly he would have had to search in all the suitcases in order to find the pistol grip which was clearly intended for him. It is improbable that the other accused would have given him access to the other suitcases if he did not already know their contents. This fact together with the other evidence adduced by the prosecution which was not rebutted by the appellant is evidence on which a reasonable jury could properly reach the conclusion that the appellant knew what was inside the suitcases. 28. The appeal against conviction on the first charge therefore fails. The appeal against conviction on the second charge which is for possession of the silencer also fails. 29. The sentences are in line with sentences for similar offences and there is no reason to interfere. 30. Appeals against conviction and sentences dismissed.
Representation: Penlington S.C.C for Crown. Sanguinetti (Deacons) for the Appellant. 20th April, 1970. |