Lau Kwok-chung v. The Queen

CACC000912/1981

Charges under Arms & Ammunition Ordinance - presumption of possession under section 35 - accused giving no evidence but denial of possession contained in cautioned statement put in by prosecution - Judge's direction that in absence of testimony from witness box there was no evidence to rebut presumption - attention of court not drawn to decision of Court of Appeal in CHENG Tsui v. The Queen (1980) H.K.L.R. 50 - statement to police is evidence for all purposes in the case - convictions on those charges quashed.

BETWEEN

__________

Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 18 February 1982

___________

JUDGMENT

___________

McMullin, V.-P.:

1. The applicant renews his application for leave to appeal, leave having been refused by the single judge. He was tried together with one other man on a number of counts. We are concerned in the present application with three counts only. He was found guilty by verdict of the jury upon two charges.

2. The first charge, taken under the Summary Offences Ordinance, alleges possession by him of a modified imitation firearm capable of discharging a bullet. The other charge, taken under the Arms & Ammunition Ordinance, concerns the discovery of 8 rounds of ammunition which were capable of being used with such a modified gun.

3. There was a police raid on the premises at 201A, Yee Kuk Street on the 8th of December at about 5.15 p.m. The premises on being searched revealed the following things. In a work bench there was discovered an imitation gun of Japanese make. It was an imitation of a Smith and Wesson revolver golden in colour. Behind a tabernacle or shrine of the god 'Koran Dai' was found, wrapped n a newspaper, a similar weapon coloured black. This was the weapon which had been modified so that it could discharge a bullet. In a desk or filing cabinet of metal there was discovered, in one of the drawers, 8 rounds of a special sort of ammunition which could have been used in the modified gun.

4. The applicant did not give evidence but after his arrest he made a statement to the police. It is this statement which has occasioned our concern in the present case. It disclaims any knowledge of the gun found behind the 'Koran Dai' altar, but admits to knowledge of the fact that the imitation gun was in the work-bench drawer. It makes no reference whatsoever to the ammunition.

5. The presumption contained in section 35 of the Arms and Ammunition Ordinance operated in respect of the 2nd and 4th counts but, of course, not in relation to the 3rd count which refers to the imitation firearm.

6. In dealing with the firearm charges and in particular in relation to the 'Koran Dai' gun, as we may call it, the learned trial judge referred to the statement which had been made by the applicant and he said:

"The defendant has said, in his statement to the police, that he did not know about it. Now that is evidence that he denied to the police that he did not know about it".

That double negative is obviously a mistake. What the judge clearly had intended to say was that the accused had not told the court that he did not know about it although he had said that to the police. The direction goes on:

"His saying to the police that he did not know about it is, strictly speaking, not evidence that he didn't know about it because he hasn't told you that. So you are left with this in deciding whether he has rebutted the presumption of possession: whether the evidence which has been put before you, the circumstances of that metal factory, whether those circumstances are such as to satisfy you on the balance of probabilities that he was not in possession of that particular gun."

7. Immediately prior to that the learned judge had said:

"If, for instance, a gun were found behind a picture in the home of any one of you, this Ordinance says that 'until the contrary is proved', that is until it is proved that you were not in possession of it, you are deemed to be in possession of it; and the proof that you are not in possession can be done very simply. You can go into the witness box and say 'I wasn't in-possession of it. That came there because my maid or somebody must have put it there.' It is a very simple matter to discharge that onus of proof."

Taken together these passages must have left the jury under the clear impression that there was no evidence before them in explanation of the existence of these articles in the defendant's factory. It is evident that the decision of this court in CHENG Tsui v. The Queen⁽¹⁾ had not been brought to the attention of the learned judge. His direction to which we have referred was based upon the then existing and still current English practice by virtue of which a jury is given the difficult direction that a statement which contains exculpatory matter is not to be considered evidence except insofar as it contains matter adverse to the interests of the defendant. In Hong Kong since the decision to which we have referred, the law is that any statement which contains both matters for and against the defendant is to be left to the jury as evidence for all purposes.

8. It is conceded by the Crown that this particular direction was a misdirection. Since the defendant did not give evidence, the jury must have been left under the impression that there simply was no evidence which could serve to rebut the presumption in relation to the 'Kwan Dai' gun.

9. Now that misdirection, we think, must have also affected the conviction under the 4th charge, that is the conviction in respect of the ammunition. Although it is true that there is nothing in the statement made to the police which denies possession of that ammunition and it is thus distinct from the 2nd charge in respect of which the defendant's statement positively denies knowledge of the gun. The fact remains that the jury must have been left under the general impression that it was obligatory for the defendant to go into the witness box and give evidence upon those counts if they were to have before them any evidence which would tell in his favour and possibly to rebut the presumptions which had arisen under the sections involved.

10. There was strong evidence that the defendant who was carrying on a workshop of some kind in these premises and was apparently the sole proprietor of that business was aware that pistols of this kind had been brought in and modified in his premises by other people of such was not the charge before the court. That matter was not entered into in any detail by the judge and that is another point in which the jury would have required some direction and illumination. We think that because of this patent misdirection and its possible effect upon the minds of the jury in relation to the defence upon the 2nd and 4th counts that it would not be safe to let these convictions stand. We therefore set aside the convictions on those counts.

11. The other count is the count concerning the possession of the imitation firearm. Although the statement of the defendant which was before the jury does make an attempt at confession and avoidance in respect of that, in as much as the defendant, while admitting that he knew of the presence of that imitation firearm in his premises in that drawer, nevertheless ascribed that possession to another person called Ah Leung. As proprietor, (and there is plenty of evidence to show that he was sole proprietor of the premises) he was, at least, in joint possession of that weapon of the existence of which he admitted knowledge. Despite the misdirection to which we have referred, the jury, if properly directed in respect of the matter at large, must inevitably, in our opinion, have come to the conclusion that possession of the imitation firearm had been proved and the application for leave to appeal in respect of that charge is refused.

12. We have listened to further argument on behalf of the defence and the prosecution as to the propriety of ordering a retrial. We are satisfied that there was abundant strong evidence in this case which upon proper directions would have justified the jury in coming to the verdicts as they came to in respect of the 2nd and 4th counts. We therefore order that there will be a retrial of the applicant upon those counts. Defendant will therefore be remanded in custody pending the pursuit of these proceedings.

(1)    (1980) H.K.L.R. P.50

Representation:

Mr. Ronald Mayne (D.L.A.) assigned for the appellant

Mr. I. Polson, Crown Counsel, for Respondent/Crown