HKSAR v. ROBERT A. PASCUAL

HCMA59/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 59 OF 2009

(ON APPEAL FROM ESCC 2388 OF 2008)

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction by Mr Victor So at Eastern Magistrate’s Court on a charge of possession of arms without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap. 238 (“the Ordinance”).

2. The charge before the court alleged that in the sitting out area in Lan Kwai Fong, the appellant was in possession of arms, namely a can of pepper gas, without a licence.

3. The magistrate made certain findings of fact which are not challenged in this appeal.

4. In the early hours of the day in question, a police officer saw the appellant sitting on a bench inside the sitting out area in Lan Kwai Fong.  His hand was on a carrier bag which was next to him.  Inside that carrier bag the officer found a can on which were printed the words “pepper gas”.  When asked what it was the appellant initially said it was hair spray but later admitted it was a can of pepper gas which had been bought in the Philippines for 500 peso.

5. Later, the appellant was interviewed with the assistance of a Tagalog interpreter.  In the record of interview, the appellant wrote in Tagalog :

“… I bought the pepper spray in the Philippines in year 2006 February at SM Mega Hall ‘Hann’.  I bought the spray for my personal protection.  And I never use to anyone.  And I didn’t know that I needed a licence for possession in Hong Kong.”

6. One of the issues raised by Mr Tibbo at the trial before the magistrate was that the prosecution had failed to prove beyond reasonable doubt that the can marked “pepper gas” fell within the meaning of “arms”.

7. It was not disputed that the relevant part of the definition of “arms” in section 2 of the Ordinance fell within subsection (e), namely :

“(e) any weapon for the discharge of any noxious liquid, gas, powder or other similar thing (including an aerosol containing any noxious liquid, gas, powder or other similar thing which is not in general trade or domestic use in aerosol form);”

8. The evidence before the court as to the contents of the can came from Dr Tam Cheok Ning, a chemist in the Forensic Science Division of the Hong Kong Government Laboratory.  His evidence was read to the court by consent under the provisions of section 65B of the Criminal Procedure Ordinance.  

9. The relevant parts of his evidence were as follows :

“   The purpose of my examination was to determine whether or not any noxious chemicals could be found from the submitted item …”

“   An operating button associated with a nozzle was found on the cap on the canister … On pressing the operating button of the canister, an orange liquid was discharged from the nozzle.  The discharged liquid from the canister … was found to contain an organic mixture containing capsaicin.

    Capsaicin is a powerful irritant and a common active ingredient present in some chemical protection canisters.  It irritates the respiratory tract and eyes to cause secretion of tears when applied on the faces.  It can also cause intense pain to human skin.”

10. Dealing with Mr Tibbo’s submission that the prosecution had failed to prove that the can fell within the meaning of “arms” in the Ordinance, the magistrate referred to subsection (e) to which I have just referred, and referred to Dr Tam’s evidence as to the nature of capsaicin.  The magistrate said :

“.,. Given the unchallenged opinion of Dr. Tam, I find that capsaicin was no doubt noxious in nature under the definition. …”

He made no express finding that the liquid in the canister was noxious.

11. It is the magistrate’s finding that the canister and its contents constituted “arms” that is challenged by the appellant in his appeal.

12. The appellant’s grounds of appeal are essentially that the magistrate failed properly to consider or construe the definition of “arms” in the Ordinance.  Mr Tibbo argues that under the definition of “arms” under subsection (e) to which I have referred, it is necessary to prove not merely that a noxious chemical is present in the liquid mixture contained in the aerosol or container but that the mixture itself was noxious.  He points to the fact that there was no evidence of the quantity or concentration of capsaicin in the liquid.  He argues that the magistrate ignored the fact that there was no expert evidence that the liquid mixture itself was noxious. 

13. It does appear that the magistrate relied simply on the evidence that capsaicin was noxious to conclude that the contents of the canister brought the canister and its contents within the definition of “arms”.

14. Both counsel before this court accept that the prosecution had to establish that liquid in the container was noxious before the canister and its contents fell within the definition of “arms”. 

15. Mr Tibbo’s argument relies upon the proposition that the noxious quality of the liquid can only be proved by evidence of chemical analysis of the liquid, and that in the absence of such evidence the prosecution must fail.  That is not the case.  A court can draw inferences from all the evidence.  While the noxious quality of the liquid could be proved by evidence of direct analysis the prosecution could also prove it by inference from all the circumstances.

16. I am satisfied that there was a wealth of evidence from which such inference could be drawn.  It is apparent from the canister itself that it is a personal protection device.  The container purports to describe its ingredients including “oleoresin capsicum (pepper gas)”.  It states that it “can disable or paralyze assailant for a short period of time if spray directly assailant’s face.  The gas spray will cause acute coughing, sneezing and irritation of nose and throat.  Personal safety can be 100% assured by appropriate use of the spray.”

17. Not only does the canister purport to be a personal protection device but the appellant admitted that the it was a can of pepper gas which he had bought in the Philippines for his personal protection.

18. While the canister’s own description of what it purports to be and to contain might not provide conclusive evidence that the liquid contained therein was noxious, those matters had to be looked at together with the appellant’s admissions, and in particular the evidence of Dr Tam that one of the contents of the liquid mixture was capsaicin (“a powerful irritant and a common active ingredient present in some chemical protection canisters”).

19. An appeal to the High Court from the magistrate’s court is an appeal by way of rehearing on the papers.  I am satisfied that the only reasonable inference, bearing in mind the factors to which I have referred, is that the canister and its contents constituted “arms”, particularly bearing in mind section 2(4) of the Ordinance which reads :

“(4)   An article which would otherwise be within the definition of ‘arms’ or ‘ammunition’ in subsection (1) shall not be excluded therefrom by reason only of the fact that it is defective …”

20. I accordingly dismiss the appeal against conviction.