HKSAR v. Lam Kwong Wai and Another

CACC 213/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 213 OF 2003

(ON APPEAL FROM DCCC NO. 1237 of 2002)

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BETWEEN

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Before : Hon Stuart-Moore VP, Stock JA and Burrell J in Court

Date of Hearing : 17 May 2007

Date of Judgment : 17 May 2007

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.These appellants were convicted after trial by Judge Day in the District Court on 13 May 2003 of an offence of possession of an imitation firearm, contrary to section 20(1) of the Firearms and Ammunition Ordinance, Cap. 238, and each was sentenced to a term of 14 months’ imprisonment.

2.By a judgment dated 6 January 2005 this Court allowed their appeals against conviction on the footing that section 20(3)(c) of that Ordinance was unconstitutional in that it imposed a persuasive onus of proof on a defendant that interfered with the presumption of innocence and went further than was necessary to achieve the objective of the legislature.  Our decision was the subject of an appeal to the Court of Final Appeal which, whilst it agreed with this Court that the provision imposed a persuasive burden and constituted a derogation from the presumption of innocence which did not satisfy the proportionality test, held that a remedial interpretation was possible and that the statutory provision should be read down as imposing an evidential onus only.  The Court of Final Appeal accordingly allowed the prosecutor’s appeal and in doing so set aside the orders made by this Court that had allowed the appellants’ appeal and had quashed the convictions and sentences.  The Court of Final Appeal remitted the matter to this Court for the question of the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap. 221 to be considered in the new circumstances that have arisen, in particular in the light of its interpretation of the statutory provision, and for this Court to dispose of the appeal in the light of its consideration of the proviso issue.  So the question that is now presented for our consideration is whether this an appropriate case for the application of that proviso.

3.The facts of the case were summarised at paragraphs 3 and 4 of our judgment:

“3. For the purpose of this appeal, the facts are not in dispute.  On 5 November 2002 the second applicant was driving a vehicle through a village near Yuen Long.  The first applicant was a passenger in that vehicle.  The police stopped the car and in the boot they found an imitation pistol.  When the boot was opened there was revealed a speaker box.  The speaker unit was removed and the pistol was in the bottom of the box, in a plastic bag under the soundproofing.  It is common ground that the pistol was purchased the same day from a shop in Mongkok.  It was in working order, in that it was capable of discharging projectiles in excess of two joules.  We have seen the weapon, as did the judge, and we agree with his description of it as a heavy and substantial weapon.  It would no doubt seem to any victim of its illicit use to be a genuine firearm.

4. When the weapon was found and the applicants were confronted with its finding, the first applicant said that it was fake, that he bought it for someone, and that he had nothing to do with it.  The second applicant said that the pistol was not genuine and that he and his friend had purchased it that morning in Mongkok.  There was a challenge to the admissibility of the statements later made by the applicants, a challenge which did not succeed.  The first applicant had said in his statement that he had purchased the pistol for an uncle and that he had assumed that the uncle had intended to commit a robbery, and had assumed also that the request had been for a real gun.  In his statement, the second applicant had said that the idea had been to present a fake pistol, even though a real one was wanted by the ultimate purchasers, the clear implication being that a profit would be made by a false representation.  The reason it was hidden in the boot, so went the story, was to enable them to persuade the buyer, since he would not be allowed to take the pistol out but merely to feel it as packaged, that it was a real gun.  He said that the buyer had examined the package shortly before the police had intercepted the applicants.”

4.Section 20 of the Firearms and Ammunition Ordinance provides that any person who is in possession of an imitation of firearm commits an offence.  The key subsection that was called into play and in respect of which there arises the evidential burden is subsection (3):

“A person does not commit an offence under subsection (1) if he satisfies the magistrate that-

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(c)  he was not in possession of the imitation firearm for a purpose dangerous to the public peace, or of committing an offence, or in circumstances likely to lead to-

(i)  the commission of an offence; or

(ii)  the possession of the imitation firearm for a purpose dangerous to the public peace,by himself or any other person.”

5.Assuming, therefore, some evidence was led by the defence giving rise to the question whether the firearm was in the possession of the defendants for some non-criminal purpose or one that was not likely to lead to a danger to public peace, it was in the circumstances for the prosecution to prove beyond reasonable doubt that their possession of the firearms was for one of the stipulated impermissible purposes.

6.The account given by the appellants at trial that they had these guns to play war games was rejected by the judge.  Although he did say that “if I thought they probably had the gun to play war games … this will afford the defence,” he went on to say: “I did not believe their evidence.”  So in relation to that particular evidential issue thus raised, one can be certain that even had the judge not encumbered himself with a persuasive onus, he would have come to the same conclusion and indeed he did so in terms.

7.This then leaves the evidence raised by the appellants in their various statements to the police.  It is sufficiently clear from the judge’s findings that he rejected their account to the police as well and in his Reasons for Sentence he said so in terms. 

8.What therefore one has in this case is two men found with an imitation firearm in their vehicle.  The weapon is well hidden.  They know it is there.  They themselves had acquired it that very day and they themselves had hidden it.  It is a heavy weapon that, according to the expert evidence, looks like a real Beretta 92.  They have taken deliberate steps to dispose of the packaging, and the trial judge has found that they have lied about the purpose of its possession both to the court and to the police.  But the matter goes further than that, for the judge found in terms that they intended to do ill with it.  It is difficult to envisage what is thereby meant that does not fall within the purposes prohibited by section 20(3)(c).  Accordingly, it seems to us inevitable that on a proper application of the evidential burden the judge would have convicted the appellants and accordingly we apply the proviso, and the appeal, for which leave was originally given, is therefore dismissed. 

Mr Clive Grossman, SC and Mr Hylas Chung, instructed by Messrs M.L. Tam & Co. assigned by the Legal Aid Department for both Appellants

Mr Gavin Shiu, SADPP of the Department of Justice for the Respondent