THE ATTORNEY GENERAL v. WONG NAI YUEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 725 OF 1994

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J U D G M E N T

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1. This is an appeal by the Attorney General by way of case stated against the decision of a magistrate to acquit the Respondent of an offence contrary to section 22(1) of the Firearms and Ammunition Ordinance, Cap. 238. The Respondent was charged as follows : -

"that on the 2nd August 1993 at the Report Room of Tai Hing Police Station, N.T., Hong Kong (the Respondent) without lawful authority or reasonable excuse discharged or otherwise dealt with a firearm, namely a police service revolver, serial number 7504, a 0.38 special Smith and Wessen Model 10 heavy barrel, in a manner likely to injure or endanger the safety of others."

2. The evidence was not in dispute. The facts were either admitted or statements of witnesses were admitted by consent. The facts were that : -

"(a) The Respondent and CHAN Ka-po (the victim) were at the time serving police constables. The victim was off duty. The Respondent was on duty. Both men found themselves together in the report room of Tai Hing Police Station - where they each worked-on 13.10.93.

(b) At or about 7:30 a.m. the Respondent and the victim were having a discussion concerning the accidental discharge of police firearms. The victim recounted that he had heard that it was possible for a revolver "to go off" even when it had been unloaded. The Respondent did not accept this and said so. He then sought to show the victim that the hypothesis was impossible. In the victim's words : "he (the Respondent) drew his revolver and then opened the cylinder to take out all the bullets. He then closed the cylinder and put the unloaded bullets into his pocket" (then) "I saw that the muzzle of (his) revolver was pointed at the floor where I was. (He) held the revolver and said, "How can it go off with no bullet (?)". Before this sentence was finished the victim heard a bang sound and found that he had been shot in his right buttock.

(c) At the time of the shot the victim and the Respondent were just a few feet apart, not more than 5 feet.

(d) The Respondent's version of events, as recited in his admitted statement, basically agreed with that of the victim but when asked if on unloading the revolver he had counted the bullets he said : "Because the unloading was done very swiftly, just at one go, I therefore strongly believed that all 6 of the bullets in the cylinder had already been taken out and put into the right side pocket of my trousers" (Then) "I held the revolver and pulled the trigger . . . . ." (and) "I did not aim at anything nor deliberately fire at any person or object". He also reiterated that his only purpose was to show that an unloaded police revolver was safe and would not go off accidentally. He later repeated that his act of drawing the revolver from the holster, unloading the bullets and pulling the trigger was done at one go, i.e. in the same single action.

After the gun fired the Respondent, according to his statement, opened the chamber of his gun and found a shell case in it."

3. On the basis of that evidence, the magistrate found as a fact and proved :-

"(a) The Respondent discharged his police revolver, as specified in the charge.

(b) Although the Respondent's pulling of the trigger was deliberate the discharge was unintentional and without malice.

(c) The Respondent believed that his revolver was empty of bullets and was safe when he pulled the trigger.

(d) The Respondent believed, albeit mistakenly, that he had emptied all bullets from his revolver before pulling the trigger.

(e) The Respondent had not intentionally aimed the revolver at the victim.

(f) A bullet fired by the Respondent directly struck and wounded the victim in his right buttock.

(g) The Respondent acted carelessly in failing to ensure that all 6 rounds had been removed from his revolver before pulling the trigger."

4. The magistrate found a case to answer but, although the Respondent did not give evidence, dismissed the charge. Upon the application of the Applicant, the magistrate heard argument on review at which the Applicant contended that either no specific mens rea was required or mere carelessness was sufficient. Alternatively, if recklessness was an ingredient of the charge, the proper test was an objective one. For the Respondent, it was argued that carelessness was not sufficient and that recklessness was a necessary ingredient. Having heard the arguments, the magistrate was of the opinion that recklessness in the absence of a requirement for a specific intent was required. Further, he was satisfied that it could not be said that the Respondent either had failed to give any thought to the possibility of there being any risk; or having recognised that there was a risk nevertheless went on to take it. Accordingly, he maintained his original determination.

5. The questions now posed for the opinion of this court are :-

"1. Whether I erred in adopting the ingredient of recklessness ... in this case and

2. Whether I was right on the above facts to dismiss the said charge"

6. Section 22(1) of Cap. 238 reads :-

"22. Dangerous or reckless use of firearm etc.

(1) A person commits an offence who, without lawful authority or reasonable excuse, discharges or otherwise deals with any arms or ammunition in a manner likely to injure, or endanger the safety of, any person or property or with reckless disregard for the safety of others."

7. Mr. Saw who appeared for the Applicant said that the actus reus is the discharge or dealing. He contended that no question of intent arises in relation to discharge or dealing and that the Crown has simply to prove the act. The act having been established, it then falls to the Crown to establish, one of two components namely, either "in a manner likely to injure ..." or "with reckless disregard ...". In relation to the first of those components, which was that faced by the Respondent, it is necessary simply for the magistrate to consider all the circumstances and determine whether the discharge or dealing was in the prescribed manner. In relation to the second component only, the question of recklessness arises.

8. Mr. Saw's complaint was that the magistrate introduced the unwarranted requirement of an intent in relation to the actual discharge of the firearm, that intent to be based upon recklessness. In introducing any requirement for an intent, let alone one of recklessness, the magistrate was in error.

9. Mr. Oderberg who appeared for the Respondent said that the magistrate addressed the issue. He said that the magistrate determined that this charge requires an intentional or reckless actus causing the firearm to go off. That is, for the discharge to be one contemplated by the section, the person discharging the firearm has to be shown to know that there is a bullet in the firearm or to have been reckless whether or not there was a bullet in the firearm at the time. Mr. Oderberg said that the magistrate examined the facts and circumstances, was clearly satisfied that it was the Respondent's honest view that he had emptied the gun and, on the proper objective test of recklessness, came to the conclusion that the Respondent was not reckless as to whether there was a bullet in the firearm.

10. Mr. Oderberg argued that section 22(1) is, as the title to the section states, concerned only with the "use" of a firearm or ammunition. Therefore, he said, discharge must mean the discharge of a firearm with a bullet in it, while dealing must equally mean using the firearm or ammunition in some way. He said that if the Crown's argument is right and only the actus reus need be proved, a police officer who has properly emptied his revolver and accidentally drops it from a window so that he hits a passer-by would have committed an offence under the sub-section. That, he said, cannot be right because it is not use. He submitted that the presence of a bullet in the firearm and the knowledge thereof by the person discharging the firearm is crucial.

11. I have difficulty in accepting Mr. Oderberg's argument. First, the title to a section or sections of an Ordinance, whilst it may sometimes assist in interpretation, is provided to give guidance as to general nature of the sections. Here the phrase "deals with" in s-s.(1) has a wider meaning than "use". Taking Mr. Oderberg's example, the police officer who has emptied his revolver would nonetheless still be "dealing" with it if, instead of securing it away, he takes it to a window while he surveys the view and there accidentally drops it out.

12. I continue the illustration. Assume an inquest following the accidental dropping. It is not difficult to imagine the police officer being asked "After you unloaded your revolver, how did you deal with it?" I venture to think there could be no misunderstanding about the question and no difficulty in answering it. The answer "I took it across to the window while I looked out and accidentally dropped it" would be unexceptionable. The fact that that scenario could give rise to prosecution for a less serious offence such as "dropping an object from a height" does not necessarily preclude prosecution for an offence under s.22(1).

13. Second, if Mr. Oderberg is right, a charge laid under the second limb of s. 22(1) i.e. "with reckless disregard . . ." would involve the Crown having to prove recklessness twice over. I do not believe that can have been contemplated. That the legislature has spelled out recklessness here is strongly suggestive that it is not a requirement in relation to the discharge or dealing. I come to the conclusion therefore that Mr. Saw's submission is well-founded. When an offence is charged under the first limb of s. 22(1) it is for the Crown to establish only that the firearm was discharged or otherwise dealt with by the Defendant. That being proved, all the facts and circumstances surrounding that act would fall for consideration. Germane to that consideration would be, for example, any precautions taken by the Defendant.

14. Put another way, the two limbs or components of this sub-section prescribe the mens rea necessary for completion of the offence. In my judgment what the magistrate has done is to deal with the Respondent as though he had been charged under the second limb of s. 22(1).

15. I answer Question 1 "yes".

16. As to Question 2, I do not think it appropriate to answer. I simply express the view that for the Respondent, a police constable presumably trained in the use of firearms and safety procedures, to have done what he did almost beggars belief. To pull the trigger of a hastily unloaded revolver, when in close proximity to another person in whose general direction the revolver is pointed, is a recipe for disaster.

17. I accede to Mr. Oderberg's submission that it is not, in all the circumstances, appropriate to remit the case to the magistrate for further consideration.