HKSAR v. Cheung Sik Wai, Terry

CACC 373/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 373 OF 2009

(ON APPEAL FROM HCCC NO. 135 of 2009)

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BETWEEN

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Before: Hon Cheung JA, Wright and Macrae JJ in Court

Date of Hearing and Judgment: 15 July 2011

Date of handing down Reasons for Judgment: 19 July 2011

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REASONS FOR JUDGMENT

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Hon Wright, J. (giving the reasons for judgment of the Court):

1.The applicant was convicted after trial before McMahon J and a jury of a single charge of possession of a firearm. He was sentenced to undergo imprisonment for a period of 11 years. He sought leave to appeal that conviction. The applicant had earlier pleaded guilty to a further charge of possession of an offensive weapon in a public place: he was sentenced to a further four months imprisonment, of which two months was ordered to be served consecutively to the sentence on the first charge.

2.On 15 July 2011 we dismissed the applicant’s application and indicated that we would provide our reasons in due course, which we now do.

3.It was the prosecution case that the applicant was seen driving his motor vehicle which he brought to a halt in Lei Cheng Uk Estate, Cheung Sha Wan, at around 9 p.m. on 4 February 2009. The applicant was intercepted after alighting the vehicle. The vehicle was searched. The firearm, a .38 calibre revolver, was found, wrapped in cloth, concealed inside the valance after the front offside wheel had been removed and the lining of the wheel arch moved aside.

4.Once the cloth package had been discovered but before it had been opened to reveal the presence of the firearm the applicant was arrested and cautioned. In response to that caution the applicant replied “I have rowed with somebody. For fear that someone may take revenge, I got the gun for protection. I have no intention of hurting anybody.". The significance of that reply was, obviously, that it showed that the applicant knew that the package contained the firearm even before it had been opened.

5.In due course, the applicant was interviewed twice under caution, one interview taking place between 3.02 a.m. and 3.21 a.m. the following morning, 5 February 2009, and the second taking place between 8.41 p.m. and 9.20 p.m. that same evening. In the course of each of those interviews the applicant made unequivocal admissions describing, amongst other things, how he had purchased the firearm for 3000 Remnimbi from a named person in the mainland; that person had subsequently delivered the firearm to his vehicle in Hong Kong whereafter he, the applicant, had concealed it inside the valance; he had made payment for it.

6.The applicant made a series of admissions pursuant to the provisions of s. 65C of the Criminal Procedure Ordinance as a result of which, as the judge correctly identified to the jury, the issue which fell for determination by the jury was whether they were satisfied that the applicant was in possession of the firearm, whether he had known that it was hidden inside his motor vehicle when he drove it to the point where it was searched. The judge was at pains to point out to the jury that the evidence in this regard came solely from the applicant's response to the caution and the two subsequent video recorded interviews and that the jury need to be satisfied of the credibility and reliability of the prosecution witnesses who testified in regard to the events surrounding those admissions.

7.It was put on behalf of the applicant, who elected not to give evidence, that he had not given the reply to the caution which was attributed to him but that he had simply signed what had been written down and that, whilst he had given the answers recorded in the two records of interview, those answers were untruthful. It was suggested on his behalf to the relevant prosecution witnesses that the applicant had behaved in this manner because he had been assaulted and threatened by police officers and had been the victim of oppressive conduct by them. He had earlier challenged the admissibility of the reply to the caution and the records of interview during voir dire proceedings: the judge had ruled them each to be admissible.

8.The judge repeatedly emphasised to the jurors the necessity of their being able to accept the evidence of the prosecution witnesses in regard to the circumstances of the making of the admissions by the applicant. Plainly, by their verdict, they were satisfied by that evidence.

9.The applicant was unrepresented before us. He had submitted a number of separate letters, together with some supporting documentation, in which he identified his complaints. Some are repetitive but there appeared to be 15 discrete complaints which may be distilled, as the respondent had done, into seven discrete areas.

10.We largely adopt that summary as follows:

1. the judge erred in failing to give proper and adequate directions to the jury on the applicant's mental state;

2. the judge erred in failing to direct the jury correctly on their approach towards defence expert evidence;

3. there was no forensic evidence to prove that the applicant had been in the possession of or contact with the firearm;

4. the second defence witness who testified as an expert witness was unaware of the term “epilepsy" as a result of which the applicant was wrongly convicted due to the “negligence or cover-up" of this witness;

5. the judge erred in failing to give proper directions on the definition of “possession";

6. the judge erred by spending too much time on “assumptive wordings to explain and analyse various issues in case" thereby leaving no room for the jury to think and, in effect, usurping the role of the jury; and

7. the judge erred in ignoring the fact that had the admissions contained in the first interview been entirely true it would have been unnecessary to hold a second interview.

11.There was no substance in any of the grounds: we deal, briefly, with each in turn.

Ground 1: failure to properly and adequately direct on the applicant's mental state.

12.The two medical witnesses were called on behalf of the appellant. One, a neurosurgeon, added little to the evidence testifying simply in regard to a concussion syndrome which he had diagnosed after a traffic accident in which the appellant had been involved in 2006. The judge reminded the jury that the evidence of this witness was that sometimes someone with this syndrome suffered poor concentration and might also become depressed. The judge directly and correctly told the jury that should they should take these factors into account when deciding where to place on the applicant’s admissions.

13.The evidence of the second witness, a psychiatrist, was to the effect that he had been treating the applicant since 2001 for a bipolar affective disorder. He described this as a disorder which results in extremes of emotion which the judge drew to the attention of the jury. The judge also reminded the jury that they had seen the applicant's behaviour during the video recorded interviews and were able to assess for themselves whether the disorder described by the doctor manifested itself during those interviews or whether, given the existence of that disorder, they formed the view that the interviews were oppressive or might have affected the accuracy and truthfulness of the applicant’s answers. He told them that they "... would no doubt give the doctors’ evidence very close consideration".

14.The judge dealt with this issue fully and left the jury under no misapprehension as to how they should have regard to this evidence.

Ground 2: failure to direct the jury correctly on their approach towards expert defence evidence.

15.To a large extent, this was an extension of Ground 1. The judge dealt with the jury's approach to expert evidence in general in standard terms. In any event, the applicant’s medical state was not disputed by the prosecution: its only relevance was whether it impacted upon the applicant’s state of mind and whether it had any effect on his participation in the interviews. We have already dealt with this issue.

Ground 3: no forensic evidence to prove that the applicant had been in possession of or contact with the firearm.

16.Insofar as possession of the firearm was concerned, the judge correctly and fully directed the jury as to the elements about which they were to be sure before they were able to find that the applicant had been in possession of it. The mere fact that the appellant was not shown to physically have contacted the firearm does not prevent the appellant having been in possession of it. The absence of any such evidence was entirely neutral.

Ground 4: the second defence witness who testified as an expert witness was unaware of the term “epilepsy" as a result of which the applicant was wrongly convicted due to the “negligence or cover-up" of this witness.

17.We had some difficulty with what was meant by this complaint. It seemed to stem from the fact that, attached to one of the applicant’s letters, was a document from Correctional Services Department which appeared to suggest that he has been assigned to a "Cutting" working party for a "Reason" against which appeared the word "Epilepsy". This was not an issue that ever saw the light of day at trial.

Ground 5: failure give proper directions on the definition of “possession".

18.As we noted in respect of Ground 3, the judge gave clear directions regarding the aspects about which the jury needed to be satisfied before they were able to conclude that the applicant had been in possession of the firearm. He did so upon more than one occasion. Those directions were couched in standard terms assisted by readily comprehensible illustrations.

19.As noted in §4 above the applicant’s response to the caution at the scene at the time of arrest established his knowledge of the presence of the firearm inside the cloths: that disposed of the applicant’s oral submissions before us on the point of possession and his reference to the decision in HKSAR v JIM Fai CACC383/2002 (unreported, 15 April 2003).

Ground 6: too many “assumptive wordings” used by the judge thus leaving no room for the jury to think and, in effect, usurping the role of the jury.

20.The judge made it quite clear that matters which fell within the domain of the jury were to be decided by the jurors alone. As is the practice of some judges, he illustrated particular points by way of analogy in order to facilitate comprehension of the point he was seeking to make. This is a permissible route for a judge to take. None of the illustrations by the judge was in anyway inappropriate.

Ground 7: had the admissions contained in the first interview been true the second interview would have been unnecessary.

21.The police were entitled, if they determined it to be necessary, to seek to interview the applicant further. The applicant, equally, was entitled to decline if he did not wish to participate in the second interview. He chose to do so. It is quite clear that additional information was obtained by the police during the second interview which had not been made available to them during the first.

22.We were satisfied that there was no merit in any of the applicant’s grounds of appeal. The summing up was fair and well-balanced. The issue which the jury had to determine was straightforward. It was not reasonably subject to any criticism. Consequently the application was dismissed.

Mr Ira Lui, Senior Public Prosecutor, Department of Justice, for Respondent.

Applicant in person.