HKSAR v. Jang Youngsu

CACC56/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 56 OF 2014

(ON APPEAL FROM DCCC NO. 941 OF 2013)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the Court):

Introduction

1.The applicant was tried in the District Court before Deputy District Court Judge Casewell (as he then was), on a charge sheet containing a single charge of “Attempted Possession of Arms & Ammunition Without a Licence”, contrary to section 13 of the Firearms and Ammunition Ordinance, Cap 238 and section 159G of the Crimes Ordinance, Cap 200. 

2.The charge alleged that on 29 August 2013, near Immigration Counter No 22B, Immigration Hall A, Level 5 (Airside), Passenger Terminal 1, Hong Kong International Airport, the applicant attempted to have in his possession arms and ammunition, namely, one submachine gun and 20 bullets without a licence.

3.On 29 January 2014, the judge convicted the applicant as charged and on 12 February 2014 sentenced him to a period of 27 months’ imprisonment.  The applicant applied for leave to appeal both his conviction and his sentence.

4.At the hearing of the application we allowed the application, treated the hearing of the application as the hearing of the appeal, we allowed the appeal and quashed the conviction.  We said we would give our reasons for doing so at a later date and this we now do.

The Trial

5.The charge related to an incident involving the applicant on the morning of 29 August 2013 after he arrived in Hong Kong with his family having travelled by air from Seoul, Korea.  Prior to disembarking from his plane the applicant had consumed almost half a bottle of whisky and so on arrival in Hong Kong was under the influence of alcohol.  The applicant had with him a rucksack which was over one of his shoulders and a wheelable bag with a retractable handle which he pulled along the ground. 

6.He became separated from his wife and 12-year old daughter and proceeded to Immigration Control at Level 5 at Passenger Terminal 1.  He went to line 22, which is a special immigration channel for use by those holding a diplomatic passport.  The applicant was intercepted by a Customer Service Ambassador who told him that he could not use that channel.  The applicant then became upset. It was noted at this time that he smelt of alcohol.  He was eventually seen by an Immigration Officer who directed him towards a normal channel for clearance. 

7.At some point the applicant’s behavior attracted the attention of three police officers who came and stood near to the applicant and the Immigration Officer.  These officers were part of the police anti‑terrorist squad and so each was armed with a Heckler and Koch M.P.5 submachine gun and 20 rounds of ammunition.  The submachine gun has quite a short barrel and there is a handle located near the end of the barrel.  The submachine gun has a sling attached to it which the officer wears around the shoulder and which connects in a loop under the armpit. 

8.As the applicant was walking away from the Immigration Officer he came close to the police officers and as he did so he let go of the handle of the wheelable bag and reached forward towards one of the police officers, making contact with the handle near the end of the barrel and/or the barrel of his submachine gun. The officer whose gun the applicant touched was PC9908 and he described the applicant’s actions as follows:

“After saying something to me unknown, he used his left hand to clutch the front of my gun around the area of the front handle. Then after he clutched it, he pulled it towards himself and turned away. He was still clutching and my centre of gravity moved forward. I immediately warded him off with my left hand. After he was warded off, he relaxed his grip. Around four to five seconds he held the gun. The gun was attached to my body by a sling.”

9.The sergeant, who was present gave the following evidence:

“The defendant faced PC9908. Then I suddenly saw the defendant use his left hand to clutch the front of the barrel of the MP5 gun carried by 9908. Once I saw 9908 immediately pushed towards the defendant with his left hand.”

He added:

“My judgment was the act of the defendant had amounted to assault. It is not known what he would do later.”

10.The third police officer who was present, PC6782, said:

“When he got to the area next to 9908, he turned right, reached out his left hand and clutched the MP5 by the front handle. He held the barrel a very short time. Very quickly, 9908 pushed him away.”

(* Page 18R-19L of the Appeal Bundle)

11.In addition to the evidence of the officers a CCTV recording was produced which was replayed in court but we did not find it sufficiently clear to be of any meaningful assistance to us.  However the one thing that is apparent from it is that the incident lasted a very short time, and perhaps no more than 2 seconds. 

12.The applicant gave evidence but was disbelieved. 

The Reasons for Verdict

13.After reciting the evidence and indicating that he found the evidence of the prosecution witnesses truthful, consistent and reliable and explaining why he did not believe the applicant, the judge went on to address the key issue in the case, namely what the intention of the applicant was at the time he reached out to the submachine gun and whether the evidence had established beyond reasonable doubt that his intention was to have possession of the gun. 

14.He noted that there was evidence that the applicant was suffering from alcoholic intoxication when he was later medically examined at Princess Margaret Hospital and concluded that it was reasonable to assume that he was so affected earlier that day.  He then immediately went on to say:

“The defendant did not at any time allege that his consumption of alcohol affected his mental state, certainly not his ability to form an intention. Although it is evident that the consumption of alcohol may have disinhibited him and caused him to act out of character, in any event it is not a material consideration in evaluating the defendant’s intent on the evidence.” [emphasis added]

(* Page 22A-O of the Appeal Bundle)

15.The judge then correctly directed himself on what was required of the prosecution in proving an intention to take possession of the firearm and correctly directed himself that any adverse inference that he drew had to be the only reasonable inference that could be drawn from the facts he found proved. 

16.The judge said he was satisfied that the applicant seized hold of the firearm above the forward handle.  He then went on to note that the applicant was only prevented from having actual custody of the weapon because the police officer was holding onto it and the sling attached it to his body.  He said he was satisfied that the force used by the applicant was sufficient for him to have taken possession of the firearm.  The judge then said:

“Clearly, this evidence is sufficient to establish to a criminal standard the defendant’s intention, and I find that it must have been the defendant’s intention to take physical control or custody of the firearm at the time when he laid his hand upon it and pulled the weapon. It was a brief, ill-considered and unsuccessful attempt but it can only be characterised on the evidence and I find is proved on this evidence as being such an attempt, namely, to take actual custody of the Heckler and Koch MP5 sub-machine gun.”

(* Page 23A-F of the Appeal Bundle)

The Grounds of Appeal

17.The applicant relied upon four grounds of appeal but for the purposes of this judgment it is necessary to refer to only one.  This ground of appeal complains that the judge “erred in finding the applicant’s undisputed ‘intoxication’ was not a ‘material consideration’ in evaluating the applicant’s intention”. 

18.In support of this ground of appeal, Mr McGowan, who appeared for the applicant both at the trial and on appeal, referred to the very short passage of time over which this incident took place, namely, approximately 2 seconds, and the circumstances in which the incident occurred.  These were that a person of good character who was on holiday with his family, became separated from his family and tried to obtain immigration clearance whilst in a state of intoxication.  Another part of this factual matrix is that during the course of the incident there is a total absence of any conduct by the applicant evidencing a struggle by him to acquire possession of the weapon.  What took place was nothing more than a quick grab and pulling of the weapon which lasted a very short period of time.

19.Even though the applicant was disbelieved it was still necessary for the judge to satisfy himself on the prosecution’s evidence that the only reasonable inference from this factual matrix is that the applicant was attempting to take possession of the weapon.  Mr McGowan argued that, given the unusual circumstances, other reasonable inferences were equally available, and indeed, were more probable than the inference that the applicant was trying to take possession of the weapon.  The applicant could have been trying to obstruct the police officer or vent his irritation or frustration on him or to make him look foolish or lose face by pulling at the firearm and causing him to temporarily lose his balance.  In assessing any of the other possible explanations for the applicant’s conduct Mr McGowan argued that the fact that he was intoxicated is a highly relevant piece of evidence which must be taken into account.

Discussion

20.There can be no doubt that the fact that the applicant was intoxicated is a fact which had to be taken into account in determining his intention at the time he reached out and grabbed at the firearm.  Mr Man, counsel for the respondent, did not dispute this.  However, he submitted that in the passage on which Mr McGowan relies, where the judge said the fact that the consumption of alcohol “may have disinhibited him and caused him to act out of character” was not “a material consideration in evaluating the defendant’s intent on the evidence”, the judge was referring to the applicant’s capability to form an intention and was not referring to the relevance of his intoxication to determining what that intention was.

21.However we note that nowhere else in his Reasons for Verdict does the judge discuss the fact that the applicant was intoxicated; any reference to it is notably absent from his discussion of the inferences that can be drawn from the proven facts.  Yet, in his Reasons for Sentence the judge alluded to the great difficulties in understanding what inexplicably occurred in this case.  He said:

“The incident was of very short duration and was dealt with without any great difficulty by the police officer concerned, simply creating a minor disturbance, the defendant’s motivation being unclear, but he appeared to be overwrought and frustrated, and, on his own admission, had drunk heavily on the aeroplane before he arrived at the airport.”

(* Page 24R-U of the Appeal Bundle)

He also alluded to the fact that the events at the airport were clearly out of character for the applicant who was by occupation a labour attorney in Korea and a person of clear record. 

22.The extraordinary behavior by the applicant together with the fact that he was intoxicated and clearly behaving completely out of character required a very careful assessment of all of the evidence before concluding that the only irresistible inference was that he was attempting to grab hold of this submachine gun.  In our view that was not done. 

23.The judge’s statement that the applicant’s intoxication is not a material consideration in evaluating his intent is clearly erroneous.  If it was meant to apply only to the applicant’s capability to form an intention then we would have expected that when the judge came to discussing the evidence in relation to what that intention was, he would again refer to all the matters we have mentioned, namely, that the applicant was a person of prior good character, acting completely out of character, was heavily intoxicated and on holiday with his family.  All of these facts are highly relevant to whether or not it can be inferred beyond reasonable doubt that, by his actions, he intended to take possession of the submachine gun.  

24.We were satisfied that the judge misdirected himself and that, on an evidence before him, the inference that he drew as to the applicant’s intention was not the only reasonable inference available to him. 

25.For these reasons we allowed the appeal against conviction and, treating the hearing of the application as the hearing of the appeal, we allowed the appeal and quashed the conviction.

26.Before leaving this matter we do wish to say that we are astounded that this charge was laid against this applicant.  Using a charge as serious as this in respect of conduct as minor as this is using a sledge hammer to crack a walnut. Notwithstanding the potential harm that could have been caused by the applicant’s drunken interference with the police officers’ weapon, that could have been readily addressed in a more appropriate charge that should have been laid, such as assault or obstructing a police officer in the execution of his duty. 

Mr Man Tak Ho Jonathan ADPP, of the Department of Justice, for the respondent

Mr James H M McGowan and Mr Leo KY Hsu, instructed by Hong Kong Bar Association, for the applicant (re: conviction)

Mr James H M McGowan, instructed by W.K. To & Co, assigned by DLA, for the applicant (re: sentence)