HKSAR v. Royster William Edward

DCCC 142/2020

[2020] HKDC 530

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 142 OF 2020

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Reasons for Verdict

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1.Mr Royster, the defendant, is a pilot officer with United Airways. He is charged with a single offence of possession of arms and ammunition without a licence.

2.On 8 December last year, 2019, the defendant submitted a piece of hand baggage for departure screening by X-ray.  The machine revealed the presence of a firearm inside the outside compartment of the defendant’s luggage.  The sole issue for determination by the court is that of possession.  All other matters are either undisputed or agreed. 

3.The factual background is as follows.  The defendant is a citizen of the United States.  He is a first pilot officer with United Airlines.  On 7 December 2019, the defendant arrived at Hong Kong International Airport, having flown from San Francisco.  He originated in Kansas City by a domestic connection to San Francisco.  The defendant’s luggage was not subject to screening on arrival in Hong Kong.  The defendant departed by bus to overnight accommodations in Wanchai.  He changed clothes and went out to dine that evening.    

4.The defendant returned to Hong Kong International Airport by bus on 8 December to return to San Francisco.  At North Departure Hall, 7th floor, Passenger Terminal 1, his hand carry suitcase was examined by X-ray machine.  A pistol was disclosed in the defendant’s luggage by the examination.  The defendant immediately admitted the luggage belonged to him.  The defendant was asked if there was anything special inside the luggage.  He said no.  He was asked if there was a pistol inside the luggage.  He said no.  The display screen was shown to the defendant.  The object was pointed out.  The defendant said no. 

5.The defendant agreed to a search.  In the outermost compartment of the luggage was a book and a pistol firearm with magazine.  The magazine was filled with bullets totalling seven bullets.  The firearm, which I will call a pistol, is a Springfield Armory 1911-A1 self-loading pistol in .45 AUTO Caliber with seven rounds of ammunition.  The Springfield 1911 was the standard-issue side arm of the US military for a long time.  It is primarily a battlefield-type weapon designed to be rugged and reliable.  Such a design necessarily incorporates a greater weight.  It was agreed that the pistol weighed 1.4 kilos.

The Defendant’s Explanation

6.The defendant’s case was that he was unaware of the presence of the pistol in his hand luggage until it was pointed out to him by the officer working the X-ray machine.  The defendant is naturally of a clear record in Hong Kong and in the United States.  He hails from the Kansas City in Missouri.  He was a naval aviator before being discharged due to medical reasons.  After this, he has flown for United Airways for some 20 years.

7.Due to his family background and naval service, he is very familiar with firearms.  He tells the court that he inherited the Springfield 1911 many years ago.  He considers it as a weapon for personal and home defence normally stored in a locked cabinet or bedroom drawer.  No permit is required for this weapon for open carry in Missouri.  A permit is required for covered carry and transportation to reciprocal states in the United States.

8.Mr Royster says he cannot be sure how the pistol came to be in his hand luggage.  The best explanation he feels he could give was as follows.  At the time of the Thanksgiving holiday in the United States, which is in November, the defendant went with his 90-year-old mother and his children to Wisconsin to visit a relative.  The pistol had been taken along at that time with the hand luggage bag it was later found in.  The defendant’s mother is showing clear signs of age-related dementia - there is medical evidence for this - but due to her upbringing has a familiarity with firearms.  The defendant himself last recalled seeing his pistol on top of his luggage in a hotel room in Wisconsin.  He believes his mother later placed his pistol inside the outer compartment of his hand luggage bag.

9.On checking his room on departure, the defendant found no items left behind and assumed all items had been safely packed.  On his return from Wisconsin, the defendant packed the hang luggage bag for departure to Hong Kong.  This simply consisted of an overnight change of clothes and toiletries.  He also took a smaller bag for items such as maps, eye pads and flight plans.

10.He later departed from Kansas City on his trip to Hong Kong.  He was in what is known as “known crew” which means a randomised search may be conducted by security.  In any event, his luggage was apparently not searched at departure from Kansas City or San Francisco and not on arrival in Hong Kong.

11.On arrival at Hong Kong, he was later taken to a hotel in Wanchai where he changed out of his airline uniform.  He did have to open the suitcase to do this.  He said he was unaware of any extra weight in the suitcase as he said the new suitcase was much lighter than the one he used previously.  There is evidence as to the relative weights of those suitcases.

12.On 8 December, he returned to the Hong Kong International Airport and presented the suitcase for departure screening.  He said he was unaware of the presence of the pistol until it was pointed out to him on a monitor of the X-ray machine.

13.So far as the legal considerations are considered, I have already intimated the defendant is of clear record.  That is relevant to credibility of the evidence he gives and his propensity to commit an offence of this nature.

14.By section 13 of the Firearms and Ammunitions Ordinance, which is Cap 238, no person shall have in his possession any arms or ammunition unless by section 24 of the same ordinance, subsection (1), any person who is proved to have had in his physical possession anything containing arms and ammunition shall, until the contrary is proved, be presumed to have had the arms and ammunition in his possession; and subsection (2), any person who is proved to have had arms and 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.  

15.In the Court of Final Appeal decision in the case of Chou Shih Bin v HKSAR [2005] 1 HKLRD 838, it was decided that section 24 is a reverse-onus provision and shifts an evidential burden to the defendant to show on the balance of probabilities that he did not have possession of the firearm or arms and ammunition.

16.Now, my resolution of this issue is as follows. The prosecution case as put in their submission is that it says as follows. The defendant either knowingly brought the firearm into Hong Kong or inadvertently brought the firearm into Hong Kong, and having discovered it in Hong Kong, attempted to leave Hong Kong with the firearm, a magazine and the ammunition.  They say the suitcase alone weighs 2.45 kilos. This is agreed.  The firearm 1.4 kilos, that anyone opening the main compartment of the suitcase must have been alerted by the weight in the outer compartment; that the defendant must have been aware of the weight when he opened the main compartment of the suitcase at the latest in the hotel after landing in Hong Kong.

17.By way of contrast, the defence say it is possible that the suitcase could be opened without him appreciating the weight of the pistol; that the pistol must have gone undetected when it went through security gates in Kansas and San Francisco, and it is quite possible the defendant was also unaware of its presence in the suitcase. 

18.Furthermore, they refer to the approach of the court in the case of Chou Shih Bin v HKSAR when it was said that:

“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.”

19.There was in that case insufficient evidence to support that finding where the appellant was described as a man of intelligence familiar with security arrangements at the airport and had presented his bag for security X-ray screening.  In those circumstances, it is said the inherent probabilities suggest his innocence that such a person would not present his baggage for security screening if he had known a firearm, pistol, was present in his luggage. 

20.In fact, in this case, the defendant had also evidence that if he had been aware of the firearm in his luggage, he would have had other options, such as reporting the matter to his airline, to his consulate, or simply throwing the pistol into the harbour.

21.However, each case must be determined on its own facts. 

The defendant must be able to show on the balance of probabilities that he was unaware of the presence of these particular kinds of arms and ammunition in his baggage. The evidence in this case is that this is a heavy weapon. This is a frontline combat weapon of Second World War vintage. It is ruggedly built. It is 1.4 kilos of gun metal. This is not a lightweight target pistol or the like. It is a substantial battlefield weapon. Its presence is not easily missed.

22.Located within a 2.45-kilo hand luggage suitcase, its presence would be immediately obvious on handling the suitcase. I consider that any handling of this suitcase would reveal the presence of 1.4 kilos of gun metal to the handler.  Certainly, by opening the suitcase, it would be impossible to avoid being aware of its presence in the outer compartment. 

23.Having reached this conclusion, I must accordingly reject the defendant’s account particularly that he was unaware of the presence of firearm in his hand luggage.  In doing so, in making this finding, I remain fully aware that on the initial screening of his luggage, the defendant denied there was a pistol present, and also that it has been considered by the highest appellate court that in such circumstances where a man of good character like the defendant presents luggage in such circumstances of these that the inherent probability suggests he is unaware of the arms and ammunition in the luggage.

24.I do note, however, that the defendant must accept the pistol must have travelled with him from the United States.  I was unconvinced of the defendant’s explanation of how this came about.  I could not accept that on leaving Wisconsin, this defendant would have been so undisciplined to have been unaware of where the pistol was stored.  He is a former naval aviator.  Firearms discipline to him is second nature.  He would know.  Similarly, at his home, I believe the defendant would not have been so blasé as to where this firearm was stored.  

25.I consider the defendant brought the firearm along with him.  I know not why.  It appears reckless, yet the firearm remained undetected while travelling on two aeroplanes and through three airports, two of which would have had and did have outgoing screening.  The presenting of the luggage at Hong Kong is again reckless.  Yet it is not the first reckless act undertaken by the defendant.  I cannot therefore conclude that in these circumstances that presenting his luggage for screening provides evidence of innocence.

26.I note that in the Chou case that despite the efficiency of X-ray, the security screening being held to be determining factor, there was no evidence given as to screening system’s relevant efficiency.  It does appear to be a case determined on its own factual matrix.

27.Accordingly, I find that I cannot accept the defendant’s evidence and dismiss it.  Accordingly, there is no sufficient evidence on the balance of probabilities to show that the defendant was not in possession of the arms and ammunition that are the subject of the charge.  And on the basis of the evidence that has been proved and admitted at trial, possession of the arms and ammunition is proved beyond reasonable doubt, and the defendant is convicted.