THE QUEEN v. LO TAK CHUEN

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J U D G M E N T

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Cons, Ag. C.J., delivered the judgment of the Court:

1. On the 6th of December last year LO Tak Chuen ("the Defendant") was convicted by Judge Caird in the District Court of possession of a firearm without a licence, contrary to section 13(1) of the Firearms & Ammunition Ordinance, Cap. 238. He applies now for leave to appeal that conviction.

2. The firearm in question was a double barrelled converted starting pistol. It was formally admitted at the trial to be a firearm. The Defendant did not give any evidence to the judge so the only question remaining for him was "Was the Defendant in possession?". The answer depended exclusively on the evidence of Police Constable 45672, who was the principal witness at the trial.

3. His evidence was that in August he was on patrol with a plain clothed police officer. He saw three men coming along the street and he got the impression that they wished to avoid him. He suspected, therefore, that they might be illegal immigrants. As he stepped forward to question them, the third man of the group ran away. The third man subsequently turned out to be the Defendant. The constable chased him. During the course of the chase he saw the Defendant take a pistol from his waist and it to the ground. At that time he was only about three to four feet behind the Defendant. He soon caught up with him, arrested him and picked up the pistol. He was cross-examined at considerable length and he gave answers which were at times contradictory to his evidence in chief. The principal areas in which this occurred were whether he had handcuffed the Defendant before or after he picked up the pistol, whether the Defendant fell over at the time of his arrest, whether he was in the middle of the road during the course of the chase, and as to events that happened subsequently at the police station. In his closing submission to the judge counsel drew all these matters to the judge's attention and the judge dealt with them carefully in a fully detailed Reasons for Verdict.

4. Mr. Forrest, who appears for the Defendant today, has picked out passages from the Reasons in which the judge refers to "aspects of the constable's evidence which are unsatisfactory" and comments that he was "very concerned about the importance of the constable's evidence, and the areas where his testimony was susceptible to criticism". It is suggested that, in view of those comments, it was not open to the judge later to say, as he did:

I am of the view that he (the constable) was telling the truth in all material respects, and that there was no error as to what he described as having taken place."

5. The contention is that, bearing in mind the circumstances of this case and that the constable was the only witness as to what had occurred, it was inevitable that his evidence was tainted by lack of credibility, and, as Mr. Forrest subsequently put it, could only be viewed as unreliable; it was not open to the judge to reject part, but yet accept other parts of the evidence, as would be possible in other cases.

6. We have read the evidence of the constable. In our view it was open to the judge on that evidence to come to the conclusion that he did. As we have said, he gave a very full and careful set of reasons in which he voiced his doubts as to certain matters and his criticisms of the constable. Nevertheless, he was satisfied that the constable was truthful and reliable in the material matter, that is, did the Defendant throw away the pistol while he was being chased. We see no reason why the judge should be precluded from so finding, if he was so satified. Mr. Forrest, who has addressed us with his usual frankness, and eloquence, concedes that it is a short point which can only find favour with us or fail. With respect it does the latter. The application is refused.