THE QUEEN v. LEE MAN KIT

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H E A D N O T E

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POSSESSION OF IMITATION FIREARMS - MEANING OF POSSESSION - KNOWLEDGE NOT ENOUGH - INFERENCE OF GUILT NOT TO BE DRAWN FROM DEFENDANT'S LIES IN WITNESSBOX.

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J U D G M E N T

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1. The appellant was convicted of possession of imitation firearms, contrary to section 20(1) of the Firearms and Ammunition Ordinance, Cap. 238.

2. The case arose out of a police raid on premises occupied by the appellant and owned by his father. They were described by the magistrate as a "sort of warehouse cum flat". The appellant lived there alone, except for an illegal immigrant who had arrived from China a few days, before the raid and had been allowed to sleep in the rear, bedroom.

3. In a cardboard box in the living room the police found an imitation Smith & Wesson .38 revolver. There were also some gold chains in the box.

4. The appellant made a cautioned statement, in which he said "Fung Dick (the illegal immigrant) purchased the pistol but I accompanied him to purchase". However, in his evidence the appellant said this was incorrect; he had expressed himself badly and meant to say that he had gone out with Fung Dick, who had gone into a toy shop. He had therefore assumed that Fung Dick had bought the gun in the shop. He had not seen the gun before it was found.

5. The magistrate did not believe the appellant. He convicted him for two reasons. He believed the appellant had meant what he said in the cautioned statement and was therefore aware of the existence of the gun. He went on to say "The defendant, as the occupier, had control of the premises and control of whether or not he would permit (Fung Dick) to keep the gun there. I took the view that if I permit someone to bring something into my house and keep it there then I am in law in possession of that object until I order it removed".

6. As counsel for the Crown concedes, that is not the law. Possession is a matter of intention - intention to exercise control over something. If a friend comes to stay with me and brings his golf clubs, which he keeps in the hall, they remain in his possession: they are not in, mine.

7. It makes no difference if I know he has stolen the golf clubs and I tell lies to the police about this. Lies may affect credibility, but it is not permissible to draw an inference of guilt from the mere fact that a defendant has lied.

8. The magistrate was justified in finding that the appellant knew the gun was in the flat, but that was as far as he was entitled to go. As I have indicated, mere knowledge does not amount to possession. Although, if Fung Dick had bought the gun, it would have been more logical for him to have kept it in his bedroom, there was no need to hide it from the appellant; the latter had been with him when he bought it. Putting it in a box in the living room did not put it into the appellant's possession. On the other hand, when he realised an offence had been committed, it is not surprising that he tried to distance himself from the gun by lying in the witnessbox.

9. The appeal is allowed and the conviction quashed.