The Queen v. Lam Kei-wan

CACC000216/1983

Possession of arm and ammunition - confessional statement showed knowledge of existence - judge applied presumption - statement denied access - mere knowledge does not amount to possession - no access - conviction quashed.

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. McMullin, V.-P., Li & Silke, JJ.A.

Date: 19th April, 1983

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JUDGMENT

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1. On the 29th September last year, a police party visited the address of 116, Fook Wing Street, 5/F. Although no one answered the door when they knocked at it they managed to obtain entry. Inside the premises were 3 cubicles. In the third cubicle they found a brief case with a combination lock. Inside this case was a converted toy pistol which is the subject matter of the first charge, six rounds of ammunition loaded in the pistol which became the subject matter of the second charge, and 3 knives in a blue bag in that room which formed the subject matter of the third charge. They wisited in the cubicle. In due course three persons turned up, one of whom was the applicant. It was an undisputed fact that the applicant with three others were in joint possession of the cubicle in which the gun, ammunitions and the knives were found. All four were charged with the possession of arms and ammunition. The first accused and the third accused were charged with the possession of the three knives, the third charge. In the event, Dl pleaded guilty to all three charges. The others, including the applicant, pleaded not guilty. At the end of the hearing the trial judge acquitted the second and the fourth defendants on the ground that he was satisfied that both of these two defendants had successfully rebutted the presumption which had arisen against them under Section 24(1)(b) of the Arms and Ammunition Ordinance. He was not satisfied vis-a-vis the applicant. Section 24(1)(b) provides that:

"Any person who was proved to have had in his possession or under his charge or control any place, premises, vessel, vehicle, aircraft or apart of any place, premises, vessel, vehicle or aircraft in which any arms and ammunition are found shall, until the contrary is proved, be presumed to have had such arms or ammunition in his possession for the purposes of Section 13 and 15.''

Section 13 provides that:

"No person shall have in his possession any arms or ammunition."

The evidence against the applicant was solely that he was in joint possession of the cubicle with the others. His possession in that respect is not different from that of the first, second or fourth accused. However, he made a statement to the police upon arrest in which he said that he had an explanation about the pistol and the three knives. He said:

"Sir, my explanation about the pistol and the three knives is that they do not belong to me. The pistol and knives were bought back by Cheng Wang (the first accused). On the 23rd of this month at 9 a.m. I saw Cheng Wang bringing them home and saw him lock the pistol inside a brief case and only himself knew how open it. He placed the three knives inside my blue travelling bag without my knowledge. Originally he intended to rob a construction site over the Repulse Bay, but he did not go there as it was raining that day. He asked me but I did not promise him."

The applicant also gave evidence. at the trial in which he repeated his lack of knowledge as to the contents of the brief case which belonged to the first accused. However, he did admit that the first accused invited him to go along to rob a construction site at Repulse Bay that morning though he did not comply with that request. That was the sum total of the evidence against the applicant.

2. The trial judge, in his reason for verdict, referred to the applicant's evidence. At p 10 of the transcript he said:

"In respect of D3 I had before me a statement made under caution to which I gave weight. It is a statement that bears all the hallmarks of having been made voluntarily. I had the benefit of seeing and hearing D3 in the witness box. He was less than an impressive witness. I did not believe him. I find that he did not rebut the presumption and therefore, with the findings I have already made, I find beyond reasonable doubt he is guilty of the first and the second charges, namely the charge regarding the possession of the pistol and the ammunition. There being no benefit of a presumption in respect of the third charge, although D3 admitted ownership of the bag in which the knives were found, I am not satisfied in all the circumstances he had legal possession of the knives within it. I acquit and discharge D3 of the third charge."

In short, the trial judge was relying on the presumption of Section 24 of the Arms and Ammunition Ordinance plus the cautioned statement of the applicant which show that he had knowledge of the presence of the pistol and the ammunitions. Various grounds of appeal had been filed of which we find only one that is relevant for our consideration. We do not find that there is any substance in the attack as to the contents of the cautioned statement. If the applicant had no knowledge as to the pistol and the ammunition, the preamble of that statement given by the constable could not have misled him into saying that he knew the first accused brought in the pistol and the ammunition. However, we are in some difficulty with the argument that knowledge alone can amount to possession. Admittedly, having regard to the circumstances and finding of the trial judge, a presumption had been raised against the applicant. That presumption was a weak one. This is evident because despite the fact that D2 admitted that he knew the combination of the lock of the brief case in which the gun and ammunition were found and that he had some belongings inside that brief case, the judge was satisfied that he rebutted the presumption. Although the applicant admitted possession of the blue bag he acquitted him of possession of the three knives because there was no presumption against the applicant regarding the knives. However, the judge relied on the statement made by the applicant to show that he had knowledge of the existence of the pistol and the ammunitions inside the brief case. Although the judge did not say so in so many words, he assumed that in that statement the applicant knew that there will be a robbery plan that morning.

3. We find it difficult to accept the proposition that knowledge alone amount to possession. We find it even more difficult to say that knowledge that the weapons were to be used in a robbery without participating in the robbery also amount to possession of the weapons. We doubt whether the admission as to the knowledge deriving from the cautioned statement could be given to fix the applicant with control or custody of the pistol and the ammunitions inside the brief case, the combination of the lock of which was unknown to the applicant. Nor was there any evidence that if the applicant wanted to have access to the contents of the brief case the first accused would have acceded to his request or demand. In short, a mere knowledge of the pistol and the ammunition would not by themselves amount to possession.

4. The judge indeed had seen and heard. the applicant in the witness box. He disbelieved him that he had no knowledge and therefore he said that he was not satisfied that the presumption was rebutted. As I said before, the presumption in the premises was a weak one. So was the rebuttal. However, all the evidence there was that the applicant merely had knowledge. There is no evidence he had access, control or custody of the arms and ammunitions. In the circumstances, we grant leave to the application to appeal against conviction. We treat the application as the appeal itself. We allow the appeal and cause the conviction. Accordingly the applicant is discharged.

Representation:

Francis Eddis (Yu, Tsang & Loong) for Appellant

R. Pritchard (Crown) for Respondent