IpsofactoJ.com: International Cases [] Part [] Case [] []


COURT OF FINAL APPEAL, HKSAR

Coram

Chou

- vs -

Hong Kong SAR

CHIEF JUSTICE LI

MR. JUSTICE BOKHARY PJ

MR. JUSTICE CHAN PJ

MR. JUSTICE RIBEIRO PJ

SIR GERARD BRENNAN NPJ

11 MARCH 2005


Judgment

Chief Justice Li

  1. I agree with the judgment of Mr. Justice Bokhary PJ.

  2. The Court unanimously allows the appeal and quashes the conviction with costs in the appellant’s favour here and in the courts below.

    Mr. Justice Bokhary PJ

  3. Sometimes, although not often, even a criminal case turning on facts requires this Court’s intervention because the handling of the case by the lower courts involves a departure from accepted norms so serious as to constitute a substantial and grave injustice which this Court must remedy. This is such a case. Its facts are as follows.

  4. On the afternoon of 13 June 2003 the appellant, a Taiwanese businessman of good character in his early 40s, entered Hong Kong from the Mainland where he owned and operated a factory. That evening he was at Chek Lap Kok Airport about to board an aircraft for Taiwan. He had with him a bag which he intended to carry on to the aircraft. As is routine all over the world, he duly presented his bag for security X-ray screening. Such screening immediately revealed the presence in the bag of a firearm loaded with one round of ammunition. The firearm was a five-chambered battery-operated anti-riot handgun for firing multiple-projectile cartridges. And the ammunition consisted of such a cartridge in one of the gun’s chambers. When the gun was later tested, it was found that it could not be fired because its electrical system was defective. It was nevertheless a firearm within the meaning of the Firearms and Ammunition Ordinance, Cap. 238, just as the cartridge in it was ammunition within the meaning thereof.

  5. The appellant was charged with possession of arms and ammunition without a licence, contrary to s.13 of that Ordinance. Did he know that the gun and cartridge were in his bag? If he did, then he would have been in possession of them. Otherwise he would not. Knowledge was the crucial issue.

  6. That issue was resolved against the appellant by the trial magistrate (Kevin A Browne, Esq.) who convicted him and sentenced him to six months’ imprisonment. His appeal against conviction to the High Court was dismissed by Deputy Judge Fung. By leave of the Appeal Committee granted under the “substantial and grave injustice” limb of s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, he now appeals against conviction to this Court.

  7. Absurd as it may seem that an aircraft passenger would present a bag for security X-ray screening if he knew that it contained a loaded firearm, it is understandable why a prosecution was brought. It is understandable because a police sergeant, who was called to the scene after the gun had been found, got the impression that the appellant (who is not fluent in Cantonese) had told him that the gun was for self-defence. The sergeant gave evidence for the prosecution. And although it was suggested to him in cross-examination that the appellant had not said that, the sergeant was adamant that the appellant had. So it is also understandable that the defence did not make a submission of no case to answer to the magistrate. If accepted by the magistrate, the sergeant’s evidence that the appellant had told him that the gun was for self-defence provided evidence on which it could be found that, strange as it may seem, the appellant did in fact know that the bag which he presented for security X-ray screening contained arms and ammunition.

  8. As it turned out, however, the sergeant’s evidence as to that was not accepted by the magistrate. In his Statement of Findings the magistrate said:

    I was satisfied that the sergeant had spoken to the defendant and that the defendant had said something to him but I could not be sure that he uttered the words ‘self defence’. [The sergeant] may have been mistaken. I therefore place no weight on the alleged admission.

  9. In some circumstances the finding of arms and ammunition in a person’s bag would entitle a court to take the view that the only reasonable inference is that such arms and ammunition were there to his knowledge. But in other circumstances it would not entitle a court to take that view. Once the sergeant’s evidence was rejected, there was insufficient evidence to support a finding that the appellant, described by the magistrate as a man of intelligence familiar with the security arrangements at the airport, had presented his bag for security X-ray screening in the knowledge that it contained arms and ammunition.

  10. This brings me to s.24 of the Firearms and Ammunition Ordinance which provides:

    (1)

    Any person who is proved to have had in his physical possession-

    (a)

    anything containing arms or ammunition, or both;

    (b)

    the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar containers containing arms or ammunition, or both,

    shall, until the contrary is proved, be presumed to have had the arms or ammunition, or both, as the case may be, in his possession.

    (2)

    Any person who is proved or presumed to have had arms or ammunition, or both, in his possession shall, until the contrary is proved, be presumed to have known the nature of such arms or ammunition, or both, as the case may be.

    (3)

    The presumptions provided for in this section shall not be rebutted by proof that the defendant never had physical possession of the arms or ammunition, or both, as the case may be.

  11. The magistrate made no mention of s.24. Deputy Judge Fung was aware of the section. But he regarded it as irrelevant to his decision since he took the view that the magistrate was entitled to convict by inferring guilty knowledge from circumstances. In my opinion the circumstances were inadequate to support an inference of guilty knowledge. So I have to consider the section.

  12. Section 24 is a reverse-onus provision. Such a provision evokes consideration of the right to a fair trial and the presumption of innocence constitutionally guaranteed by arts 10 and 11 of the Bill of Rights as entrenched by art. 39 of the Basic Law. In Attorney General v Lee Kwong-kut [1993] AC 951 at p.972 F-G the Privy Council spoke of what would “often be all that is required” when a reverse-onus provision is under constitutional challenge. As to this it was there said that “[t]he court can ask itself whether, under the provision in question, the prosecution is required to prove the important elements of the offence; while the defendant is reasonably given the burden of establishing a proviso or an exemption or the like”. Where a reverse-onus provision goes so far as to presume the very gravamen of the offence, its construction and constitutionality will come under very close scrutiny.

  13. In Tse Mui Chun v HKSAR (2003) 6 HKCFAR 601 we cited the decision of the House of Lords in R v Lambert [2002] 2 AC 545 and that of the Supreme Court of Canada in Downey v R (1992) 72 CCC (3d) 1. We said (at pp 618 J-619A) that “[a] shifting of the evidential burden only may be safe from a constitutional challenge even where a shifting of the legal burden itself would be vulnerable to such a challenge”.

  14. If s.24 is struck down, then one would, as everyone did at the trial, simply ignore the section. Once that is done, it would be immediately apparent that the evidence was quite insufficient to establish guilty knowledge on the appellant’s part. And it would be just as immediately apparent that the verdict against him is a guilty verdict in the absence of proof of the requisite guilty knowledge. So the appeal would succeed.

  15. In the circumstances of the present case, the same result would eventually be reached if s.24 is treated as having shifted the evidential burden or even the legal burden to the appellant. He gave evidence denying guilty knowledge. And, in the circumstances, that would have sufficed to discharge any evidential burden on him.

  16. If s.24 shifted the legal burden, then the appellant had to disprove guilty knowledge on the balance of probabilities. The questions whether the prosecution had proved, or the appellant had disproved, guilty knowledge require a proper assessment of the evidence. The inherent probabilities were in the appellant’s favour. But that was not recognised. The magistrate appears to have been distracted from that by his dissatisfaction with the appellant’s theory that the gun and cartridge may have been “planted” in his bag by someone, perhaps a disgruntled employee. He fixed on factors which Deputy Judge Fung identified. These were: the vagueness as he i.e. the magistrate saw it of the appellant’s evidence about packing his bag and about what happened at the airport; the fact that the appellant asked his factory manager to investigate the matter when he returned to the Mainland; the appellant’s concern for his family’s safety; and, ambiguously, the fact that the gun was inoperative.

  17. Although the magistrate said that he “took into account the fact that the gun was inoperative”, he did not indicate whether he regarded that fact as being in the appellant’s favour or against him. Initially counsel for the respondent submitted that it was the former. I then invited him to assist us on the passage in the Statement of Findings in which the magistrate, having discussed what “planting” the arms and ammunition would have involved, observed:

    Having gone to all that trouble, the planter places in the defendant’s bag a gun which was not in working order.

    Whereupon counsel for the respondent very properly conceded that one cannot tell whether the magistrate saw the gun’s inoperative condition as a factor in the appellant’s favour or as a factor against him.

  18. After conviction, the appellant appealed to the High Court under s.113 of the Magistrates Ordinance, Cap. 227. An appeal under s.113 allows the depositions before the magistrate to be “admissible as evidence of the evidence given” in the Magistrate’s Court (s.118(1)(a)), authorises the reception of fresh evidence (s.118(1)(b)) and empowers the judge on appeal to make whatever order the judge thinks just (s.119(1)(d)). Provisions of that sort are, as pointed out in the High Court of Australia by Gleeson CJ and Gaudron and Hayne JJ in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at p.203, the indicia of an appeal by way of rehearing.

  19. In R v Lam Kan [1962] HKLR 234 Rigby J, speaking for the Full Court, held that provisions similar to those now under consideration created an appeal “at large”, and rejected a submission that the appellate court should not form its own independent judgment. As noted by Blair-Kerr J in R v Lo Yim-kai [1966] HKLR 414, a rehearing in this sense is not a rehearing de novo, being instead a rehearing on the material before the magistrate supplemented by any fresh evidence which the appellate court may admit. Nor is it limited to errors of law or excess of jurisdiction as an appeal by way of case stated is limited. As Chan PJ said in Li Man Wai v Secretary for Justice (2003) 6 HKCFAR 466 at p.472 H, “[a]n appeal by way of case stated under s.105 of the Magistrates Ordinance is not an appeal by way of rehearing.” The characteristics of different classes of appeals were explained in the High Court of Australia by Dawson J in Harris v Caladine (1991) 172 CLR 84 where he said this at p.125:

    A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing. In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct. An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal, but upon the evidence called before the tribunal below, subject to a power to receive further evidence. On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing. But an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again: see Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd (1976) 135 C.L.R. 616 at pp 619-620; Quilter v Mapleson (1882) 9 Q.B.D. 672, at p.676; and Victorian Stevedoring and General Contracting Co. Pty Ltd and Meakes v Dignan (1931) 46 C.L.R. 73 at pp 107-111.

  20. An appeal under s.113 of the Magistrates Ordinance is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so. I have gratefully taken that way of putting it from the decisions of the High Court of Australia in Builders Licensing Board v Sperway Construction (Syd.) Pty Ltd (1976) 135 CLR 616 at pp 619-622 and Fox v Percy (2003) 214 CLR 118 at p.124. Where the facts are concerned, the appellate tribunal will recognise that it does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed. Even so, it will not fail to quash a conviction that it considers unsafe. Deputy Judge Fung may not have appreciated that his jurisdiction was “at large” and that, while he had to bear in mind that he did not enjoy the advantage of having received the evidence at first-hand, he was entitled, indeed bound, to come to his own conclusion about the appellant’s knowledge of the existence of the gun and cartridge in his bag when he presented it for security X-ray screening. This Court must now determine that question for itself. The answer is clear.

  21. Packing a bag is an unremarkable function. And the discovery of the gun and cartridge in his luggage at a security check is likely to have been an unsettling experience for the appellant on any view. These matters fully account for any vagueness in the appellant’s description of these events. Once the alleged admission that he had the gun for self-defence is discounted, the fact that he had concerns for the safety of his family has no probative weight. And his request to the factory manager, who had put the bag in the appellant’s car, to inquire into the matter has no sinister significance, or, at least, no sinister significance that withstands the weight of the factors which virtually demonstrate the appellant’s innocence. The appellant is familiar with the standard security procedures at Chek Lap Kok Airport. When he presented his bag for security X-ray screening on this occasion, he was doing something which he had, no doubt, done on earlier transits to Taiwan. He is a person of good character, intelligent and industrially successful.

  22. Whether the question be the prosecution’s discharge of the onus of proof of guilty knowledge or the appellant’s discharge of an onus of disproving guilty knowledge, the answer is that the weight of evidence denies that he knew that the gun and cartridge were in his bag.

  23. If the appellant’s intermediate appeal had been determined in accordance with accepted norms, it would have been allowed on the basis, even if on no other, that the conviction was unsafe. That appeal having been dismissed, the appeal to us ought to succeed on the “substantial and grave injustice” ground even if s.24 is treated as having gone to the extreme of shifting the legal burden. There may one day be an appeal to us which requires our decision on the construction and constitutionality of s.24 and in which we have the benefit of the lower courts’ views and full argument on those matters. We do not have that benefit in this appeal. And I will not decide those matters on this occasion since the appellant must succeed on any view of them.

  24. For the foregoing reasons, I would allow this appeal to quash the appellant’s conviction with costs in his favour here and in the courts below (counsel for the respondent having indicated in the course of the hearing that he did not oppose such an order as to costs being made if the appeal were to succeed).

    Mr. Justice Chan PJ

  25. I agree with the judgment of Mr. Justice Bokhary PJ.

    Mr. Justice Ribeiro PJ

  26. I agree with the judgment of Mr. Justice Bokhary PJ.

    Sir Gerard Brennan NPJ

  27. I agree with the judgment of Mr. Justice Bokhary PJ.


Cases

Attorney General v Lee Kwong-kut [1993] AC 951

Tse Mui Chun v HKSAR (2003) 6 HKCFAR 601

R v Lambert [2002] 2 AC 545

Downey v R (1992) 72 CCC (3d) 1

Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

R v Lam Kan [1962] HKLR 234

R v Lo Yim-kai [1966] HKLR 414

Li Man Wai v Secretary for Justice (2003) 6 HKCFAR 466

Harris v Caladine (1991) 172 CLR 84

Builders Licensing Board v Sperway Construction (Syd.) Pty Ltd (1976) 135 CLR 616

Fox v Percy (2003) 214 CLR 118

Legislations

Firearms and Ammunition Ordinance, Cap. 238: s.13, s.24

Hong Kong Court of Final Appeal Ordinance, Cap. 484: s.32(2)

Bill of Rights: Art.10, Art.11

Magistrates Ordinance, Cap. 227: s.113, s.118, s.119

Representations

Mr. Peter Duncan SC and Mr. Trevor Beel (instructed by Messrs Burke, Fung & Li) for the appellant

Mr. Cheung Wai-sun and Miss Kathie Cheung (of the Department of Justice) for the respondent


all rights reserved