HKSAR v. WONG CHUN YIM

[English Translation – 英譯本]
CACC 185/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 185 OF 2007

(ON APPEAL FROM DCCC NO. 1133 OF 2006)

_________________

_________________

__________________________________

REASONS FOR JUDGMENT

__________________________________

Hon Cheung JA (giving the Reasons for Judgment of the Court):

1. The applicant was charged with one count of possessing arms and ammunition without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance (Cap. 238 of the Laws of Hong Kong). The arms and ammunition stated in the charge were one magazine and 128 rounds of bullet. After trial before Deputy District Judge Rickie Chan, the applicant was convicted of the offence and was sentenced to imprisonment for 3 years. He applies for leave to appeal against both conviction and sentence.

Prosecution case

2. The facts showed that on 20 November 2006 the police set up a roadblock and intercepted the private car driven by the first prosecution witness (“PW1”). A bag containing the said ammunition was found in the boot of the car. PW1 gave evidence that he had been permitted to use the private car by the applicant and was driving it to buy food at the material time. He said he did not know that there was ammunition in the boot.

3. The second prosecution witness (“PW2”) was the registered owner of the private car. He said that he and the applicant had been acquaintances for more than 10 years. He bought the car from the applicant in 2002 and the applicant had all along been responsible for the maintenance of the car. In late September 2006, as the vehicle licence of the car had expired, PW2 delivered the car to the applicant for him to have the licence renewed and perform a routine check on the car. PW2 said that the ammunition found by the police in the car did not belong to him, nor did he know to whom the ammunition belonged.

4. According to the evidence of PW3, a sergeant attached to the Arms Licensing Section of the Licensing Office of the Hong Kong Police Force, any holder of an arms licence could only use bullets that belonged to that particular holder.

The applicant’s defence

5. The applicant elected to give evidence. He said that he had been a holder of an arms licence since August 1996 and that he practised handgun firing at a gun club. He had owned five firing handguns. On 30 August 2005, he applied to surrender the arms licence and gave the five handguns as a gift to the gun club. Some 8 to 10 days prior to the alleged offence, the applicant found the ammunition in question at home. He intended to give that batch of bullets to PW2, who was also a member of the gun club. As PW2 had given the car to him for maintenance purposes, he intended to deliver the car together with the ammunition to PW2 upon completion of the maintenance work. He said that but for the present case he would have delivered the car and the ammunition to PW2 within one to two days. He denied having any intent to possess that batch of ammunition. He said that as he did not own any arms, it would serve him no purpose to possess the bullets in question.

Grounds of appeal

6. The applicant raises the following four grounds of appeal against conviction:

1) Before rejecting the applicant’s evidence, Deputy Judge Chan erroneously failed to consider, adequately or at all, that PW2’s evidence was in line with the applicant’s evidence.

2) The finding of the Deputy Judge that the applicant had the intent to possess the arms and ammunition listed in the charge was contrary to the facts.

3) The Deputy Judge erred in inferring, on the basis that the applicant might have contravened arms licensing regulations, that he was guilty.

4) The verdict of the Deputy Judge on the applicant was unsafe and unsatisfactory.

The evidence on the applicant’s intention to give away the ammunition

7. Deputy Judge Chan refused to accept the applicant’s claim that he had the intention to give away the ammunition to PW2. Mr. Chow, counsel for the applicant, submits that PW2 admitted in his evidence that the applicant had mentioned that he was going to surrender the arms licence and give the arms and remaining bullets to PW2 as a gift. However, Deputy Judge Chan was silent on such evidence in his Reasons for Verdict. The relevant evidence from PW2 on the point about the applicant giving away the bullets is as follows:

Q: If I point out to you that back in 2005 the defendant mentioned to you that he wanted to surrender his arms licence and that he intended to give to you as a gift a very valuable gun which was worth more than $40,000, but after checking you found out that your arms licence did not allow you to hold any additional arms, is that true?

A:      I do not clearly remember the details, mention was more or less made.

Q:      Roughly, did such thing happen? Did it happen?

A:      It was mentioned.

Q:      So it was mentioned, was it not?

A:      Yes, it was mentioned.

Q:      Besides, the defendant had also mentioned to you that if he did not use up the remaining bullets, he would give them to you so that you could fire them on his behalf at the gun club. Did he mention it to you?

A:      I do not know the time or the location, it was more or less mentioned.

Q:      So it was also mentioned, right?

A:      It was briefly mentioned.

8. PW2 also said that he would not refuse to accept those bullets.

9. Although the applicant said in his cautioned statement that PW2 did not know that he was going to give the remaining bullets to him as a gift, PW2’s evidence showed that the applicant had indeed talked to him about the matter. Furthermore, although PW2 could not state clearly when the applicant uttered the relevant words to him, Deputy Judge Chan might in our view have overlooked PW2’s evidence when he said had the applicant intended to give away the bullets, he should have informed PW2 immediately.

The applicant continued to possess

10. However, in any event, we do not think that this would not have materially affected the verdict, because in his Reasons for Verdict Deputy Judge Chan made the following findings on the issue of whether the applicant was in possession of the bullets in question:

52.     … What I have to consider is the concept of possession. If the defendant at that time had placed the things in the boot and let PW1 drive the car and return it directly to PW2, or had pointed out to PW1 that he did not have to return the car, I may come to the view that the defendant had parted company with the things found in the boot. In other words, it may be that in those circumstances the defendant could not be described as being in possession of those things. But the facts were rather different. The defendant had neither given up the car nor given it to PW1 as a gift. He only gave limited permission to PW1 to drive the car, which had to be returned to him. Nor had he ever pointed out to PW1 that he did not need or want the things in the car and that they all could be given to PW1 as a gift. Therefore, at the time when he gave the car to PW1 for him to drive, the defendant’s conduct obviously and clearly indicated that both the car and things inside had to be returned.

53.     Given the defendant was the owner of the things, various evidence also showed that they had to be returned to him in the end. This being the case, what evidence is there to support a different proposition? In my view, the only reasonable proposition or inference is that the defendant had the intention to continue to exercise control over the things in the boot and expected that the car and the things in the boot would be returned to him for possession after PW1 finished with his limited use of the car. Therefore, judging from the evidence accepted by me in the present case, it is in my view incontrovertible that the defendant was in possession of the arms and ammunition referred to in the charge.

54.     Even if I believe or accept that the defendant had the intention to give the ammunition to PW2 as a gift, this will not undermine the conclusion that I reached earlier on. This is because, even if the court accepts that the defendant had intended to give the ammunition to PW2 as a gift, he had never told PW2 of that intention, and on the day of the offence PW1 was not instructed by the defendant to return the car to PW2. In other words, the analysis that I made earlier on also applies to this situation, which means that the defendant expected that the car and the things inside it would be returned to him after the limited use of the car by PW1 and he also expected that the things in the car would remain under his control. Not only had he not asked PW1 to return the car directly to PW2, but he had also not told PW2 and invited him to take the car back. Put another way, the defendant had no intention whatsoever to alter his possession of the ammunition to another level, i.e. to part with possession of the bullets and magazine.

11. We agree with the findings of Deputy Judge Chan on the issue of possession. Put simply, even if the applicant had the intention to give the bullets in question to PW2 as a gift, he remained in possession of those bullets unless and until he acted on his intention. Although the applicant allowed PW1 to drive the car which contained the bullets, he obviously had no intention to part with possession of the car. And on any view, he could not possibly have such an intention because the car belonged to PW2 and the applicant had not instructed PW1 to deliver the car directly to PW2. Therefore, he was still in actual possession of the bullets until he delivered the car as well as the bullets therein to PW2. The fact that he was in possession of the bullets would not change merely because he had the intention to give them away.

Intent to possess

12. As for the second ground of appeal, we are of the view that Deputy Judge Chan correctly held that the applicant had the intent to possess those bullets.

Substantial reasons for verdict

13. Deputy Judge Chan did not consider the applicant a credible witness, for the reason that his evidence on many of the crucial issues was not only contrary to common sense but also incredible, an example being his evidence that he had not read the terms of the arms licence carefully.

14. The applicant’s third ground of appeal cannot be sustained. The Deputy Judge did not convict the applicant solely on the basis of what was said above; more importantly, as a matter of law, the applicant had all along been in possession of the bullets in question. As he never acted on his intention to give the bullets to PW2 as a gift, he had all along been in possession of the bullets.

Motive or purpose of possession

15. On the fourth ground of appeal, the applicant contends that the prosecution had no evidence showing that he had a motive, benefit or purpose in possessing the ammunition in question. In our view, even if the applicant had no motive or benefit, it would not constitute a defence since the key issue in the present case was whether in law the applicant was in possession of the ammunition.

Conclusion

16. In our judgment, Deputy Judge Chan has correctly convicted the applicant of possessing the ammunition in question. The application for leave to appeal against conviction is accordingly dismissed.

Application for leave to appeal against sentence

17. Deputy Judge Chan considered the present case serious in that, given the ammunition in question was hidden in the boot of a car driven by a third party, the risk or possibility of the ammunition falling into the hands of criminals could not be discounted. He considered that the only appropriate sentence in the present case was immediate imprisonment.

The case of Chan Chi Fun

18. In HKSAR v. Chan Chi Fun [2006] 1 HKLRD 128, this Court (Woo V-P and Yuen JA) reviewed a number of decided cases and then said:

18.     From the above cases, the factors that go to the mitigation or aggravation of a sentence can be summarized as follows:

(1)         the types of arms and ammunition involved;

(2)     whether the defendant physically carried the arms and ammunition; 

(3)      whether the arms were loaded;

(4)         whether the arms had been used;

(5)     whether the defendant intended to use the arms for illegal purposes;

(6)     whether the arms and ammunition were properly stored or whether they were easily accessible by criminals;

(7)         whether the defendant has a clear record.

19.     The basis for sentencing in respect of this type of offence is abundantly clear. The level of sentence depends on the court’s assessment of the potential risk posed by the arms and ammunition in the defendant’s possession, taking into account the circumstances of the case and the defendant’s background, and the possibility of the arms and ammunition in question being used. If the defendant had the arms on his body or carried the arms and they were loaded with live ammunition, and the arms had been used, then the starting point upon conviction after trial should be 12 years’ imprisonment …

19. The prosecution and the defence agreed at the hearing of the appeal that the bullets involved can only be used with the five handguns that the applicant had given to the gun club by way of gift. There is no evidence to show that the applicant had the intention to sell those bullets illegally to undesirable characters for criminal purposes. Nor is there any evidence to show that those bullets would serve any purpose in the hands of criminals. On the contrary, there is indeed evidence to show that the applicant had told PW2 prior to the offence that he would give that batch of bullets to him as a gift. In the absence of evidence to the contrary, we are of the view that the sentence is to be determined on the basis of the intention asserted by the applicant. In light of the nature of the case, we consider an imprisonment for one year a more appropriate sentence. The applicant started to serve the sentence on 5 June 2007 and has to date served approximately 9 months of the substantive sentence. Generally speaking, the court is prepared to reduce a prisoner’s sentence by one-third on account of his good behaviour in prison. On this basis, the applicant has already served a one-year term of imprisonment. In our judgment, the best approach is to vary the sentence so that the applicant can be released immediately. We allow the application and, treating the application as the appeal, vary the sentence of 3-year imprisonment to an order for the immediate release of the applicant.