The Queen v. Chow Kwok-hing

HCMA000814/1985

HEADNOTE

Firearms & Ammunition Ordinance - harpoon gun - appellant held licence for eight years - licensing authority refused to renew licence day following expiry - should not have been prosecuted - fine set aside and absolute discharge substituted.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 814 OF 1985

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BETWEEN

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Coram: Hon. Bewley, J. in Court.

Date of hearing: 20th September, 1985.

Date of judgment: 20th September, 1985.

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JUDGMENT

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1. The appellant pleaded guilty to possession of arms without a licence, contrary to section 13(1) of the Firearms & Ammunition Ordinance and was fined $1,500.

2. The arm in question was a harpoon gun, which the appellant used when diving with the Hong Kong Diving Club. He had held a licence for the gun continuously since 1977, but failed to renew it by 31st July, the expiry date.

3. On 1st August he went to the Licensing Authority office, only to be told that it was not possible to renew the licence; he would nave to apply for a new one.

4. When he asked how he should do this, he was advised that the police would be in touch with him. On 5th August he received a phone call from the police, who said they would call on him next day about the gun. This they did, armed with a search warrant. The gun was seized and the appellant taken to the police station and charged.

5. When he appeared before the magistrate, he was unrepresented, but he made it clear that he had unsuccessfully attempted to renew his licence one day out of time. He omitted to tell the magistrate that he had held a licence for eight years and that he was a keen amateur diver.

6. The magistrate took the view that such a weapon could cause serious injury and that strict licensing control was necessary.

7. I am bound to say that I do not agree that a weapon such as this should be placed in the same category as other guns. It is an unwieldy article and it is difficult to envisage it being used for criminal purposes. Furthermore, this particular gun is unusable at the moment. Not only is the rubber band broken, but the appellant had no harpoons in his possession.

8. In these circumstances, I consider that the appellant should not have been prosecuted - let alone fined - a view with which I am glad to say counsel for the Crown agrees.

9. The latter did his best to field the obvious question from the bench concerning police policy on licence renewal when the application is late, albeit by only 24 hours. He had however been unable to obtain any information, and those instructing him in court were not able to assist.

10. I trust that a copy of this judgment will reach those charged with decisions on such matters and that a more realistic approach will ensue.

11. The appeal is allowed and the appellant discharged absolutely with no conviction recorded. The fine is set aside and, if paid, should be repaid to the appellant. The appellant is awarded costs, which are to be taxed on a solicitor and client basis.

Representation:

Mr. G. J. McCoy & Miss Evelyn Pau, Crown Counsel for Respondent.

Mr. Gary Plowman (instructed by David K. W. Tsang & Co.) for Appellant.