HKSAR v. Jang Youngsu

DCCC 941/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 941 OF 2013

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Reasons for Verdict

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The Charge

1.The defendant faces one charge of attempted possession of arms and ammunition without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance, Cap 238 and section 159G of the Crimes Ordinance, Cap 200.  And the defendant is Korean.

2.On the morning of 24 August 2013, he arrived in Hong Kong by air at the Hong Kong International Airport.  He proceeded to immigration control at Level 5 (Airside), Passenger Terminal 1. The defendant went to line 22 which is a courtesy channel or special immigration channel for use by those with diplomatic passports and the like.

3.The defendant was intercepted by PW1 and told he could not use that channel.  The defendant became upset upon being told this. It was noted he also smelt of alcohol.  Eventually, he was seen by an immigration officer, PW2, who directed him towards normal clearance.  At some point, the defendant’s behaviour attracted the attention of three police officers, PW3 to 5, on anti-terrorist duty.  Each of these officers was armed with a Heckler and Koch MP5 sub-machine gun and 20 rounds of ammunition and spare ammunition.  These officers stood near to the defendant and the immigration officer.

4.Shortly after that arrival, the defendant allegedly grabbed one of the sub-machine guns held by PW3 and pulled it and the officer towards him.  The defendant was subdued and apologised.

The Prosecution Case

5.The prosecution called a total of six witnesses.  They were the lady who first dealt with the defendant and confirmed to him that he could not use channel 22.  That is PW1.  The immigration officer who dealt with the defendant, that is PW2, and PW3 to 5, the three police officers of the anti-terrorist patrol, it was those officers who along with PW2 all were said to have witnessed the incident where the defendant was said to have grabbed or attempted to snatch PW3’s sub-machine gun.

6.PW3’s evidence was that at 11.30 am, he was in the arrival hall A  He was carrying his Heckler and Koch MP5 sub‑machine gun with a magazine containing 20 rounds on the machine gun.  The gun had three settings.  The setting was on safety, ie the safety catch was on. 

7.He saw the defendant quarrelling with the immigration officer, PW2.  He smelt alcohol on the defendant, but the defendant could walk without difficulty.  He heard the immigration officer tell the defendant to go and queue up with the other travellers.  The defendant ignored this advice.  He said eventually the defendant turned as though to leave but when he was approximately 3 feet away from PW3, he turned towards him and spoke to him in Korean.  The defendant then used his left hand to clutch the front part of the machine gun around the front handle.  Then after he clutched the gun, he then pulled it towards himself and turned away.  

8.The defendant still clutched the gun and PW3’s centre of gravity moved forward.  PW3 then warded the defendant off with his left hand.  After the defendant was warded off, he relaxed his grip.  He had held the gun for four to five seconds, and at all times the gun was attached to PW3 by a sling.  The defendant was eventually told to lie down, which he did. 

9.PW2 and PWs 4 and 5 all saw the defendant’s action of grabbing and pulling PW3’s gun.  There was also a CCTV camera recording the area.  The camera had an elevated location and was a distance away.  It provided a view of the incident, obscured at times by the presence of the witnesses.  PW3 can be seen to move as if pulled. 

10.In other evidence, there was agreed evidence read from a firearms expert.  This established that PW3’s firearm and ammunition fell within the relevant definitions of the ordinance.  That is not disputed.  There was a medical report that showed that the defendant was suffering that afternoon from alcohol intoxication and a left knee abrasion.

11.The defendant has also made a statement which is produced by agreement.  These are made following caution.

12.At the time, the defendant apologised.  He said:

“I haven’t understood but I strongly feel the responsibility for the unsavoury happening in the Hong Kong airport today, and I am deeply reflecting myself on that. This is the first trip together with my wife and daughter after 12 years of marriage. From the first day of the trip, I showed shameful aspect to my wife and daughter. So I am reflecting on myself who is in lack of ability. Please handle in a lenient way.”

13.Now, the defence put to the witnesses that the defendant had never tried to seize PW3’s weapon and did not grab the gun.  Now, this was denied by all the witnesses to whom it was put.

14.And now the defence case, and the defence case consisted of the evidence of the defendant.  He is a national of South Korea.  By occupation, he is a labour attorney.  He is a person of clear record both in Korea and in Hong Kong.  He had come to Hong Kong for a vacation. He was planning to stay in Shenzhen with a friend.  He had travelled from Incheon International Airport with his wife and 12‑year-old daughter.  The aircraft was delayed on leaving.  The total journey had taken some four to five hours.  On the flight, he had drunk slightly less than half a bottle of Scotch whisky. 

15.On arrival, the family had proceeded towards immigration clearance.  He had become separated from his wife and daughter, and they had gone through ahead of him.  Now, the defendant said he carried a piece of luggage and a bag.  At immigration clearance, there were a lot of people in the queue.  He saw a queue with few people in it, so thought he could use that channel. 

16.He said that PW1, Miss So, had spoken to him. He had not understood her as she did not speak to him in Korean.  He said he showed he was apologetic by placing his hands upon her shoulders from behind.  He eventually went to queue up where she had shown him.  He said at that counter they would not stamp his passport for him, clearly still at the courtesy channel.  He was pointed to another queue.  It was here that he was approached by the immigration officer identified as PW2.  The defendant did not understand what he said.  He argued with him and threw his passport to the ground.  The defendant said people kept pointing at him with their fingers.  He quarrelled with PW2 for over a minute.  Then the three police officers arrived and they were armed with sub-machine guns.  From his description, they held their guns at what he described as the low port position with the barrel pointed downwards.

17.The defendant said he turned towards PW3 because he wanted to say sorry to the policeman because of the inconvenience he had caused to other passengers.  He wanted to show that he was apologetic.  He extended his left hand towards PW3.  He did this because in Korean culture, if a person is older than the person he wishes to apologise to, then the apology is accompanied by tapping the person gently on the arm.  He extended his arm to pat PW3 at the elbow.  When he tried to touch PW3, the police officer was very alert.  PW3 turned on the gun, came into contact with the defendant’s hand.  He was then grabbed around the neck by the police officer, and others pointed their fingers at him for him to kneel on the floor.  Whilst kneeling, the defendant continued to say sorry, sorry, sorry.  The defendant said he had no intention to grab or snatch the gun from PW3 nor did he try to do so.  So he did not try to pull the weapon towards his body. 

18.Now, the charge.  The defendant is charged with an attempt to possess arms and ammunition without a licence.  In order for there to be an attempt, the defendant must intend to commit the offence and do an act that is more than merely preparatory to the commission of that offence. The court must consider whether the defendant intended to commit the offence which it is alleged he attempted to commit and did he in relation to that offence do an act which was more than merely preparatory to the commission of that attempted offence, the offence here being possession of arms and ammunition without a licence, the arms and ammunition being the Heckler and Koch machine gun and its magazine.  The fact of the weapon being arms and ammunition is not disputed.  The dispute exists as to whether the defendant attempted to have possession of the Heckler and Koch machine gun.

19.A person has possession of an object if he knowingly has it in his physical or actual custody or otherwise within his physical control.  The prosecution allege in this case that the defendant intended to take actual physical custody of the firearm and that his act of seizing the gun was more than merely preparatory to exercising such custody, that his intention was to snatch the gun from PW3 and have sole custody of it. They say this is the only possible explanation for the evidence.

20.Clearly, the first issue to be determined is whether the defendant did attempt to take the gun, take the firearm.  As a question of fact, did he attempt to take possession of it?  It is his case that he did not.  The evidence on this issue came from the prosecution, from PWs 2 through to 5 and the CCTV recording, and for the defence from the defendant.

21.PW2, the immigration officer, gave evidence as follows.  Just when he turned, referring to the defendant, he tried to pull the MP5 gun off one of the police officers.  He said, “I did not know his service number.”  When he pulled the gun, the police officer immediately reacted.  The three officers shouted at him to stop this act. 

22.PW3, that is PC9908, said:

“After saying something to me unknown, he used his left hand to clutch the front of my gun around the area of the front handle. Then after he clutched it, he pulled it towards himself and turned away. He was still clutching and my centre of gravity moved forward. I immediately warded him off with my left hand. After he was warded off, he relaxed his grip. Around four to five seconds he held the gun. The gun was attached to my body by a sling.”

23.From a sketch made P7 made by PW3, it showed that he had been pulled about 3 feet. 

24.PW4, Sergeant 33692, said:

“The defendant faced PC9908. Then I suddenly saw the defendant use his left hand to clutch the front of the barrel of the MP5 gun carried by 9908. Once I saw 9908 immediately pushed towards the defendant with his left hand.”

He added, “My judgment was the act of the defendant had amounted to assault. It is not known what he would do later.”

25.PW5, PC6782, said:

“When he got to the area next to 9908, he turned right, reached out his left hand and clutched the MP5 by the front handle. He held the barrel a very short time. Very quickly, 9908 pushed him away.”

26.The CCTV recording provided an obscure view of the interaction between PC9908 and the defendant.  On that recording, 9908 appears to be subject to a forceful action and appears to be pulled forward before regaining control.  In other words, the CCTV recording is entirely consistent with the evidence of the three police officers and the immigration officer.

27.On this issue, the defendant’s evidence was that he was addressing PW3 in order to apologise to him.  In order to do this to conform to the Korean cultural norm, the defendant would tap PW3 on the arm. It is said that this is supported by the apologies made by the defendant to the other witnesses, PW1 and 2.  The defendant says he did not hold PW3’s firearm. He merely came into contact with it when PW3 reacted to the touch. 

28.In resolving this and the other issues in the case, I bear in mind that the burden to prove its case lies on the prosecution at all times and to prove its case beyond a reasonable doubt.  I also bear in mind when assessing the evidence the defendant is a man of clear record, and in this case, it is clearly relevant to his propensity to commit an offence of this nature and also to the credibility evidence given by him.

29.On consideration of the evidence as a whole, I found that the prosecution witnesses who witnessed the incident directly, that is PW2 through to 5, gave a clear and consistent account of what they saw.  The cross-examination whereby the defendant’s version was put to them led to them each denying that this version of events occurred in the way put to them.  There were also no material inconsistencies arising as a result of such cross-examination.  There was no exaggeration in their evidence.  I found that the evidence of these witnesses was truthful, consistent and reliable.

30.The defendant’s evidence appeared to be an attempt to explain the surrounding events on the basis of an overreaction by PW3, that all this arose as a result of a misunderstanding. 

31.I did not consider this to be a truthful account.  The defendant on his own evidence had clearly taken drink earlier in that day.  He agreed with the prosecuting counsel that he had been angry, that he had thrown down his passport on his own admission and had spoken in a loud and scolding voice.  The defendant, it appears, was being difficult and had at times tried to create a scene. 

32.I found that the defendant’s explanation was a fabrication to explain his rash and uninhibited act in grabbing PW3’s firearm. He clearly regretted it immediately.  I know that far from being an overreaction, I found that PW3’s actions were considered and professional and served to de-escalate the incident immediately.   

33.Nevertheless, I find I must reject the defendant’s explanation in its entirety.  I accept the evidence of the prosecution witnesses, particularly that of PWs 3 through to 5 that the defendant had grabbed PW3’s firearm, the Heckler and Koch MP5 machine gun, that he had done this with his left hand on the barrel, that he had pulled that firearm and held onto it for the estimated four to five seconds, pulling PW3 along until such time as the officer was able to gain control of the situation by warding off the defendant. 

34.This finding clarifies the defendant’s act, namely, reaching out and pulling PW3’s firearm.  The prosecution say that this clearly constitutes an attempt to obtain physical custody and control and thus possession of the firearm, that it is an act that would have continued had PW3 not contained the situation and warded the defendant off.  This of course would necessitate a finding that this was the defendant’s intention when he seized hold of PW3’s firearm.  

35.The defence submitted that such a conclusion cannot be drawn beyond a reasonable doubt, that the act of seizing the firearm should be seen as a completed act with the intention limited to being that of inconveniencing PW3 or using limited force upon him.  In support of this they say is the evidence of PW4, the sergeant.  He had said, “My judgment was the act of the defendant had amounted to assault.  It is not known what he would do later” was his evidence.

36.There was evidence that the defendant was suffering from alcohol intoxication when he was medically examined at 1310 hours that day at Princess Margaret Hospital.  Given his evidence and the evidence of the other witnesses, it is reasonable to assume he was so affected at 11.30 am that day.  The defendant did not at any time allege that his consumption of alcohol affected his mental state, certainly not his ability to form an intention.  Although it is evident that the consumption of alcohol may have disinhibited him and caused him to act out of character, in any event it is not a material consideration in evaluating the defendant’s intent on the evidence. 

37.In order to establish the offence charged, it is necessary for the prosecution to establish to a criminal standard the required intent, in this case, an intent to take possession of the firearm to assert actual custody over it.  It is the prosecution’s case that the defendant’s act of seizing hold of the barrel provides evidence from which an inference can be drawn that this was the intention of the defendant, namely, to take possession of the firearm. 

38.It is settled that whether a person intends a result is decided by reference to all the evidence, drawing such inferences as appeared proper in the circumstances, and that if an inference is to be drawn, it must be the only inference that can reasonably be drawn on the basis of the facts proved.  It must be irresistible.

39.I have already found that the facts proved show the defendant seized hold of PW3’s firearm with his left hand above the forward handle.  PW3 estimated he maintained this grasp for four to five seconds whilst pulling the firearm towards him.  This resulted in PW3 being propelled forward.  The CCTV recording shows PW3 being forcefully dragged by the defendant for a short period.  The only things preventing the defendant having sole actual custody of the weapon were PW3’s grasp upon the weapon and the sling attaching the firearm to his body.  If either of these factors had been in any way compromised, the force used by the defendant was clearly sufficient for the defendant to take possession of the firearm.  It is and was the only logical outcome of his action. 

40.Clearly, this evidence is sufficient to establish to a criminal standard the defendant’s intention, and I find that it must have been the defendant’s intention to take physical control or custody of the firearm at the time when he laid his hand upon it and pulled the weapon.  It was a brief, ill‑considered and unsuccessful attempt but it can only be characterised on the evidence and I find is proved on this evidence as being such an attempt, namely, to take actual custody of the Heckler and Koch MP5 sub-machine gun. 

41.I find in conclusion the defendant intended to take the firearm and attempted as a fact to do so.  I find that finding on the evidence to be irresistible.  That being the case and it being not disputed that the firearm, subject of the particular offence, is a firearm now in issue, I find the prosecution have proved all the elements of this offence and I enter a conviction accordingly.

Please refer to CACC56/2014 for the relevant appeal(s) to the Court of Appeal.