HKSAR v. Sze Long, Felix
Read the full judgment text of DCCC 647/2023 on BabelCite. This District Court judgment was delivered on 8 October 2025.
1. The defendant denies one charge of possession of arms and ammunition without a licence under section 13 of the Firearms and Ammunitions Ordinance (Cap 238).
Cites 2 cases
|
DCCC 647/2023 & 367/2024 (Consolidated) [2025] HKDC 1584 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 647 OF 2023 AND 367 OF 2024 ----------------------------
----------------------------
--------------------------------------- REASONS FOR VERDICT --------------------------------------- 1.The defendant denies one charge of possession of arms and ammunition without a licence under section 13 of the Firearms and Ammunitions Ordinance (Cap 238). 2.The prosecution case is that the following arms and ammunition were found in the defendant’s residence on 29 June 2020:
3.The offence elements are:
4.The issues in dispute are whether:
5.I am grateful to the prosecution for preparing a helpful summary of evidence and mainly adopt the same herein below as and when appropriate. PROSECUTION CASE 6.The prosecution case consists of the following:
7.It is admitted at paragraphs 1 and 3-4 of the first set of admitted facts (P17) that:
The defendant’s two video-recorded interviews with the police 8.In two video-recorded interviews P20 (“1st VRI”) and P21 (“2nd VRI”), the defendant told the police, inter alia, the following:
PW1 9.PW1’s evidence mainly shows that the photograph album P11(1)-(13) accurately reflects the location and condition of the exhibits when the police entered the defendant’s residence at around 6 am on 29 June 2020 as follows:
PW2 10.PW2 adopted all the expert reports as part of his evidence and his evidence mainly shows that:
11.At the close of the prosecution case, the defence made a no case to answer submission in respect of all the charged exhibits. 12.After careful consideration of the submissions made by both the prosecution and the defence, I found that there was a case to answer to the charge including each of the exhibits as particularized in the charge. DEFENCE CASE 13.The defence called the defendant to testify. No other defence witness was called. Defence exhibits were produced in evidence. 14.The defendant’s evidence mainly shows that:
ANALYSIS OF EVIDENCE 15.I remind myself that the burden is on the prosecution to prove beyond reasonable doubt all the elements of the offence throughout. In view of the defendant’s clear criminal record, I have given myself the good character directions regarding credibility and propensity in reaching my verdict. 16.I am of the view that whether each of the charged exhibits falls within the statutory definition of arms and ammunition under FAO is ultimately a question of fact and degree. As such, I will deal with the evidence of the prosecution’s witnesses and the defendant first. 17.I have carefully considered all the evidence and submissions made by both the prosecution and the defence. I have also carefully inspected the real exhibits to the degree and extent as agreed by both the prosecution and the defence. PW1’s Evidence 18.The defence observes that PW1’s recollection of events appears to have been clouded by the passage of time as he had answered more than one “no recollection”, “I really have no recollection” and also qualified some of his answers with “should be”. I note that, in cross-examination, the answers “should be no” and/or “no recollection” were in relation to questions as to (i) whether there were a lot of plastic bags bearing the triangular stickers “Felix Shi Mechanics” and (ii) whether there were over a hundred of magazine like objects inside the defendant’s flat. I find that these questions focused on the minor details of PW1’s house search and had nothing to do with the main issues of this case. These answers do not cause me to doubt PW1’s evidence. PW2’s Evidence 19.It is submitted by the defence that the state of PW2’s evidence is far from satisfactory and his attitude when giving evidence is far from frank and/or straightforward:
20.In relation to (a) of the above paragraph 19, I note that the question put by the defence was “Can I suggest to you that the metal insert, that metal insert in fact occupies 70 or 80 per cent of the barrel?”. I find that PW2’s answer “You can suggest anything” showed that he misunderstood the focus of the question. On the other hand, I don’t see any reluctance on his part in giving the answer “the metal insert occupied around more than 50 per cent” of the barrel. I disagree with the defence submission. 21.In relation to (b) of the above paragraph 19, I note that PW2’s evidence under cross-examination is that:
22.Although, as submitted by the prosecution, PW2 has frankly acknowledged in court that it would have been feasible for him to set out the same level of details of his functional examinations of the magazines (P5, P6 and P7) in his expert report P14 in line with his drafting practice for expert report P12 and P13, it is, in my view, clear from his evidence in both cross-examination and re-examination that he prepared P14 in a different way purely out of his personal preference. This appears to me that he did not have sufficient understanding that, as an expert, he must include such information in his report as the court may need to decide whether his opinion was sufficiently reliable. 23.On the other hand, even though his evidence-in-chief shows that: the functional examinations of the three exhibit magazines P5, P6 and P7 involved loading dummy rounds of a suitable calibre into the exhibit magazine and then inserting the loaded exhibit magazine into the self-loading reference pistol/firearm and revealed that all three magazines provided feeding and chambering functions; 17 rounds of ammunition and 30 rounds of ammunitions could be loaded into P5 and P6 respectively; regarding the words of “self-loading firearm” in paragraph 7 and “successive discharge” in paragraph 7(b) in relation to P5, after the first firing, the reference pistol would perform self-loading and another round of ammunition from the exhibit magazine would be fed into the chamber of the reference pistol and ready for firing again, I note that there is no evidence on (a) how many rounds of ammunition could be stored in P7; (b) the number of dummy ammunition fired in respect of each exhibit magazine to support his conclusion that each exhibit magazine could facilitate firing cycle of feeding and chambering of ammunition for successive discharge. 24.Even if, according to PW2, the functional examination of the exhibit magazine could be done without firing, the absence of evidence in relation to (a) and (b) as set out in the above paragraph 23 also, in my view, casts doubt on the overall reliability of his evidence in relation to the examination of the three exhibit magazines. 25.PW2’s evidence shows that exhibit magazine P5 could be used in the pistol P1. However, according to the defendant, both exhibit magazines P5 and D5 could not be fitted into the pistol P1 because P1 was installed with a TTI design magwell/mag base; people entering contests liked to install magwells to make the overall feel of the toy gun look quite aesthetic; a magazine of TTI design would be needed in order to fit into P1 or the TTI magwell needed to be removed from P1. This magwell can be seen in the real exhibit and the photos of P1. There is no mention of the TTI magwell in PW2’s evidence which, in my view, appears to show that PW2 had not addressed his mind to the TTI magwell of P1 at all. Therefore, I am unsure if his opinion that P5 could be fitted into P1 is reliable. 26.To conclude, I am not sure of the reliability of PW2’s evidence in relation to the examination of the three exhibit magazines. 27.In relation to (c) of the above paragraph 19, since the question was whether the suitable material were over-the-counter market purchasable in the hardware stores in Hong Kong, I am of the view that what materials that the hardware stores had on sale is an area outside PW2’s expertise in forensic firearms examination. I see nothing wrong with his answer that he was not sure what the hardware stores had on sale so he could not give a guess. As to his answer that he was not a metallurgy specialist, I note that the full answer is “I’m not a metallurgy specialist. I have no opinion on that one” which was in response to the question as to whether he realized that the material of the barrel of P3 was in fact S45 steel. Although his evidence under cross-examination shows that he knew some of the barrels were “made in forged steel”, I find that, since his expertise is in forensic firearms examination, not metallurgy, and the question was directed at a specific grade of steel, it is therefore not unreasonable for him not to give an opinion. I disagree with the defence submission. The Defendant’s Evidence 28.Prior to the arrest, the defendant had worked in the toy gun industry which consisted of airsoft guns and dummy guns for quite some time. Photo D1(1) was a photo of him standing in front of a milling machine inside his own workshop about 10 years ago while he was working for a shop called CRW which was specialized in selling some guns of high end collection and of special designs. Photo D1(2) was taken in year 2020 showing a drilling machine which belonged to the airsoft gun club of the defendant’s friend in San Po Kong. He used both machines for modifying the appearance of the parts of airsoft guns and dummy guns. The milling machine was for modifications to be done vertically so as to make the appearance of the gun or the part flat before any alteration could be made to the same, whereas the drilling machine was for modifications to be done horizontally. 29.It is clear from his evidence that:
30.As mentioned earlier, PW1 said “should be no” and/or “no recollection” when he was questioned as to (i) whether there were a lot of plastic bags bearing the triangular stickers “Felix Shi Mechanics” and (ii) whether there were over a hundred of magazine like objects inside the defendant’s flat. However, I find that photos P11(1-3) clearly show that, inside the defendant’s residence, there were a lot of plastic bags in blue and white colours inside the pile of transparent plastic boxes and on the exterior of one of the said plastic bags was an inverted triangular logo. I am satisfied that they were plastic bags bearing the logo of the defendant’s own brand. 31.The defendant’s evidence that, when the police came to his residence to conduct the arrest and seizure of exhibits, there were many guns and close to 100 numbers of magazines was not challenged by the prosecution. It is also undisputed that some of the magazines seized from the defendant’s home such as exhibits D4 and D5 are not charged. 32.By reason of the aforesaid evidence, I accept that at all material times the defendant was an airsoft/dummy gun fanatic. THE SOURCE/ORIGIN OF THE CHARGED EXHIBITS Component parts for P1 and P3 (except for the emergency stop and the muzzle device (P4)) 33.The defendant’s evidence is that:
34.It is submitted by the prosecution that when the defendant was confronted with the absurd features of his version, he admitted that his version was illogical but at the same time maintained that it would have been unfortunate that the shops somehow sold him these products capable of being used in real firearms without warning. 35.In my view, it is clear from the aforesaid evidence that there is no admission on the defendant’s part that his version is illogical. There is also no evidence of the defendant maintaining that it would have been unfortunate that the shops somehow sold him these products capable of being used in real firearms without warning. To understand his answer that “it was against logic that these shops would, without any warning, sell me parts for real guns” in a proper context, I find it necessary to consider the aforesaid evidence in its entirety. This answer, in my view, clearly showed that, based on his knowledge and understanding that these toy shops would stock up from toy sources and everyone knew his involvement in the toy gun industry as well as the way in which he played with toy guns, he therefore found that the scenario suggested by the prosecution, that is, these shops would, without any warning, sell him parts for real guns, to be illogical. This answer can hardly be viewed as his admission that his version was illogical. 36.According to the defendant, the shops would normally sell a Glock 17 dummy set with a barrel not just blocked but in one piece, a closed, that is, intact, firing pin hole and a short (but not shortened) firing pin. The situation would be more or less the same for a dummy rifle set with the basic principle being the same and the design was for operation use. The differences between these two dummy sets would be in terms of the design and the number of parts. For the dummy rifle set, the barrel would be deliberately made bigger in size and more fragile, that is the bore would be bigger and more fragile. As to the blockage of the barrel, every manufacturer had its own way and some made barrels that were blocked while some made the bore of the barrels bigger in size. At the time of purchase, the dummy set of the pistol P1 had a barrel having a solid core, blockage in the slide, a firing pin having the length same as it was when seized by the police and no firing pin hole. For the dummy set of P3, the barrel was not sealed or completely blocked except that the bore could not be passed through directly as the diameter was made smaller, the bolt was made of some model steel and blocked, that is, a hard core integral part, without a firing pin hole, the firing pin and the carrier of the bolt came as a set with the bolt. The model steel was not just cheaper in price but also easier for installation for the kind of toy gun involved. No alteration was done to the dummy set, all were of the original designs of the manufacturer. 37.PW2’s evidence shows that, for P1, the metal insert sat inside the mid-section of the barrel occupying around more than 50 per cent of its length of the barrel (114 mm) as well as blocking the entire cross section of the barrel, the firing pin hole was closed, the firing pin was shortened and the firing pin channel was partially blocked by metal insert. The said evidence, in my view, supports the defendant’s evidence about the dummy set of the pistol P1 including the condition in which he received it at the time of purchase. 38.Putting aside the issue as to whether the barrel consisted of two sections, PW2’s evidence shows that P3 consisted of a smooth bore barrel which was the modification to the barrel as there would be rifling in real firearms, the firing pin hole of the bolt was closed and the firing pin was shortened. The said evidence, in my view, supports the defendant’s evidence about the dummy set of rifle (P3) including the condition in which he received it at the time of the purchase. 39.Given the respective conditions of both dummy sets of P1 and P3 at the time of purchase having neither firing capabilities nor discharging function, I find that the defendant’s evidence that, at no time, did he doubt that the component parts in P1 and P3 could be used in real guns could have possibly been true. 40.There is also evidence before me to show that manufacturers of model guns and airsoft guns manufactured hyper-realistic or the most realistic products and component parts to cater the high expectations of enthusiast, such as “Viper Tech adheres to the highest industrial standard in its manufacturing process following actual steps of real firearm production procedures such as: forging of upper and lower receivers, followed by CNC milling process and finally finishing with phosphate coating or anodized surface treatment” and “Tanaka Works pistols are mostly ABS plastic as regulated by Japanese laws, but the finishing and coating is hyper-realistic with very convincing chrome finishing that makes them look even better than many full metal airsoft pistols” (Photos D1(11) and D1(13)). This evidence appears to show that, appearance-wise, toy guns including component parts are manufactured to closely resemble the real guns including component parts. On the other hand, there is no evidence before me to show that there are features/ways to distinguish component parts which are capable of being used in real guns from the component parts of toy guns. Nor is there any evidence before me to show that the personnel of these toy shops had the knowledge or ability or were trained to distinguish the component parts which were capable of being used in real guns from component parts of toy guns. Therefore, it is, in my view, unknown if the personnel of these toy shops were able to tell that the component parts of P1 and P3 were capable of being used in real firearms when the defendant purchased them. In the circumstances, I am of the view that it is not inherently improbable that the component parts of P1 and P3 capable of being used in real firearms might have been purchased by the defendant accidentally. Emergency Stop 41.When questioned as to why the defendant asked Neo for the emergency stop and did not purchase it from Kwong Wah Street since he was able to purchase everything else there, his explanations were to the effect that the design of the emergency stop that he needed was an old version produced by a local manufacturer for a Japanese system a long time ago and its appearance tallied with the requirement of the photo; he wanted Neo to give it to him, he asked Neo if that model was available, Neo had always been doing it and said that he could make it and so he made one for the defendant; the value of the emergency stop was just $10 odd to $20 and since Neo took the trouble to come out to give it to him so he treated Neo to a meal at #224, 227-228, 277 to 289 of 1st VRI. 42.The defendant disagreed with the suggestion by the prosecution that the reason why he went to great lengths to find someone like Neo who was able to make the emergency stop for him was that he was not looking for an ordinary emergency stop but he was looking for an emergency stop capable of being used in a real rifle. 43.As rightly pointed out by the defence, there is no expert evidence to elaborate on the role played by the emergency stop. In any event, I see nothing unreasonable or unusual in the defendant’s explanations as to why and how he obtained the emergency stop from Neo. I disagree with the prosecution submission that the defendant was looking for an emergency stop capable of being used in a real rifle and therefore must have known the true nature of the emergency stop of the rifle. Magazines P2, P5, P6 and P7 and cartridge cases (P8(a)-(d) and (f), P9(a)-(l) and P10(a)-(z) and (aa)-(jj)) 44.At the initial stage of cross-examination on the issue regarding the purchase of the exhibit magazines P5, P6 and P7, the defendant did appear to be contradicting himself about the source of P5, P6 and P7, that is, he purchased them from Kwong Wah Street and not from Neo, contrary to what he said at the VRI. However, I note that the overall effect of his evidence under cross-examination is that what he said at the VRI was true and that all 4 magazines P2, P5, P6 and P7 were purchased from Neo and Neo was also at Kwong Wah Street. 45.In cross-examination, after the prosecution pointed out to him that he had told the police at the VRI about purchasing the three magazines P5 to P7 from Neo, he said he remembered the incident and explained that the police came to his home early in the morning and dug out so much stuff, at the VRI the exhibits were wrapped in a certain form and shown to him in a fast motion, it was only later when he discussed with his lawyer that he came to know what kind of exhibits were “received” so that he could have a proper look at them, he could not tell which magazine was which since there were too many of them, even for the two Glock magazines, which the prosecution said one was real and one was fake, he could not tell the said difference. He confirmed what he said was true at the VRI. As to P2, he supposed he had bought it from Neo, he did not mean to cause confusion, but it was only two or three years after the incident that he started to look for counsel who then asked him where he bought them, so it was the Gun Street and Neo was also at the Gun Street. When he was cross-examined about the component parts of P1, he also mentioned that he made so many guns for his client every day and also for himself, there were so many different transactions, it was hard for him to give the prosecution a complete and specific picture about which parts coming from which particular shop. But those components were actually purchased in Kwong Wah Street. 46.In my view, the aforesaid evidence under cross-examination shows that, due to lapse of time and the fact that the defendant had made so many guns and he had so many magazines, he could not clearly remember the precise details in relation to each and every magazine that he had including the purchase details and he therefore gave an inaccurate answer about the source of P5 to P7 not being Neo at the initial stage of cross-examination. 47.As to the cartridge cases P8, P9 and P10 as shown in P11(12), his evidence-in-chief was that he had purchased them from the Gun Street, it was rather difficult for him to pinpoint which particular cartridge was bought from which shop because they were all mixed up for photo-taking and, from his own perspective, they all looked similar. 48.In cross-examination, when questioned if he was sure as to where he got P8 to P10 from, he said he had actually bought them from the Gun Street and also from Neo. The prosecution then pointed out to him that he had told the police at the VRI that all P8, P9 and P10 (except for one of them in P10 from Taiwan) were purchased from Neo and he agreed. It was then put to him that he had purchased all of the said cartridge cases from Neo instead of Kwong Wah Street, he replied that Neo was engaged in this trade as well. 49.Under further cross-examination, he said Neo was someone from the Gun Street so he bought the said cartridge cases from the Gun Street, Neo was engaged in the business of airsoft gun accessories and Neo did not own a shop but sold products there. He disagreed that he tried to distance the origin of P8 to P10 from Neo. As to whether he could remember and point out which one of the cartridge cases in P10 was from Taiwan, he said “No”. 50.Since Neo was also someone from the Gun Street engaging in the business of airsoft gun accessories, it is understandable, in my view, for the defendant to say during evidence-in-chief that he purchased the said cartridge cases from Kwong Wah Street generally. 51.I disagree with the prosecution submission that the defendant was trying to distant the source/origin of the magazines and cartridge cases from Neo. 52.I note that, back in June 2020 at the VRI, the defendant had already told the police about Neo and that he would be able to provide the police with Neo’s means of contact (#261-262@1st VRI). 53.The defendant’s evidence under cross-examination is that he asked Neo for “Tanaka” magazines which was a brand for toy magazines (See Photo D1(13)), he did not specifically ask for magazines capable of being used in real firearms, he had never misrepresented to Neo that he held any firearm or ammunition licence and he disagreed that he specifically purchased magazines capable of being used in real firearms from Neo. 54.Other than the defendant’s evidence that Neo was someone from the Gun Street engaging in the business of airsoft gun accessories, I agree with the defence submission that there is no evidence before me to show or suggest that Neo was an arms dealer. On the other hand, there is also no evidence to show or suggest that, by reason of his engagement in the business of airsoft gun accessories, Neo knew, ought to have known and/or was able to tell that the charged magazines and cartridge cases were capable of being used in real firearms and real ammunition. 55.As mentioned earlier, I have inspected the real exhibits. I find that, appearance-wise, exhibits P2, P5, D4 and D5 all look similar, the surfaces of P2, P5 and D5 feel like plastic while D4, P6 and P7 all with metal feel and there are parts like metal inside P2, P5 and D5. In other words, the fake magazines and real magazines are, in my view, similar in terms of appearance, materials and feel. I see no reason to doubt the defendant’s evidence that concerning the five magazines D4, D5, P5, P6 and P7, there was no difference among them except for the differences in materials, that is, plastic or metal, and models. 56.In the absence of evidence to the contrary, I cannot rule out the possibility that Neo might not know and/or might not be able to tell that the charged magazines and cartridge cases were capable of being used in real guns and ammunitions and, without warning, sold the same, mixed with toy magazines and cartridge cases, to the defendant. 57.As to the cartridge cases received from Neo, the defendant said that some of them were dented and some of them were bulged. When questioned by the prosecution if he specifically asked Neo why there were dented marks at the bottom of the cartridge cases, he replied that, as long as they looked similar to each other, nobody would pay attention to those dented marks as they were bought for photography purpose and there was no particular function for those dented marks. 58.As to whether those dented marks made him concern that the cartridge cases would be real fired cartridge cases, he reply was that, even if that was the case, they were just for photography and, unlike the case of an airsoft gun, where they could be refilled with gas for discharging again. The prosecution then clarified with him if he was saying that he did not even care whether Neo gave him real fired cartridge cases or dummy cartridge cases, his reply was “Yes. It should be that it never occurred to me”. 59.In my view, the aforesaid evidence under cross-examination clearly shows that the defendant’s focus was on the appearances of cartridge cases being similar for photography purposes. Since the dented marks served no particular function, it is, in my view, not unreasonable for him not to pay attention to them. This also explained why the question as to whether Neo gave him real fired cartridge cases or dummy cartridge cases never occurred to him. I find that his reply “Yes. It should be that it never occurred to me.” clearly stemmed from the fact that he did not pay attention to the dented marks. I disagree with the prosecution submission that he changed his evidence. 60.I disagree with the prosecution submission that the defendant knew that the exhibit magazines and cartridge cases were real firearms and fired cartridge cases and specifically requested them from Neo. Muzzle Device (P4) 61.The defendant’s evidence under cross-examination shows that one could easily get a bunch of them from the Gun Street. He got P4 from the place for airsoft guns/toys but he was not sure where the place was as there had been a lapse of 6 years. He agreed that, at #348 of the 1st VRI, he told the police that he bought from Neo a manual for those accessories used in some genuine guns which was for display to pretend that the flash hider, that is, P4, looked genuine. He disagreed that he had put the manual alongside P4 because he knew P4 was a genuine one. He also did not understand why the prosecution said the wording “dummy” on the rounds was to pretend that they were fake whereas the placing of the manual for real gun accessories was because of P4 being real. The prosecution then pointed out his answer “to make it more imitated” at #354 to him and put to him that he knew clearly that P4 was capable of diminishing the flash caused by the firing of the rifle P3, he disagreed. 62.I see nothing unreasonable in the aforesaid evidence under cross-examination. Defendant’s Relationship and Communication with Neo 63.The defendant’s evidence is that Neo was a seller and collector of toy guns and toy ammunitions whom he met at Kwong Wah Street. Up to June 2020, he had known Neo for a few years. Apart from phone calls and meeting up in person, they had no other means of communication, such as WhatsApp, WeChat, sending text message, photograph or video. He guessed Neo was 60 years old. 64.When looking for the emergency stop, he just told Neo the name “Colt AR 15” early type over the phone. As to whether sending a photo of the movie star holding the said model of rifle would save all the troubles from these communications about a very specific type of emergency stop that he was looking for, his reply was to the effect that it was normal business for them and there was no need to send photos. 65.He disagreed that it was unreasonable and far-fetched that he and Neo had no communication record or trail except for making phone calls and in person meetings. He explained that, even with the welding worker who worked for him in Wanchai, they just communicated by phone. 66.He also disagreed that he intentionally tried to avoid leaving any communication record or trail with Neo and that was why he chose to communicate with Neo by phone or in person meetings. He asked Neo about his occupation and was told that Neo was in the airsoft guns business but he never asked Neo whether he worked for a company or ran or owned his own company or why he was able to sell a wide variety of products as such questions never occurred to him. He did tell Neo he was in the toy gun business. When questioned as to why he didn’t ask Neo why he had so many parts to sell to him since Neo knew that he was into toy guns and cartridges and ran the same kind of business, his reply was to the effect that it just happened that he did not ask. 67.In my view, the aforesaid evidence shows that the nature of the defendant’s communications with Neo was centred on a similar interest in toy guns, they did not appear to have in-depth communications regarding their personal and/or professional lives. I note that the defendant was not asked as to whether he, Neo or they both chose to communicate by phone or in person meetings only and the reason for so choosing. I cannot rule out the possibility that there might be reasons for them not to resort to communicate through other means, for example, the type of phone used by Neo not being compatible with instantaneous communications, or as submitted by the defence, Neo could just be an older gentleman not using instantaneous communication. 68.I disagree with the prosecution submission that the defendant tried to avoid leaving any incriminating record/trail with Neo and that the defendant was not telling the truth about his actual knowledge of the background of Neo since Neo was one of his sources of component parts capable of being used in real firearms and real cartridge cases. Defendant’s knowledge of real firearms and real ammunition 69.The prosecution pointed out that, in cross-examination, the defendant agreed that he had in fact admitted to the police in the 2nd VRI that he was familiar with the materials, structures and designs of real firearms, particularly the pistol (P1) and the rifle (P3). However, when the prosecution further pointed out to him that what he said at #135-136@2nd VRI, that is, he did not have any knowledge about real firearms, contradicted with what he said at #30, 516-521@2nd VRI, that is, he was familiar with materials, structures and designs of real firearms, the defendant disagreed. 70.In cross-examination, the defendant agreed that those questions were asked at the VRI and he did give those answers as recorded at the said counters. However, I note that, before he gave those answers in the 2nd VRI, he had already told the police that (i) P3 was a toy gun assembled by him with parts purchased from Kwong Wah Street for the purposes of collection display and photo-taking. The basic barrel P3 was cut off and a second hand barrel cut off from an electric gun was adapted onto it so P3 could not shoot. The second hand barrel cut off from an electric gun cost him about $10-20 odd dollars. He described the process as to how he did the said adaption. All the white characters and embossed characters on P3 were engraved by him. He told the police that it was impossible to use P3 because it could not be activated, it was a model toy and could not shoot any projectiles and bullets. He had owned it for about 1 year or ½ year. He did not have a licence for possession of firearms and ammunitions but no licence was required for toys. He paid about $60,000 for the parts purchased from Kwong Wah Street including laser engraving [1st VRI #177 to 238; #309 to 344]; (ii) the pistol (P1) was assembled by him with parts purchased from Kwong Wah Street for the purposes of display and photo-taking. It could not be used because it was a Japanese toy, a toy made in Japan but assembled by him. It could not be used to discharge any projectiles or bullets. It had been merely for simulated operating/modelling, for example, by racking its slide removing the magazine and loading dummy rounds, that is, the dummy rounds seized by the police [1st VRI #509 to 584 and 2nd VRI #11-28]. 71.In other words, before he gave those answers at #30, 516-521 in the 2nd VRI, what he had been telling the police was that he knew and believed that both P1 and P3 were toy guns as they were made of toy parts/toy materials, and not real firearms. Therefore, in my view, what he told the police at #30, 516-521, that is, neither the materials nor design of P1 were applicable to real firearms, the structures of both P1 and P3 were unable to withstand discharging function as everything was made of material for toys and the designs of both P1 and P3 were not for being loaded with real rounds, was clearly based on his knowledge of toy guns in terms of materials structures and designs and therefore his belief that they were not applicable to real firearms. 72.I disagree with the prosecution submission that the answers at #30, 516-521 showed that he was familiar with the materials, structures and designs of real firearms and that he had made such an admission to the police. Nor do I find that these answers contradicted his answer at #135 about his having no knowledge of real firearms and rounds. 73.I agree with the defence submission that the defendant’s own analogy that is “a remote-controlled car is different from a real car” and “cooking utensils sold at Toys“R”Us are different from real ones” is the most telling and one does not need expertise in firearms to tell the difference. The prosecution cannot impute knowledge of real firearms on the defendant based on his ability to identify toy guns. 74.Concerning the magazines, the prosecution pointed out that when questioned as to whether the defendant was telling the police that the design of Exhibit D4, which was indeed a fake magazine, was not the same as the design of a magazine capable of being used in real firearms, the defendant answered that there were indeed such differences since toy magazines were not designed for storing real rounds. I note that his full answer was “Usually for the toy guns, there are some differences. When they were not used for the real guns, they were not designed for storing the real rounds, so the manufacturers and the website will also state in this way”. In other words, the defendant learned about the differences, that is, toy magazines were not designed for real guns storing real rounds, from the toy gun manufacturers and the information on their websites. In my view, knowledge gained from the toy gun manufacturers including their websites can hardly be considered equivalent to knowledge of real magazines and/or magazines capable of being used in real firearms. 75.Concerning the cartridge cases, the prosecution pointed out that the defendant told the police at #132 of 2nd VRI “a live round wouldn’t look like this either. It could be dissembled into a few parts”. The prosecution submits that the defendant was commenting on a dummy cartridge case and was obviously admitting to his knowledge of the differences between a real cartridge case and a dummy cartridge case. 76.As can be seen in the 2nd VRI, the rounds he talked about at #132 were bought by him together with the magazine D4 from Kwong Wah Street. He told the police that D4 was an original Japan-made magazine and bullet casing for decoration display collection and photo-taking. He was clear that they were toys. Again, I find that he was clearly basing on his knowledge of the cartridge cases being toys and therefore his belief in the same when he gave the answer at #132. I disagree with the prosecution submission that his answer at #132 amounted to his admission of knowledge of the differences between a real cartridge case and a dummy cartridge case. 77.I disagree with the prosecution submission that the defendant was able to distinguish real firearms and real ammunition from fake firearms and fake ammunition. Defendant’s ability to assemble a real pistol and a real rifle without discharging function 78.In the 2nd VRI at #11 to 30, the defendant told the police that P1 was a Japan made system toy gun merely for simulated operating/modelling, for example, by racking its slide, inserting/removing the magazine, loading dummy rounds which were rounds seized by the police. P1 was not able to fire and not possible to discharge anything. P3 was operated in the same manner such as racking, popping the magazine and loading the dummy, that is, decorative rounds seized by the police. No discharge was possible for P3. P3 was not a real firearm, neither its materials nor design were applicable to real firearms. 79.During evidence-in-chief, the defendant said that dummy guns were guns that could be operated but could not discharge. A dummy gun could carry out different functions as a real gun like removing the magazine, popping out the bullets. 80.In cross-examination, he agreed that his answer “when I need to build or fix a contest gun or to improve a toy airgun, not converting it into a real gun, but just making a toy by modifying the parts for reference” at #368 of the 2nd VRI was in essence saying that he did not know how to build a real firearm. The two blue notebooks seized by the police from his home did not contain anything as to how to build a real firearm. 81.As to the cross-examination of his answer “when I am to combine the strength I have to be supported with a bunch of techniques but this does not mean that the activation of the mechanism of a real gun can be achieved” at #380 of 2nd VRI about the blue notebook SL28 seized from his residence, his evidence shows that the principle of making a real gun was not in line with his fantasy when he was making toy gun. 82.When questioned if he had the skills and techniques to build the mechanism of a real gun except for the ability to shoot, he replied that that was a big difference. When further cross-examined about the extent to which his techniques related to the activation of a mechanism of a real gun, he testified to the effect that the techniques that he talked about in the blue notebooks were basically irrelevant to the mechanism of a real gun, the techniques related to the matching of different airsoft gun manufacturers, since different manufacturers made products of the same model at different time periods, he needed to put on record some material techniques used by the manufacturers so as to facilitate the repair and modifications work; the video clip of the Men Club Interview actually recorded how he performed with the airsoft gun which reflected the strength of the techniques; it was not that his techniques did not allow him to achieve “any” mechanism of a real gun as even a pen had employed the mechanism of a spring to have it locked, his guns were imitation guns so they looked similar to the real gun in a rough sense just like the shotgun ejecting cases and firing BB bullets belonged to the real action category of the Free Gun Nation Competition, his techniques would allow him to achieve the basic mechanism similar to that of the real gun but the purpose of which was not to be exactly like the real gun, the basic mechanism (including inserting and removal of a magazine of a toy gun and some actions like chambering) would be difficult to be made into a real gun mechanism because even for “Cotton Guns” from Toy”R”Us also shared the same mechanism, and he did not have the knowledge of building a real firearm without shooting function. He disagreed that he had the ability to build a real pistol and a real rifle without shooting function. 83.After reminding the defendant of the expert evidence that, for both P1 and P3, the functions of feeding chambering locking extraction ejection and corking were normal and the questions and the answers at #137 to 142 of the 2nd VRI showing that he claimed that it was not possible for him to assemble a real gun and he only knew how to build or fix a model car but he could not build or fix a real car, the prosecution pointed out to him that his evidence was in essence that he had done what he said was impossible, that is, he had built a real pistol and a real rifle without shooting function. He replied that it was impossible as they were toy guys and he lacked the relevant technique and tools to do that. He disagreed that he knew how to build a real pistol and a rifle without shooting function. 84.At a later stage of cross-examination, when questioned about the term of “dummy guns”, he agreed that his evidence in essence was that dummy guns were hyper-realistic guns looking very similar to real guns and had all the functions similar to those of the real guns except for the shooting function. He built P1 and P3 only to be dummy guns. 85.I find that the defendant’s evidence has been consistent throughout in both what he told the police back in June 2020 and what he said in the witness box that his dummy guns could perform all the functions similar to those of the real guns except for the shooting function. There is also clear evidence before me that, at the time of the offence, the defendant had been in the toy gun industry for years including making dummy guns for customers and the guns made by him including the Initial-D Glock 17 were displayed at the Men Club Interview which could be viewed by the public online via social media. I also note from PW2’s evidence that he would sometimes examine toy guns or dummy firearms. In other words, as the evidence now stands, the concept of dummy guns appears to have been in existence for quite some time. 86.On the other hand, there is no evidence before me that it is illegal for the defendant to assemble dummy guns with toy gun parts and for such dummy guns to possess or perform all the functions similar to those of the real guns except for the shooting function. Nor is there any evidence to show that it’s impossible for such dummy guns to possess or perform all functions similar to those of the real guns except for the shooting function. There is also no evidence before me to show why someone, like the defendant, having the knowledge and techniques to assemble such dummy guns with all the functions similar to those of the real guns except for the shooting function must also have the relevant knowledge of real firearms and the techniques to assemble a real firearm with or without discharging function. 87.The fact that the defendant knew how to assemble the component parts of P1 and P3 into the pistol and the rifle without discharging function does not, in my view, point to the only logical conclusion, as submitted by the prosecution, that the defendant indeed had the ability to assemble a real firearm without discharging function and therefore must have the relevant knowledge of real firearms. Defendant refrained from activating the discharging function of P1 and P3 88.It is submitted by the prosecution that the phrase “dummy gun” is simply a red herring and a smokescreen - there is really no reason why a dummy gun, which is a toy gun after all, need to strictly adhere to the requirement of the lack of discharging function. The phrase “dummy gun” is clearly made up by the defendant to cause confusions. The defendant knew that P1 and P3 consisting of component parts capable of being used in real firearms would become fully functional and thus lethal firearms upon activation of the discharging function and he would surely be arrested if the law enforcement authorities find him in possession of the same. The defendant therefore refrained from activating the discharging function of P1 and P3. 89.In cross-examination, when questioned as to why he built P1 and P3 without shooting function and refrained from giving them the said function, his evidence shows that:
90.In my view, it is clear from his evidence including his answers given at the VRIs that he built P1 and P3 without shooting functions because they were dummy guns/toy guns for operating/modelling only and for the purposes of his enjoyment, collection, demonstration, display and photo-taking. His pursuit for his dummy guns to look hyper-realistic focused on the appearance in terms of materials, markings and the overall feel and functions resembling those of a real gun except for the capability of firing. It is therefore, in my view, logical for him not to address his mind as to how to build them with shooting functions within legal limits. On the other hand, I note that he was not asked about the source and/or basis as to how he got the understanding it was illegal to build dummy guns with shooting function. Giving the benefit of doubt to the defendant, I cannot rule out the possibility that his understanding of the law might not have been accurate which led to his strict adherence to the requirement of the lack of shooting function. 91.Also, the defendant had been in the toy gun industry for quite some time including having experiences of working for various gun shops selling airsoft guns and dummy guns, running his own brand, customizing and modifying the airsoft guns and dummy guns for customer. There is evidence of photos showing the guns assembled by him including those displayed at the Men Club Interview. At the VRI, he also told the police that both P1 and P3 were for “simulated operating/modelling unable to discharge 只係模擬操作，唔可以發射” and “operated in the same manner as well, but no discharge is possible 都係相同操作，但係不能夠發射”. As analysed earlier, the concept of dummy guns appears to have been in existence for quite some time. I have no difficulty in accepting that at all material times the concept of “dummy gun” existed in the toy gun industry. 92.I disagree with the prosecution submission in the above paragraph 88. Conspicuous words on the box D7 “Dummy Ammo Mag” and “For Airsoft Photography Only” 93.The defendant’s evidence under cross-examination shows that:
94.In my view, it is clear from his evidence that the items inside the box had not been seen by the people of the gun clubs or gun shops before and those words “Dummy Ammo Mag” written by him on the box were necessary to let them know that the items inside the box (D7) were dummy ammunitions and dummy magazines and to avoid misunderstanding and false alarm. Also, he was concerned that someone might be terrified by the dummy ammunitions and dummy magazines when he was taking them on the way to the gun clubs and gun stores for photography purpose. I see nothing wrong and/or unreasonable for him to write those words on the box. 95.In relation to the words “for airsoft photography only”, his explanation together with the example used by him, that is “for self-use only” in the cartoon Initial-D showed that the words were just put there without meaning anything in particular. In other words, it was just his personal preference, which was in my view a subjective choice, to put those words on the box D7. I see no reason to doubt his explanation. Location of magazines P2 and SL13 96.The defendant’s evidence-in-chief is that when the police came to the defendant’s home to conduct the search, the magazines P2 “should be” separated from P1 and kept inside the “Dummy Ammo Mag” box (D7). SL13 was a magazine for airsoft gun but out of order. It was among one of those 20-something numbers of magazines not seized by the police. He could tell that the magazines were out of order because he would mark “3B” on them and “3B” was on SL13. In other words, only the pistol P1 was inside the box with the “Felix Shi” sticker. 97.Under cross-examination, his evidence is that SL13 “should be” in a box containing broken magazines which the defendant used specifically for IPSC. After the police entered his home, they brought SL13 from the box for IPSC and P2 from the box D7 into the box containing the pistol P1. SL13 could not be fitted into the pistol P1. He saw and heard the police playing and trying to fit different magazines of a special look into the pistol P1 for some time. As to whether the police played and tried to fit SL13 into the pistol P1, he did not see how it actually happened and was not able to remember it. 98.As to whether, after playing, the police misplace magazines P2 and SL13 in the box of the pistol P1, he did not pay particular attention to that and would not admit any facts randomly, but his guns and magazines were placed separately, he was at the time held up to one side and heard the police playing with them, so he thought it was likely to be the case that the police misplaced P2 into P1 and SL13 that couldn’t be fitted into P1 in the same box with P1. 99.Regarding his evidence-in-chief that, as a member of Hong Kong Practical Shooting Association (HKPSA), he would disconnect the magazine from any gun, he agreed that his member badge as shown in D1(4) expired in April 2018, but, at the time of the arrest, he still had another member badge of HKPSA. When questioned that, by the time of the arrest in June 2020, he was no longer bound by the rules of HKPSA, his reply was to the effect that he could show the prosecution his badges for each year; disconnecting the magazine from the gun was to do with how one conducted himself as a person and had nothing to do with the rules; he was disqualified in the contest for inserting a magazine, otherwise a gun with a magazine inserted was not regarded as any violation of the regulations, but professionals would separate them. 100.He disagreed that his evidence-in-chief about disconnecting magazines from guns with reference to his membership of HKPSA was to cause confusion. He also made the point by using the analogy of a chef separating raw materials from cooked ones when he got home. 101.He marked 3B on the out-of-order magazines to serve as a reminder to himself and would not put this kind of magazine in the same box of the pistol P1. When questioned as to why he told the police at the VRI that perhaps he put SL13 in the box containing the pistol P1 arbitrarily to explain its presence, he replied that it could be seen from the VRI that he was dumbfounded and had no idea what was happening, when he was being asked his first response would be to question himself and to think that he was at fault; and secondly, he neither suggested directly nor admitted that it was done by the police, he only heard the police playing with the magazines for a while and saw them trying to fit the magazines into the pistol. He disagreed that he changed his evidence as all along he did not admit that it was the police who placed it there, he just saw it but the prosecution never let him explain. 102.It was put to him that the police officer’s evidence was that the three boxes found by the police upon opening was as shown in P11(7) and the police did not misplace any items or change the condition. He disagreed and questioned why the slide of the pistol P1 was pulled back in the P11(10) not in the same condition as shown in P11(7). He also pointed out that the buttstock of the rifle was opened as shown in P11(9). He disagreed that he was not telling the truth about P2 and SL13 not being inside the box containing the pistol P1 and P2 not being already inserted in P1. 103.In my view, it is clear from the aforesaid evidence under cross-examination that, since the defendant did not witness the police placing P2 and SL13 inside the box containing the pistol P1, he therefore neither suggested directly nor admitted that they were placed there by the police. In other words, he was not sure if P2 and SL13 were placed there by the police. 104.In my view, his evidence-in-chief shows that he was not certain as to the location of P2 since his answers were P2 “should be” separated from P1 and “should be” in the dummy case (D7). As to SL13, he appeared to base on the presence of the marking of 3B on it to say that it was not originally inside the box. However, under cross-examination, he said that SL13 should be in the magazine box for IPSC. Therefore, in my view, what he said about the location of SL13 was likewise not a firm answer. 105.I agree with the defence submission that the defendant’s mention of the HKPSA was merely to explain his training and professional discipline and not that his keeping of guns and magazines separately was to avoid penalty by HKPSA. I do not find that he changed his evidence as submitted by the prosecution. 106.I find that the aforesaid evidence under cross-examination shows that disconnecting magazines from guns and placing out-of-order magazines in the IPSC box respectively were his usual practices. 107.The defendant was not asked as to when he last saw P2 and SL13 before the house search conducted by the police. As mentioned earlier, he only started to look for counsel 2 to 3 years later after the incident and then came to know what kind of exhibits was “received” and had a proper look at them. 108.Thus, I cannot rule out the possibility that his evidence about the respective locations of both P2 and SL13 might have stemmed from inaccurate memory and/or that he might have been influenced by the abovementioned usual practices and formed a genuine but mistaken belief that P2 and SL13 were inside the box D7 and the IPSC box for the out-of-order magazines. 109.On the other hand, I find what he told the police at the VRI that he might have put SL13 in the box containing the pistol (P1) was simply a possibility. In other words, it was not an answer with certainty. I see nothing incredible in his explanations as to why he so told the police, giving the emotions being experienced by him and the kind of thoughts going through his mind at the time of the VRI, especially in view of his clear record and his being on his own at both VRI’s. 110.I am of the view that the defendant’s evidence that both P2 and SL13 were not inside the box containing P1 is inaccurate. However, this would not cause me to doubt my earlier analysis on his evidence in relation to the main issues. Whether the barrel of P3 consisted of two sections 111.The defendant’s evidence under cross-examination shows that the meaning of his answer to the police at #206 of the 1st VRI “the barrel was cut off from an electric gun and adapted onto the rifle so it cannot shoot” was that: he deliberately made an opening and adapted it onto the rifle (P3) to make the length appropriate for the appearance; the barrel of P3 was then already in a very fragile state, lacked the precision with its inner bore being so empty and fragile, and could not even house the inner barrel for the BB bullets, with so many problems what could the barrel be used for apart from decoration and the barrel could not even be reconverted into a barrel of an airsoft gun. 112.A section of the barrel of P3 came from a barrel cut off from the electrically propelled gun (Part B) and the other section of the barrel came from the barrel of the dummy set (Part A). He spun these two sections together with spinning threads. The cutting process did not involve a sharp cut and might be said to be complicated for ordinary people. He wanted to demonstrate the point with the use of exhibit P3 as it was easier for him to explain. However, the prosecution did not require him to do so. 113.When questioned as to why he did not just use the barrel of the dummy set, his explanations showed that the length of the barrel from the dummy set was only measured up to 10.5 inches; since he was trying to make a fake AR15 rifle of the same model used by a character in a famous movie and only that specific type of AR15 had the length of 12.5 inches, he therefore cut the barrel of the dummy set and extended its length to 12.5 inches by spinning the same with part B; he did not tell the shop that he was specifically looking for that specific type of AR15. Since the movie was just released and he was familiar with the trade of toy guns, he certainly knew that the toys were not yet available. When challenged by the prosecution that he did not even take the simple step of asking the shops for that specific type of AR15 but chose to go through the trouble of the cutting and merging processes of the barrel, his explanations were to the effect that that specific type of toy gun was not yet released; just like the case of the toy gun Initial-D, he knew that there was no such product, so he made it himself with parts purchased from those toy gun shops without asking them for such product; the barrel of P3 as seen in court was a piece of toy, no matter how one looked at it, and there was nothing for him to worry about; what was the point of asking the shops when the product was not yet released. 114.For the dummy rifle sets, manufacturers would deliberately make the barrel bigger in size, that is, the bore would be bigger, and more fragile. The design of the barrel from the dummy rifle set (P3) was neither sealed nor completely blocked. Nor was the barrel blocked by inserting something inside. The barrel was not sealed or completely blocked except that the bore could not be passed through directly as its diameter was made smaller and had a measurement of perhaps 4 mm only. It was common sense that the measurement of bullets was 5.56. The purpose of the barrel was simply for decoration. Strictly speaking, the blockage was an integral part and a bullet could not be discharged. He used the example of a model vessel placed inside a bottle to explain the point about the diameter being made smaller. 115.The bore of the barrel of the electrically propelled gun, that is Part B, was a maximum size. Originally, the barrel of the electrically propelled gun, the bore of a toy gun needed to be inserted in it. That was why calibre 5.56 was written on the body of his gun that was seized by the police. For the BB bullets, there were designs in 6 millimetres and 8 millimetres. The outer diameter of a bore for toy guns, namely the inner diameter of this gun (P3) currently was measured up to about 10 millimetres. The price of the barrel of the electrically propelled gun was at $10-$20. He did not think anything in particular could be said about this because they were made by him and for decorative purpose. 116.Since the rifle (P3) was not a real gun, it did not matter if the barrel was divided into many sections. The barrel needed not to be in one piece. What was important was that appearance-wise its length was up to 12.5 inches as he wanted it to be. 117.The prosecution pointed out to him that the fact that, after replacement of the modified parts, test firing was conducted by PW2 successfully with the barrel of P3 was contrary to his evidence that the barrel was in a very fragile state and lacked the precision. He agreed and explained that, even if that was the case, the gun was not having the acceleration in a straight line, the round was just going past a passage of 10 mm diameter without touching the barrel, the size of the rounds would be less than or half of the said diameter. He further explained to the effect that, even for toy barrels, BB bullets had to follow the track, but ammunitions were used and discharged forcefully without contacting/touching the barrel during the test firing so how could the barrel be broken. 118.The prosecution continued to point out to him the contradiction in respect of his evidence that the diameter of the barrel from the dummy set was not suitable for 5.56 calibre. His reply was to the effect that given that something with such a strong functionality was applied to the barrel, he did not know how his gun (P3) would be damaged. As previously mentioned, Part A belonged to the dummy rifle set, part B was the barrel cut off from the electrically propelled gun with tracks inside, and a large part of the barrel of the dummy rifle set was cut off and replaced with an even more fragile barrel, that is, Part B, the barrel of P3 indeed could not carry any function. The means could be achieved but not the purpose. 119.The prosecution then pointed out to him that after the test firing the part of the barrel that came from the dummy set was not damaged. He responded that he was indeed worried about it but it was lucky that nothing went wrong, he did not know how it was done, a shot or two might somehow be able to be fired, taking a toy and performing such an act on it was similar to the scenario of using a set of cooking toys purchased from Toys”R”Us for actual cooking which was dangerous and the toy set would be easily damaged as that was not what it was designed for. 120.When questioned if test firing using one round of ammunition was not enough to verify whether the barrel from the rifle was capable of being used in the real rifle or simply a toy part, he replied that he did not say that, he did not know how they managed to fire with it with those modifications, he really hated people modifying his guns like that and it also had an influence on his trade, he would refuse his clients’ requests for enhancing the strength of their toy guns, he had made so many efforts on the details of appearance of P3 deliberately and had bought a box to house it to avoid any damage to it, and P3 was just a toy. 121.He disagreed with the case put by the prosecution that he was not telling the truth about the parts of both P1 and P3 (except for the emergency stop which the prosecution accepted that it came from Neo) coming from Kwong Wah Street. 122.I note that the defendant made it clear at the VRI back in June 2020 that the barrel of P3 consisted of 2 sections being connected together. This issue, in my view, is clearly not a recent fabrication by the defendant. I find that he has given detailed evidence about the barrel of P3 consisting of two sections. The fact that he wanted to use P3 to explain his evidence, in my view, clearly shows his eagerness to prove the truthfulness of his evidence. But he was not given the opportunity to do so. 123.On the other hand, I note that when PW2 was cross-examined if the barrel would have to be an integral one-piece material otherwise there would be weak points at the connecting points, PW2 replied that it would depend on the design. This reply, in my view, clearly shows that the barrel being an integral one-piece material is not the only design and therefore the design of barrel having connecting points appears to exist. 124.Concerning the barrel of P3, PW2 was asked by the defence if he realized that it was in fact made of S45 steel materials. He replied that he was not a metallurgy specialist and had not opinion on that. I find that the possibility of the barrel of P3 made of S45 steel materials cannot be ruled out. 125.When questioned if the barrel of P3 in fact consisted of two chunks being connected together, PW2’s evidence was that “Not that I recall it”. In my view, the said answer is not a firm answer and suggests uncertainty. PW2 was not asked to clarify this answer. Nor was he asked to look at the real exhibit P3 in court to confirm the accuracy of his memory. 126.As PW2’s evidence now stands, I am unable to agree with the prosecution submission that PW2’s evidence is that the barrel of P3 is one integral piece instead of being made up of two connected entities. 127.As to the defendant’s evidence that the diameter of Part A was not suitable for 5.56 calibre, I find that the measurement of perhaps 4 mm is clearly not an accurate figure and appears to be his rough guess. As he was not asked to explain how he got that figure, I cannot rule out the possibility that he might be mistaken about the measurement which led to his understanding that the diameter of Part A was not suitable for 5.56 calibre. 128.I find that the possibility that the barrel of P3 consisted of two sections cannot be ruled out. 129.I agree with the defence submission that the defendant indeed expressed his surprise that the barrel of P3 could withstand the test firing. In my view, his surprise serves to demonstrate that he was not aware that the rifle was capable of being used for discharging projectiles when used with parts from a reference firearm and had no intention to build a functional firearm. Other Aspects 130.Under cross-examination, PW2 agreed that the grip of P1 was quite special or different from that of a usual Glock pistol, a firearm usually manufactured by the Glock company would not produce or come with a grip that looked like the grip of the pistol P1; the markings of Glock 17 Austria 9 x 19 would also be put on the body of the pistol by a largescale Japanese company called Marui when making toy guns. As to whether the engravings on the pistol P1 were indeed engraved by the factory of the Glock company, he found that they appeared to be consistent when comparing with those on the reference arms based on his bare eye observation. He agreed that, with bare eyes observation, counterfeit goods sometimes looked rather similar to genuine one. 131.I find that the aforesaid evidence of PW2 in relation to the grip of P1 and the markings on P1 tends to support the defendant’s evidence that the markings of words, numbers and alphabets on P1 were engraved by him with reference to the information found via google search, the pattern on the grip was done by him with a welding gun to create some artistic sense, the pattern was unique and he could not make another one. 132.As can be seen in photo exhibits D1(5-10 and 20), the markings/engravings on the toy guns were made by the defendant. I have no difficulty in accepting his evidence that the markings and engravings on both P1 and P3 were done by him and that he had the ability to do so. 133.If, as submitted by the prosecution, the defendant knew the nature of the pistol (P1) and the rifle (P3) to be real firearms and refrained from activating the discharging functions of both P1 and P3 because of his worry about law enforcement authorities finding him in possession of fully functional and thus lethal firearms, I find it highly improbable for him to put: (i) the markings/words of Glock 17 and the markings/words related to AR15 on P1 and on P3 respectively and (ii) a manual for genuine gun accessory alongside the muzzle device P4, since all these markings/words and the manual would clearly attract attention and/or arouse suspicion of the law enforcement authorities. Even if, as submitted by the prosecution, all these markings/words and the manual were just facades to create the impression that they were products of the defendant’s hyper-realistic toy gun business, I find it highly improbable for the defendant to post P3 on Facebook for sharing. 134.Putting aside the issue of reliability for the time being, PW2’s evidence shows that a reference firearm, that is, an AK47 assault rifle, was utilized for the functional examination of magazine (P6). However, there is no evidence that a gun or rifle suitable for P6 to be used in was found at the defendant’s home. In the circumstances, if, as submitted by the prosecution, the defendant knew the true nature of the magazines P5 to P7 and intended to use them in real firearms, I find it highly improbable for the defendant to have specifically requested P6 from Neo when he had no suitable gun to use P6. 135.Also, P1 is clearly installed with a TTI magwell base. I find that photo Exhibit D12 showing the website information on the magwells of the Taran Tactical Innovations, including images of TTI magwells as well as a TTI magazine fitted into the “Full Size Competition Lightning Magwell For Generation 5”, supports the defendant’s evidence that only a TTI design magazine could be fitted into P1, that is, the charged magazine (P2). Putting aside the issue of reliability for the time being, PW2’s evidence is that P5 could be used in P1. P5 is clearly not a TTI design magazine. In the circumstances, if, as submitted by the prosecution, the defendant knew the true nature of the pistol P1 and magazines P2 and P5 being firearms and intended to use them, I find it highly improbable for him to have specifically requested a non TTI design magazine P5 from Neo instead of a TTI design magazine that could be interchangeable with P2 for use in P1. 136.As to the two fired cartridge cases P9(k-l), I note that, according to P15, these two cartridge cases are suitable for use in like calibre firearms such as Model 1911 pistol. There is no evidence that a pistol of the said model was found in the defendant’s home. There is also no evidence from PW2 that they could be used in any of the charged magazines or pistol. In the circumstances, if, as submitted by the prosecution, the defendant knew the true nature of the fired cartridge cases were real fire ammunitions and intended to use them, I find it highly improbable for him to have specifically requested them from Neo when he had no suitable pistol or magazine to use them. 137.It is pointed out by the defence that none of the tools described by PW2, namely, drill, heavy punch and something superheated that can melt metal for restoring the discharging function of the pistol (P1) and the rifle (P3), and the resizing tool, press or scale for the reloading process required for the cartridges to be used as live ammunition (“the Requisite Tools”) were found in the defendant’s residence. Also, no firing pin of suitable lengths, propellant or live primer (“the Necessary Materials”) was found in the defendant’s residence. 138.Even though at the time of arrest in June 2020 defendant had access to the machines shown in Exhibit D1(1 to 2, 6 to 8), it is clear from his evidence that they were not heavy duty equipment but just single face machine with low voltage for basic simple modifications/alterations to be done vertically or horizontally to the parts of airsoft guns or dummy guns but not for the modifications mentioned by the prosecution; if people possessing those equipment or apparatus could perform whatever function they wanted, then no one would purchase other machines; like the semi-finished product of an airsoft gun and the semi-finished forge of an AR15 shown in Photos D1(15-16), they were not the things that the defendant could process and he could only do simple handling with them so he reserved them from the manufacturers. Exhibit D1(6 to 8) corroborated defendant’s evidence that the machines were for modifications or alterations to be done vertically or horizontally to the parts of airsoft guns or dummy guns. In the absence of the evidence to the contrary, I see no reason to doubt his evidence in this regard. 139.In my view, the fact that there is no evidence that the Requisite Tools and the Necessary Materials were found in the defendant’s residence casts doubt on the prosecution case in relation to the defendant’s intention to, by himself and/or other person(s), use the pistol (P1), rifle (P3) and the charged cartridge cases as real firearms and real ammunition. Whether the charged exhibits fall within FAO P1 and P3 140.Under section 2(1) of FAO, “arms” mean “any firearm”. “Firearm” is also defined in the same section as “a lethal barrelled weapon of any description from which any shot, bullet or missile can be discharged”. 141.The prosecution accepts that both the pistol (P1) and the rifle (P3), in their present state, do not possess discharging function, that is, no shot, bullet or missile can be discharged from it. The said function shall be referred to below as “discharging function”. 142.Section 2(4) of FAO is a deeming provision which states that :
143.The word “defective”/「欠妥善」is not defined in the FAO and there is no case authority yet on the definition. However, the natural meaning of the word “defective”/「欠妥善」would accommodate a wide range of situations, such as firearms having defects in its component parts resulting in the lack of discharging function. 144.In the present case, both the pistol (P1) and the rifle (P3) do not possess any discharging function due to the following defects:
145.PW2 opined that the discharging functions of both the pistol (P1) and rifle (P3) can be restored manually with suitable tools by taking the 4 Steps and the 3 Steps respectively. After the said restoration works, P1 and P3 would be able to do what they were originally designed to do, that is, discharging 9 x 19 mm calibre ammunition and 5.56 x 45 mm calibre ammunition respectively. 146.The prosecution submits that both the pistol (P1) and rifle (P3), would otherwise be within the definition of “arms” in section 2(1) of the FAO as “firearm” but for the fact of the abovementioned respective defects. Both P1 and P3 should therefore be considered “defective” for the purpose of section 2(4) of the FAO and the follows that they satisfy the definition of “arms” in section 2(1) of the FAO as “firearm” by virtue of section 2(4) of the FAO. 147.In essence, the defence submits that it is wrong in law to say that anything found after some modifications can become (a part of) an arm/firearm: Kelly v MacKinnon[1] and R v Bewley[2]. It is a dangerously liberal construction as anyone possessing anything, as common as a mobile phone, but any part thereof, could be “ripped off and married with another part and become an arm/firearm” would be guilty of possessing (part of) a firearm. 148.As to the prosecution submission that the deficiency of the pistol (P1) and the rifle (P3) were “defects” as defined in the FAO and therefore there is no need to prove that the pistol (P1) and/or the rifle (P3) had to be a functional firearm at a previous point in time, the defence submits that the prosecution neglected that the defence’s interpretation of the FAO having a “past-tense” requirement is one that the language of the statute could bear. In support, the defence relies on the trite principles of (i) doubtful penalisation requires the court to elect an approach that would avoid penalisation of an innocent meddler when more than one interpretation is possible: HKSAR v Choy Yuk Ling[3]; (ii) noscitur a sociis, that is, that English words derive colour from those surrounding them and the words in the proximities in a statue give colour/meaning to other words of it: Bourne[4]; Girobank[5]. 149.The defence also pointed out that (i) Tipple[6] cannot assist the prosecution as it is in the context of completely different statutory language (which the prosecution itself acknowledged); (ii) both the prosecution’s interpretation and the defence’s interpretation are equally tenable, the prosecution has filed to prove beyond reasonable doubt that the deeming provision would operate in the way it so argues; (iii) if this court considers that the prosecution’s interpretation must be right and the defence’s interpretation could not be borne by the language of the deeming provision, one could not lose sight of the collective wisdom of their Lordships in Kelly and Bewley. The prosecution’s interpretation of the deeming provision would result in the (absurd) result of Cafferata[7], which was expressly overruled with strong disapproval in Kelly and Bewley. This court would have three options:
150.I note that in Kelly and Bewley, the expression “firearm” in section 57(1) of the Firearms Act 1968 provides, inter alia: “In this Act, the expression ‘firearm’ means a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged and includes (a) any prohibited weapon, whether it is such a lethal weapon as aforesaid or not; and (b) any component part of such a lethal or prohibited weapon; and (c) any accessory to any such weapon/designed or adapted to diminish the noise or flash caused by firing the weapon;...”. In my view, the expression “firearm” in section 57 of the Firearms Act 1968 is clearly different from the “firearm” defined in section 2(1) of the FAO. I note that the facts in both Kelly and Bewley were different from the facts of the present case. I also agree with the prosecution that the views expressed in both cases are simply statutory interpretations of a legislative framework without the Hong Kong deeming provisions, that is, section 2(4) of the FAO so without the deeming provisions the Scotland Court and the UK Court interpreting their own framework came to those views as a matter of statutory construction. I don’t consider both cases helpful for the determination of the issue in the present case. 151.As to the defence argument that the interpretation of the FAO having a “past-tense” requirement, I am of the view that:
152.To conclude, I agree with the prosecution submission and find that both the pistol and rifle by virtue of section 2(4) of the FAO, satisfy the definition of “arms” in section 2(1) of the FAO as “firearm” since they would otherwise be within the definition of “arms” but for the fact that they are “defective”. Magazines (P2, P5, P6 and P7) and Muzzle Device (P4) 153.Limbs (a) and (h) of the definition of “arms” under section 2(1) of the FAO states that:
154.Archbold Hong Kong 2025 at [25-4] [#14] states that: “ ‘A component part used or intended to be used...’
155.The prosecution also cited the relevant parts of the judgement of Chan Ming Tim[9] and highlighted in particular:
156.The prosecution submits that: (a) as revealed in PW2’s evidence, the 4 magazines in the present case are clearly capable of being used for the discharge of missile from firearms and (b) the 4 magazines were intended to be used by the defendant for the discharge of missiles from firearms since the defendant intended to, by himself and/other person(s), use them for the feeding of ammunition in suitable firearms, including the pistol P1 and rifle P3 after activating their discharging function, to be discharged from the same. 157.I find that P2 is capable of being used for discharge of missiles from firearms. Based on my earlier analysis on the reliability of PW2’s evidence in relation to his examination of the exhibit magazines P5 to P7, I am unsure if they are capable of being used for the discharge of missiles from firearms. 158.However, by reason of my earlier analysis on the defendant’s evidence, I am not satisfied that each of the P2, P5, P6 and P7 falls within limb (h) of the definition of “arms”. 159.As to P4, test firing of ammunition in 5.56 x 45 mm calibre was successfully conducted on the rifle (P3) with replacement firing pin and replacement bolt from a FFED reference M16-A1 rifle, after removal of the cylindrical polymer insert from the muzzle of the barrel, with the muzzle device (P4) attached to the rifle (P3) and the use of a FFED reference M16-A1 rifle’s magazine. During the test firing, PW2 observed that the muzzle device (P4) was able to diminish the flash caused by the firing of the rifle. The muzzle device is thus capable of being used in suitable rifles, including the rifle (P3), to diminish the flash caused by the firing of the rifles. 160.Based on the said unique capability of the muzzle device and in the absence of any evidence that the design of the muzzle device was for any purpose other than diminishing the flash caused by firing rifles, the prosecution submits that the muzzle device (P4) is an accessory designed to diminish the flash caused by firing suitable rifles. 161.The prosecution further submits that since P3 is an arm under section 2(1) of the FAO and the defendant intended to, by himself and/other person(s), use the muzzle device P4 to diminish the flash caused by the firing of P3 after activating its discharging function and/or other suitable rifles, and therefore P4 could be considered an accessory falling within limb (h). 162.By reason of my earlier analysis on the defendant’s evidence, I find that the prosecution submission on his intention to use P4 is no longer valid. However, I agree with the prosecution that, according to the wordings of section 2(h), that is, “any accessory to such arms designed or adapted to diminish the noise or flash caused by firing the same”, the prosecution is not required to prove that P4 was used or intended to be used to diminish flash caused by the firing of a firearm. I find that P4 falls within limb (h) of the definition of “arms”. 53 cartridge cases (P8(a)-(d) and (f), P9(a)-(l) and P10(a)-(z) and (aa)-(jj)) 163.The statutory definition of “ammunition” under section 2(1) of the FAO states that:
164.The prosecution submits that since the 53 cartridge cases (P8(a)-(d) and (f), P9(a)-(l) and P10(a)-(z) and (aa)-(jj) are all fired cartridge cases they all fall within limb (f) of the statutory definition of “ammunition” under section 2(1) of the FAO. I agree. 165.The prosecution accepts that the charged cartridge cases are used cartridge cases since they are fired cartridge cases. However, the prosecution submits that they were not “used only as an article of personal, household, or office adornment for the reasons that: (i) the defendant’s version of how he had used the cartridge cases, that is, for photography purpose and in juxtaposition with the magazines and guns in the photos as collective decorative items, did not amount to adorn any person, home or office; and (ii) he in fact intended to use them after reloading as missiles to be loaded into suitable magazines including P2, P5, P6 and P7 and to be discharged from suitable firearms including the pistol P1 and the rifle P3 after activating their discharging function. 166.By reason of my earlier analysis on the defendant’s evidence, I find that the prosecution submission in relation to paragraph 165(ii) is no longer valid. 167.In relation to paragraph 165(i), as revealed in the defendant’s evidence including what he told the police at the VRI (#11 to 28 and #169 to #302 of P21B), the cartridge cases seized from his home including the charged cartridge cases were dummy/decorative rounds (“the Rounds”), for decoration, display, air gun photography and collection. For photo-taking, the Rounds were not necessarily placed in the magazines and the magazines might not be inserted in the guns. The Rounds might be laid around the guns with some of the Rounds inside the guns and he could provide many photos of this kind [Photo Exhibit D1(20-23)]. He disagreed that the Rounds were not to adorn a person, an office or a home and pointed out that the gun as seen in the photo D1(23) was also a decorative item in a series with the magazine and the cartridges. The box (D7) containing the Rounds would be taken to the gun club or gun stores for photo-taking. The Rounds were also used for simulated operating/modelling of P1 and P3, both P1 and P3 were used for both display and photo-taking at home, he also took both P1 and P3 to gun clubs or designated places or private premises for photo-taking. 168.In light of the aforesaid evidence, I find that the possibility of the defendant using the Rounds to decorate P1 and P3 when P1 and P3 were displayed by him at home as decorative items for photo-taking and/or using the Rounds to decorate other guns being decorative items at the gun clubs or stores for photo-taking cannot be ruled out and therefore the charged cartridge cases fall within the exemption under section 2(f)(ii) of the FAO. Conclusion 169.Based on the above analysis, I find that the defendant’s evidence including that he did not know the true nature of the charged exhibits could have possibly been true. 170.To conclude, I find that the prosecution has failed to prove beyond reasonable doubt all the elements of the offence. I acquit the defendant of the charge.
[1] Kelly v MacKinnon (1982) JC 94 [2] R v Bewley [2013] 1 All ER 1 [3] HKSAR v Choy Yuk Ling (蔡玉玲) (2023) 26 HKCFAR 185 [4] Bourne (Inspectors of Taxes) v Norwich Crematorium Ltd [ 1967] 2 All ER 576 [5] Girobank plc v Clarke (Inspector of Taxes) [ 1998] 4 All ER 312 [6] Tipple v Chief Executive New Zealand Customs Service [2014] NZAR 1330 [7] Cafferata v Wilson, Reeve v Wilson [1936] 3 All ER 149 [8] HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 [9] AG v Chan Ming-tim [1990] 2 HKLR 690 |
Cases cited in this judgment
Further hearings and rulings under DCCC 647/2023