Read the full judgment text of FACC 000011/2004 on BabelCite. This FACC judgment was delivered on 11 March 2005 before Li CJ, Bokhary PJ, Chan PJ, Ribeiro PJ and Brennan NPJ.
Criminal law – firearms and ammunition – possession without licence – s.13 Firearms and Ammunition Ordinance, Cap. 238 – s.24 reverse-onus presumption of knowledge – appeal by way of rehearing under s.113 Magistrates Ordinance, Cap. 227 – "substantial and grave injustice" ground for leave to appeal to CFA – Bill of Rights arts 10, 11 – Basic Law art. 39 – appellant, a Taiwanese businessman of good character in his early 40s who owned a factory on the Mainland, entered Hong Kong and at Chek Lap Kok Airport presented his bag for routine security X-ray screening – screening revealed a five-chambered battery-operated anti-riot handgun loaded with a multi-projectile cartridge – firearm was later found to be inoperative due to a defective electrical system – charged with possession of arms and ammunition without a licence contrary to s.13 – knowledge that bag contained firearm and ammunition was the crucial element of the offence – police sergeant gave evidence that appellant told him the gun was for self-defence – magistrate rejected this evidence as he could not be sure appellant uttered those words and placed no weight on the alleged admission – magistrate nonetheless convicted, relying on factors including vagueness of appellant's evidence about packing and airport events, his request to factory manager to investigate, his concern for family safety, and the gun's inoperative condition – appeal to High Court under s.113 of Magistrates Ordinance dismissed by Deputy Judge Fung, who treated s.24 as irrelevant and considered magistrate entitled to infer guilty knowledge from circumstances – whether an appeal under s.113 of Magistrates Ordinance is an appeal by way of rehearing at large – whether the conviction was safe in light of the evidence – held: an appeal under s.113 is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the appellate court may admit; it is not a hearing de novo, and the appellate court is bound to form its own independent assessment while recognising it does not enjoy the advantage of seeing witnesses at first-hand – held: once the alleged admission was rejected, the remaining evidence was insufficient to prove guilty knowledge beyond reasonable doubt; the inherent probabilities favoured the appellant, an intelligent and industrially successful man familiar with Chek Lap Kok security procedures, and factors relied on by the magistrate (vagueness, investigation request, family concern) had no probative weight on the knowledge issue – s.24 reverse-onus provision's construction and constitutionality were expressly not decided, as the result would be the same on any view (ignoring it, or treating it as shifting evidential or legal burden) – appeal allowed, conviction quashed with costs in appellant's favour here and in the courts below (respondent not opposing costs order).
Legal issues: Nature of appeal under s.113 Magistrates Ordinance · Sufficiency of evidence of guilty knowledge
Outcome: Appeal allowed; conviction quashed
Cited by 172 cases