HKSAR v. LEE BING KWAN

DCCC 64/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 64 OF 2015

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REASONS FOR VERDICT

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1.  The defendant pleads not guilty to two charges of dealing in arms without a licence (charges 1 & 2) and one charge of possession of arms and ammunition without a licence (charge 3), contrary to sections 13 & 14 of the Firearms and Ammunition Ordinance, Chapter 238.

Introduction

2.  On the 23 February last year at the Asia Airfreight Terminal near the Hong Kong International Airport Customs & Excise officers conducting routine cargo clearance of a Federal Express aircraft discovered a Taser X2 Defender stun gun with 4 cartridges; 10 Taser X26C stun guns each with 6 cartridges and 150 packages each containing two Taser X26C cartridges.  These were contained in six of eight carton boxes addressed to Lee Bing Kwanat 35, G/Floor, Guar Tin Ping Che Village, Ta Ku Ling in the New Territories.

3.  The case was reported to the police.  The following day the police, including DPC 58777, disguised as Federal Express delivery workers conducted a controlled delivery of the eight carton boxes to the defendant at G/F, No 35 Kat Tin Village, Ping Che, Ta Kwu Ling in the New Territories (‘the premises”).  After the defendant signed receipt for delivery of the eight carton boxes he was arrested by DPC 58777. 

4.  Under caution (and in a later video interview) the defendant said that he had received stun guns on two previous occasions for a Mr Ho and that unexpectedly delivery was made a third time. 

5.  A search warrant of the premises was then executed and the premises searched. During the search the police found 17 empty boxes for Taser X26C stun guns; 23 empty packages for Taser X26C cartridges and some documentation.  In the video interview the defendant was asked about the two previous occasions and the items found in the premises.

Issues

6.  There is no issue that the Taser X2 Defender stun gun; the 10 Taser X26C stun guns and all the 364 cartridges are arms and ammunition for which the defendant had no licence.  No objection was taken to the admissibility of the oral statement under caution.  The admissibility of the video was however challenged.

7.  The main issue on charge 3 is whether the defendant was in possession, custody or control of the arms and ammunition knowing that they were arms and ammunition. In summary the prosecution case, as opened on charge 3, is that by signing for delivery the defendant took possession of the eight carton boxes containing the arms and ammunition (see paragraph 2 of the opening).  The opening does not however say on what evidence the prosecution ask the court to draw the inference the defendant knew the eight carton boxes contained arms and ammunition.

8.  The defence case as put in their closing submission is that the defendant never took possession of the arms and ammunition and further that there is no evidence from the prosecution to show that the defendant knew the eight carton boxes contained arms and ammunition.

9.  The opening does not set out the prosecution case on charges 1 & 2 save to say that if the court rules admissible the video interview this substantiates charges 1 & 2 (see paragraphs 4 & 7 of the opening). 

10.  On a charge of dealing in arms and ammunition the prosecution must prove that the dealing was by way of trade or business.  As already noted under caution the defendant said that he had received stun guns on two previous occasions for a Mr Ho.  In the video interview the defendant was asked about these two occasions and their relationship with the empty boxes found in the premises. The main issue is whether by way of trade or business the defendant dealt in arms. 

11.  The defence case as put in their closing submission is that there is no direct evidence that what the defendant dealt with was actually arms and that there is no evidence capable of showing that the defendant had operated a trade or business in dealing with arms and ammunition.   

Evidence

12.  The prosecution called two witnesses DPC 58777, the arresting officer, and DPC 3881, the exhibit officer (referred to as PW3 & PW4 in the opening).  The evidence of Man Hing Sun (PW5), the owner of the premises and who produced the tenancy agreements (exhibit P26) was read pursuant to section 65B of the Criminal Procedure Ordinance, Chapter 221. Also read was the evidence of DSPC 52037 (PW6), who produced the photographs (exhibit P1); and the evidence of three expert witnesses Tam Cheok Ning (PW8); Poon Wai Ming (PW9) and Chan Che Wah (PW10). 

13.  Facts have also been admitted pursuant to section 65C of the Criminal Procedure Ordinance, Chapter 221 (exhibit P34) including discovery of the arms and ammunition by the Customs & Excise and that the defendant had never held a licence to possess arms and ammunition or a dealer’s licence.  I will refer to the admitted facts as I review the evidence. 

14.  The defendant elected not to give evidence or call witnesses on both the special issue and the general issue.  No adverse inference is drawn against the defendant for remaining silent.  That is his right.  This proves nothing one way or the other.  The prosecution must prove the charges beyond reasonable doubt, each charge being considered separately.

15.  Reliance is however placed by the defence on the answer under caution and in the video interview that the stun guns were delivered unexpectedly and that the defendant had no knowledge stun guns were to be delivered until the police officer told him the content of the eight carton boxes.  In reaching my verdict I have considered the reply under caution and the content of the video interview, both the inculpatory and exculpatory parts, in accordance with the decision in R v Sharp (1988) 1 WLR 7. 

16.  I remind myself that when drawing inferences from the evidence the inference must be a compelling one and the only one that no reasonable man could fail to draw from the direct facts proved. 

17.  Admitted in evidence is that the defendant has a clear record.  In ruling on the admissibility of the video interview and in reaching my verdict I have directed myself as to good character in accordance with the decision in HKSAR v Tang Siu Man [1997-98] 1 HKCFAR 107.

18.  I have carefully considered all the evidence and the closing submission of Mr Lee. Notwithstanding a request from the court for assistance on various issues because the defendant elected not to give evidence Mr Tracy declined to make a closing submission.

Charge 3

19.  I will first deal with charge 3.  Save for exactly how the eight carton boxes were delivered to the defendant on the 24 February 2014 the evidence has either not been challenged or has been admitted and can therefore be briefly summarised.

20.  The finding by the Customs & Excise on the 23 February 2014 at the Asia Airfreight Terminal when conducting routine cargo clearance of a Federal Express aircraft of the eight carton boxes containing theTaser X2 Defender stun gun with 4 cartridges (exhibit P2); the 10 Taser X26C stun guns each with 6 cartridges (exhibits P3-P12) and the 150 packages each containing two Taser X26C cartridges (exhibit P14) is admitted (see paragraph 1 of the admitted facts, exhibit P34).  For ease of reference one of the 150 packages was marked P14A.

21.  The case was reported to the police.  DPC 3881 (PW4) seized the eight carton boxes and their contents (see paragraph 2 of the admitted facts).  DPC 3881 identified each of the eight carton boxes and their contents with reference to photographs 32-62, exhibit P1.  Specifically the Taser X2 Defender stun gun with 4 cartridges and the 10 Taser X26C stun guns each with 6 cartridges were found in box 6 shown in photographs 53-57.  The 150 boxes each containing two Taser X26C cartridges were found in boxes 2, 3, 4, 5 & 7 shown in photographs 37-43; 47-48; 50-51 and 58-59. 

22.  The air waybill (exhibit P27), which was attached to box 1 (see photograph 33) together with the corresponding commercial invoice (exhibit P28), show that the eight carton boxes were addressed to Lee Bing Kwan at 35, G/Floor, Guar Tin Ping Che Village, Ta Ku Ling, New Territories.  In the evening the police attempted to deliver the eight carton boxes to Lee Bing Kwan at G/F, No 35 Kat Tin Village, Ping Che (“the premises”) but were unable to locate him.  In cross-examination DPC 58777 agreed that one of his colleagues later telephoned Lee Bing Kwan to make an appointment for delivery the next day.

23.  The following afternoon at about 3:15 DPC 58777 and two colleagues dressed as Federal Express delivery workers went to the premises to deliver the eight carton boxes.  After alighting from a light goods vehicle DPC 58777 saw the defendant standing outside the premises waving towards them.  When DPC 58777 told the defendant they had come to deliver goods for a person named Lee Bing Kwan the defendant said he was Lee Bing Kwan.  DPC 58777 then pushed the eight carton boxes on a metal cart to a position in front of the premises.

24.  The defendant was then asked to show his identity card.  After checking the identity card and confirming the particulars were the same as on the delivery record (exhibit P25), which the police had prepared in advance, DPC 58777 showed the delivery record to the defendant and asked him to check the numbers on the delivery record matched with the numbers on the eight carton boxes.  After the defendant confirmed the numbers matched DPC 58777 asked the defendant to sign the delivery record. 

25.  In cross-examination DPC 58777 disagreed the police arrived first and that after the defendant arrived he was asked to go to the police van to count the eight carton boxes.

26.  After the defendant signed the delivery record DPC 58777 revealed his police identity and arrested the defendant for dealing in arms and ammunition without a licence.  Under caution the defendant said; “Ah Sir I do not know these eight carton boxes are stun guns.  On the last occasion Mr Ho told me to receive stun guns for two times.  I also told Mr Ho not to deliver stun guns here again.  It was unexpected that delivery was made again.”  DPC 58777 post-recorded this reply in his note book (exhibit P22).

27.  I accept the evidence of DPC 58777 as to the circumstances he delivered the eight carton boxes.  I reject the defence assertion in cross-examination that the police arrived before the defendant and that after the defendant arrived he was asked to go to the police van to count the eight boxes.

Arms and Ammunition

28.  Notwithstanding the defence were willing to admit the Taser X2 Defender stun gun with 4 cartridges; the 10 Taser X26C stun guns each with 6 cartridges and the 150 packages each containing two Taser X26C cartridges are arms and ammunition Mr Tracy elected to read the witness statements of three experts together with 12 valuation reports (exhibits P31, P38 & P39). 

29.  I have carefully read the reports together with the first schedule of the admitted facts.  I accept the evidence of the three witnesses.  I am satisfied the Taser X2 Defender stun gun and the 10 Taser X26C stun guns are electric stunning devices and therefore arms within the definition of arms, and that all the 364 cartridges are ammunition within the definition of ammunition. 

Licence

30.  Admitted in evidence is that the defendant has never held a licence for possession of arms and ammunition issued under the Firearms and Ammunition Ordinance (see paragraph 6.1 of the admitted facts, exhibit P34).

Possession

31.  A person is in possession of arms and ammunition or of any documents, keys or other things mentioned in section 24 if they are actually in his possession or under his control or are held by some other person subject to his control or instructions or for him or on his behalf (see section 2(2) of the Ordinance).

32.  Section 24(1) of the Ordinance provides that any person who is proved to have had in his physical possession (a) anything containing arms or ammunition, or both shall, until the contrary is proved, be presumed to have had the arms or ammunition, or both, as the case may be, in his possession.  Section 24(2) provides that any person who is proved or presumed to have had arms or ammunition, or both, in his possession shall, until the contrary is proved, be presumed to have known the nature of such arms or ammunition, or both, as the case may be. 

33.  In my view for the presumptions to apply the prosecution must prove the defendant was in possession of the eight carton boxes at the time of his arrest.  If they do apply then following the decision of the Court of Appeal in HKSAR v Mohammed Khan Shamim [2013] 3 HKLRD 469 the presumptions are to be construed as imposing on the defendant an evidential burden only.

34.  Mr Lee submits that the defendant was not in possession of the eight carton boxes and in support of his submission relies on the decision of the Court of Appeal in HKSAR v Mohammed Saleem [2009] 1 HKLRD 369 (see paragraphs 28-31 of the closing submission of Mr Lee).

35.  The facts in Mohammed Saleem are very similar.  Customs & Excise intercepted a bag at the airport which had arrived by Federal Express from India.  Inspection of the bag revealed the presence of Ketamine.  Attached to the bag was a label addressed to Mr V Nelson at an address in Chungking Mansion. Customs & Excise officers conducted a controlled delivery at that address.  The appellant answered to the name of “V Nelson” and produced photographic identification.  The appellant then signed the delivery form as proof of his receipt of the bag which was placed on the floor beside him.  When he was about to pick up the bag he was arrested.

36.  A no case submission was made that the prosecution had fallen short of proving the appellant was in possession of the ketamine there being no sufficient evidence to establish that the appellant ever had the custody of or control over the bag containing the ketamine. 

37.  In ruling there was a case to answer the Recorder stated:

“The fact that the defendant had completed all the formalities for receipt of the package and was in the act of physically moving forward to receive it is, in my view, sufficient to bring the parcel within his physical possession for the purposes of section 47(l) of the Ordinance”

(The reference to section 47(1) is reference to a similar presumption in the Dangerous Drugs Ordinance to that in section 24(1) of the Ordinance).

38.  The Recorder continued:

“I do not accept that, because the Customs & Excise officers prevented him from physically touching the parcel, that this was capable of breaking the chain. The evidence of Customs Officer 9527 was that the Customs & Excise Department considered that custody and control passed to the defendant upon completion of the delivery form. Indeed, in reliance on that belief, they were not prepared to risk the defendant taking physical custody of the parcel and so the arrest was declared to prevent that.

I am satisfied that, on the evidence so far, the defendant was in control of the parcel from the time he had satisfied all the requirements for delivery. Any issue about whether he had actually touched or held the parcel is not capable of severing that control.”

39.  On appeal the first ground of appeal was the Recorder erred in law by failing to uphold the submission of no case to answer.  The Court of Appeal disagreed with the submission of the respondent that the Recorder was entitled to have concluded possession had been established.  In rejecting this submission the Court of Appeal said that it was necessary for the prosecution to prove that the appellant knowingly had either physical custody of the ketamine or, alternatively, that it was otherwise within his physical control and that he intended, as and when the occasion arose, to exercise control over the drugs whether or not by physically handling them. 

40.  The customs officers having physical possession of the drugs at all times and were under instructions not to allow the appellant to lay so much as a finger on them the Court of Appeal held that the prosecution had produced no evidence of physical custody of the ketamine or control over the ketamine at the stage when the appellant was arrested. 

41.  The defendant in the present case never took physical custody of the eight carton boxes.  He was arrested as soon as he signed the delivery record.  In cross-examination DPC 58777 said the defendant never touched the eight carton boxes while checking the numbers were the same as on the delivery record.  The Court of Appeal having rejected that the signing of the delivery receipt was sufficient to amount to possession there are in my view no grounds to distinguish this decision. 

42.  I find that the prosecution have failed to prove the defendant was in actual possession of the arms and ammunition or that they were under his control or held by some other person subject to his control or instructions or for him or on his behalf.  The arms and ammunition were throughout in the possession, custody and control of the police officers.  The presumptions in section 24 do not therefore apply.  In the circumstances it is not necessary for me to go on to consider whether the prosecution have proved the defendant knew arms and ammunition were to be delivered although I do refer to the defendant’s knowledge  when considering charges 1 & 2.  The defendant is acquitted of charge 3.

Charges 1 & 2

43.  The evidence relating to charges 1 & 2 may also be briefly summarised.  As seen earlier under caution the defendant said that he had received stun guns on two previous occasions for a Mr Ho.  A search warrant was then executed and the premises searched.  In the presence of the defendant DPC 3881 seized five carton boxes and their contents (exhibits P17-P21) and some documentation contained in a DHL envelope (exhibits P29 & P30).  The location where DPC 3881 seized these exhibits is shown in a sketch of the premises (exhibit P24) drawn by the officer.

44.  These five carton boxes were found inside room B and are shown together with their contents in photographs 9-22, exhibit P1.  Inside the carton boxes was packaging material for Taser stun guns including 17 empty boxes for Taser X26C stun guns and 23 empty packages for Taser X26C cartridges.  Also found in the carton boxes was operating manuals, training DVDs and human targets for Taser stun guns and some plastic and Styrofoam packaging.  For convenience samples of each carton box were marked as exhibits P17A-P21A.  The packaging is the same packaging in which ten of the stun guns and the ammunition subject of charge 3 were contained. 

45.  Inside the DHL envelope (exhibit P29) DPC 3881 found air waybills (exhibit P29A), commercial invoices (exhibit P29D) and a three page handwritten document (exhibit P30).  The DHL envelope is marked E2 on the sketch and is shown in photographs 4-6. Other items including knives (marked E1 on the sketch) were found in the living room and shown in photographs 24-29.  These have not been produced by the prosecution.

46.  After the search the defendant was further cautioned about dealing in arms and ammunition.  The defendant replied he understood and had nothing further to say.  This was also post-recorded as part of exhibit P22.  The same evening the defendant was interviewed on video (exhibit P23) about what he had said under caution and the finding of the exhibits in the premises.

Voir dire

47.  I will first give my reasons for ruling the video interview admissible in evidence. The defence objected to the admissibility of the interview on the grounds of oppression as particularised in the written grounds of objection submitted by Mr Lee.  The basis of the objections was twofold relating to the manner in which the interview was conducted. 

48.  First the questioning of the defendant after he replied “No” when asked if he had anything to say (see counters 59-72) was a clear indication the defendant did not wish to say anything.  Similarly when asked about items found in the premises the defendant again said he had nothing to say (see counters 1698-1712).  The defence submitted the further questioning of the defendant undermined his right to silence and amounted to oppression (see paragraphs 8-11, 13 & 14 of the written submission).

49.  Second the defence submitted that in breach of Rule II of the Rules and Directions for the Questioning of Suspects and the Taking of Statements the defendant should also have been cautioned in the video interview with respect to what was found in the premises as the police officers had reasonable suspicion the defendant might have committed other offences (see paragraphs 12 & 14 of the written submission).

Evidence

50.  The prosecution called DPC 58777 and DPC 3881.  The defendant elected not to give evidence or call witnesses.  No adverse inference was drawn against the defendant for remaining silent.  It was for the prosecution to prove beyond reasonable doubt that the interview was given voluntarily.   

51.  DPC 58777 and DPC 3881 testified that they did not nor did anybody else at any time use force, threats, inducements or oppression to make the defendant reply to caution; sign the post-record or give the video interview.  The evidence of DPC 58777 and DPC 3881 was not challenged.  I accepted their evidence.

Ruling

52.  I carefully considered all the evidence and the oral and written points of submission of Mr Tracy and the oral and written submission of Mr Lee.I had no hesitation in rejecting the defence submissions. 

Oppression

53.  Oppressive conduct is conduct which tends to sap the will of an accused so that he makes an admission when he would otherwise have stayed silent (see R. v. Prager [1972] 1 All ER 1114 as applied in HKSAR v Leung John Timothy @ Leung Chiu Ming [2001] 1 HKLRD 272).  In Secretary for Justice v Lam Tat-ming and another[2000] 2 HKLRD 431 the Court of Appeal citing Prager affirmed that oppression is conduct by a person in authority which tends to sap and does sap the will of the accused so that he makes the statement.  The issue of whether or not there has been oppression in a particular case is essentially a question of fact.

54.  The police have a duty to investigate cases (see Bruce & McCoy, Criminal Evidence in Hong Kong, Division V, paragraph 604 and Archbold Hong Kong 2015, paragraph 15-131).  In my view the fact that a suspect has under caution said he has nothing to say does not mean the police should immediately stop the interview and ask no questions. 

55.  I am satisfied a police officer has a right to ask questions just in the same way a police officer does not have to accept a denial and can ask the question again.  In R v Paris (1993) 97 Cr App R 100 the court said:

“Of course, it is perfectly legitimate for officers to pursue interrogation of a suspect with a view to eliciting his account or gaining admissions. They are not required to give up after the first denial or even after a number of denials.”

56.  Further by asking questions the suspect is given the opportunity, should he choose to do so, to explain any of the matters of which the police are investigating.

57.  A time may however come where the questioning becomes oppressive.  I am satisfied that the questioning of the defendant was not oppressive. I do not find anything suggestive of a sapping of the defendant’s will.  From shortly before half way in the interview to almost the end the defendant was repeatedly asked whether he had anything to say.  On some occasions the defendant would reply and on others he would have nothing to say (see counters 1154-2612).  This in my view shows that the interview rather than being oppressive was fair. 

Failure to caution

58.  Mr Lee submitted that the defendant should have been cautioned during the video interview not only about the eight boxes but also in connection with the items found in the premises.  This caution Mr Lee said should have been at the beginning of the interview. 

59.  In making this submission Mr Lee relied in part on the fact that at the scene of arrest the defendant was cautioned in respect of items found in the premises.  Mr Lee submitted this showed the officer had suspicion of the commission of further offences and therefore should have repeated this caution in the video interview, in particular considering that prior to the interview the police officers discussed the areas they were to question the defendant about, including what was found in the premises. 

60.  Mr Tracy conceded in respect of charges 1 & 2 that a caution should have been administered at counter 1829 when the defendant was asked about the items found in the premises.   

61.  In my view there was no breach of Rule II.  Whether a further caution should have been administered at the beginning of or during the interview in connection with the facts now relied upon in respect of charges 1 & 2 depends in my view on whether the defendant was made aware of the true nature of the investigation (see for example R v Kirk [2000] 1 WLR 567; HKSAR v Mok King Yu (2nd applicant) CACC 64/2009; and HKSAR v Pang Ho Yin [2010] 3 HKLRD 515). 

62.  There can be no doubt the defendant was made aware of the true nature of the investigation.  At the scene of arrest he was cautioned about the eight carton boxes and cautioned a second time about what was found during a search of the premises.  Although the video interview commenced with reciting the reason for arrest only the defendant can have been under no misapprehension about what the police were investigating, namely his dealings in arms and ammunition.  I was satisfied there was no need for a further caution. 

63.  Further questions about two previous occasions first arose from what the defendant told the police in answer to the first caution and not from what was found in the premises.  In my view the police had a right and indeed a duty to enquire about the explanation given by the defendant and to see whether what was found in the premises was connected.  Whether the defendant answered the questions was a matter for him. 

64.  Even if it can be said that there was a breach of Rule II I was satisfied that this did not affect the voluntariness of the video interview the defendant having been made fully aware of his rights having been cautioned twice at the scene of arrest; having been served with a Notice to Persons in Custody prior to both the post-record and the video interview; and being cautioned at the beginning of the video interview. 

65.  I was further satisfied the fact that the defendant was questioned after he said he had nothing to say and was not further cautioned did not, taken together, amount to oppression.

66.  Having carefully considered all the evidence and the submissions made I found I was satisfied beyond reasonable doubt that the video interview was given voluntarily.  Applying the principles established in Lam Tat-ming I found no grounds to exercise my discretion to exclude from evidence the video interview on the grounds of unfairness.

Licence

67.   Admitted in evidence is that the defendant has never held a dealer’s licence authorising him to deal in arms (see paragraph 6 of the admitted facts).

Dealing in arms

68.  I now turn to consider whether the defendant by way of trade or business dealt with arms. To "deal in" is defined in the Ordinance as meaning:

(a) to manufacture, store, sell, let on hire, part with possession of, supply, import, export, procure, purchase, take on hire, take possession of, transport, repair, test, prove or to offer to do any of the foregoing;

(b) to expose for sale or hire or to have in possession for storage, sale, hire, supply, transport, repairing, testing or proving.

69.  On his own admission both under caution and in the video interview the defendant said there were two occasions where he received stun guns for a Mr Ho.  To take possession of stun guns falls within the definition of to “deal in”. Further from the finding in the premises of empty boxes for Taser X26C stun guns and cartridges, the same packaging as the arms and ammunition intercepted by the Customs & Excise and delivered to the defendant by the police, the only inference to draw is that the defendant parted with possession of the stun guns, which also falls within the definition of to “deal in”. 

By way of trade or business

70.  As stated earlier the main issue is whether the defendant by way of trade or business dealt in arms.  There is no guidance from Hong Kong case law as to what is trade or business in the context of the Ordinance.  Nor can I find any case law from the United Kingdom where there is a similar offence of trading in firearms without being registered as a firearms dealer (see section 3 of the Firearms Act 1968). 

71.  Reference to “by way of trade or business” is found in the Gambling Ordinance, Chapter 148 where section 7 makes it an offence of bookmaking for any person who holds out in any manner that he solicits, receives, negotiates or settles bets by way of trade or business.  Mr Lee in his closing submission also referred to the Gambling Ordinance.  Specifically Mr Lee refers the court to the decision of the Court of Final Appeal in HKSAR v Chu Kam Yiu & others (2002) 5 HKCFAR 591 where Mr Justice Chan PJ said:

“What amounts to a trade or business depends on the facts of each case. An important factor is whether it involves the opportunity of making profit or the risk of incurring loss. Other factors include the set-up and the operation in question, the nature of the activities, the records kept and equipment used.”

The Shorter Oxford English Dictionary defines “trade” as the buying or selling or exchange of commodities for profit. “In business” is defined as habitually occupied in trade or commerce.

72.  The only direct evidence of how the defendant dealt with the stun guns after he received them comes from what he told the police in the video interview.  In summary the defendant said that in May and October 2013 he had on behalf of Mr Ho received stun guns from the USA.  On each occasion at the request of Mr Ho the defendant delivered the stun guns to a Mr Chan.  Before delivery, again at the request of Mr Ho, the defendant repacked the stun guns to make them smaller and easier for Mr Chan to carry (for the first occasion see counters 183-394; 658-677; 915-964; and 995-1004; and the second occasion see counters 405-534; 965-972; 1724-1791; and 2619-2640).

73.  During the interview the defendant was shown various documents found during the search of the premises.  Admitted in evidence is a schedule of the documents shown to the defendant during the interview (see schedule 2, paragraph 8 of the admitted facts).  All the documentation has not however been produced by the prosecution as part of their case.  The documentation shown to the defendant but not produced is marked P23C-G for identification as part of the video interview. 

74.  I have carefully considered the content of the video interview.  I do not find credible the defendant’s account of how he dealt with the stun guns after he received them.  For example on both occasions the defendant said he delivered the stun guns to a Mr Chan, not the same Mr Chan but a different Mr Chan (see counters 251-264; 455-458 and 463-466).  I do not find credible the defendant was asked to deliver stun guns to two different Mr Chans, who he was only able to give a general description of and did not keep their phone numbers (see counters 264-290; 463-482; 513-516; and 915-922).

75.  I do not find credible the defendantdid not know in advance that stun guns would be sent to him (see counters 205-232; 313-316; 456-462; 535-538; 943-956 and 2517-2536).  I find inherently improbable that stun guns would be sent to the defendant from the USA once let alone three times without his prior knowledge and consent the sender thereby running the risk that the defendant would not accept delivery of the stun guns or that the stun guns would fall into the hands of others, be handed over to the police or otherwise disposed of in a way other than intended by the sender.

76.  In the interview the defendant at first said he did not know stun guns were illegal (see counters 459-460).  Later in the interview the defendant said that he had heard from friends that handling stun guns probably seems to be against the law (see counters 707-713 and 956-964).  Asked why he agreed to deliver the stun guns knowing they were illegal the defendant replied that it was his own fault and that on the first occasion he delivered the stun guns to help a friend (see counters 950-964) and on the second occasion because he was soft-hearted (see counters 965-972).  I do not find credible the defendant would deal with stun guns knowing they were illegal simply to help a friend and because he was soft-hearted.

77.  On the first occasion the defendant said he delivered four stun guns to a Mr Chan (see counters 192-216 and 251-258) and on the second occasion probably delivered six stun guns to a Mr Chan (see counters 405-440; 455-456; and 483-494).  I do not find credible that the defendant only dealt with ten stun guns.  In the premises were 17 empty boxes for X26C stun guns indicating the defendant’s dealings with stun guns were much more than he told the police. 

78.  That the defendant had more dealings with Taser stun guns is also indicated in a fax found in the premises.  The fax was shown during the video interview and marked as P23E for identification.  The fax dated the 25 March 2013 and entitled “Detailed list of goods delivered from US to HK” states that in respect of invoice No.: 85714258673 20 Taser guns, 10 rope bags and 14 knives arrived in Hong Kong on the 25 March 2013.  The prosecution however do not seek to rely on this document which has not been produced as part of their case. 

79.  In the interview when asked about this fax the defendant said very obviously this was referring to stun guns (see counters 2513-2516).  The defendant variously explained the goods may not have arrived in Hong Kong; he did not receive the goods; asked if he did receive the stun guns replied, “Yes, probably not, no”; thought they were toy guns; did not know what Taser guns were; only now came to know this name; and was told the cartridges were batteries (see counters 2462-2544).

80.  I do not find credible the defendant’s explanations given with regard to this fax.  The invoice No.: 85714258673 is the same number as the tracking number on one of the eight FedEx air waybills (exhibit P29A) and one of the seven commercial invoices (exhibit P29D) both dated the 21 March 2013 and found inside the DHL envelope.  The finding of these documents indicates the goods were sent to the defendant.  The air waybill states the contents are Gears & Outdoor Goods (Bags & holsters). 

81.  Further the date and invoice number are found on page three of the three page handwritten document (exhibit P30), which was also found in the DHL envelope. The defendant admits writing this record (see counters 2186-2226).  The record is said to be a list of cargo delivered by the defendant to Mr Ho together with details of all expenses.  This record also indicates the goods were sent to the defendant however the content of the cargo is not specified in respect of invoice number 85714258673 and the defendant said this record does not contain transactions involving stun guns (see counters 2292-2297).

82.  Having found the defendant’s account of how he dealt with the stun guns after he received them not credible leaves only the finding of the empty boxes in the premises together with the documentation, exhibits P29 & P30.  I find this evidence insufficient for the court to draw the inference that the defendant’s dealings in stun guns was by way of trade or business.  I find the prosecution have failed to prove the defendant by way of trade or business dealt with arms.  The defendant is acquitted of charges 1 & 2.