HKSAR v. ROYSTER WILLIAM EDWARD

CACC 110/2020

[2020] HKCA 882

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 110 OF 2020

(ON APPEAL FROM DCCC NO 142 OF 2020)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

Introduction

1.  On 2 July 2020, following a trial before District Court Judge Casewell (the judge), the applicant was convicted of a single offence of possession of a firearm and ammunition without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap 238 (the Ordinance).  On 6 July 2020, the applicant was sentenced to 24 months’ imprisonment.

2.  On 30 July 2020, the applicant filed a notice of application for leave to appeal against conviction.  Following a mention hearing on 27 October 2020, the applicant filed a notice of application for leave to appeal against sentence out of time on 30 October 2020. 

3.  The application for leave to appeal against conviction was initially fixed for hearing before a Single Judge[1] on 29 December 2020.  At the mention hearing, on 27 October 2020, the hearing date of the application was vacated and re-fixed on 6 November 2020 before a three member division of this Court.  The applicant was granted bail pending appeal, having been in custody since the day of his arrest for this offence on 8 December 2019. 

The background facts

4.  The applicant is a citizen of the United States of America and is employed by United Airlines as a first officer pilot. 

5.  On 7 December 2019, he was a member of the crew on a United Airlines flight from San Francisco to Hong Kong.  He had taken a domestic connection to San Francisco from Kansas City where he lived.  When he arrived at Hong Kong International Airport in the morning, he and other members of the crew cleared customs and immigration through the staff and crew channel.  He had with him hand luggage, consisting of a hand carry suitcase and a smaller suitcase, which were not checked.  He was scheduled to stay in Hong Kong for one night only as he was due to fly out the following evening on the United Airlines return flight to San Francisco.  He checked into a hotel and after having breakfast he went to bed.  Later in the evening, he changed into casual attire and went out for dinner.  He later returned and retired for the night.

6.  The next evening on 8 December 2019, the applicant returned to Hong Kong International Airport as a member of the crew for the United Airlines flight to San Francisco.  As is the usual practice his hand luggage was examined by an X-ray machine.  This occurred at about 8:55 pm.  The screen of the X-ray machine depicted a clear image of a pistol, whereupon the applicant’s attention was directed to the image.  He admitted that the suitcase showing the image of a pistol belonged to him.  The airport security guard unzipped the outer compartment of the suitcase in which he found a black pistol together with a book and some other items.  The airport police were notified and at about 9:10 pm they attended the scene.  A police officer removed the pistol and found it also had seven cartridges in its magazine. The pistol was a Springfield armory model 1911-A1, self-loading pistol in .45 AUTO caliber.  The applicant was arrested and cautioned for the offence of possession of a firearm and ammunition without a licence.  

The applicant’s record of interview

7.  The applicant participated in a video record of interview under caution, which took place at 5:15 pm on 9 December 2019.[2]  He was fully cooperative with the police officers and was readily prepared to be interviewed by them without the presence of a lawyer or a consulate representative.  He confirmed that the pistol and the suitcase in which it was found belonged to him.  He was asked questions about his background and personal circumstances.  He said he was 57 years of age and a United States citizen.  He lived with his partner together with his 91-year old mother and two children, a son aged 21 years and a daughter aged 18 years, in Kansas City, Missouri. 

8.  The applicant began flying aircraft with the United States Navy in 1986.  He left the Navy after the aircraft he was flying was accidentally shot down in a friendly military exercise.  He joined United Airlines in 1997 as a commercial pilot and has been with the airline for some 22 years.[3]

9.  When asked about the presence of the pistol in his suitcase, the applicant said:

“… I did not know the pistol was in my suitcase. I did not pack it to bring with me. I did not know it was there. I believe the pistol was innocently put into my suitcase by one of my family members while we were on a Thanksgiving family holiday.”[4]

10.  The applicant went on to explain that after the family holiday during Thanksgiving, from 27 to 30 November 2019, the suitcase remained unused until he had to go to work on 5 December 2019.  He stressed that he would only pack and unpack the main compartment of the suitcase and did not look at “the side zipper portion.”[5] He explained that the pistol had been bequeathed to him by a family friend who passed away in 2000 or 2001.[6]  He noted that the seven bullets consisted of three lead bullets, which were practice bullets, and four normal bullets.[7]

11.  The applicant said that he kept the pistol in his bedroom and everyone in the family knew where it was and how to use it.  He said it was there for defending the family in the event of a break in.[8]  He last saw the pistol during the Thanksgiving vacation when the family had travelled to Madison, Wisconsin.[9] They took the pistol with them on their vacation.  He remember seeing the pistol on top of the suitcase in the hotel where they were staying.  He suspected his mother put the pistol away in the suitcase, although he added it could have been his son or daughter.  He explained his mother was absentminded and that she was the one who probably put the pistol in the suitcase.[10]  He briefly described his and his family’s interest and use of guns for hunting.[11]

12.  The applicant confirmed he came to Hong Kong as a pilot on the United Airlines flight from San Francisco.  He arrived early in the morning on Saturday, 7 December 2019 and was scheduled to fly the return flight the following evening.  He brought with him the suitcase together with a smaller suitcase, in which he put his pilot materials, such as maps and an iPad. 

13.  When the applicant left San Francisco, he did not go through security screening because of his status as a “known crew member.”  Upon arrival in Hong Kong, he and other crew members went through the immigration channel without their suitcases being checked.  He then took a bus to the hotel.[12]

14.  The applicant checked into a hotel at Wan Chai. He freshened up and had breakfast.  He then slept most of the day until the evening.  He changed his clothing and went out for dinner.  He had his personal belongings, such as clothing and shoes, packed in the main compartment of the suitcase.[13]  He was asked if he checked his suitcase, he said he did not.[14]  He confirmed he had come to Hong Kong many times.[15]  The suitcase was new and he could not remember if he had previously brought it to Hong Kong.

15.  Apart from the pistol in the outer compartment of the suitcase, the applicant thought a book was there as well.  He explained that he would put in this compartment “stuff like a newspaper or whatever”.[16]

16.  After entering Hong Kong, the applicant did not check, nor open, the outer compartment.  When he was at the hotel, he only opened the main compartment to get his clothes out.[17]

17.  At the conclusion of his interview, the applicant was asked if he had anything further to say, and in response he said:

“I’m very sorry for the time that I have taken up in making this mistake. I’m embarrassed and I don’t know what to say about it. It was a mistake. It was a big mistake, but it was unintentional. And I am sorry for all of this time that everybody has to take for it. … And I understand the importance of the circumstance and what happened. If I could do it all over again I would check my bag before I ever leave home. I am sorry, I didn’t do that. I just don’t know what to do about it now. I would ask the police department and the magistrate to understand that it was a mistake with no bad intentions or deliberate attempt to break any laws. And I would ask leniency on any penalties for me. And lastly, I would like to be able to come back to Hong Kong. I want to go home, but I still would like to be able to come back; I don’t want to be banned from Hong Kong. I like Hong Kong.”[18]

The offence provision

18.  In addressing this application, it is necessary to understand the legal framework of the offence provision and the presumptions associated with it.  The offence provision is found in section 13 of the Ordinance, which reads;

“13. Possession of arms or ammunition without licence

(1) No person shall have in his possession any arms or ammunition unless—

(a) he holds a licence for possession of such arms or ammunition or a dealer’s licence therefor.

(2) A person who contravenes subsection (1) commits an offence and is liable on conviction upon indictment to a fine of $100,000 and to imprisonment for 14 years.”[19]

19.  The relevant presumptions are set out under section 24, which reads:

“24. Presumptions

(1) Any person who is proved to have had in his physical possession—

(a) anything containing arms or ammunition, or both;

(b) the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar containers 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.

(2) 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.

(3) The presumptions provided for in this section shall not be rebutted by proof that the defendant never had physical possession of the arms or ammunition, or both, as the case may be.”

The prosecution case

20.  The prosecution case was that the applicant either knowingly brought the firearm into Hong Kong, or inadvertently did so, and having discovered it in his hand carry suitcase attempted to leave Hong Kong with it.[20]

21.  This was a fairly straightforward case.  Most of the evidence was agreed.[21] The admitted facts delineated the personal particulars of the applicant; the events of the applicant entering and leaving Hong Kong at the material times; the nature and specifications of the firearm and ammunition; the production of the applicant’s video record of interview; the applicant’s clear record in Hong Kong; the fact that the applicant holds a firearm permit in Kansas City, Missouri; and the following admission which read as follows:

“20. The old bag weighs 6.6 kg and the new bag weighs 2.4 kg. Accordingly, with the gun in the new bag, it still weighs 2.8 kg less than the old one.”

22.  The prosecution called three witnesses, none of whom were cross-examined.  They were the airport security guard who monitored the X-ray machine and saw the image of the pistol in the applicant’s suitcase; the police officer who arrested and cautioned the applicant; and the police officer who conducted the video record of interview with the applicant. 

23.  There was no dispute that the pistol together with ammunition was contained in the applicant’s suitcase.  The suitcase consisted of a main compartment and an outer compartment, which was also the opening section to the main compartment.  The outer compartment had an outer pocket and an inner pocket.  The pistol was located at the bottom of the outer pocket.  There was a book and some other items there as well.  There were various items in the inside pocket and the main compartment.  There was also a second smaller suitcase attached to this larger suitcase.  It appears no comprehensive list was made of the items found in the suitcase and where they were located. Nor was any proper assessment made of the weight of the contents of the suitcase, except in relation to some particular items but only in very general imprecise terms, such as whether they were heavy or light.

24.  The whole basis of the prosecution case against the applicant centred on the weight of the pistol which was 1.4 kilogrammes. It was agreed that the suitcase by itself weighed 2.45 kilogrammes, and the prosecution submitted that anyone accessing the main compartment of the suitcase must have been alerted by the weight of the pistol in the outer pocket of the outer compartment, which needed to be open to access the main compartment. 

25.  It seems there were other items in the outer pocket, such as toiletries, a book, and some documents.  It was pointed out by the prosecution that these items had been described by the applicant as lightweight.  It was accepted that the applicant’s suitcase was new and that his previous suitcase weighed 6.6 kilogrammes.  The suggestion by the defence was that he was more familiar with a heavier suitcase and would have been oblivious to any weight discrepancy with his new suitcase. 

26.  The prosecution closed its case on the basis that in all of the circumstances the applicant must have known, certainly by the time he was in his hotel, of the presence of a firearm having been alerted by the sheer weight involved once he opened his suitcase.[22]

The defence case

27.  The applicant denied knowledge of the pistol in his suitcase and claimed it had been accidentally placed there.[23]  When the pistol was discovered by airport staff, the applicant immediately acknowledged that the suitcase belonged to him.  When it was brought to his attention that there was a pistol in the suitcase, he denied any knowledge of it being there but acknowledged that the pistol belonged to him.  He had a permit for the pistol that was issued in the United States.  He surmised that a member of his family may have put it in the suitcase on a previous family trip in the United States.

28.  In his examination-in-chief, the applicant’s defence to the charge was addressed in the following series of questions and answers:

“Q. … do you accept that the Springfield Armory model 911 and the ammunition was found in your suitcase on 8 December?

A. Yes, sir.

Q. Did you put the gun in your suitcase before you operated UA877, the flight from San Francisco to Hong Kong on 5 December?

A. No, sir.

Q. When you piloted that flight from San Francisco to Hong Kong on 5 December, did you know that your suitcase contained a gun?

A. No, sir.

Q. While you were in Hong Kong, pending flying the aircraft or an aircraft back to San Francisco, you were in hotel; did you discover the gun?

A. No, sir.

Q. Did you at any stage open the side pocket of your suitcase during that stay at the hotel?

A. No, sir.

…

Q. … Have you ever knowingly travelled with a firearm, an ammunition, on an aircraft without authority?

A. No, sir.

Q. While you worked for United Airlines - I think it’s approximately 22 years, is that right?

A. Yes.

Q. Yes. Have you ever breached or been found to have breached any company or aviation regulations?

A. No, sir.

Q. Are you in the round familiar with the security arrangements in Hong Kong International Airport?

A. Yes, sir, I’m familiar with the routine that we go through every time we come through here.

Q. And you’re familiar that there would be an X-ray check on your baggage as you left Hong Kong.

A. Always.

Q. Always. And you’re aware that it’s not lawful in Hong Kong to have a gun. It is in Missouri - we’ll come to that in a minute - but it isn’t lawful in Hong Kong; is that within your knowledge?

A. I’m aware of that, yes, sir.”[24]

29.  It is important to note that his evidence was entirely consistent with the answers he gave in his video record of interview.

The reasons for verdict

30.  After a review of the evidence and the cases presented by the prosecution and defence, and having directed himself on the reverse onus under section 24, the judge concluded in his reasons for verdict:

“21. … The defendant must be able to show on the balance of probabilities that he was unaware of the presence of these particular kinds of arms and ammunition in his baggage. The evidence in this case is that this is a heavy weapon. This is a front line combat weapon of Second World War vintage. It is ruggedly built. It is 1.4 kilos of gun metal. This is not a lightweight target pistol or the like. It is a substantial battlefield weapon. Its presence is not easily missed.

22. Located within a 2.45-kilo hand luggage suitcase, its presence would be immediately obvious on handling the suitcase. I consider that any handling of this suitcase would reveal the presence of 1.4 kilos of gun metal to the handler. Certainly, by opening the suitcase, it would be impossible to avoid being aware of its presence in the outer compartment.

23. Having reached this conclusion, I must accordingly reject the defendant’s account particularly that he was unaware of the presence of firearm in his hand luggage. In doing so, in making this finding, I remain fully aware that on the initial screening of his luggage, the defendant denied there was a pistol present, and also that it has been considered by the highest appellate court that in such circumstances where a man of good character like the defendant presents luggage in such circumstances of these that the inherent probability suggests he is unaware of the arms and ammunition in the luggage.

24. I do note, however, that the defendant must accept the pistol must have travelled with him from the United States. I was unconvinced of the defendant’s explanation of how this came about. I could not accept that on leaving Wisconsin, this defendant would have been so undisciplined to have been unaware of where the pistol was stored. He is a former naval aviator. Firearms discipline to him is second nature. He would know. Similarly, at his home, I believe the defendant would not have been so blasé as to where this firearm was stored.

25. I consider the defendant brought the firearm along with him. I know not why. It appears reckless, yet the firearm remained undetected while travelling on two aeroplanes and through three airports, two of which would have had and did have outgoing screening. The presenting of the luggage at Hong Kong is again reckless. Yet it is not the first reckless act undertaken by the defendant. I cannot therefore conclude that in these circumstances that presenting his luggage for screening provides evidence of innocence.

26. I note that in the Chou case that despite the efficiency of X-ray, the security screening being held to be determining factor, there was no evidence given as to screening systems relevant efficiency. It does not appear to be a case to determine on its own factual matrix.

27. Accordingly, I find that I cannot accept the defendant’s evidence and dismiss it. Accordingly, there is no sufficient evidence on the balance of probabilities to show that the defendant was not in possession of the arms and ammunition that are the subject of the charge. On the basis of the evidence that has been proved and admitted at trial, possession of the arms and ammunition is proved beyond reasonable doubt, and the defendant convicted.”[25]

The grounds of appeal

31.  Mr Geoffrey Booth,[26] solicitor advocate for the applicant, advances four grounds of appeal against conviction.  They are as follows:

Ground 1:  The judge applied a legal burden rather than an evidential burden in considering the applicant’s evidence.  He wrongly interpreted the case of HKSAR v Chou Shih Bin (2005) 8 HKCFAR 70.  He failed to appreciate not only that section 24 imposed an evidential (and not a legal) burden, but in addition, he failed to appreciate that the applicant had discharged the evidential burden.

Ground 2:   The judge took the view that the gun was carried in a suitcase which was (when empty) of light construction and that the gun was heavy enough to be noticeable.  He concluded that the applicant must therefore have noticed it.  He did not evaluate important evidence with regard to weight, or the applicant not noticing the gun, namely:

(i)     The evidence of other contents and the relative weight of the gun to the two cases combined and to their contents.

(ii)     The evidence that it was a new suitcase and much lighter than the one routinely carried before by the applicant, and the effect of that on the feel of the luggage to the applicant.

(iii)     The applicant’s evidence that he did not open the compartment or notice the gun and why.

(iv)     The applicant’s evidence about the other items packed in the suitcase and their effect on the “feel of the suitcase”.

(v)     The applicant’s evidence that habitually things were left in all of the compartments/pockets between trips, and he expected items to be in them.

(vi)     The evidence concerning whether packing or unpacking of the suitcase would have led to the gun being noticed.

(vii)     The applicant’s evidence of how he thought the gun had been placed in his suitcase without his knowing.

(viii)     The evidence that was relevant to assumptions that the learned judge drew (relevant to Ground 3).

(ix)     The evidence supporting the implausibility of the applicant committing the offence (relevant to Ground 4).

Ground 3:  The judge introduced incorrect and unbalanced assumptions:

(i)     The applicant’s naval aviation background counting against him.

(ii)    The X-ray machine in this case may have been different from the X-ray machine in Chou Shih Bin.

(iii)   The applicant would know of the relative weight of the gun.

(iv)   When the applicant knew of the presence of the gun.

Ground 4:  The judge failed to give adequate consideration to the improbability of the applicant deliberately committing the offence.

Ground 5:  The judge erroneously applying recklessness as an element of the offence and improperly dismissing the applicant’s evidence as to innocence.

Ground 1: Applying an incorrect burden of proof

32.  This Court held in HKSAR v Mohammed Khan Shamim[27] that section 24(2) imposed a persuasive burden upon an accused which offended the right to a fair trial and the presumption of innocence and should be read down to impose an evidential burden only on an accused.[28] We hold that for the same reasoning section 24(1) should be read down to impose an evidential burden.

33.  It is well recognised that an evidential burden on an accused is satisfied by presenting evidence which if believed, could be taken by a reasonable tribunal of fact to support an accused’s defence, and that such evidence might emanate from the presentation of evidence by the prosecution or the defence.  As explained by Lord Steyn in R v Lambert,[29] the matter which is the subject of the reverse onus must be taken as proved against the accused unless there is sufficient evidence to raise an issue on the matter but, if there is sufficient evidence, then the prosecution has the burden of satisfying the tribunal of fact as to the matter beyond reasonable doubt in the ordinary way.[30]  In summary, section 24 shifts an evidential burden on the accused to disprove guilty knowledge.[31] 

34.  As the prosecution evidence was not in dispute, it could be viewed that it supported the defence case with the inclusion of the applicant’s video record of interview.  The applicant had given a totally exculpatory explanation for the presence of the pistol in his suitcase, which had been adduced into evidence by the prosecution.  He stated emphatically and apologetically that he was unaware that the pistol was in the suitcase and he surmised that a family member may have put the pistol there during a previous family trip in the United States.  In other words, it is arguable that he had discharged the evidential burden under section 24 so as to prevent the invocation of the presumption.[32] Of course, the applicant also gave evidence denying guilty knowledge and this too would have sufficed to discharge the evidential burden.

35.  The judge received submissions from the parties which incorrectly stated that the reverse onus under section 24 placed an evidential burden on the applicant which had to be satisfied on a balance of probabilities.  This was clearly incorrect.  It transposed the persuasive burden of a balance of probabilities on an evidential burden.  As a result, the judge was led into error, although the error was compounded by the judge holding that it had been decided in Chou Shih Bin “that section 24 is a reverse onus provision and shifts an evidential burden to the defendant to show on the balance of probabilities that he did not have possession of the firearm or arms and ammunition.”  The Court of Final Appeal in Chou Shih Bin had left open the issue as to whether the reverse onus provision under section 24 should be read down to an evidential burden, and in any event did not express an evidential burden in the terms stated by the judge.

36.  It was very properly acknowledged by Ms Hermina Ng, for the respondent, that the judge imposed the wrong burden of proof on the applicant in relation to the reverse onus under section 24.  However, as pointed out by Mr Booth, the judge not only imposed the wrong burden of proof on the applicant, he also as a consequence, failed to appreciate that the applicant had discharged the evidential burden.

Ground 2: The failure to properly evaluate the applicant’s evidence

37.  It is difficult to understand on what basis the judge dismissed the applicant’s evidence.  The cross-examination of the applicant by prosecuting counsel could hardly be described as vigorous or searching.  There was no suggestion by prosecuting counsel that the applicant’s evidence was inconsistent with what he had previously stated in his video record of interview, and in fact the sole focus of his cross-examination concerned the weight of the pistol in relation to the weight of the applicant’s suitcase and personal belongings.

38.  The applicant testified that the suitcase was relatively new, and that he had only used it on one previous journey to and from Hong Kong.  He explained that because it was new and lightweight he was not accustomed to it.[33] He also explained that his pilot equipment would be placed in the smaller suitcase and his personal belongings in the larger suitcase.[34]  The outer compartment had two pockets, one inside and one outside.  Whilst the applicant could not recall specifically where the items were located, he was able to confirm that there were items in both pockets.  He explained that he would place toiletries and other items in the inside pocket and magazines and books in the outside pocket.  In fact, there was a book and other items in the outside pocket where the pistol was found.[35]  The applicant was asked to put the pistol in the outer pocket of the outer compartment of the suitcase and to flip it open, which he did.  At this stage the following exchange took place between prosecuting counsel and the applicant:

“Q. Yes. There is a considerable difference, isn’t there?

A. It’s considerably lighter than what I’m accustomed to, yes.

Q. No, I’m just asking about this, it’s considerably heavier.

A. Well, if you’re talking about just this bag being empty versus putting the gun in it, I can feel that there’s something in there.

Q. Yes.

A. But it’s considerably lighter than my other bag when I flip it open like that.

Q. All right, okay.

A. Yes.

Q. But at no stage did you think of checking what it was? …

A. All right. It’s no, I didn’t. It’s considerably lighter than what I’m accustomed to using and I always know that there’s already things in there, inside and outside on that. The bulk of it wouldn’t concern me or even get my attention.”[36]

39.  The judge then questioned the applicant and explained that the prosecuting counsel was making the point that the firearm was heavy and he would have noticed it when carrying or opening the bag, to which the applicant stated:

“A. I’m accustomed to having things in both inner and outer pockets of that thing, it’s always that way. This bag is substantially lighter than what I’ve been carrying for years, so when I flipped it open I didn’t notice any difference. I literally just - - there was nothing that got my attention. If it had, I would have opened it to find out what it is. I literally just couldn’t tell any difference. I expect that there are things in the bag.”[37]

40.  We have to say, as a matter of basic common sense, that it is extraordinary it was not appreciated that there is a difference in gauging the weight of an item on its own as opposed to when doing so with other items, particularly in the context of where the item is located or positioned in a suitcase.  This is all the more so when there was no evidence as to how much the other items in the suitcase weighed in order to establish that the weight of the pistol of 1.4 kilogrammes would have been readily noticeable when handling the suitcase.

41.  What is even more surprising is that we were informed at the hearing that the judge had not physically examined or handled the suitcase in order to make an assessment of the weight of it together with the pistol or the pistol and other items, considering the prominence that was given to this issue by the prosecuting counsel and the judge himself. 

Ground 3: Making incorrect assumptions

42.  Mr Booth complains that the judge made various assumptions that were unfounded.  First, he contends that the judge in finding firearm discipline was second nature to the applicant, assumed the applicant must have known of the whereabouts of the gun, and with his military training would have known where the gun was stored or the presence of it in his suitcase.  He points out that the applicant had left the military some 22 years ago.  The applicant was a pilot and not a gun specialist.  He contends that the judge’s finding that the applicant “would know” and “would not have been so blasé as to where the firearm was stored” was mere supposition, unsupported by clear evidence.[38]

43.  We think it was reasonable for the judge to conclude that the applicant, given his military and professional background, would have ensured that there were proper safety and storage facilities for the firearms and ammunition at his home.  But that is as far as it goes.

44.  Secondly, Mr Booth contends that the judge in finding that the X-ray screening may not have been as efficient in the Chou Shih Bin case, was unsupported conjecture to discount the unlikelihood of the applicant presenting his suitcase for security screening knowing that it contained a gun.  We agree that there was no evidential basis to make this finding or distinction. 

45.  Thirdly, Mr Booth contends that the judge’s conclusion that the weight of the gun would have led the applicant to know of its presence in the suitcase, was not in conformity with the evidence and was based on supposition.  He points out that no test had been carried out to support this assumption and it was contrary to the applicant’s evidence that he did not notice it at the time.   We agree.  The evidence as to the weight of the pistol relative to the suitcase and its contents was general and flimsy at best.

46.  Fourthly, Mr Booth contends that the prosecution case allowed for the circumstances that the applicant either knew the gun was in his suitcase when he arrived in Hong Kong or only discovered the gun in Hong Kong.  However, the judge does not reason which of the alternatives was the case, nor does he address the applicant’s evidence in relation to these two scenarios.  It would appear from the judge’s reasons for verdict that he concluded that the applicant’s offending fell into the latter scenario.  We note that in the judge’s reasons for sentence he explained that he found the case unusual and difficult and that it appeared to him that the applicant was trying to get the firearm home to where its possession would be lawful.[39]  

Ground 4: Failing to consider the improbability of the offence

47.  It is submitted by Mr Booth that the present case is on all fours with Chou Shih Bin.  In that case, a Taiwanese businessman of good character, entered Hong Kong from the Mainland where he owned and operated a factory.  Later that evening he went to the International Airport as he was due to take a flight to Taiwan.  He had with him a bag which he intended to carry onto the aircraft.  He presented his bag for security X-ray screening and it was immediately revealed that in the bag was a firearm loaded with one round of ammunition.  The firearm was an anti-riot handgun which when later tested could not be fired because it was defective.  However, the firearm and ammunition nevertheless came within the terms of the offence provision under section 13 of the Ordinance.  The appellant contested the charge on the basis that he had no knowledge of the gun in his bag.  He was convicted after trial and appealed his conviction, which eventually came before the Court of Final Appeal.

48.  The Court held that the conviction was unsafe because there was insufficient evidence to support a finding that the appellant, described by the magistrate as a man of good character and intelligence, familiar with the security arrangements at the airport, had presented his bag for security X-ray screening in the knowledge that it contained arms and ammunition.

49.  It is argued by Mr Booth that the judge differentiated the present case from Chou Shih Bin on the basis that in that case the security screening was a determining factor but there was no evidence given in the present case as to the efficiency of the screening system.[40] He submits that the judge was wrong to suggest that there was a more efficient screening X-ray system in Chou Shih Bin, or that an inefficient system, if one existed, would be known by the applicant and affect his state of mind.  He points out that there was no evidence on the issue and there was no basis for the judge to find that the screening X-ray system was in some way inefficient so that the applicant would risk knowingly processing his suitcase through the X-ray machine.

50.  Mr Booth further submits that the facts strongly supported the applicant’s case, and he refers to the following evidence that was not mentioned by the judge which supported the implausibility of the applicant having guilty knowledge: (1) the applicant flying from Kansas City to San Francisco, and from San Francisco to Hong Kong, and back again, deliberately carrying an unauthorised gun; (2) the applicant entering and leaving Hong Kong for one day with a weapon; (3) the quick turnover of the applicant’s stay in Hong Kong made the packing or unpacking of the suitcase a insignificant and fleeting exercise; (4) the applicant being a pilot and frequent traveller would not necessarily be alerted to the contents of the suitcase; (5) the applicant, an airline pilot of 22 years and a person of good character, would be fully familiar with the security screening processes at an airport and would not break the law.  These points are well made and regrettably were not appropriately addressed by the judge.

Ground 5: Improperly considering recklessness as an element of the offence

51.  Mr Booth is critical of the judge’s reasoning and findings that the applicant was “reckless” in having the firearm with him and presenting his luggage in Hong Kong.  He points out that “recklessness” is not an element of the offence, and the judge does not provide any proper analysis for his findings, except to reject the applicant’s evidence that he was unaware of the presence of the firearm in his suitcase on the supposition that he was a former naval aviator who would not be so undisciplined that he would not know where a firearm was stored.  It seems that the judge, having found the applicant behaved recklessly in his handling of the firearm, extrapolated that the applicant continued to engage in reckless behaviour by chancing that the security X-ray screening would not pick up the presence of his firearm.

52.  Mr Booth submits that there was no evidence to support this proposition.  The applicant flew frequently to and from Hong Kong as an airline pilot.  He was aware of the security X-ray screening leaving Hong Kong.  There was no evidence that the screening process was inefficient or incomplete, or that the applicant held such a belief.  In our view, there is force in this submission.

Discussion

53.  The prosecution case was advanced on two bases. First, the applicant deliberately packed the pistol in his suitcase for the international flight from San Francisco to Hong Kong and the return flight to San Francisco, with one night stay in Hong Kong.  This accusation was not pursued with any real vigour or with any concrete evidence.  Secondly, the applicant did not know that the pistol had been packed in his suitcase but became aware of it at some later stage because of the weight of the pistol.  It was solely on the theory of the weight of the pistol that the prosecution sought to challenge the testimony of the applicant and prove its case against him.  The illogicality of this theory is that if the applicant was not alerted to the presence of the pistol when he opened and closed his suitcase after he packed his personal belongings in his home in the United States, why would he necessarily be alerted to the presence of the pistol when he opened and closed his suitcase after he unpacked and packed his personal belongings in the hotel room in Hong Kong.  If that is accepted, then he would only know that the pistol was there because he had packed it in his suitcase at the outset of his trip.  But the applicant’s evidence was not challenged on the basis that he knowingly packed the pistol in his suitcase, nor was there any evidence to support such a proposition.

54.  We have borne in mind that an appellate court will approach with caution any reversing of a trial judge’s evaluation of the facts, except in the most obvious cases where the trial judge is plainly wrong or the conviction is unsafe or unsatisfactory.

55.  As we have already highlighted, the judge has not adequately analysed the evidence.  He failed to address a number of factual matters that were highly relevant to the issues before him: in particular there was no appropriate reference by him to the applicant’s answers in his video record of interview; the nature and number of other items present in the suitcase; the applicant’s evidence of accessing and using the suitcase generally; and the applicant’s evidence when asked to carry out a test of the weight of the gun in an empty suitcase he responded that he could only feel that there was something there, and that there were other items on either side of the outer compartment where the gun was located.

56.  We find that what the judge has done is to seek to explain away the most obvious and critical aspect to this case without any proper foundation.  It was not in dispute that the applicant an experienced commercial pilot of 22 years, who regularly flies international flights and frequently to and from Hong Kong, was fully aware of the security X-ray screening that is employed in Hong Kong for the luggage of staff and crew of international flights departing Hong Kong.

57.  The observations of Bokhary PJ (as he then was), in Chou Shih Bin, with whom the other judges agreed, are apposite to this case:

“8. In some circumstances the finding of arms and ammunition in a person’s bag would entitle a court to take the view that the only reasonable inference is that such arms and ammunition were there to his knowledge. But in other circumstances it would not entitle a court to take that view. … there was insufficient evidence to support a finding that the appellant, described by the magistrate as a man of intelligence familiar with the security arrangements at the airport, had presented his bag for security X-ray screening in the knowledge that it contained arms and ammunition.”

58.  As also pointed out by Bokhary PJ, occasions will arise, although not very often, that a criminal case turning on facts requires the intervention of the appellate court because the handling of the case in the court below involves what was termed in Chou Shih Bin as “a departure from accepted norms so serious as to constitute a substantial and grave injustice” which must be remedied.[41] This is also such a case.

The proviso

59.  Ms Ng invites this Court to invoke the proviso under section 83(1) of the Criminal Procedure Ordinance, Cap 221, but for the reasons we have given we are not satisfied at all that the applicant would inevitably have been convicted if the judge had directed himself properly on the burden and standard of proof.

Conclusion

60.  It follows from the reasons we have given that in our view the conviction was unsafe and unsatisfactory.  We therefore grant leave to the applicant to appeal his conviction, and treating the leave hearing as the appeal we quash the applicant’s conviction and set aside the sentence. 

Costs

61.  Pursuant to section 9 of the Costs in Criminal Cases Ordinance, Cap 492, this Court can make an order or costs to a successful applicant, bearing in mind the general principles set out under section 15 of that Ordinance.  Mr Booth applies for the costs of the trial and the appeal and there was no objection from Ms Ng to the application.  In our view, given the facts and circumstances of the case, a conviction was not sustainable on the evidence.  In the circumstances of this case, we grant the applicant’s costs both here and in the court below with provision for a single solicitor advocate.

[1] Zervos JA.

[2] The applicant’s video record of interview, Appeal Bundle (AB), 21-135.

[3] Ibid., Counters 259-369.

[4] Ibid., Counter 375.

[5] Ibid., Counters 377, 379 and 381.

[6] Ibid., Counters 404-424.

[7] Ibid., Counters 428-445.

[8] Ibid., Counters 452-473. 

[9] Ibid., Counters 481-521.

[10] Ibid., Counters 524-563.

[11] Ibid., Counters 566-584.

[12] Ibid., Counters 587-715.

[13] Ibid., Counters 715-766. 

[14] Ibid., Counters 769-776.

[15] Ibid., Counter 783.

[16] Ibid., Counters 892-899.

[17] Ibid., Counters 902-907.

[18] Ibid., Counters 919 and 923.

[19] Under the interpretation provision of section 2, “ammunition”; “arms”; and “firearm” are defined.  “Arms” includes “any firearm”.

[20] Prosecution Written Opening, AB, 3-6.

[21] Admitted Facts, AB, 8-12.

[22] Prosecution Closing Address, AB, 169H-171H and 183-186.

[23] Defence Closing Address, AB, 171J-181Q and 187-194.

[24] AB, 139L-140O.

[25] AB, 13-20. The Chou case is a reference to HKSAR v Chou Shih Bin (2005) 8 HKCFAR 70.

[26] Appears with Mr Jonathan Midgley, also a solicitor advocate.

[27] [2013] 3 HKLRD 469.

[28] See also Chou Shih Bin, at [11] and [28].

[29] [2002] 2 AC 545, at [37].

[30] See Mohammed Khan Shamim, at [36] to [39].

[31] See Chou Shih Bin, at [9]-[16].

[32] Mohammed Khan Shamim, at [40].

[33] AB, 155O-R. 

[34] AB, 156J-157D.

[35] AB, 158R-159I. 

[36] AB, 161P-162B.

[37] AB, 162C-N.

[38] See HKSAR v Egan (2010) 13 HKCFAR 314, at [209].

[39] AB, 240, at [12].

[40] Reasons for Verdict, at [26]. 

[41] Chou Shih Bin, at [2].