R v. TSANG CHI CHUNG AND ANOTHER

HEADNOTE

1987, No. 478
(D.C.C. Criminal)

Firearm - meaning of - Shotgun, with blank cartridges which may be adapted. Derringer with obstruction in barrel which could be cleared by drilling.

Defendant was found in possession of items which the Crown contended were firearms namely (a) one 20 gage shotgun, (b) one derringer pistol.

The issue raised at trial was whether the items seized were "firearms" or "imitation firearms".

Firearn is defined in section 2(1) of The Firearms and Ammunition Ordinance Cap. 238 as.

"'Firmarn' means a lethal barrelled weapon of any description from which any shot bullet or missile can be discharged".

Held (a) A shotgun with a weakened spring not capable of detonating commercially made car ridges, unless the spring is replaced, but which is capable of and has discharged blank cartridges is a firearm when such blank cartridges are capable of being loaded with shot or missiles, even if a heavier charge is required.

(b) A derringer pistol with a pin inserted through both barrels rendering the pistol incapable of firing bullets is a firearm when the pistol can be adapted by drilling out the obstructing pin so as to then enable the-pistol to fire .22 bullets with lethal force.

R. v. Freeman (1970) 1 W.L.R. p.728 and Cafferata v. Wilson [1936] 3 ALL E.R. p.149 D.C. followed.

Dickey v. Police 1964 N.Z.L.R. 503 considered.

IN THE DISTRICT COURT OF HONG KONG

CRIMINAL JURISDICTION

D.C. CASE NO. 478 OF 1987

__________________

The Queen

against

(1)  TSANG Chi-chung

(2)  MA Li-fung

__________________

___________________________

REASONS FOR VERDICT

___________________________

1. At the outset of this trial the Crown offered no evidence against the second defendant in respect of the 4th, 5th and 6th charges. The 1st defendant pleaded guilty to the 2nd and 3rd charges. I now have to consider the 1st charge which went to trial as against the 1st defendant. This charge is one of possession of firearms without a licence, contrary to section 13(1) of the Firearms and Ammunition Ordinance, Cap. 238.

2. The particulars required amendment. This mayor may not have resulted from what appear to me to be an obvious flaw. It appeared from the schedule of-exhibits that item 2 which one would pave expected to have been produced as prosecution exhibit P2 consisted of a 20 gauge shot gun barrel, magazine and receiver assembly items. These could not be described as a shot gun as purported in the particulars.

Agreed Facts

3. At the commencement of the trial the Legal Advisers to both parties presented me with a series of agreed facts admitted pursuant to section 65(C) of Cap. 221. I reproduce this as follows:

"At about 1430 hours on 1.4.1987 Inspector Coulthard executed, a search warrant at the 'Hong Kong Movie Props Ltd.', situated on the ground floor of No. 12-14c, Playing Field Road in Mong Kok.

At the time of the raid one of the shareholders (D1) of the company was present. A search of the premise assisted by PW2 resulted in exhibits 1-5 being seized. D1 was arrested and. cautioned by PW3.

PW4 attended the scene and took ten photographs (Exh. 6)

PW2 will produce a ballistics report (Exh.-8) which shows; that Exhs. 1 and 3 are alleged firearms, Exh. 4 is ammunition and Exh. 5 is an explosive substance.

D1 does not possess a licence for exhibits 1, 3 and 5 issued in accordance with the Firearms and Ammunition Ordinance, Chapter 238, Laws of Hong Kong.

Approximately 1 week before the above noted search, police officers from the Mong Kok Police Station visited the premises but no items were seized."

Evidence

4. Three witnesses were called. The Crown called one witness only a superintendent Nicoll of the Ballistics Bureau. The Defence called an expert, Mr. Hull and the Defendant himself. The evidence of the experts is relevant to the 1st issue which falls for determination and the Defendant's evidence is germane on the issue of mens rea.

5. I was impressed with both experts. Superintendent Nicoll is a professional ballistics officer, albeit that his experience commenced comparatively recently in 1976. On the other hand Mr. Rull could be described as an amateur albeit an extremely well qualified and impressive amateur. He made no attempt whatsoever to encroach on the field of others, particularly those he referred to as professional armourers compared with amateur armourers. He accepted everything that Superintendent Nicoll said as to tests conducted by him, and the physical results derived therefrom. Furthermore, he acknowledged frankly and freely that he had not conducted any tests. This of course is not surprising. Despite these weakness Mr. Rull still impressed. He has had 47 years experience in handling shot guns. This included 25 years of training with the Royal Hong Kong Regiment's Professional Army Instructors, he is an official Government Hunting Consultant. He is a national shot gun and certified instructor on small arms. He is an instructor for the National Rifle Association of the U.S.A. also the British Rifle Association. He is a former Hong Kong Shotgun Champion and he was shot internationally in pistol shooting competitions representing Hong Kong. He holds the rank of Captain in the Royal Hong Kong Regiment. He is an arms instructor and qualified officer running military ranges in addition to his qualifications as a safety officer. He has shot in many places other than Hong Kong. It is relevant he has shot commercially made derrlnger pistols in the U.S.A. He has a licence to hold firearms and it is of interest he is the holder of licence No.1, this being the 1st licence issued after the World War. This was a licence issued before one was issued to the then governor - should a governor require a licence.

6. As far as Superintendent Nicoll is concerned there are two matters arising from his evidence which call for comment. The first was that he had not observed the absence of a safety catch. The second was that he had not observed that the weapon with which he was dealing P1 was a weapon which did not have a breach block lock. He attempted to fire a commercial 20 gauge cartridge and this in my view must be regarded as highly dangerous despite the Superintendent's contention that he held the weapon very firmly. It is his failure to have discovered the absence of this important component part of the shotgun with which I am concerned. I believe that the Superintendent's failure can be attributed to either a excess work load on the old adage "familiarity breads contempt". Possibly a combination of both factors existed at the pertinent time.

7. Having expressed this criticism of the Superintendent's failure to note these two missing components, nevertheless I am of opinion that as far as his physical findings are concerned that he conducted the tests and obtained the physical results as described, Mr. Rull did not challenge these findings and moreover at times accepted the Superintendent's evidence when he was making a point in support of his own contentions.

Lethal or Imitation firearm

The Law

8. I commence with the definition contained in the Firearms and Ammunition Ordinance, Cap. 238.

9. Section 2(1) Arms mean any firearm. Firearm is defined "means a lethal barrelled weapon on of any 'description from' which any shot bullet or missle can be discharged".

10. Sub-section 4 which has its genesis in the New Zealand Arms Act 1958 provides as follows:

"An article which would otherwise be within the definition of 'arms' or 'ammunition' in subsection (1) shall not be excluded therefrom by reason only the fact that it is defective or out of repair."

11. I think it apposite to note a further definition the matter becomes relevant i.e. that of imitation firearm as found in sub-section (1) as follows:

"Immitation firearm means anything which has –

(a) the appearance of being a firearm, but which is not within the definition of that term in this section (sub-paragraphs.(b) and (c) are not apposite to the circumstances of the instant case.)

12. I find the decision R. v. Freeman[1] of interest. The definition of firearm falling for determination in that case was:-

"In this Act, the expression ‘firearm’ means a lethal barrelled weapon of any description from which any shot, bullet or, other missile can be discharged and includes (b) any component part of such a lethal or prohibited weapon. - Section 57(1)."

13. In that case the Defendant had been charged on indictment with possessing a firearm without holding the appropriate certificate. The item alleged to be a firearm was a .380 starting revolver described as being of solid construction and with constrictions in the front ends of firing chambers, and as a revolver which could be adapted by drilling to fire bullets with lethal force. The barrel was solid but part of it had been drilled at the muzzle end. At the hearing before the jury this direction was given.

" ... the barrel was blocked up. An inch of it is still solid. Any you may say to yourself, 'That is not a revolver, it is really a starting pistol.' And I can say is, gentlemen, that an article like this, that can be adapted to fire bullets by drilling the barrel and making some other alteration, is a firearm under the meaning of the Act. This is the law."

14. This particular direction followed an earlier judgment in Cafferata v. Wilson[2]. This of a Divisional Court in a case concerning a subject matter indistinguishable from the case under review. Lord Hewart there stated at page 150:

"Every turns on the definition of ‘firearm’ in the Act of 1920. At the material time the article was incapable of being fired, but a part of it needed alteration to make it suitable for firing. The magistrate has held that the article was a whole is part of a firearm within the meaning of the definition. That is quite a tenable proposition. If something had had to be added to the dumy to make it into a complete revolver, the dummy mithy be said to be part of a revolver. It seems to make no difference that the decisive part was not to be an addition but an adaptation of what was already there. It is easier to support the decision from another point of view. The dummy contains everything else necessary for making a revolver except the barrel, and therefore all the other parts of it except those which required to be bored are 'parts thereof' within the meaning of the section."

15. I find the concluding remarks of Sachs L.J. R. v. Freeman¹ of interest at page 792:

"In conclusion there are two observation to be made. In this particular case the subject matter of the charge was identical with that in Cafferata v. Wilson. Other cases, of course, may arise when it is a question of fact and degree whether the subject matter of the charge does or does not fall within ambit of the Act and' in such cases the issue must be left to the jury. It is also useful to remember, having regard to one of the submissions of Mr. Mendl, that it has been held in Read v. Donovan [1947] K.B. 326, a case concerning a signal pistol, that the intention of the manufacturer of the subject matter of the charge is irrelevant to the issue which a jury must try. That being the decision of this court on the point of law, the appeal is dismissed."

16. The decision of Woodhouse J. in Dickey v. Police[3] at page 504 of interest particularly as sub-section 4 of Cap. 238 follows section 2 of the New Zealand Arms Act of 1958 enacted prior to the matter which then came for determination:

"In my opinion in its ordinary significance a firearm is a weapon capable of discharging a missile …… An unloaded firearm is nonetheless presently capable of discharging a missile provided its component parts are all correctly related to one another."

17. Of interest, although the legislation is the directly in point is the Canadian decision of R. v. Desjralais[4] per Disbery J. at 126:

"The word ‘firearm’ as used ... in the popular sense means any portable small arm from which a missile may be propelled by an explosive. It is in common parlance a 'shooting weapon'. Rifle is simply a firarm having rifling on the surface of its bore."

18. Section 21 of the Arms Act Ammunition Ordinance is of interest. This reads as follows:

"21. (1) A person commits an offence who converts into a firearm anything which, though having the appearance of being a firearm, is so constructed as to be incapable of discharging any shot, bullet, or missile through its barrel.

(2) A person who commits an offence under subsection (1) is liable on conviction upon indictment to imprisonment for 14 years."

19. I believe that the converse applies namely that a genuine firearm can be converted so as to become imitation. This is but a matter of logic and I believe of mechanical ability.

A. The shot-gun

20. This is a 20 gauge (20 bore weapon or imitation) and in the sporting vernacular is known as a "ladies shot-gun".

(I) The spring according to Mr. Booth is from a toy. This was-put to Superintendent Nicoll during cross-examination and he did not discent from Counsel’s leading question. The Superintendent claimed that he had chambered a cartridge i.e. an ordinary 20 gauge commercial cartridge but this did not discharge although the firing pin had left its imprint. The spring was not strong enough to project the firing pin forward with sufficient force to detonate the cartridge. On the other hand, blanks which he had fired contained in his opinion a more sensitive detonator and he was able to discharge a blank with the same apparatus, albeit toe spring was not strong enough to discharge a commercial cartridge. He claimed that this could be repaired easily, whereas Mr. Rull considered that such amendment i.e. replacing the spring, required the services of a professional armourer.

(II) The chamber according to Mr. Rull measured 2" Superintendent Niccll had used a cartridge case with a cardboard crimp. This being an older type cartridge and signs of wear were found on the end. In court he demonstrated loading the Chamber with a modern plastic cartridge case (empty). The more modern type of cartridge case did not show such signs of wear. It was Mr. Rull's contention that the cartridge when loaded with shot would present a greater obstruction and be more difficult to chamber.

(III) The breach block (i.e. safety catch). This is not relevant.

(IV) The breach block lock. Mr. Nicoll had not noticed the absence of this but I accept that this is not a component part of the firearm necessary for the firearm to discharge. The effect of the evidence as I understood Mr. Rull's evidence after my questioning, was that it is the barrel which is all important in containing and confining gases so as a projectile is impelled forward from the weapon. Mr. Rull explained, (as one would expect using common sense), that a rifle barrel being longer than a pistol barrel means that a projectile discharging, say a .22 round would travel some 500 yards and be lethal, compared with say 50 yards from a pistol having a much shorter barrel. Other matters were discussed in evidence including the fact that the trigger assembly was made of plastic. There were loose screws pointed out by Mr. Hull but I don’t consider this to be of any relevance. The weapon was loose around the stock. This appears to me to be a minor matter which any lay person could repair. It was common ground that the barrel was metal and of good construction. The cartridge bases vary as between a combination of plastic and brass and all brass.

(V) Converting Blank Cartridges: Mr. Nicoll stated that Blank Cartridges seized from defendant's premises discharged when he tested P1 using such cartridges. In his opinion the detonator was more sensitive than that in the "Commercial" cartridge tested. He said it would be possible to load such blanks with projectiles (shot, ball-bearings and nail heads were given by him as examples), and then the exhibit could be used as a Firearm within the meaning of the definition.

Mr. Rull disagreed and asserted that a greater loading of explosive substance would be required.

21. The weapon produced as P3 was described by Superintendent Nicoll without discension from Mr. Rull’s being similar, or typical to weapons made in the Philippines as imitations of the derringer pistols made by the Hi Standard Company in the U.S.A. It had the words ".22 magnum" etched on the barrel. It is a home-made weapon capable of firing short, long and long rifle .22 cartridges and possibly magnum cartridges. Superintendent Nicoll said that it could fire magnum cartridges but that he would have to be very very cautious in firing such cartridges. Mr. Rull has fired .22 derringer pistols in the United States but these were commercially made. He freely and frankly acknowledged that he has never fired a home-made derringer particularly smooth bore. There was an obvious distinction in that the item in question was smooth bore and an item show by Superintendent Nicoll but not produced was rifled Mr. Rull's experience has been with rifled barrel derringers.

22. Characteristics as pointed out by Superintendent Nicoll and accepted by Mr. Rull in general terms are:

(I) The firing pin did not alternate satisfactorily. The genuine article operated (when demonstrated to me) by striking alternately to the top and bottom chambers Exhibit P3 did not appear to shift to strike the bottom Chamber when demonstrated. Mr. Nicoll stated that from his memory it fired on one trigger pull to the top with two trigger pulls to the bottom, being required when he was testing the exhibit by discharging blanks. From memory the firing pin did not move to the bottom when its action was demonstrated to me in Court. However when examining P3 in Chambers, I was able to observe it move to the bottom position on one occasion.

(II) The barrel was not rifled. I don' t believe this is relevant.

(III) The pistol may not have been capable of firing magnum rounds despite the "advertising" etched on the pistol itself. I do not believe this to be relevant.

(IV) There was a pin inserted through both barrels. This came through from the bottom of the pistol, I should explain at this stage and note the barrels were "over and under", not side by side. A hole had obviously been drilled and the pin inserted through both barrels, this around the middle of the barrels length. Carefully observing this pin, it appeals to have a bulbous protusion in the lower barrel. I do not understand how this came about as hearing of evidence was concluded when I observed this phenomenon.

23. Superintendent Nicoll explained that by using a jig to hold the barrel it could be drilled out and the obstruction caused by the pin removed, thereby freeing the barrels of the impediment, thus allowing any projectile to be propelled from the chamber. Mr. Rull acknowledged this was so. It appeared that both witnesses felt that this was a relatively simple operation. Certainly Mr. Rull made no claim to this having to be performed by a professional armourer. In my view the operation of the drill with the pistol held by a jig with requires some technical skills more than what many an ordinary man would normally possess and it is something which I have to consider, i.e. whether a reasonable man would be able to perform this operation and whether it be relevant that a reasonable man could or could not do it. Whatever my finding in this regard it is obvious that it would be quite a simple matter for the man on the Shaukeiwan omnibus to locate a person with the requisite mechanical skill together with access to a jig and drill who could perform such an operation.

24. If I were to find that the items in question P1 and P3 were in fact imitation firearms, there is no doubt in my mind but that the defence as characterized by Mr. Booth as the “statutory defence” has been made out. This is contained in Section 20(3):

"(3) A person does not commit an offence under subsection (1) if he satisfies the magistrate that-

(a) at the relevant time he was under the age of 15; or

(b) he was in possession of the imitation firearm in his capabity as a person who deals in imitation firearms by way of trade or business, or as a servant of such a person carrying out his bona fide and lawful instructions; or

(c) he was not in possession of the imitation firearm for a purpose dangerous to the public peace, or of committing an offence, or in circumstances likely to lead to -

(i) the commission of an offence; or

(ii) the possession of the imitation firearm for a purpose dangerous to the publice peace,

by himself or any other person."

Section 20(3)(b) is apposite.

FINDINGS

(A) The shotgun P1

25. If this were used to discharge, or attempt to discharge a cartridge; whether commercially made and forced into the breach (as demonstrated. by Mr. Nicholl with, an: empty cartridge) or using a blank of the type seized from Defendants' premises p6ssibly with a heavier load, considerable potential danger would be caused to the person discharing it.

26. It is clear on the evidence that the spring as presently fitted is not powerful enough to enable the firing pin to detonate commercially made cartridges. I have considered the facts of Dickey v. Police³ in this regard. There a rifle from which the bolt and magazine were missing was held not to be a firearm. It is the bolt which forms that part of a rifle's mechanism (Bolt operated rifles) which causes the firing pin to detonate a cartridge. In the instant case the spring cannot detonate commercially made cartridges, but it is capable of and has been used to detonate blanks made by defendant.

27. I do not believe that the blank cartridge's base comprising a combination of materials, i.e. partly plastic and partly brass, would cause any difficulty, in particular any impediment to detonation.

28. Despite the obvious potential danger in attempting to use P1 as a firearm. I hold that a projectile such as "…. any shot bullet or missle" could "be discharged". This by using blank cartridges converted to contain a missle or missles especially in the form of shot or nail heads. I appreciate that a heavier loading of explosive substance may be required although there has been no evidence as to what quantum, if any, would be required.

29. Accordingly P1 is a firearm within the definition of the Firearms and Ammunition Ordinance Cap. 238.

(B) The derringer P3

30. My initial inclination was that the item seized P3 had been so severely or substantially adopted or altered that it could no longer be described as a firearm - and had become an “Imitation ….”

31. I have reviewed the evidence noting both experts views as to converting this pistol back to something approaching its original state. I have examined exhibit P3 again since the hearing was concluded.

32. I am of the opinion that the derringer's capability to be adapted is virtually on all fours with that of the starting pistol, the subject of the trial and appeal R. v. Freeman ¹.

33. Without inspecting the starting pistol and relying on visua1 impressions derived from the printed word it may be an easier operation to drill out the obstruction in the barrel of P3 then to have drilled out the remainder of the solid barrel composing part of the starting pistol.

34. I hold P3 to be a firearm with the meaning of the definition contained in Section 2(1) of Cap. 238.

Defendant’s evidence

35. Defendant is a young man of good background. His brother is a Police Officer. He claimed that in his professional activities he maintained good relations with the police. This was not challenged. He has been operating his business for some two years. He produced as D8 a bundle of letters, some 52 in number, which showed how his business operates. He provides props for film companies. The client company writes to him and asks for props to be provided. These props are arms supplied as imitation firearms, he supplies an employee who takes the arms to the film set. The employee supervises their use at the set and then returns such arms to defendant’s place of business. Some, if not all, are locked away. The items seized and produced as P1 and P3 were both locked away.

36. It is of considerable interest that P1 was but one of a consignment of four shotguns purchased at the same time. At the close of the defence case without recalling witnesses Mr. Booth presented (by agreement with Crown Counsel), an invoice showing four shotguns purchased at the same time. P1 is one such item. P2 is part of one of the shotguns and two others are shown, according to Mr. Booth, in photograph P6(8). This appears to be the case. I was assured by Mr. Booth, without solicitation from the bench, that his client would surrender the two remaining shotguns to the Mongkok Police Station, pending the outcome of this hearing.

37. The Defendant has endeavoured to maintain good relations with the police. They inspected the premises and in fact one such inspection occurred one week prior to the seizure of items P1 and P3 (I do not concern myself with those items to which he has entered pleas of guilty). A party from the uniformed branch of Mongkok Police Station led by an European Police Inspector inspected his premises. Nothing was seized.

38. Defendant clearly runs a legitimate business. He has legitimate possession of a large number of imitation firearms capable of supplying some 50 to 60 actors at any one time. He has ammunition in the form of blank rounds which when ignited cause - a flash, create smoke and noise. Magnesium dichromate is an ingredient for the ammunition- used by defendant who makes the ammunition himself. I note a number photographs were produced. D7(A)-(H) these being stills depicting action shots with actors using props supplied by the defendant. He claims that he purchased the weapons in question from another prop company and that he believed they were imitation firearms.

39. It is for the Crown to prove mens rea, however I must observe that for someone with the experience defendant possesses in dealing in imitation firearms that he should have a degree of expertise and skill sufficient to enable him to distinguish between what is a firearm and what is an imitation firearm.

40. From defendant's evidence it is clear that he has his expertise with cartridges honed to such an extent, that not only is he capable of manufacturing blank cartridges but in fact he did manufacture such blanks.

41. He also has access to the machinery available in his premises as depicted in photographs P6(D) and (E).

42. I am left in no doubt but that defendant could easily manufacture cartridges containing shot or missiles which could be discharged from P1 and that he knew that such use was readily available without conversion of P1.

43. Further I have no doubt but that defendant knew how simple on operation is required to adapt P3 so as it could discharge "any shot bullet or missile".

44. Defendant Guilty of the 1st charge as amended.