DCCC1113/2011 HKSAR v. MOHAMMED KHAN SHAMIM - LawHero
DCCC1113/2011
區域法院（刑事）H H Judge Geiser11/6/2012
DCCC1113/2011
A A
DCCC1113/2011
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 1113 OF 2011 C
D
---------------------- D
HKSAR
E E
v.
F Mohammed Khan Shamim F
G ---------------------- G
Before: H H Judge Geiser
H Date: 12 June 2012 at 2.34 pm H
Present: Miss Joey Ma, PP of the Department of Justice, for
HKSAR
I Mr Bernard Yuen, instructed by Jal N Karbhari & Co., I
assigned by the Director of Legal Aid, for the
J Defendant J
Offence: (1) Possession of dangerous drugs (管有危險藥物)
(2) Possession of arms without a licence (無牌管有槍械)
K K
---------------------
L L
Reasons for Verdict
M --------------------- M
N N
1. The defendant in this case has pleaded not guilty to
the second charge on the indictment of possession of arms
O O
without a licence, contrary to section 13(1) and (2) of the
P Firearms and Ammunition Ordinance, Cap. 238, Laws of Hong Kong. P
He has admitted the first charge on the indictment, that being
Q an offence of possession of dangerous drugs. Q
R 2. The prosecution quite simply allege that on 19 May R
2011 a party of police led by Chief Inspector Ian Cowieson
S S
gained entry to the defendant’s premises at Room No. 2, Flat 6,
17th Floor, Block D, Chungking Mansions, Tsim Sha Tsui, Kowloon,
T T
where they found the defendant and his wife. They executed a
U search warrant and, amongst other things, found a stun gun, U
CRT24/12.6.2012/LT 1 DCCC1113/2011/Verdict
V V
A A
Exhibit P12, which was contained in a red plastic bag, P11,
which itself was in a plastic box, Exhibit P10.
B B
C 3. Under caution, the defendant remained silent but the C
following day during a video recorded interview the defendant
D stated that he found it about 2 years ago in a dust bin in the D
vicinity of Chungking Mansions and he thought that it was a
E E
battery charger.
F F
4. The defendant in evidence for his part denied
G possession of the stun gun, effectively alleging that the police G
had framed him and set him up.
H H
5. With regard to the contents of the video recorded
I I
interview, the defendant maintained that he had been coached as
to what to say by the chief inspector prior to the video
J J
interview and had been subjected to violence by the police at
K
the time of the raid in his premises the day before. K
L 6. Aside therefore from determining the admissibility of L
the video recorded interview by way of voir dire proceedings
M adopting the special procedure, the only issue that fell for the M
determination of the court was whether or not the defendant was
N N
indeed in possession of the stun gun as alleged by the
prosecution.
O O
P 7. Prior to the calling of any oral testimony, a set of P
agreed facts, Exhibit P5, were produced dealing with formal
Q matters not in dispute. These were produced pursuant to section Q
65C of the Criminal Procedure Ordinance, Cap.221, Laws of Hong
R R
Kong.
8. All of the prosecution witnesses who testified,
S S
testified in relation to both issues, that is the general issue
T and special issue of admissibility. They were all officers from T
Regional Crime Unit T1, Kowloon West, led by Chief Inspector
U Cowieson, who was PW1. U
CRT24/12.6.2012/LT 2 DCCC1113/2011/Verdict
V V
A A
9. He testified that on 19 May 2011 he led his team to
B B
the premises in question around 2228 hours that evening. When
C they arrived outside the door to Room 2 he said he instructed C
one of his officers, DSPC7176, who was PW4, to knock on the
D door, which he said he did and at the same time shouting D
“Police, open the door.” He said he could hear voices inside so
E E
after about 30 seconds he said he instructed 7176 to break in,
which he said 7176 did by kicking the door open. Upon entry, he
F F
said he saw the defendant sitting on the bed and his wife
G sitting close to him on a stool. Next to the bed on a table he G
said he immediately saw a bottle with two straws, a small
H transparent packet containing a crystalline substance and a H
large pellet of cannabis resin.
I I
10. He testified that he showed the defendant and his wife
J J
a search warrant, Exhibit P6, and he instructed another officer,
K
DSPC51286, who was PW3, to search the premises. After about 15 K
minutes the drugs being the subject matter of Charge 1 were
L found, but additionally, he said, that from inside a plastic L
transparent box placed on the windowsill underneath the air-
M conditioner a red plastic bag was found inside which was the M
stun gun.
N N
11. PW1 said that both the defendant and his wife were
O O
arrested in Cantonese by 46135, who was PW2, and he, that is
P PW1, told them in English that they both had been arrested for P
possession of dangerous drugs and possession of the stun gun. He
Q said they gave no reply. Q
R R
12. The following day the chief inspector said he saw the
defendant during the video recorded interview which was
S S
conducted by PW2 and PW3 as he monitored it from an adjacent
T room. After the video recorded interview was concluded he said T
he gave the defendant his name card.
U U
CRT24/12.6.2012/LT 3 DCCC1113/2011/Verdict
V V
A A
13. Amongst other things PW1 accepted in cross-examination
that prior to the raid, crime information they had received
B B
suggested that both drugs and the stun gun could possibly be
C found in these premises. C
D 14. It was put to this officer as well as other officers D
who testified that there was never any knock on the door prior
E E
to the police breaking in. This was consistently denied by all
officers.
F F
G 15. All of the particulars of alleged mistreatment by the G
police party to both the defendant and his wife were put to PW1
H and other officers who testified and all were denied. These H
included the allegation that once the party gained entry to the
I I
premises 51286 shouted, “I am police, I am police”, and struck
the defendant’s left shoulder with a baton and handcuffed the
J J
defendant without declaring arrest. Similarly put and similarly
K
denied was the allegation that PW4 and PW5, SDPs 7176 and 33906 K
respectively, went straight towards the window and after this
L witness returned to the room having received a phone call, he L
went up to these officers, said something to them, as a result
M of which PW4 opened the window, stretched out his hand and M
retrieved from outside a red plastic bag containing the stun
N N
gun.
O O
16. Further allegations of violence were denied and PW1
P strenuously denied the specific allegation put to him that he P
told the defendant that the stun gun was his and if he admitted
Q it his wife would be released, otherwise she would be charged. Q
He also denied telling the defendant that if he provided the
R R
“Big Fish” for dangerous drugs then he could be released from
the case.
S S
T 17. The allegation that the chief inspector prior to the T
video interview instructed the defendant what to say otherwise
U his wife would be charged was also denied. U
CRT24/12.6.2012/LT 4 DCCC1113/2011/Verdict
V V
A A
18. PW2 was, as I have said, DSPC46135, the officer who
B B
arrested the defendant at the premises on 19 May 2011 pursuant
C to the search and he was also the officer who conducted the VRI C
with the defendant the following day, on 20 May.
D D
19. He confirmed the evidence of PW1 regarding the events
E E
during the course of the search and immediately prior to gaining
entry to the premises. He said he was guarding the defendant
F F
during the course of the search by PW3, DSPC51286, and he
G witnessed PW3 finding the red plastic bag containing the stun G
gun. He said he saw the officer taking out the stun gun from the
H plastic bag. He said he asked him about the stun gun in Punti H
and the defendant gave some response in his own language. He was
I I
unable to say what the defendant had said as he said there was
some communication problems. He said he arrested the defendant
J J
in Punti but did not caution him at that stage as there was no
K
interpreter available. He confirmed that the chief inspector had K
repeated the arrest to the defendant in English.
L L
20. Whilst inside the premises the witness said that the
M defendant was not handcuffed. It was not until he escorted the M
defendant back to Tsim Sha Tsui Police Station at 0050 hours
N N
that the defendant was handcuffed.
O O
21. At the police station he said he gave the defendant a
P Notice to Persons in Custody in the Indian language, Exhibit P7, P
and then later on in the afternoon of the same day, the 20th, he
Q conducted the video interview on the defendant. Q
R R
22. He, as did PW1 and the other members of the team who
testified, denied the allegations put to him regarding the
S S
finding of the stun gun at the scene and denied that the
T defendant was the subject of any threats prior to the taking of T
the video recorded interview. He agreed that the chief inspector
U did come into the room after the interview finished and gave the U
CRT24/12.6.2012/LT 5 DCCC1113/2011/Verdict
V V
A A
defendant something but he denied that he was with him for about
half an hour, saying that it was less than one minute.
B B
C 23. PW3 was indeed DSPC51286 and he was the officer who C
searched the premises once the team had gained entry. He said
D that he searched next to the bed in the premises and from the D
windowsill under the air-conditioner he said he found a plastic
E E
box inside which was a red plastic bag containing what he
suspected to be a stun gun. He also testified as to finding the
F F
suspected drugs in the premises.
G G
24. Allegations that he assaulted the defendant upon
H gaining entry to the premises were rejected by this witness, and H
he and the remaining witnesses of any relevance, that is PWs 4
I I
and 5, DSPC 7176 and DPC33906, completely rejected the
allegation that the stun gun was not found as described by this
J J
witness but somehow retrieved by 7176 by stretching his arm out
K
of the window beside the bed. K
L 25. After hearing all the evidence on both issues led by L
the prosecution and the defendant’s account on the special
M issue, I ruled as admissible the disc of the video recording M
itself, which was Exhibit P9. The transcript of the recording
N N
and the certified translation thereof were both admitted as
Exhibits P9A and P9B respectively.
O O
P 26. As I have already said, during the course of the video P
interview the defendant admitted possession of the implement but
Q said that he did not know that it was a stun gun, saying he Q
found it in the rubbish bin in the vicinity of Chungking
R R
Mansions and picked it up thinking that it was a battery
charger.
S S
T 27. That completed the case for the prosecution, and as is T
his right, the defendant elected to give evidence. In evidence,
U the defendant adopted the testimony that he had given in the U
CRT24/12.6.2012/LT 6 DCCC1113/2011/Verdict
V V
A A
voir dire and said that at around 10.30 pm on 19 May 2011 when
he was having dinner with his wife the police broke into his
B B
premises. He said in the course of the voir dire that he did not
C hear any knock on the door, neither did he hear anyone shout, C
“Police, open the door.” One of the officers, he said PW3,
D DSPC51286, hit him on his upper arm with a baton and immediately D
handcuffed him from behind.
E E
28. He testified that two officers, who he identified as
F F
PW4 and PW5, went over to the window to search. He said the
G chief inspector, PW1, went outside to take a phone call, G
returned after two minutes and said something to the two
H officers in Cantonese, then, he said, that PW4 opened the window H
and brought in a red coloured packet from outside. They took out
I I
the gun and said, “This is yours”, to which the defendant said
that he told them it was not his and they, the police, had just
J J
brought it in from outside. He was never shown the stun gun and
K
he said he was further assaulted by PW2 and PW4. That completed K
the case for the defendant.
L L
29. As I identified at the outset of this ruling, the
M single issue for the determination of this court is whether or M
not the defendant was at the material time in possession of the
N N
stun gun. In determining this issue, the credibility or
otherwise of the prosecution witnesses on the one hand and the
O O
defendant on the other is crucial.
P P
30. For my part, whilst I was obviously conscious of every
Q prosecution witness being a police officer, I, notwithstanding Q
this, found each of them to be good witnesses and witnesses of
R R
truth. There were some minor discrepancies in the details of
their evidence but I found such discrepancies that did exist did
S S
not detract from their general credibility. In short, I believed
T them. T
U U
CRT24/12.6.2012/LT 7 DCCC1113/2011/Verdict
V V
A A
31. I single out particularly Chief Inspector Cowieson who
I found to be a first-class witness and a witness who I found I
B B
could thoroughly rely on. I saw nothing at all out of the
C ordinary or sinister for this witness to give the defendant a C
copy of his name card immediately after the taking of the video
D interview, and I accepted the chief inspector’s explanation, D
that this indeed is one of the ways in which the police receive
E E
crime information. If one looks at the contents of the video
recorded interview itself, taking into account that the chief
F F
inspector was monitoring it from an adjoining room, the
G provision of his name card is quite logical, bearing in mind G
that the defendant himself had told the interviewing officers
H that he had a lot of crime information and could help the H
police.
I I
32. Regarding the contents of the video interview itself,
J J
whilst I found it to have been given perfectly voluntarily by
K
the defendant, I do not accept his answers to questions put to K
him regarding the stun gun as being truthful; in particular, I
L do not accept as being truthful the defendant’s statement that L
he picked it up in a dustbin thinking that it was a battery
M charger. This flies in the face of common sense. M
N N
33. As far as the defendant’s evidence is concerned, I
reject it in its entirety as being nothing more than lies. I
O O
specifically reject the allegations that he has made against the
P police in the course of the voir dire and I also reject entirely P
his account of being framed by the police. I can see no reason
Q whatsoever for the police to frame him in the way that he Q
suggests.
R R
34. Having found as I have and for the avoidance of any
S S
doubt, I say that I find as a fact and I am satisfied beyond all
T reasonable doubt that Exhibit P12 was found in precisely the way T
PW3, that is DSPC51286, said he found it, inside a plastic box
U on the windowsill underneath the air-conditioner. U
CRT24/12.6.2012/LT 8 DCCC1113/2011/Verdict
V V
A A
35. The premises in question where Exhibit P12 was found
B B
are by all accounts, and by reference to Exhibit P4, the book of
C photographs and Photo 7 in particular, extremely small and were C
occupied by the defendant. I draw the irresistible inference
D that as a result the defendant must have known of the presence D
of Exhibit P12. It was under his control and thereby in his
E E
possession. There being no issue that Exhibit P12 is a stun gun,
I find that I am satisfied beyond reasonable doubt that the
F F
defendant was in possession of the stun gun at the material
G time. G
H 36. Pursuant to section 24(2) of the Firearms and H
Ammunition Ordinance, Cap.238, Laws of Hong Kong, any person who
I I
is proved to have arms, a stun gun being defined as arms, in
their possession shall until the contrary is proved be presumed
J J
to have known of the nature of such arms. I have rejected the
K
suggestion by the defendant made during the course of the video K
interview that he thought Exhibit P12 to be a battery charger as
L being untrue. L
M 37. I therefore say that I am satisfied the prosecution M
have proved this charge against the defendant beyond all
N N
reasonable doubt and I convict him accordingly.
O O
P P
Q H H Judge Geiser Q
District Judge
R R
S S
T T
U U
CRT24/12.6.2012/LT 9 DCCC1113/2011/Verdict
V V
A A
DCCC1113/2011
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 1113 OF 2011 C
D
---------------------- D
HKSAR
E E
v.
F Mohammed Khan Shamim F
G ---------------------- G
Before: H H Judge Geiser
H Date: 12 June 2012 at 2.34 pm H
Present: Miss Joey Ma, PP of the Department of Justice, for
HKSAR
I Mr Bernard Yuen, instructed by Jal N Karbhari & Co., I
assigned by the Director of Legal Aid, for the
J Defendant J
Offence: (1) Possession of dangerous drugs (管有危險藥物)
(2) Possession of arms without a licence (無牌管有槍械)
K K
---------------------
L L
Reasons for Verdict
M --------------------- M
N N
1. The defendant in this case has pleaded not guilty to
the second charge on the indictment of possession of arms
O O
without a licence, contrary to section 13(1) and (2) of the
P Firearms and Ammunition Ordinance, Cap. 238, Laws of Hong Kong. P
He has admitted the first charge on the indictment, that being
Q an offence of possession of dangerous drugs. Q
R 2. The prosecution quite simply allege that on 19 May R
2011 a party of police led by Chief Inspector Ian Cowieson
S S
gained entry to the defendant’s premises at Room No. 2, Flat 6,
17th Floor, Block D, Chungking Mansions, Tsim Sha Tsui, Kowloon,
T T
where they found the defendant and his wife. They executed a
U search warrant and, amongst other things, found a stun gun, U
CRT24/12.6.2012/LT 1 DCCC1113/2011/Verdict
V V
A A
Exhibit P12, which was contained in a red plastic bag, P11,
which itself was in a plastic box, Exhibit P10.
B B
C 3. Under caution, the defendant remained silent but the C
following day during a video recorded interview the defendant
D stated that he found it about 2 years ago in a dust bin in the D
vicinity of Chungking Mansions and he thought that it was a
E E
battery charger.
F F
4. The defendant in evidence for his part denied
G possession of the stun gun, effectively alleging that the police G
had framed him and set him up.
H H
5. With regard to the contents of the video recorded
I I
interview, the defendant maintained that he had been coached as
to what to say by the chief inspector prior to the video
J J
interview and had been subjected to violence by the police at
K
the time of the raid in his premises the day before. K
L 6. Aside therefore from determining the admissibility of L
the video recorded interview by way of voir dire proceedings
M adopting the special procedure, the only issue that fell for the M
determination of the court was whether or not the defendant was
N N
indeed in possession of the stun gun as alleged by the
prosecution.
O O
P 7. Prior to the calling of any oral testimony, a set of P
agreed facts, Exhibit P5, were produced dealing with formal
Q matters not in dispute. These were produced pursuant to section Q
65C of the Criminal Procedure Ordinance, Cap.221, Laws of Hong
R R
Kong.
8. All of the prosecution witnesses who testified,
S S
testified in relation to both issues, that is the general issue
T and special issue of admissibility. They were all officers from T
Regional Crime Unit T1, Kowloon West, led by Chief Inspector
U Cowieson, who was PW1. U
CRT24/12.6.2012/LT 2 DCCC1113/2011/Verdict
V V
A A
9. He testified that on 19 May 2011 he led his team to
B B
the premises in question around 2228 hours that evening. When
C they arrived outside the door to Room 2 he said he instructed C
one of his officers, DSPC7176, who was PW4, to knock on the
D door, which he said he did and at the same time shouting D
“Police, open the door.” He said he could hear voices inside so
E E
after about 30 seconds he said he instructed 7176 to break in,
which he said 7176 did by kicking the door open. Upon entry, he
F F
said he saw the defendant sitting on the bed and his wife
G sitting close to him on a stool. Next to the bed on a table he G
said he immediately saw a bottle with two straws, a small
H transparent packet containing a crystalline substance and a H
large pellet of cannabis resin.
I I
10. He testified that he showed the defendant and his wife
J J
a search warrant, Exhibit P6, and he instructed another officer,
K
DSPC51286, who was PW3, to search the premises. After about 15 K
minutes the drugs being the subject matter of Charge 1 were
L found, but additionally, he said, that from inside a plastic L
transparent box placed on the windowsill underneath the air-
M conditioner a red plastic bag was found inside which was the M
stun gun.
N N
11. PW1 said that both the defendant and his wife were
O O
arrested in Cantonese by 46135, who was PW2, and he, that is
P PW1, told them in English that they both had been arrested for P
possession of dangerous drugs and possession of the stun gun. He
Q said they gave no reply. Q
R R
12. The following day the chief inspector said he saw the
defendant during the video recorded interview which was
S S
conducted by PW2 and PW3 as he monitored it from an adjacent
T room. After the video recorded interview was concluded he said T
he gave the defendant his name card.
U U
CRT24/12.6.2012/LT 3 DCCC1113/2011/Verdict
V V
A A
13. Amongst other things PW1 accepted in cross-examination
that prior to the raid, crime information they had received
B B
suggested that both drugs and the stun gun could possibly be
C found in these premises. C
D 14. It was put to this officer as well as other officers D
who testified that there was never any knock on the door prior
E E
to the police breaking in. This was consistently denied by all
officers.
F F
G 15. All of the particulars of alleged mistreatment by the G
police party to both the defendant and his wife were put to PW1
H and other officers who testified and all were denied. These H
included the allegation that once the party gained entry to the
I I
premises 51286 shouted, “I am police, I am police”, and struck
the defendant’s left shoulder with a baton and handcuffed the
J J
defendant without declaring arrest. Similarly put and similarly
K
denied was the allegation that PW4 and PW5, SDPs 7176 and 33906 K
respectively, went straight towards the window and after this
L witness returned to the room having received a phone call, he L
went up to these officers, said something to them, as a result
M of which PW4 opened the window, stretched out his hand and M
retrieved from outside a red plastic bag containing the stun
N N
gun.
O O
16. Further allegations of violence were denied and PW1
P strenuously denied the specific allegation put to him that he P
told the defendant that the stun gun was his and if he admitted
Q it his wife would be released, otherwise she would be charged. Q
He also denied telling the defendant that if he provided the
R R
“Big Fish” for dangerous drugs then he could be released from
the case.
S S
T 17. The allegation that the chief inspector prior to the T
video interview instructed the defendant what to say otherwise
U his wife would be charged was also denied. U
CRT24/12.6.2012/LT 4 DCCC1113/2011/Verdict
V V
A A
18. PW2 was, as I have said, DSPC46135, the officer who
B B
arrested the defendant at the premises on 19 May 2011 pursuant
C to the search and he was also the officer who conducted the VRI C
with the defendant the following day, on 20 May.
D D
19. He confirmed the evidence of PW1 regarding the events
E E
during the course of the search and immediately prior to gaining
entry to the premises. He said he was guarding the defendant
F F
during the course of the search by PW3, DSPC51286, and he
G witnessed PW3 finding the red plastic bag containing the stun G
gun. He said he saw the officer taking out the stun gun from the
H plastic bag. He said he asked him about the stun gun in Punti H
and the defendant gave some response in his own language. He was
I I
unable to say what the defendant had said as he said there was
some communication problems. He said he arrested the defendant
J J
in Punti but did not caution him at that stage as there was no
K
interpreter available. He confirmed that the chief inspector had K
repeated the arrest to the defendant in English.
L L
20. Whilst inside the premises the witness said that the
M defendant was not handcuffed. It was not until he escorted the M
defendant back to Tsim Sha Tsui Police Station at 0050 hours
N N
that the defendant was handcuffed.
O O
21. At the police station he said he gave the defendant a
P Notice to Persons in Custody in the Indian language, Exhibit P7, P
and then later on in the afternoon of the same day, the 20th, he
Q conducted the video interview on the defendant. Q
R R
22. He, as did PW1 and the other members of the team who
testified, denied the allegations put to him regarding the
S S
finding of the stun gun at the scene and denied that the
T defendant was the subject of any threats prior to the taking of T
the video recorded interview. He agreed that the chief inspector
U did come into the room after the interview finished and gave the U
CRT24/12.6.2012/LT 5 DCCC1113/2011/Verdict
V V
A A
defendant something but he denied that he was with him for about
half an hour, saying that it was less than one minute.
B B
C 23. PW3 was indeed DSPC51286 and he was the officer who C
searched the premises once the team had gained entry. He said
D that he searched next to the bed in the premises and from the D
windowsill under the air-conditioner he said he found a plastic
E E
box inside which was a red plastic bag containing what he
suspected to be a stun gun. He also testified as to finding the
F F
suspected drugs in the premises.
G G
24. Allegations that he assaulted the defendant upon
H gaining entry to the premises were rejected by this witness, and H
he and the remaining witnesses of any relevance, that is PWs 4
I I
and 5, DSPC 7176 and DPC33906, completely rejected the
allegation that the stun gun was not found as described by this
J J
witness but somehow retrieved by 7176 by stretching his arm out
K
of the window beside the bed. K
L 25. After hearing all the evidence on both issues led by L
the prosecution and the defendant’s account on the special
M issue, I ruled as admissible the disc of the video recording M
itself, which was Exhibit P9. The transcript of the recording
N N
and the certified translation thereof were both admitted as
Exhibits P9A and P9B respectively.
O O
P 26. As I have already said, during the course of the video P
interview the defendant admitted possession of the implement but
Q said that he did not know that it was a stun gun, saying he Q
found it in the rubbish bin in the vicinity of Chungking
R R
Mansions and picked it up thinking that it was a battery
charger.
S S
T 27. That completed the case for the prosecution, and as is T
his right, the defendant elected to give evidence. In evidence,
U the defendant adopted the testimony that he had given in the U
CRT24/12.6.2012/LT 6 DCCC1113/2011/Verdict
V V
A A
voir dire and said that at around 10.30 pm on 19 May 2011 when
he was having dinner with his wife the police broke into his
B B
premises. He said in the course of the voir dire that he did not
C hear any knock on the door, neither did he hear anyone shout, C
“Police, open the door.” One of the officers, he said PW3,
D DSPC51286, hit him on his upper arm with a baton and immediately D
handcuffed him from behind.
E E
28. He testified that two officers, who he identified as
F F
PW4 and PW5, went over to the window to search. He said the
G chief inspector, PW1, went outside to take a phone call, G
returned after two minutes and said something to the two
H officers in Cantonese, then, he said, that PW4 opened the window H
and brought in a red coloured packet from outside. They took out
I I
the gun and said, “This is yours”, to which the defendant said
that he told them it was not his and they, the police, had just
J J
brought it in from outside. He was never shown the stun gun and
K
he said he was further assaulted by PW2 and PW4. That completed K
the case for the defendant.
L L
29. As I identified at the outset of this ruling, the
M single issue for the determination of this court is whether or M
not the defendant was at the material time in possession of the
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stun gun. In determining this issue, the credibility or
otherwise of the prosecution witnesses on the one hand and the
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defendant on the other is crucial.
P P
30. For my part, whilst I was obviously conscious of every
Q prosecution witness being a police officer, I, notwithstanding Q
this, found each of them to be good witnesses and witnesses of
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truth. There were some minor discrepancies in the details of
their evidence but I found such discrepancies that did exist did
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not detract from their general credibility. In short, I believed
T them. T
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A A
31. I single out particularly Chief Inspector Cowieson who
I found to be a first-class witness and a witness who I found I
B B
could thoroughly rely on. I saw nothing at all out of the
C ordinary or sinister for this witness to give the defendant a C
copy of his name card immediately after the taking of the video
D interview, and I accepted the chief inspector’s explanation, D
that this indeed is one of the ways in which the police receive
E E
crime information. If one looks at the contents of the video
recorded interview itself, taking into account that the chief
F F
inspector was monitoring it from an adjoining room, the
G provision of his name card is quite logical, bearing in mind G
that the defendant himself had told the interviewing officers
H that he had a lot of crime information and could help the H
police.
I I
32. Regarding the contents of the video interview itself,
J J
whilst I found it to have been given perfectly voluntarily by
K
the defendant, I do not accept his answers to questions put to K
him regarding the stun gun as being truthful; in particular, I
L do not accept as being truthful the defendant’s statement that L
he picked it up in a dustbin thinking that it was a battery
M charger. This flies in the face of common sense. M
N N
33. As far as the defendant’s evidence is concerned, I
reject it in its entirety as being nothing more than lies. I
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specifically reject the allegations that he has made against the
P police in the course of the voir dire and I also reject entirely P
his account of being framed by the police. I can see no reason
Q whatsoever for the police to frame him in the way that he Q
suggests.
R R
34. Having found as I have and for the avoidance of any
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doubt, I say that I find as a fact and I am satisfied beyond all
T reasonable doubt that Exhibit P12 was found in precisely the way T
PW3, that is DSPC51286, said he found it, inside a plastic box
U on the windowsill underneath the air-conditioner. U
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A A
35. The premises in question where Exhibit P12 was found
B B
are by all accounts, and by reference to Exhibit P4, the book of
C photographs and Photo 7 in particular, extremely small and were C
occupied by the defendant. I draw the irresistible inference
D that as a result the defendant must have known of the presence D
of Exhibit P12. It was under his control and thereby in his
E E
possession. There being no issue that Exhibit P12 is a stun gun,
I find that I am satisfied beyond reasonable doubt that the
F F
defendant was in possession of the stun gun at the material
G time. G
H 36. Pursuant to section 24(2) of the Firearms and H
Ammunition Ordinance, Cap.238, Laws of Hong Kong, any person who
I I
is proved to have arms, a stun gun being defined as arms, in
their possession shall until the contrary is proved be presumed
J J
to have known of the nature of such arms. I have rejected the
K
suggestion by the defendant made during the course of the video K
interview that he thought Exhibit P12 to be a battery charger as
L being untrue. L
M 37. I therefore say that I am satisfied the prosecution M
have proved this charge against the defendant beyond all
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reasonable doubt and I convict him accordingly.
O O
P P
Q H H Judge Geiser Q
District Judge
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T T
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