Li Tak Ming v. Secretary for Justice

HCAL000006/1998

1998, No. AL6

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL JURISDICTION

-----------------------

---------------

Coram : Hon Sears, J. in Court

Date of hearing : 19 March 1998

Date of judgment : 19 March 1998

----------------------

J U D G M E N T

----------------------

1. This is an application for leave to judicially review a decision of the Commissioner of Police refusing the applicant's firearms licence under the Firearms and Ammunition Ordinance (Cap.238). The factual background is set out in the applicant's affidavit.

2. When he went to renew his licence, he was given a form which was a declaration in which he had to state a variety of important matters. He had to give his name and address, he had to say whether or not he had any illness in the previous year or so, whether he had been admitted to hospital, what shooting competitions he had been in, whether he had had any arrests, criminal convictions or bankruptcies or attempted to commit suicide. These are very important questions because a person's circumstances can change from year to year.

3. It is of vital importance to control guns and it may well be that a person who has been a respectable or responsible member of society with a gun licence suddenly becomes ill. People do suffer unfortunately through no fault of their own from serious illness and it may be that a person who is suffering from some illnesses affecting his mental stability with a gun can cause havoc. One can only look around other parts of the world to see what people with rifles or guns have done in shooting down innocent people.

4. What this police officer said to him, I presume, perfectly politely, was "Would you mind filling up this form." For some unknown reason, this gentleman LI Tak-ming took offence at this and refused to fill it in. He was asked again and he saw a senior police officer. He received a letter from the Commissioner of Police in May and it is a polite letter. It says to him "Would you please fill up the form." And what he wrote back was "I am writing to inform you I have not changed my mind. I still consider the so-called form not the prescribed form", and he sets out all sorts of legal arguments. I am most amazed that any ordinary citizen should take this attitude, particularly someone working in the Judiciary. I think it is quite wrong. He is not legally qualified and he sets out some rather typical type of layman's approach to law, telling the Commissioner what he can and what he cannot do. He then does not get his licence. Very properly. There is nobody to blame but himself.

5. He then makes this application for judicial review which I was minded to refuse on paper but I have to give him a fair opportunity and he has instructed counsel to come along and tell me that this form is in some way unlawful. By s.52 the Commissioner can renew a licence ".... upon application made to him in the prescribed form".

6. The point taken is that the declaration he was offered to give is not a "prescribed form". Under s.52(1)(b), the Governor - that is the old Governor, now it is the Chief Executive - can make regulations for a variety of things, one of them (a)(ii) is to empower the Commissioner to require an applicant for the renewal of a licence to undergo such tests and examinations he thinks fit and also empowering the Commissioner to submit any arms or ammunition. The Governor has also a power to prescribe forms for the purposes of this Ordinance - which may be a variety of forms (1)(b).

7. However, the power under s.52 is to make regulations "regulating applications and renewals of licences". Regulation 9 is such, and it says it shall be "in such form and certain such particulars as the Commissioner may from time to time determine".

8. There is no doubt at all that the Commissioner is entitled to determine whether the person in front of him should be provided with a licence which enables him to keep these guns and the form is a perfectly normal, responsible type of form. I have no idea why this man took this obstinate attitude. The action of the Commissioner is lawful.

9. I consider this application trivial. Even if there was anything in it, which I do not think there is, I would not have exercised my discretion at all. The application for leave is refused.

(R.A.W. Sears)

Judge of the Court of First Instance

High Court

Representation:

Mr Kwok Siu Hay, inst'd by M/s Raymond, Cheung & Chan, for the applicant