HKSAR v. CHU CHUNG MING

HCMA 68/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 68 OF 2015

(ON APPEAL FROM KTCC NO 1241 OF 2014)

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J U D G M E N T

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1. The appellant was convicted after trial of one charge of ‘drunkenness while in possession of a loaded firearm and ammunition’, contrary to section 28(5) of the Summary Offences Ordinance, Cap 228, and was sentenced to 14 days’ imprisonment.[1] He appeals against that conviction.

THE CHARGE

2. The charge stated that the appellant:

“… on the 29^th day of November 2013, at the public areas, G/Floor, Block 2, Sau Mau Ping Disciplined Services Quarters … was found drunk while in the possession of a loaded firearm and ammunition … namely, one loaded pistol with bullets.”

3. Under Section 28(5), a person “shall be deemed to have been drunk if he was so much under the influence of alcohol as to have lost control of his faculties to such an extent as to render him unable to handle a firearm safely at the time in question.”

UNDISPUTED FACTS

4. The following facts were undisputed:

·   The appellant was a serving police detective sergeant.  He was issued with and was authorised to carry at all times a 9 x 19 mm caliber self-loading pistol with two magazine clips holding a total of 16 rounds of ammunition.

·   Under normal circumstances, the appellant’s pistol, housed in a holster, would be loaded with one magazine clip holding eight rounds of ammunition.  In the appellant’s magazine pouch would be a second magazine clip holding the remaining eight rounds of ammunition.  Both the holster and magazine pouch were worn at the waist level with a belt.

·   In an examination after the alleged offence, the appellant’s pistol was found to be in working order.  A pulling force of nine to 10 pounds on the trigger was necessary to fire it.  In the opinion of the Forensic Firearms Examiner, the pistol was not prone to accidental discharge during normal handling such as loading and unloading.

5. It was further agreed that:

·   Between 7 pm on 28 November 2013 and 3 am the next morning, the appellant visited and spent time in two drinking establishments whilst carrying his pistol and two magazine clips of ammunition.  In his company were some colleagues and friends.

·   The appellant left the second establishment at 3 am on 29 November 2013.  He was taken home to Sau Mau Ping Disciplined Services Quarters (“SMPQ”) by a colleague in a taxi.  Unbeknown to the appellant, one of the 16 rounds of ammunition issued to him was left in the taxi.

·   Part of the appellant’s movements after arriving at SMPQ (3.27 am) were captured on CCTV – three minutes in a car park outside Block 2; 14 minutes at the keypad control door leading to the Block 2 ground floor lift lobby; and four minutes inside that lift lobby. 

·   As a rule, the lift service in SMPQ was suspended after midnight.

·   Subsequently (3.50 am), the appellant was seen muttering to himself and lying down to sleep on the edge of a flowerbed outside Block 2.  His pistol, not in its holster but tucked under the waistband of his trousers, was exposed. The security guards who saw him summoned for police assistance (sometime after 4.10 am). 

·   When the police arrived (4.35 am), the appellant was already back on his feet.  On him, in his magazine pouch, was a magazine clip with eight rounds of ammunition.  His pistol was not however recovered before a search in the flowerbed was conducted.  When found, the pistol was loaded with one bullet missing.  The appellant could give no explanation as to the bullet’s whereabouts.

PROSECUTION EVIDENCE

The Witnesses

6. The prosecution called six witnesses.  Their evidence was as summarized by Mr E Lin, the trial magistrate:

“PW1 (S/Sgt WU)

PW1 was at a bar sometime after 6 pm on 28^th November 2013. At about 7 pm the defendant appeared. There were altogether 4 police officers chatting and drinking. At about 10 pm, the party moved to a karaoke in Tsimshatsui, where PW1 stayed some time before 1 am. The rest stayed on.

PW1 himself drank beer at the bar and switched to whisky and soda in the karaoke. He could not remember what the defendant drank, if at all. In answer to question from the defence, PW1 stated that he did not feel that the defendant appeared to be drunk.

PW2

PW2 was a security guard on duty that evening. At about 0350, she heard some noise from outside the management office and she went out, and saw, from a distance of 45 feet, the defendant near the flowerbed outside the building, muttering to himself and after a few minutes, he sat at edge of the flowerbed and then down lied on his back on the flowerbed, with his feet still hanging out of it. She summonsed her colleagues for assistance. While the defendant was lying on the flowerbed, PW2 approached and saw a gun-like object tucked near his belly in the waist band of his trousers. At about 10 minutes later, other police officers arrived. The defendant was seen to be standing up, walking towards the Management Office slowly.

PW2 stated that the defendant ‘could not walk in a straight line’. She also demonstrated in court what she saw: slow unsteady gait, swinging from side to side, head bobbing up and down.

Under cross-examination, she agreed that it was a gentle swing and in small degrees.

PW3

PW3 was another security guard on duty that night. At 0410 hours, in response to PW1’s request for assistance, together with another colleague … (PW4) he arrived at the flowerbed and saw the defendant lie sleeping. Later he was instructed to go to Sau Mau Ping Police Station to seek assistance.

PW3 agreed that he did not smell alcohol even when he was 1-2 metre away from the defendant.

PW4

When PW4 first went near the defendant, the latter was sleeping and he saw what looked like a gun handle tucked near the defendant’s belly. He also heard the defendant snore.

When he returned with other police officers, the defendant was up and walking. PW4 also did a demonstration in court of the manner of the defendant’s walk: swinging slightly from side to side. Likewise, he did not smell of alcohol.

PW5 (Sgt 53667)

PW5 arrived together with PW6 … at the Quarters at about 4350 (sic) hours. He saw the defendant walking towards him. He did not see anything tucked in defendant’s waist band. He subsequently saw the pistol in the flowerbed and seized it. He confirmed that the pistol was loaded, but there were only 7 bullets found in the magazine clip. He also found another magazine clip with 8 bullets on the defendant’s person. When questioned by PW5 the whereabouts of the missing bullet, defendant replied that he did not know.

PW5 demonstrated in court of what he saw the manner of the defendant: walking with a swinging gait and, at one point, a stumble as if one was unable to keep his balance. He found the defendant’s speech normal.

Under cross-examination, PW5 agreed that the defendant appeared both normal in his speech and mental condition, the latter could also lead the police party to his flat and had no difficulty opening the door with his key.

PW6 (SPC 53357)

At 5-6 metres away, PW6 saw the defendant walking towards him, when the latter was about 2 feet away and he smelled alcohol, but there was ‘nothing special’ in the latter’s speech. At PW5’s instruction, he went to look for the pistol and found it in the flowerbed.

       Under cross-examination, PW6 agreed that the smell of alcohol could be described as a ‘mild’, that the defendant did not require assistance walking, had no problem answering questions and taking the police party to his flat and opening the door. He described the defendant’s gait was ‘gently swaying’.”

CCTV Footages

7. The magistrate explained:

“Three of the CCTV cameras installed in the Quarters captured the movements of the defendant. The relevant footages were produced and marked P2(1-3). The readings of time on the screen were slower than real time (see MFI-1). They were played in open court and the followings are my observation of the images. I will refer to the readings on the footage in brackets when necessary.

At the Parking Lot P2(1): from 0327 to 0330 hours

This footage is 9 minutes slower than real time. It lasted 3 minutes. The defendant can be seen alighting a taxi in an unsteady manner, leaning on the opened door of the taxi, then walked to sit on a concrete ledge, resting his head on the railing (031936), he then stood up, steadying himself with his hand on the railing and walked for a short distance in a wide zigzag manner (032020) before disappearing behind a black car, presumably entering the corridor leading to the Lift Lobby.

At the Corridor leading to the Lift Lobby P2(2): from 0325 to 0339 hours

This recorded time was 5 minutes slower than real time.

This footage recorded the defendant’s movements in the corridor: the defendant was walking in an unsteady manner, swinging from side to side, all the time having difficulty to keep an erect posture. He operated on the door pad, opened the door, leaned against the door (033017) before entering. He was still visible through the glass window of the door. Then he disappeared from view, then reappeared, leaning with his back against the door and then came back into the corridor. He then tried unsuccessfully to re-open the door by first pulling the handle and then by operating on the key pad (033054) before pulling the door open. He failed to open it. The attempt was repeated 4 times: (033054-033200). Meanwhile, he could be seen steadying himself by holding onto the door handle (033106), forcing open the door by pulling its handle and kicking the door with such enthusiasm that he almost lost his balance(033128) . At one point he picked a yellow plastic sign on the floor and hit the padlock and threw it against the wall (033140).

On the fifth attempt he managed to open the door (0333240) and entered into the Lift Lobby. He could still be seen pacing in the Lobby, and leaning on the door with his face towards the glass panel (033644). Finally he pushed open the door again and walked towards the camera and disappeared from view in a swinging, unsteady manner: (033853).

Inside the Lobby P2(3): from 0330 to 0344 hours

The defendant appeared in view (032529) and pressed the button of the control panel for the left elevator. He steadied himself by propping his right hand against the wall.

At one point (032543) he took out his pistol by holding onto its grip with his right hand, used its muzzle to poke against the wall and then tucked it in the left side of his waist (032554).

He repeatedly pressed the buttons both for the elevator on the left and on the right, wandered around the Lift Lobby in an unsteady manner and leaned against the opposite wall (032606), he tried to walk away, only to lose his balance and fell back on it (032626) and hit the wall. He then kicked the elevator door (032643) and used his hands to try to force it open(032637).

At (032709) he took out his pistol and raised it to the level of his head; where exactly did he pointed at is difficult to tell from the grainy image. Then he tucked it back to his waist at (032730).

While he was leaning against the wall opposite to the elevator, he slid down on the floor with his back against the wall (032741) and lied sideways alongside the wall. Then he tried to get up, using his both hands on the walls for support, his left leg, followed by his right leg gave way, sliding away from him (032748)-032810). When he finally propped himself up on his feet again, he kicked at the door of the right elevator (032815), pushed the door(032816), banged his head against it, repeatedly kicked the door (032930), used his elbow to hit it (032958) and rested his forehead against the door.

Twice did he lose balance, fall backwards, and hit the wall on his back (0334300), at (033550)-(033555) he pressed the button of the left elevator, and then stumbled towards the recycle rubbish bin on the left and kicked it.

   These are but some of his antics captured by the CCTV footage.  During the whole process he was swinging from side to side, losing his balance, falling forward and backward, kicking at the door, the elevators, the wall and the rubbish bins. My overall impression is that the defendant was not unlike a metal ball in a pinball machine, moving back and forth, hitting the walls on the Lift Lobby and ricocheting to hit on the opposite wall. ”

THE DEFENCE CASE

8. The appellant gave evidence that was consistent with his uncontested cautioned statements (Exhibits P4 and P5).  He said he was not drunk – it was an accident that a bullet got left in the taxi, whereas what took place afterwards was brought about by a near nervous breakdown.  His detailed account, which the magistrate summarized, was as follows:

“Background

The defendant was aged 43 and had been a police officer for 26 years. He has a family consisting of a wife and 2 young children. The family lived in a flat in the Quarters.

According to his evidence, since the year before he had been having problems in work as his superior was biased against him. Despite his effort and record of good performance, the situation did not seem to improve.

In addition, he was saddled other problems in the domestic front: he had a rough relationship with his wife, whose view of child rearing differed from his and therefore led to constant altercations. He also felt belittled by her family by reason of the latter’s financial superiority. Simply put he felt he was henpecked at home.

Added to his list of woes was his mother’s health condition: 2 years ago she was diagnosed with lung cancer and the cancer had since metastasized to her brain. Her medical expenses had added further strain to his financial condition and the already stressed relationship with his wife.

On the day in question he took part in the investigation of a particularly lurid murder in which the hideous head injuries suffered by the victim reminded of the brain injuries his mother had recently undergone. He was haunted by the images of the murdered victim, his personal problems concerning his mother and wife. After work he joined his colleagues in the bar from 7 pm to 10:30 pm, where he had but 2 sips of beer, drinking instead mostly tea and soda water.

After the party arrived at the Karaoke in Tsimshatsui at 11 pm, he spent most of the time talking to his colleague’s girl friend who was a nurse working in the hospital where his mother was staying. It was mainly about his mother’s illness. He had 2 sips of the beer he ordered, and switched to tea and soda water throughout his stay in the Karaoke.

The meeting with his friends proved to be of little relief. He was haunted by the image of the victim, his domestic problems and his mother’s health issues. He was confused and suffering from a headache, so much so that he had to take pills to suppress the pain.

The defendant’s account of events

The defendant left the Karaoke at 3 am. He had had a total of 4 seeps of the beers. He was depressed but not drunk. He was given a ride by one of the colleagues as the latter had to go elsewhere. At some point he had considered suicide and that was why he took out his pistol.

The bullet

The defendant did not know he left a bullet in the taxi. During the trip the clip fell out of the magazine chamber of his pistol (housed in the holster attached to his belt) and to avoid ‘embarrassment’ and ‘frightening the taxi driver’ he merely put the clip back to the pistol without examining it.

The pistol and its holster was brought to court for the undersigned to examine, although for obvious reasons, the bullets were not in it. From my observation, when the gun was in its holster, it would take a conscious effort to press the button to release the magazine clip, which was a rather solid piece of instrument by itself.

In the Parking Lot: P2(1)

When he was getting closer to home, he grew more frightened and panicky and began to harbor suicidal ideas. He found himself ‘useless’ ‘incompetent’ and ‘helpless’ (P4, at p.5). He did not and dared not go up to his flat but instead sat at the concrete barrier and trying to ‘solve the problems’.

In the Corridor Leading to the Lift Lobby P2(2)

The defendant explained that he was at the verge of a nervous breakdown and that was why he seemed unsteady (Ans 7, P4). He said he was ‘going insane’ and that was why he picked up a yellow sign to hit the wall.

In the Lift Lobby P2(3)

As to why twice he pulled out his pistol, the defendant explained that he intended to commit suicide but gave up the idea as he did not have the courage. He first put the pistol in this mouth. The second time he put the pistol under his jaw for 1‑2 seconds but he at the end gave up the idea. He was at time feeling powerless and angry, explaining why he could not stand up properly and kicking at the rubbish bin.

He knew the elevator had stopped service after midnight but he kept pressing as ‘maybe I was bored’ and it was ‘a natural reaction’.

Out in the Flowerbed

The defendant could not remember what happened there and conjectured that maybe he was hallucinating at having conversation with his mother, fighting with his wife or the deceased. He fell asleep out of exhaustion. When he opened his eyes, he saw other uniformed police officers. He did not pay attention to the whereabouts of his pistol as he ‘just wanted to explain’.

       In short, the defendant stated that he was careless with the bullet and the pistol, he was confused, depressed, desperate and suicidal even, but he maintained he was not drunk. ”

PSYCHIATRIC EVIDENCE

9. The appellant called one Dr Wong Yee Him as his witness (DW2).  As stated by the magistrate:

“Dr Wong, a registered medical practitioner in Hong Kong and has been practicing in psychiatry since 1991. His had seen the defendant 6 times between 4^th December 2013 and 10^th June 2014 and prepared a report as part of the defence case, setting out in detail his qualification, experience and his findings, I would not repeat the same in full: See MFI-4.

A large part of MFI-4 set out the information Dr Wong obtained from the sessions with the defendant. It was consistent with what the defendant said in court. He diagnosed that during the night between 28^th and 29^th November 2013, the defendant was suffering from Major Depressive Disorder of moderate intensity, a condition attributable to the personal and professional problems that plagued the defendant. He opined that ‘it was likely that (the defendant) was suffering from suicidal thoughts’ and that “it was possible that he was indeed having suicidal thoughts when the pointed the pistol at the wall and at himself” (paragraph 39 of MFI-4).

Under cross-examination, Dr. Wong admitted that he had never seen the CCTV footages. For his benefit the relevant parts of the same were shown again in open court. He maintained that it was more likely that the defendant was depressed to such a degree that he was forgetful and his attention was impaired. Based on the diagnosis that the defendant was depressed, what he saw on the video was more likely to be the manifestation of being depressed.

   However, Dr. Wong did agree that it was not his field of expertise to determine if anyone was drunk, and that being depressed and drunk were not mutually exclusive.” 

10. In rebuttal was Dr Chung Hung Kin for the prosecution:

“Dr. CHUNG Hung Kin was called to give rebuttal evidence, most of which is set out in a written report: MFI-5. While he agreed that the defendant suffered from Major Depression Disorder, he was of the view that at the material night the defendant also suffered from an episode of alcohol Intoxication. In his view the following signs or symptoms are not attributable to other medical condition (‘not even his depressive disorder’) and ‘are not better explained by another mental disorder’ (see MFI-5, paras C and D):

· Slurred speech

· Incoordination

· Unsteady gait

· Nystagmus

· Impairment in attention or memory

· Stupor or coma”

MAGISTRATE’S FINDINGS

11. The magistrate gave detailed reasons for convicting the appellant.  He went about his analysis of the case in clearly divided topics:

“On the Expert Evidence

Both witnesses were qualified experts in the field of psychiatry. They had done their best to explain to this court what was within their field of expertise.

Upon closer scrutiny, what they differed was less than what they agreed.[2] Both agreed that the defendant had suffered from depression. However, Dr. Wong’s view was to the effect that all defendant’s behavior as recorded by CCTV and described by other witnesses could be explained by the depression. He did not think the defendant was drunk, although he did concede that he was not an expert on these matters and that being drunk and being depressed were not mutually exclusive. With respect, Dr. Wong’s was giving an opinion beyond his expertise when he disagreed that the defendant’s gait (as recorded in the CCTV) was not unsteady and maintained that the defendant was merely slouching. It does not take a psychiatrist to tell this court what the undersigned could observe with his own eyes.[3]

On the other hand, Dr. Cheung gave a much more precise opinion becoming his expert status. He identified the symptoms which could not be simply be explained by depression. Between the two experts, I found Dr. Cheung’s more methodical and precise, I prefer his opinion. [4]

On the issue of ‘found drunk’

Dr. Cheung opined that the defendant suffered from a clinic condition of Alcohol Intoxication.[5] However, it is my view that the court does not have to go that far. This court has to decide only whether from the evidence available, it has been proved beyond any reasonable doubt that the defendant had been found drunk.

Strictly speaking, ‘found drunk’ involves an objective element. It does not necessarily mean that the accused was in fact drunk. Yet obviously the mischief the legislation aims at is to discourage any person from handling a loaded pistol which he/she is not in full command of his/ her faculties, Therefore the prosecution must prove that the subject was in fact drunk beyond any reasonable doubt before I can find him guilty.

Unlike offences of driving under the influence of alcohol, there is no statutory definition to assist this court to find what degree of inebriation must be proved by the prosecution for this court to find the accused guilty of the offence. Section 28(5) provides that ‘For the purposes of this subsection a person shall be deemed to have been drunk if he was so much under the influence of alcohol as to have lost control of his faculties to such an extent as to render him unable to handle a firearm safely at the time in question.’

It has been held that the word ‘drunk’ is not legally defined and therefore must be given its ordinary and natural meaning: see Andrew Carroll v. DPP [2009].

The New Shorter Oxford Dictionary (1993 Reprinted Ed) defined the word ‘drunk’ as ‘Affected by alcohol in the body to such an extent that one is without full or proper control of one’s faculties or behavior’.

In the case of Neale v. R.M.J.E. (A Minor)(1985), the term ‘while drunk’ was held to mean ‘while deprived of self-control by intoxicating liquor’ (see Stroud’s Judicial Dictionary, Fifth Ed.).

In relation to the offence of ‘riotous or disorderly manner’ under section 28 of the Ordinance, the High Court held that the accused person’s behavior and physical conditions can be used to determine if he was drunk, and medical evidence is not necessary: see the case of Ng Kam Wing HCMA 458/2013, and the unreported case of Wong Yuen Shan HCMA 814/2006.

Therefore the question is whether the defendant was so affected by alcohol in the body that he was without proper control of his faculties or behavior, so much so that he was unable to handle a firearm safely at the time in question. This can be determined by evidence on the behavior and physical condition at the time in question.

Assessment of the defendant’s evidence

The defendant gave a good, clear account consistent with the statement he gave earlier. He is a person of good character and the undersigned accept that as such, he is considered less likely to offence and his evidence should be given more weight.

This court accepts that he was distressed, depressed and suicidal even, but the conditions the defendant was under were not exclusive of drunkenness. In fact, it is not unknown that depression can be conducive to heavy drinking, when people wrongly believe that they can drown their sorrow in alcohol. Therefore, his mental conditions do not preclude this court’s findings on whether or not he was drunk at the time.

The defendant conceded that he had a total of four sips of the two beers he ordered from the two bars he frequented. He contended that he was not drunk. He contended his strange behavior as observed by the witnesses and captured in the CCTV footages could be explained by the depression brought about by his predicaments.

I have reservation on his contention that he had only had 4 seeps of beer during his stay in the two bars. I did not think it plausible for someone who had spent the night (a total of 8 hours) and in two drinking establishments to have only ordered 2 beers and had consumed only 2 sips out of each. [6]

I also found the defendant’s account of how he lost the bullet from the clip of his pistol incredible. Even more incredible was the fact that he was not even aware of it. The possession and handling of fire arms and ammunitions are under very strict control in Hong Kong. Those in breach of the law relating to the same often face dire consequences, I can also take Judicial Notice that it is amongst the most important piece of instrument issued to a police officer. I would rather assume (and hope) that all police officers take conscientious care of their own pistol, as apart from its symbolic significance, it is a very dangerous instrument.

The undersigned has been given the opportunity to personally try to dislodge the clip during the hearing. The clip was quite heavy. To dislodge it required a conscientious effort by pressing the dislodge button. How the defendant could accidentally dislodge the clip was difficult to understand enough, his explanations for not checking or looking for the missing bullet (out of embarrassment and in order not to frighten the taxi driver) were inherently implausible.[7] In my view it is more likely that he was so drunk that his grasp of reality was severely compromised, and that explains why he didn’t even know he dropped a bullet.

His movements before and after gaining entrance into the lift lobby are indicative that he difficulty controlling his movements.

The defendant did not offer an explanation on why in the lift lobby he did not restore the pistol back to the holster, which, presumably is the safest place for keeping it. Nor did he tell this court why he tucked it in his waist all the way to the flowerbed. He fell asleep in the flowerbed, dropping the pistol without knowing. In my view, all these are indicative that he had memory loss and was losing control his faculties.

Furthermore, a distressed, depressed and confused state of mind cannot account the unusual gait, the memory loss, the irrational behavior in the lift lobby and his ability to suddenly fall asleep on the flowerbed.

As to his behavior after he alighted and until other police officers arrived, from my observation (part of which had been described above), I have no doubt whatsoever that at least from the time the defendant alighted the taxi to the time he spent in the Lift Lobby waiting for the elevator which had been put out of service since mid night (and in a building in which he had been living), the defendant had not been in full command of his mental and physical faculties. His behavior left me in no doubt at all that he was drunk in the ordinary sense of the word. [8] He had difficulty standing as soon as he alighted from the taxi. In fact by resting his head on the railings he seemed to have difficulty sitting in the concrete curb there. He walked in a wide zigzag towards the elevator lobby. His repeated failure to open the door was indicative of his failing to remember the correct door code. He spent time waiting in the Lift Lobby of his own home for the elevator which had been out of service since midnight. He could not even stand straight in the lobby. He behaved irrationally by hitting the door and the wall with the plastic stand in the corridor, kicking the rubbish bin, using his pistol to prop himself against the wall. He played with the pistol with no apparent reason. Then he tucked it into his waist. He was heard muttering to himself near the flowerbed. He fell asleep in the flowerbed, losing his pistol in the process. He smelled of alcohol when questioned by the police officers.

The above indicia, which alone might not be sufficient, but added together, they led me, as if by mathematical progression, to the inevitable conclusion that at the time his was not in full command of his faculties and he was drunk in the ordinary sense of the word. The above evidence, when coupled with the evidence of other witnesses, led me come to the conclusion that he was drunk by the ordinary sense of the words to his behavior.

The way he had accidently dislodged the clip, lost one of the bullets without knowing it, the way he took out the pistol in the lift lobby, using it to pop against the way and losing it in the flowerbeds without knowing it, all these facts left me with no doubt at all that the degree of inebriation was such that he was unable to handle the firearm safely. I need not point out the danger of the bullet and the pistol falling into in the hands of unauthorized persons and the risk of the pistol discharging accidentally in the lift lobby.

Counsel for defence submitted the prosecution section 28(5) provides another element to the crime, that is the prosecution must prove that the degree of inebriation must be such that the accused had lost his faculties to the extent that to render the accused unable to safely handle a firearm. I do not find that a proper reading of the legislation. I would say that when read as a whole, the legislation provides one example of what ‘drunk’ means. In any event, this discussion is academic since I found from the facts that the defendant had been under the influence of alcohol to such an extent that he had lost his faculties and had demonstrated clearly that he was unable to safely handle a firearm.

It is also submitted by the defence that the firearm would only affect the safety of the public if it is discharged or that it is at risk of being discharged in the presence of others. I beg to differ. In my view it is reading too much into the wording of the section. Handling a firearm safely must be understood in the natural meaning of the words; to prevent it from accidental discharge is just one aspect, it must also mean to keep it safe from the hands of unauthorized persons.

For the reasons above I found him guilty as charged.” 

GROUNDS OF APPEAL

Ground (1)

12. It is complained that the magistrate’s approach to the expert evidence was flawed in a number of ways:

(a) There was a direct and material conflict between the opinions of the experts, and the magistrate was wrong to say that “what they differed was less than what they agreed” (see footnote 2 for the impugned observation that it identifies – the same applies when footnotes are referred to in the rest of this judgment).

·This direct and material conflict is said to be Dr Wong opining, on the one hand, that the appellant’s behaviour was caused solely by depression and Dr Cheung opining, on the other, that it was caused by both depression and drunkenness. 

(b) The magistrate was wrong in taking the position that no expert evidence was required to determine the issue of drunkenness, and that he can just have regard to the CCTV footagesand come to his own conclusion (see Appeal Bundle, page 68A – D[9]).

·The complaint here is that the two psychiatrists were agreed that the appellant was depressed, thus offering an alternative explanation to the appellant’s behaviour.  This behaviour, as captured on CCTV, cannot be properly assessed without bearing in mind that alternative explanation.  In short, the magistrate was wrong to have allowed himself to determine drunkenness solely on the basis of what was shown on CCTV.

(c) The magistrate was wrong to reject Dr Wong’s evidence solely on the basis that it went beyond Dr Wong’s expertise to determine whether the appellant was drunk (see footnotes 3 and 4).

·Counsel submits that Dr Wong’s evidence encapsulated both his expert knowledge and common sense understanding of the effect of alcohol consumption, and so should be accepted. 

(d) The magistrate was wrong to hold that Dr Cheung’s evidence was “more methodical and precise” (see footnote 4).

·The complaint here is that the magistrate failed to give any explanation for this remark.  It is pointed out that Dr Cheung agreed with Dr Wong’s basic findings.

(e) The magistrate was inconsistent in that he rejected it to be within Dr Wong’s expertise to say that the appellant was not drunk (see footnote 3) whilst allowing Dr Cheung to say that the appellant was drunk (see footnote 5).

·This complaint is self-explanatory and requires no elaboration. 

Ground (2)

13. It is submitted that the magistrate erred in finding that the appellant was drunk, and that his behaviour was caused by drunkenness:

(a) The magistrate was wrong to find it “[implausible] for someone who had spent the night (a total of 8 hours) and in two drinking establishments to have only ordered 2 beers and had consumed only 2 sips out of each” (see footnote 6).

·It is pointed out that the evidence of PW1 was not challenged; he said “he could not remember what the defendant drank, if at all”.

(b) The magistrate had misunderstood and wrongly relied on Dr Cheung’s evidence as all Dr Cheung said was that the appellant was affected partly by alcohol and partly by depression.[10]

·Counsel submits that under section 28(5), alcohol consumption and nothing else must be the sole cause of a defendant losing control of his faculties to the required extent.

Ground (3)

14. It is submitted that although the offence (“found drunk while in possession of a loaded firearm and ammunition”) involves three elements, the magistrate had focused on the second element (“drunk”) to the complete neglect of the first (“found”) and the third (“while in possession”) elements which, upon closer scrutiny, the evidence had failed to establish:

(a) The word “found” denotes finding by a natural person, face to face.

·It is argued that there is a public safety dimension to section 25(8) in that person or persons other than the defendant must be present, hence put at risk, at the time of the offence.  Being caught on CCTV does not count. 

·The magistrate, however, pinpointed the time of the appellant’s drunkenness as the period between his alighting the taxi and losing control inside the SMPQ lift lobby (see footnote 8) – a period covered only by CCTV and not life witnesses.

·When the appellant was found by PW2 to PW4, he was just sleeping.  There is nothing to suggest that he had not regained his sobriety.

(b) In the context of section 28(5), the word “possession” denotes actual and physical possession.

·The example is given of a defendant becoming drunk in one place while leaving his pistol in safekeeping in another.  It is argued that such a defendant continues to have constructive possession of his pistol but it would be absurd to charge him under the section.

·The point is repeated that when PW2 to PW4 found the appellant, there is no evidence that he was still drunk.  He could simply be sleeping.  The fact that his pistol was exposed and improperly tucked under his waistband therefore does not make out the offence. 

·Conversely, when PW5 and PW6 intercepted the appellant, the appellant had already dropped his pistol unknowingly into the flowerbed, so it cannot be said that he had actual or even constructive possession of the pistol, plus it continues to be correct that there is no evidence that he remained drunk at that point.

In short, there is no evidence that the appellant was “found”, “drunk” and “in possession of a firearm” all at the same time.

DISCUSSION

Was the expert evidence mishandled?

15. Whatever the magistrate may or may not have said in verbal exchange with counsel during the trial, his core findings in relation to the expert evidence in this case are clear:

(a) The two psychiatrists were ad idem that the appellant was suffering from depression to the stated degree (moderate to possibly severe).

(b) Dr Wong, however, opined that the depression was the sole cause of the appellant’s behaviour.  He based his conclusion entirely on information provided by the appellant.  He maintained his position even after seeing the CCTV footages in court.  He made reference to the appellant’s manner of walking, characterized it as slouching (a word used by the magistrate to sum up Dr Wong’s description) and said it was how persons suffering from depression may walk.[11]

(c) The characterization of slouching did not impress the magistrate.  He obviously considered that to be an inapt

description, and that much more could be deduced from the images that the CCTV had captured.  As jury, the magistrate did not feel himself bound by Dr Wong’s interpretation of the visual record of the appellant’s behaviour.  He noted Dr Wong’s evidence that being depressed and being drunk were not mutually exclusive.

(d)    As compared to Dr Wong, the magistrate found Dr Cheung to be more persuasive in his opinion.  By reference to the Diagnostic & Statistical Manual (5^th Edition) or DSM‑5, Dr Cheung was able to explain why the appellant’s behaviour was best traced to drunkenness and not depression.  His focus was on the appellant’s “unsteady gait” and “impairment in attention or memory”. [12]

16. I can see nothing wrong with the magistrate’s approach.  None of the criticisms under Ground 1 strikes me as having any basis.  They do not make sense without taking the magistrate’s reasons apart and giving a gloss to his various meanings.

Was drunkenness the sole cause of the appellant’s behaviour?

17. According to the appellant’s first cautioned statement (Exhibit P3), the night out at the bars was for he and his colleagues to talk about work and “personal stuff” (心事).  He said he “needed to talk” (傾訴) because of his mother’s medical condition, and also because of his marital problems.[13]  In the context of such a gathering, which lasted eight hours, it is inherently improbable for PW1 not to have noticed and/or remembered what drink the appellant was taking.  The magistrate was entitled not to place weight on his evidence.  Against the same background, the magistrate was entitled to find the sips-of-beer claim of the appellant implausible.

18. It is not Dr Cheung’s evidence that the appellant was partly affected by depression and partly affected by alcohol. His evidence is that the appellant became drunk whilst suffering from depression.  The effect of the alcohol was to “disinhibit” him – release his pent-up emotions (see footnote 10), which supposedly was why he became aggressive and suicidal viz pointing the gun at himself.  An analogy drawn by Dr Cheung makes the point: “The effect of alcohol intoxication varies from one person to another.  One person may get drunk and just go to sleep, but another person may get drunk and then fight somebody.”[14]  It all depends on the condition that pre-exists in the person. This does not, however, diminish the fact that the alcohol has made this person lose control of his faculties – if that is actually the case. 

19. As jury, the magistrate was meticulous in dealing with the defence version of events.  He rejected the appellant’s claim of an accidental drop of the magazine clip in the taxi, [15] hence the losing of a bullet,by pointing out its physical and inherent implausibility.[16]  Carefully he analysed why, judging from the appellant’s overall behaviour, the appellant must have been drunk and lost control of his faculties so as to be unable to handle his firearm safely. [17]  These findings of fact are well-reasoned and not open to challenge.

Was there a convergence of the elements of offence?

20. To dispose of the third ground of appeal, it is unnecessary to decide on counsel’s suggested construction of section 28(5). Even assuming it to be correct for the moment, and I express no opinion on the point, PW2 did actually see the appellant muttering and staggering about at the flowerbed.  This took place shortly after the drunken outburst in the SMPQ lift lobby.  The appellant was then found to have fallen asleep with his pistol not in its holster but under his waistband.  The same pistol was later found to be in the flowerbed without the appellant knowing anything about it.  In the circumstances, I do not see how it can be argued that there was no convergence of the three suggested elements of “found”, “drunk” and “in possession of a firearm” – at least at the point when PW2 saw the appellant.  That is the only reasonable inference.  It is irrelevant that the magistrate made no specific finding on the point.

CONCLUSION

21. This appeal is bereft of merit and must be dismissed.