HKSAR v. HO MANG KEUNG JOSEPH

HCMA648/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.648 OF 2006

(ON APPEAL FROM TWCC 201 OF 2006)

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J U D G M E N T

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1. The appellant was convicted after trial of one charge of ‘failure to comply with terms and conditions of licence’ contrary to section 23(1) of the Firearms and Ammunition Ordinance, Cap. 238.  He was sentenced to a fine of $6,000.  He appeals against the conviction.

THE CHARGE

2. The charge read :

“Ho Mang Keung … on the 31^st day of July 2005, in Hong Kong, … held a dealer’s licence but … failed to comply with the terms and conditions of that licence, namely dealing with a 40 calibre Smith & Wesson pistol (serial number Paradise 35) without the required limited licence at a location other than that prescribed in his dealer’s licence.”

3. In a nutshell, the allegation is that although he had a “dealer’s licence” to keep the gun in his shop the prescribed location, the appellant did not have a “limited licence” to remove it from that place, which is what he did on the day in question, hence failing to comply with the “dealer’s licence”.

THE PROSECUTION’S CASE

4. The prosecution’s case was unchallenged and presented largely in the form of admitted facts the relevant parts of which are reproduced below :

“1.   The defendant is a licensed dealer for arms and ammunition, and the owner of Joe’s Paradise and the Paradise Practical Shooting Club both situated at … Fo Tan, Shatin (‘the Premises’).  At the material time, the defendant had 2,942 licensed firearms stored at the Premises.

…

4.    At about 7:50 am on 31 July 2005, the defendant loaded some metal boxes onto a private car JH107 (‘the Car’) from the Premises.  He then drove the vehicle leaving Fo Tan … and arrived at the Hong Kong Gun Club at … Tsuen Wan.  The defendant’s vehicle was intercepted by police at Hong Kong Gun Club.

5.    A search was conducted of the Car and eleven guns (including one Swith & Wesson pistol of serial number ‘Paradise 35’ (‘the Pistol’) together with 3,753 rounds of ammunition were found on board the Car …

6.    Of the eleven guns, the Pistol was licensed to the defendant under the dealer licence and the use and storage of the Pistol was governed by the terms of the dealer licence P1.  Three of the eleven guns were licensed to the Paradise Practical Shooting Club of which the defendant was the responsible person and the remaining seven were licensed respectively to six individuals.

…

8.    Clause 9 of the dealer licence provides that the licensee or his approved agent shall not remove any arms or ammunition to/from the specified premises (ie the Premises) for the purposes of conveying the same in Hong Kong from one place … to another place … or from place to place, unless a limited licence for the possession is issued by the Commissioner under section 30 of the Firearms and Ammunition Ordinance, Chapter 238.

9.    At the material time, the defendant did not have any limited licence issued by the Commissioner of Police under section 30 of the Firearms and Ammunition Ordinance, Chapter 238 in relation to the conveyance of the Pistol from the Premises to the Hong Kong Gun Club.

…

11.   On 31 July 2005, DPC 11341 arrested the defendant … the defendant voluntarily took part in a video interview.

12.  During the interview, the defendant confirmed that the vehicle JH107 was driven by him at all times immediately prior to his arrival at the Hong Kong Gun Club.  The items found were all stored in the vehicle compartment of JH107.  He said that there was going to be a shooting competition held on that day at the club, and the items on that vehicle were conveyed for that purpose.

13.  Upon prior applications by or on behalf of the defendant, the Commissioner of Police issued limited licences for possession to the defendant on a number of prior occasions to convey firearms to and from the Premises.  Various applications for limited licence for possession made by or on behalf of the defendant and various limited licences for possession granted to the defendant between 3.9.04 and 29.7.05 are bundled together marked exhibit P8.

…”

THE DEFENCE CASE

5. The appellant gave evidence but called no witnesses.  Quoting from the magistrate’s Statement of Findings, this is what he said (relevant parts only, and with my notes in square brackets) :

“11. …

(a)   …

(b)   His dealer licence is concerned with his shop at Fo Tan.  His store was opened since 1995, now having 120 members.  The licence covers 56 guns.  He played many roles in the sport since 1980 ...;

(c)   …

(d)   The Hong Kong Shooting Open 2005 was held in 2005 July 30 to 31 in the Hong Kong Gun Club.  He was the convener of the Pistols Shooting Committee on behalf of the Gun Club.  His duties include planning and scheduling the competition and to take care of safety aspects etc;

(e)   There were twelve club members who had to take part in the competition.  Their guns were sometimes kept in his shop under his dealer licence.  The club guns are held under the club licence;

(f)    The weapons were stored in the shop.  The members would come to the shop to sign to take out the gun.  This happened in the morning of July 30, 2005 but not July 31.  This was because bad weather was forecast, many individuals therefore instructed him to bring the gun over to the Club;

(g)   …

(h)   …

(i)    …

(j)    [A Mr Ng Yuk Ming] took part on July 30, 2005 Competition … on the 2nd day on July 31, 2005, he … was there in the club ...;

(k)   The 1st day was raining heavily and there were numerous thunderstorm warnings.  They affected the outdoor competition, which had to be suspended for raining etc ...;

(l)    As the competition was suspended, the contestants’ guns were returned by themselves to his store.  He was to receive all the guns personally, knowing that the contestants would have to use the guns the next day.  Usually, members carry their guns in the fire arm bags/gun bag/gun cases ...;

(m)  Knowing that the guns were going to be used next day, he stored them in his store armoury at a place together with other bags near the door.  But, usually when they are not used, they would be separately placed in the shelves.  Nevertheless, they were in the armoury, which is always a safe place;

(n)   About the dealer licence gun [the subject matter of the charge], it is surely covered by the dealer licence.  This gun is for sale by the shop, it has nothing to do with the competition.  Before the competition, he took this gun for modification, he did something to it.  He has tested it inside the shop, in the testing range.  He modified it several days before the competition and had it tested 2 days before.  He put it inside a gun bag and put them inside the armoury.  The gun bag used was commonly used in his shop.  The bag has similar types, of different colour (blue and black).  Few members have their own bags as most of them borrow the bags from the store;

(o)   Because the 1st day was suspended, he had to call on the contestants to see if they would continue on 31 July 2005.  He therefore arrived earlier … at his shop to prepare for this.  Originally, some helpers would come to help moving/loading ...  He had licensed agents/helpers … to help him ...  However, these 2 helpers did not come.  While waiting for them, he loaded 11 guns and thousands of bullets onto his car.  When he was in the Armoury, he opened individual gun bags and gun cases to check, but he can’t remember the exact number of bags/cases he opened and checked;

(p)   The guns were put to the back of the car, but he did not know that this gun [subject matter of the charge] was there.  He probably has opened this gun bag to check, but he’s not sure.  He might have made a mistake negligently.  He was the only one loading it onto the car.  He counted the number of guns and checked quickly, before he put them onto the car.  He personally brought the guns and bullets and put them in the car.  There were so many to carry, he therefore went back for a few times … That time, it was raining and he had to hurry to the club to see if the competition could go on or not.  He promised the members to call them shortly after 8:00 a.m. to tell them if the competition was still on.  He would do it when he arrived in the club …;

(q)   …

(r)    … He never intended to bring that gun [subject matter of the charge]to the range because it was not necessary.  It is a product of the shop, it might be scratched or damaged if taken out.  It was a mistake that the gun appeared in the boot of the car.  The mistake was probably because this gun was put inside a bag, similar to Mr. Ng’s gun bag.  Mr. Ng was agitated.  Mr. Ng ‘s gun was left behind and was still in his Armoury …;

(s)   Just by picking up the bags, he could not tell the differences.  Under these circumstances, he made a mistake.  He had no conviction before, never similar mistake before;

(t)    He was familiar with the terms and conditions of the dealer licence.  Dealer licence (exhibit P1) at page 2, general condition 6 states that dealer can only deal in specified premises, which he understood to be his shop.  He had an Armoury in the shop.  He usually put the guns separately on the shelves, some in individual bags, some in his company bags.  Some of them had the individual shelve. Some had their own bags (as big as a briefcase) and would be put somewhere else.  The Armoury is not so big, these members’ guns and products/dealer’s guns were not separated;

(u)   Individual members had to sign an exhibit D5 (the shop – made register) before they could check out their guns.  He himself had to check that it is the right gun, same size, same serial number.  The same procedure usually applies when he signs out on behalf of the members, because according to condition 16 of the dealer licence, he needs to make an immediate record of gun movement;

(v)   Save in exceptional circumstance (e.g. gun urgent problem), the individual contestants cannot use any guns other than the one registered with the competition beforehand.  He therefore had to bring the right gun to the contestants;

(w)  On 31 July 2005, he opened the bags to check if they are the right guns to bring;

(x)   The … gun [subject matter of the charge]and Mr. Ng’s guns now look very different in terms of brand names, colour of the grip.”

THE MAGISTRATE’S EVALUATION

6. Again quoting from the Statement of Findings, this is how the magistrate concluded of the case :

“13. The Court has carefully observed the Defendant’s gesture and demeanour during his testimony.  He was evasive in cross-examination, and particularly so when he was asked if he had opened each and every bag in the morning of 31 July before he put them (the guns) onto the car.  After careful consideration, the Court ruled that he was lying in court.  The Court does not believe in his testimony.

14.  The Defence failed to prove at all the Fong Chin Yue defence.  The fact that the Court does believe in his testimony had no adverse inference against the defence whatsoever.  The burden rests on the prosecution to prove, and to prove the charge beyond all reasonable doubt.

…

16.  Having considered the agreed facts and exhibits, the Court found all elements of [the charge] proved by the prosecution beyond all reasonable doubt.  Defendant was found to be in breach of condition 9 of the dealer licence beyond reasonable doubt, that he dealt with that gun at other than the prescribed location, without the required limited licence.  Defendant is convicted of [the charge].”

THIS APPEAL

The ultra vires point

7. This appeal turns on two points.  First, it is contended that conditions 8 and 9 of the appellant’s dealer’s licence were not valid conditions in that they were ultra vires section 2 of the Firearms and Ammunition Ordinance, Cap. 238.

8. Section 2 is, of course, the section on interpretation.  For present purposes, it defines “deal in” to mean :

“… manufacture, store, sell, let on hire, part with possession of, supply, import, export, procure, purchase, take on hire, take possession of, transport, repair, test, prove or to offer to do any of the foregoing ...”

9. In turn, a “dealer” is :

“a person who by way of trade or business deals in arms or ammunition ...”

10. The combined effect of conditions 8 and 9, however, is to prohibit absolutely the movement of a firearm other than in accordance with a limited licence, thus expunging “transport” from that definition :

“General Conditions

…

Special Conditions

Dealing in Arms and Ammunition

(8)   The licensee is only allowed to store, sell, let on hire or lease, part with possession of, procure and repair of arms and ammunition …

(9)   The licensee or his approved agent shall not remove any arms or ammunition to/from the specified premises [the Fo Tan shop] for the purpose of conveying the same in Hong Kong from one place, vessel, vehicle, train or aircraft to another place, vessel, vehicle, train or aircraft or from place to place, unless a limited licence for possession is issued by the Commissioner under section 30 of the Firearms and Ammunition Ordinance, Chapter 238.

…”

11. This is, it is argued, impermissible because the Commissioner of Police is merely empowered to set terms and conditions on dealing, an activity that is exhaustively defined.  Without specific provisions in the Ordinance, it is not open to him to regulate that activity in the sense of allowing some kinds of dealing and disallowing others.  Even a statutory power to regulate an activity does not normally include the power to prohibit the activity : Ng Enterprises v. Urban Council [1997] AC 168 (PC).

12. Having heard submissions, I am not persuaded that that is the correct position.

13. If counsel is right then a dealer’s licence once granted will be nothing less than a carte blanche for its holder even if it means diversifying beyond his original intention, regardless of suitability whether in terms of technical or security consideration.  Imagine the leap from, say, storage and let on hire to manufacture and export and the absurdity of the resulting situation will become clear.

14. In my judgment, for licensing as for any other purpose, the definition in section 2 does not stand or fall on all the sub-activities included under it.  The words “offer to do any of the foregoing” clearly indicate that it is capable of disjunctive reading and that any one of those sub-activities would amount to “dealing in”.  The width with which the definition is cast is designed to make effective section 14 which criminalizes the dealing in of arms and ammunition without the relevant licence.

15. To stay on the right side of section 14, one applies for a dealer’s licence pursuant to section 27(1)(b) of the Ordinance, in the specified form and in the prescribed manner, whereupon (section 27(3)) :

“… the Commissioner may grant the applicant a licence, conforming with section 29, to deal in arms or ammunition or both.”

16. In exercising this power, the Commissioner (section 27(3A)) :

“… shall, in addition to any other relevant matter that he may reasonably take into consideration, have regard to – 

(a)   whether the applicant is a fit and proper person to hold a licence;

(b)   whether there is good reason for that applicant to hold a licence; and

(c)   whether it is objectionable, for reasons of public safety and security, to grant the licence to that applicant.”

17. In any event (section 27(4)) :

“… a licence granted under this section may be subject to such terms and conditions (including conditions imposing a limit or restriction on the number, type, class or description of arms, or the quantity, type, class or description of ammunition, or both) as the Commissioner thinks fit.”

18. The regulatory regime thus envisaged clearly places the Commissioner in the position of final arbiter of what, for each applicant, is the permissible sub-activity or activities as a “dealer”.  No doubt, the answer to that will depend on the expressed intention of an applicant (there are provisions on providing information), which is precisely why I believe the Commissioner’s role to be that stated, or it will be everyone’s guess as to what parameters within which the Commissioner is supposed to ask the suitability questions in section 27(3A).

19. Putting it another way, it seems to me preposterous to suggest that the Commissioner will have to take into account the complete range of sub-activities under “dealing in” when considering the suitability of an applicant, which is what he has to do if the dealer’s licence is all-embracing, when in fact the applicant has his eye on only one or two.  Conversely, if the Commissioner were to do an encyclopedic review, the thresholds, one can imagine, would be so high that hardly any person would qualify, which is again unreasonable and not what I believe to be the regime’s objective.

20. As regards section 29, referred to in section 27(3) but whose text serves no purpose to be set out, I take it that its only significance is in laying it down that individuals, as opposed to companies, should be authorized to deal in arms and ammunition —— with type, place and period fully specified.  The words “the licence shall authorize a named individual or individuals to deal” do not suggest to me any promise of a full-range licence.

21. The remaining question is whether terms and conditions can be properly used to withhold sub-activities, or one kind of dealing and not the other.  Given the disjunctive nature of the definition of “dealing in”, the answer must in my judgment be affirmative.  There is no authority before me that terms and conditions are hierarchically inferior and that they cannot be used for such purpose —— at least in the kind of regulatory regime that has been put in place.

22. For completeness’ sake, I shall say that I find no merit in the argument that Conditions 8 and 9 of the appellant’s licence amount to a “total prohibition” on transporting (counsel’s words exactly).  What they do is require the appellant to apply for a section 30 licence, a licence for the sole purpose of conveying arms and ammunition (hence “limited licence”).  This will necessarily incur an extra procedure, at a time when the need to transport arises, so that the Commissioner may give his considerations ad hoc, but it certainly is not prohibition, particularly when one bears in mind that all the Commissioner’s decisions have to be based on Wednesbury reasonableness.  That being the case, I find the principle in Ng Enterprise (above) to have no direct application.

23. Before finally leaving the subject, I note the wording of section 30(1)(b) with interest.  It says :

“… [without limiting the general powers of the Commissioner under section 27], a dealer’s licence may be granted for the limited purpose of enabling the licensee … to have arms or ammunition or both in his … possession for the purpose of conveying the same …”

This to me is the clearest indication that a dealer’s licence is not intended to be automatically full-range.

The reasons point

24. This refers to the allegedly inadequate reasons the magistrate gave in rejecting the appellant’s evidence, hence the Fong Chin Yue defence —— the second point in this appeal.

25. It is submitted that : (a) the magistrate had placed undue reliance on the appellant’s demeanour; (b) a fair reading of the appellant’s testimony reveals no evasion on his part; and (c) there was a singular lack of consideration as to what motive the appellant could possibly have in bringing the gun out without a limited licence, short of a mistake.

26. It is accepted that the appellant had the burden of establishing the Fong Chin Yue defence but given all the circumstances of the case, the contention is that the appellant had succeeded in that task.  It is argued that he had no obligation checking the serial numbers of the guns after a night of safekeeping in the armoury with no opportunity of third party interference.

27. Having considered the matter, I do not think there is anything to this ground either.

28. There was never any misunderstanding at trial that section 23(1) is a strict liability offence.  It requires no sinister motive to prove, and may catch anyone making a mistake.  The ultimate question remains whether he or she can make out the Fong Chin Yue defence.  I see no point in singling ‘mistake’ out for consideration.

29. Paragraphs 13 and 14 of the Statement of Findings are, for all intent and purposes, the sum total of the magistrate’s reasons for verdict.  As such, they could have been fuller, much fuller, and more carefully formulated.  But it seems to me clear that the reference to “gesture and demeanour” was but a precursor to what followed in the next two sentences, that the appellant was evasive and lying about whether he had checked the individual bags of gun loaded.  It had nothing to do with the bland generalization that appellate courts have warned us against : R v.Ng Wing Ming [1995] 1 HKCLR 64.

30. Finally, I can find nothing wrong with the magistrate’s conclusion.  He was entitled to find the appellant lying.  This is so even on a fair reading of the appellant’s examination-in-chief (pp. 402F to 403F) :

“Q.  Finally they didn’t come.  Right, so what then happened?

A.    While waiting for them, I myself loaded those things to the vehicle.

Q.   All right.  Well, let’s then …

Q.   The guns and the ammunition.

Q.   Guns and ammunition.  And there is no dispute that you loaded the 11 guns, that were found in the boot of your car, into the boot of your car.  That’s right.

A.    Yes.

Q.   You’ve given evidence that the various guns were housed in the gun bags or the gun cases.

A.    Yes.

Q.   Did you open the individual cases to check the contents, at all?

A.    Yes.

Q.   Where did you do that?

A.    Inside the armoury.

Q.   So, how many gun bags did you open?

A.    Probably one gun bag and several gun cases.

Q.   Right.

A.    I can’t remember the exact number.  In fact, I can’t remember the exact number of gun bags or gun cases that I have – I had opened.  I just remember that there were 11 guns in use on the previous day.

Q.   Well, concentrate on the – on the gun bag that we’ve seen in 43 and 44.  We know that gun bag came to be in the boot together with the gun.  It’s not really a boot, it’s the back of the car.

A.    Yes.

Q.   Had you seen that weapon in the armoury before it was discovered at the Hong Kong Gun Club?

INTERPRETER :  Sir, can I have the question…

MR CHANDLER :  Yes

Q.   Had you seen that weapon – on the day, 31 July, did you know that that weapon was contained in that gun bag?

A.    I didn’t know.

Q.   So, did you open that gun bag before you departed the armoury?

A.    Probably, yes.

Q.   So, if you opened that bag, why didn’t you know the gun was there?

A.    In fact, I don’t know the reason even at this moment.  Maybe I made this mistake negligently.

Q.   Well, you make that concession, but what happened?  Tell us what happened at the time when you loaded the guns onto the car.

A.    Because I was the only one who loaded those things to the car …

Q.   Right, so what did you do?

A.    I counted the number of guns and put them in the car.”

And cross-examination (pp. 412U to 414P) :

“Q.  Right, so on 31 July, you did open the bag or cases to ensure the correct gun were brought along, right?

A.    Yes.

Q.   So you opened each and every gun bag or gun case, physically look at the gun inside, counted them, right?

A.    I did check them but it’s obvious that I didn’t do it carefully.

Q.   I see.  Now, you told us that you mistook the dealer gun for Mr Ng’s gun.

A.    Yes.

Q.   Now – now, the dealer gun – if you look at photograph 44, the dealer gun was contained in a blue bag, yes?

A.    Yes.

Q.   It’s not – the gun was not concealed in a compartment or wrapped up in some sort of papers, right?

A.    Yes.

Q.   Right, so when you open it, you can clearly see what sort of gun was inside, right?

A.    Yes.

Q.   Right, if you look at photograph D7(1), Mr Ng’s gun.  Now, you can immediately tell the make name are different, right?

A.    Yes.

Q.   The dealer gun is Infinity; this one is Limcat, right?

INTERPRETER:  What’s the make name for the dealer’s?

COURT :  Infinity.

MR YIP :  Infinity.

A.    Yes.

Q.   Right, and also if you compare the – the grip or the butt, the dealer gun’s – the handgrip of the dealer gun is purple in colour.

A.    Yes.

Q.   All right, the—Mr Ng’s gun was black, right?

A.    Yes.

Q.   So would you agree with me that you can tell the difference right away, right?

A.    If at this moment I’m so conscious, of course I can tell at the first look.

Q.   Would you agree with me that you are familiar with the different model, different types of guns, right?  You can tell at one glance.

A.    I agree.

Q.   So, would you agree with me the mistake could only come about either you didn’t physically check the gun, right?

A.    I am sure that I did check it.  Obviously, I mistook another one.

Q.   So would you agree the mistake could only come about if you very carelessly inspect the gun?

A.    I disagree.

Q.   You would have avoid the mistake if you physically took it out for inspection, right?

A.    I disagree.

Q.   So if you physically took it out for inspection, you can’t ell the difference between this dealer gun and Mr Ng’s gun?

A.    If you ask me whether I checked the gun, I did check it.  The reason was that it was so chaotic at that time, even I did check – did check it, I mistook another gun because I didn’t realize that that particular two guns were put at the same place.

Q.   Now, but my last question was : would you agree with me that the mistake would have been avoided if you took it up and had physical look at it?

A.    I guess there’s possibility to avoid this mistake but it’s not absolutely.

Q.   The mistake would have certainly been avoided if you looked at the serial number against the register, right?

A.    I agree.

Q.   Because you have all those members – six members’ register or record card with you at that time right?  (To interpreter) No, no, you had with you the record card of the six contestants, right, who authorized you to bring along the guns.

A.    For those record cards, they have to be filled in when I gave them the guns after checking it.

Q.   No, my question was : because you had all the six records of those person who authorized you to bring along the gun, you would have void the mistake if you checked the serial number against those in that record, right?

A.    I agree.

Q.   In fact, during the interview, save and except gun 4, you recognized each and every gun right away, would you agree?

A.    I disagree.

Q.   Mm.  What you said in court, that you had actually inspect the dealer gun and made a mistake, you’re not telling the truth.

A.    I disagree.”

31. Put simply, the appellant was so unsure of his answers, and the mistaking of the club gun for Mr Ng’s gun so unlikely —— had there been a check, that the magistrate’s finding was justified.  To put everything in context, the appellant had, in an earlier part of in his cross-examination (pp. 411E to 412T), made it quite plain that he was bound by a condition in his dealer’s licence, and a practical need arising from the competition, to ensure that the right guns were taken out : 

“Q.  All right, so when an individual member wants to take his gun away, what sort of register he has to sign?

A.    A record just made by our company.  The car of Mr – that Mr Ng has signed, I just refer to for that.

Q.   So you mean D5, right?

A.    Yes, this card.

Q.   And before you hand over the gun to individual members, you have to ascertain this is the right gun belong to this member, right?

A.    Yes.

Q.   So this is the same type, same model, same serial number.

A.    Yes.

Q.   The same procedure applies when you sign out on behalf of individual members, right?

MR YIP :  (To interpreter)  “Sign out on behalf of individual members.”

INTERPRETER :  Oh, sorry, “on behalf”.

A.    Yes, under normal circumstances.

Q.   All right.  Because you know according to condition 16 of the dealer licence, in relation to dealer’s gun, you shall maintain a movement register to record all movements of approved firearms beyond the specified premises.  The register must be updated immediately after any such movement with details to show the name and identity of the person removing them, right?

A.    Yes.

Q.   So, no matter you are removing an individual member’s gun or dealer’s gun, you have to ascertain this is the right gun, and you have to record the movement of the guns in question, right?

A.    Yes.

Q.   So, with respect of every gun taken away from the premises, you have to ascertain the serial number, right?  Right?  Because you shave to make the record.

A.    We should – you should say that every time when the guns is handed over, I have to ascertain or confirm the serial number of the gun.

Q.   All right.  Now, you said you were authorised on 30 Jyly by individual members to bring along their own guns to the range.

Q.   On the 31^st.  Sorry, on the 30^th, you were authorized to bring the gun the next day.

A.    Yes.

Q.   So, is it right that you have to be sure the correct guns were taken out from the armoury?

A.    Yes.

Q.   Because you can see from some guns, the handle, in fact, had been tailor made to fit the handgrip of a particular shooter, right?  Like gun 1 at photo 8.

A.    What is the photo?

Q.   You can see the – can you see the grip?  The grip.  It’s tailor-made to fit the handgrip of that particular owner, right?

A.    Not so.

Q.   Oh, I see.

A.    It is the original handgrip.

Q.   Mm.  Now, but in any event, if you bring along a wrong gun, then the individual owner, first of all, may not be familiar with the gun you brought along, right?

A.    You can say so.

Q.   An he can’t use it for – because this is competition.

A.    yes, because when he – when that participant joined the competition, the serial number of the gun is specified.

Q.   Yes, so the individual contestant cannot use other guns than his own gun, right?

COURT :  Other than the one registered.

Q.   Yes, with the gun club, Hong Kong

COURT :  With the competition.  (To the interpreter)  No, no, the question is : the contestant cannot use the other gun other than the one registered with the competition itself.  Was it the right question?

MR YIP :  Yes, most grateful.

A.    That’s no right totally.  Why I am saying that, because if the gun of a particular participant is out of order, which cannot work, he may borrow a gun from others if the model is the same and the factory for manufacture is the same, unless had has no advantages of using that.  Of course, he has other participants or other people to lend them the gun.

Q.   Right, but in any event, you – you feel obliged to bring along the correct gun for the owners who had instructed you to do so, right?

A.    Of course.”

32. What I have adjudged above must necessarily bring this appeal to an end.  But for the sake of argument, even had the appellant checked the individual bags, but not sufficiently thoroughly to detect his mistake, he would, in my judgment, still be guilty of the offence, the reason being he would have failed to make out the Fong Chin Yue defence which, when applied to the present case, is whether he could prove on a balance of probabilities that he “believed for good and sufficient reason, although erroneously” that condition 9 of his dealer’s licence had been complied with.

33. I say he would have failed because the only effective way of compliance was to ensure that guns with the correct serial numbers, hence licences, were taken out.  Any visual check that is based on make, model and colour only was bound to be mistake-prone, no matter how conscientiously carried out, not to mention quick and half-hearted ones.

34. Finally, I do not accept that, in this case, there was no need to check the guns because they had been safely kept in an armoury.  The fact that there were other guns in it, hence the possibility of a mix-up, made it absolutely necessary.

JUDGMENT

35. The appeal is dismissed.