HKSAR v. Gurung Bikash

DCCC 668/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 668 OF 2016

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REASONS FOR VERDICT

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The Charge

1.Defendant (male) (Nepalese) appeared before me and pleaded not guilty to a single charge of possession of arms without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance, Cap 238.

2.The subject matter of the firearm in question is one stunning device.

Prosecution case

3.The fact of the prosecution case is simple and straightforward enough.  It is basically a stop-and-search case.  At 02:57 on 26 December 2015, Sergeant 46753 (PW1) who was on plain-cloth duty was at the entrance of Bungalow, a nightclub situated at Ground Floor, No 60 Wyndham Street, Central when he suddenly heard some cracking noise like a leakage of electricity.  PW1 immediately turned around and at that juncture saw defendant who was only 3 feet away from him hid a black torch-like object in the inner pocket of his suit jacket.  Feeling suspicious that the cracking noise was produced by a stun gun based on his past experience, PW1 notified his teammates from the Task Force Subunit of the Central Police Station to render assistance. 

4.At 02:59, two police officers including PC 50551 (PW2) arrived.  PW1 then pointed out defendant who was suspected of being in possession of a stun gun.  PW2 then walked up to the defendant and revealed his police identity and conducted a body search.

5.A search of the defendant revealed from the left inner pocket of his jacket a black torch-like object about 17 cm long.  The object was later examined and determined to be a stun gun (Exhibit P1) by officers from the Electronic System Support Section, Communication Branch of the Hong Kong Police Force. 

6.Upon initial enquiries by PW2, defendant replied in English that he bought the torch for HK$500 at Temple Street in Yau Ma Tei, Kowloon.  PW2 then declared arrest on him for possession of arms without licence.  Under caution, defendant allegedly said, “Just for self-defence.”

7.Apart from PW1 and PW2, the two police officers, in this trial the prosecution case is to a large extent covered by the Admitted Facts (Exhibit P8) which deals with the production of the two uncontested video-recorded interviews (Exhibit P3 and Exhibit P4), the examination report of P1 (Exhibit P5) and the report by a Dr Lai of the forensic pathologist service of the Department of Health on the effect of a stun gun being used against a person (Exhibit P6) as well as the photographs of the stun gun (Exhibit P7). 

8.Finally, before the close of the prosecution case, I have directed the prosecution to produce a video clip showing P1 in operation and revealing the relevant switches and buttons as mentioned in the examination report.  The defence did not object and the relevant video clip was formatted in a CD-ROM produced by the exhibit officer in court as Exhibit P9. 

9.In this trial, the defence did not dispute the identity of the defendant nor was the physical possession of P1 by him at the time of the offence.  Put shortly, the defence denied knowledge on the part of the defendant that P1 was a stunning device.  All along, it was contended that he possessed P1 and used it as a torch for his work purpose only. 

Admissibility of the oral statement

10.The defence objected to the admissibility of the defendant’s alleged verbal statement, “Just for self-defence”, under caution by PW2 after his arrest at the scene.  As a result, a voir dire was held and the alternative procedure was adopted during which the defendant elected not to give evidence. 

11.After hearing the evidence on the special issue from the police officers and also the submissions made by prosecution and defence, in the end, I ruled that the oral statement allegedly made by the defendant was not made voluntarily and the statement was therefore excluded as evidence. 

12.I came to this conclusion as it is obvious that both PW2, the arresting officer and the defendant were not native English speakers but they communicated with each other in English.  However, as demonstrated by PW2 during the cross-examination by the defence, the arresting officers did not have a good command of spoken English.  PW2 administered the caution in English in such a way that the defendant may not fully understand what he was saying.  In particular, PW2 had said, “You are not object to say anything” when he should mean to say, “You are not obliged to say anything.” 

13.Also as a matter of fact, the police attempted to conduct a video interview record with the defendant as early as in the afternoon on 28 December 2015 on the day of his arrest.  However, the defendant did not understand what the interview officers was trying to say to him in English.  As a result, the video-recorded interview had to be terminated and the police has to arrange a Nepali interpreter and that is why the other two video-recorded interviews (Exhibit P3 and P4) were only conducted one month later. 

Defence case

14.Following my ruling on the voir dire, at the close of the prosecution case, I ruled that there is a case to answer.  The defendant elected to give evidence but called no other witness. 

15.Defendant gave his evidence in Nepali with the assistance of a Nepali interpreter arranged by the court.  He was born in Nepal and came to Hong Kong in 1997.  He is now a permanent resident.  He is a married man and resided with his wife and two young daughters who is 5 years old and 6 months old respectively.

16.Defendant said he only attended primary 3 in a government school in Nepal.  He worked as a security officer of a private company in Hong Kong earning HK$25,000 per month and he produced an employment contract (Exhibit D2).  He was assigned to work at different bars or nightclubs in Central.  He would stand at the entrance of the workplace and was responsible mainly for crowd control. 

17.At the time of his arrest, he was working at the Bungalow Club and was in charge of the security matter.  According to the defendant, each security officer would carry a torch during work as it was dark inside the club.  The employer company, however, did not provide a torch to its employee or security officers and he had to acquire it by himself.

18.The defendant revealed that shortly before he was approached by PW2, the club was at that time very busy and there were lots of customers inside.  Later he came to know that a group of his friends from Singapore came to see him and so he just went outside to the entrance to meet them up.  Once outside, he tried to put the torch inside his left inner jacket pocket but the torch suddenly fell onto the ground.  He picked it up and put it inside the jacket.  He did not notice anything special in particular and he did not hear any cracking sound as told by PW1 as it was very noisy.

19.After a short while, PW2 came up to him and after a brief investigation arrested him.  Defendant explained that he bought P1 from a stall in the night market at Temple Street in mid-December.  He needed to buy a new torch as his old torch was not working properly.  P1 had cost him $500.  The old torch cost him $300 only but the person who sold P1 to him had said that P1 did not require batteries and could be re-charged.

20.Defendant said usually it costs him about $20 to $30 per day just to buy batteries for his old torch.  However, by 27 December, he said that he still had not charged P1 at all as there was still sufficient light produced by the torch.

21.Defendant denied knowing the existence of the other buttons or switches on P1.  All along he just used the on and off button on the barrel of the torch to operate the torch. 

22.Defendant maintained that it was only after his arrest that he came to know that P1 was a stunning device.  He stressed to the court that he was a family man with two very young children and he only bought P1 as a torch and a torch only and bought it for his work purpose.  He would not have bought it and kept P1 if he knew it was a stunning device. 

Issues

23.The burden is on the prosecution to satisfy the court that in this case the defendant was at the material time in possession of P1, a stunning device, and he possessed P1 with the knowledge of its stunning nature, namely causing temporary incapacitation of a person. 

24.The defence took no issue with the fact that the defendant have had P1 in his physical possession at the time of his arrest. The defence case as put by the defence, both in the court and in his two video-recorded interviews, was that he just kept P1 as a torch for work purpose and he denied even knowing that P1 was a stunning device, let alone using it as a stunning device. 

25.Section 24(2) of Firearms and Ammunition Ordinance provides that:-

“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.”

26.However, the section should be read and given effect as imposing on the defendant an evidential burden only as opposed to a legal or a persuasive burden of proof.  (see Archhold Hong Kong 2017 para 25-20)

Evaluation of evidence

27.Having seen and heard the defendant’s explanation and after considering the prosecution case as a whole and also the final submission made by both counsels, I have no doubt in my mind that the defendant was not telling the truth and his explanation that he just possessed P1 as a torch without knowing the stunning function of the device is rejected for the following reasons:-

(1) The defendant denied having heard the cracking sound produced by P1 when PW1 also heard it at a distance of only 3 feet away from him. I find PW1 was an honest and credible witness whose evidence I can rely. In fact it was exactly this cracking noise which had alerted him to notice the appearance and the actions of the defendant. Clearly, the defendant was not telling the truth here and he just wanted to say that he never pressed the button or switch on P1 so as to operate its stunning function.

(2) According to P5, the examination report of P1, and also P9, the video clip showing the function of P1, it is clear to me that to operate the stunning function of P1 requires one to switch on both switch and buttons, switch A and switch B, and finally press button P before electric arc were shown across the electrodes. I find it inherently impossible that the stunning function will be accidentally operated without any human intervention.

In my judgment, I can reasonably infer that the existence of the cracking sounds was an indication that someone must have switched on the stunning function on P1 and finally pressed button P so as to produce the electric arc and therefore the cracking noise or the bang sound. As at that time it was only the defendant who was found holding P1 shortly after the cracking noise, it can be reasonably inferred that the defendant was the person who had actually pressed the button P in order to produce the stunning function and also the cracking noise of P1.

(3) While I would say that for the defendant to have paid $500 to buy a rechargeable torch from a hawker’s stall in Temple Street is a little bit expensive, I certainly will not go so far to say that it is inherently impossible given what he said about the costs of buying batteries for an ordinary torch. However, I find it hard to believe that a hawker would just sell a torch additionally equipped with a stunning function without letting his customer know the existence of this function and also the existence of those switches and buttons in order to operate the function.

To me, it was also difficult to believe that although the defendant had acquired the torch for more than two weeks, he never noticed the existence of the other buttons and switches on P1. It is my conclusion that the defendant’s decision to deny in court that he had charged P1 was because he well knew that by charging P1 it would be easy for him to discover the other switches or button at the bottom of P1.

(4) Even if P1 has produced sufficient light since the defendant bought it from the market two weeks ago before he was arrested, I still found it hard to believe that he would not bother to charge the torch at all to see if the charger was in good working order. According to the defendant, apart from its look, the primary reason why he would spend more money to buy P1 was because it was a rechargeable torch. It would be strange to say the least that the defendant would never see fit to charge P1 at all with the charger to see if the charger itself was also in good working order.

28.Based on the above reasons, although the defendant has tried to rebut the presumption by way of his oral testimony and the production of his employment contract, I am not satisfied, however, that he was telling the court the truth and what is more, in my judgment, he was just telling me a pack of lies with an attempt to conceal his knowledge of the nature of P1 as a stunning device. 

Conclusion

29.The prosecution has proved its case beyond a reasonable doubt and since at the time of the offence, defendant had possessed P1 with the knowledge that it was a stunning device and also without a licence, he is convicted as charged accordingly.