A A
DCCC 941/2013
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 941 OF 2013
C C
----------------------
D D
HKSAR
E v E
Jang Youngsu
F F
----------------------
G G
Before: Deputy District Judge Casewell
Date: 29 January 2014 at 9.30 am
H Present: Mr Maurice Tracy, Counsel on fiat, for HKSAR H
Mr Roderick Wu, instructed by S H Chan & Co, assigned
by the Director of Legal Aid, for the defendant
I Offence: Attempted possession of arms and ammunition without a I
licence (企圖無牌管有槍械及彈藥)
J J
---------------------
K Reasons for Verdict K
L
--------------------- L
M The Charge M
1. The defendant faces one charge of attempted possession
N of arms and ammunition without a licence, contrary to section 13 N
of the Firearms and Ammunition Ordinance, Cap 238 and
O O
section 159G of the Crimes Ordinance, Cap 200. And the defendant
is Korean.
P P
Q 2. On the morning of 24 August 2013, he arrived in Q
Hong Kong by air at the Hong Kong International Airport. He
R proceeded to immigration control at Level 5 (Airside), Passenger R
Terminal 1. The defendant went to line 22 which is a courtesy
S S
channel or special immigration channel for use by those with
diplomatic passports and the like.
T T
U U
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A A
3. The defendant was intercepted by PW1 and told he could
not use that channel. The defendant became upset upon being told
B B
this. It was noted he also smelt of alcohol. Eventually, he was
C seen by an immigration officer, PW2, who directed him towards C
normal clearance. At some point, the defendant’s behaviour
D attracted the attention of three police officers, PW3 to 5, on D
anti-terrorist duty. Each of these officers was armed with a
E E
Heckler and Koch MP5 sub-machine gun and 20 rounds of ammunition
and spare ammunition. These officers stood near to the defendant
F F
and the immigration officer.
G G
4. Shortly after that arrival, the defendant allegedly
H grabbed one of the sub-machine guns held by PW3 and pulled it H
and the officer towards him. The defendant was subdued and
I I
apologised.
J J
The Prosecution Case
K
5. The prosecution called a total of six witnesses. They K
were the lady who first dealt with the defendant and confirmed
L to him that he could not use channel 22. That is PW1. The L
immigration officer who dealt with the defendant, that is PW2,
M and PW3 to 5, the three police officers of the anti-terrorist M
patrol, it was those officers who along with PW2 all were said
N N
to have witnessed the incident where the defendant was said to
have grabbed or attempted to snatch PW3’s sub-machine gun.
O O
P 6. PW3’s evidence was that at 11.30 am, he was in the P
arrival hall A He was carrying his Heckler and Koch MP5
Q sub-machine gun with a magazine containing 20 rounds on the Q
machine gun. The gun had three settings. The setting was on
R R
safety, ie the safety catch was on.
S S
7. He saw the defendant quarrelling with the immigration
T officer, PW2. He smelt alcohol on the defendant, but the T
defendant could walk without difficulty. He heard the
U immigration officer tell the defendant to go and queue up with U
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A A
the other travellers. The defendant ignored this advice. He
said eventually the defendant turned as though to leave but when
B B
he was approximately 3 feet away from PW3, he turned towards him
C and spoke to him in Korean. The defendant then used his left C
hand to clutch the front part of the machine gun around the
D front handle. Then after he clutched the gun, he then pulled it D
towards himself and turned away.
E E
8. The defendant still clutched the gun and PW3’s centre
F F
of gravity moved forward. PW3 then warded the defendant off with
G his left hand. After the defendant was warded off, he relaxed G
his grip. He had held the gun for four to five seconds, and at
H all times the gun was attached to PW3 by a sling. The defendant H
was eventually told to lie down, which he did.
I I
9. PW2 and PWs 4 and 5 all saw the defendant’s action of
J J
grabbing and pulling PW3’s gun. There was also a CCTV camera
K
recording the area. The camera had an elevated location and was K
a distance away. It provided a view of the incident, obscured at
L times by the presence of the witnesses. PW3 can be seen to move L
as if pulled.
M M
10. In other evidence, there was agreed evidence read from
N N
a firearms expert. This established that PW3’s firearm and
ammunition fell within the relevant definitions of the
O O
ordinance. That is not disputed. There was a medical report
P that showed that the defendant was suffering that afternoon from P
alcohol intoxication and a left knee abrasion.
Q Q
11. The defendant has also made a statement which is
R R
produced by agreement. These are made following caution.
S S
12. At the time, the defendant apologised. He said:
T T
“I haven’t understood but I strongly feel the
U
responsibility for the unsavoury happening in the U
Hong Kong airport today, and I am deeply reflecting
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A A
myself on that. This is the first trip together with
my wife and daughter after 12 years of marriage. From
B the first day of the trip, I showed shameful aspect to B
my wife and daughter. So I am reflecting on myself who
is in lack of ability. Please handle in a lenient
C way.” C
D 13. Now, the defence put to the witnesses that the D
defendant had never tried to seize PW3’s weapon and did not grab
E E
the gun. Now, this was denied by all the witnesses to whom it
was put.
F F
G 14. And now the defence case, and the defence case G
consisted of the evidence of the defendant. He is a national of
H South Korea. By occupation, he is a labour attorney. He is a H
person of clear record both in Korea and in Hong Kong. He had
I I
come to Hong Kong for a vacation. He was planning to stay in
Shenzhen with a friend. He had travelled from Incheon
J J
International Airport with his wife and 12-year-old daughter.
K
The aircraft was delayed on leaving. The total journey had taken K
some four to five hours. On the flight, he had drunk slightly
L less than half a bottle of Scotch whisky. L
M 15. On arrival, the family had proceeded towards M
immigration clearance. He had become separated from his wife and
N N
daughter, and they had gone through ahead of him. Now, the
defendant said he carried a piece of luggage and a bag. At
O O
immigration clearance, there were a lot of people in the queue.
P He saw a queue with few people in it, so thought he could use P
that channel.
Q Q
16. He said that PW1, Miss So, had spoken to him. He had
R R
not understood her as she did not speak to him in Korean. He
said he showed he was apologetic by placing his hands upon her
S S
shoulders from behind. He eventually went to queue up where she
T had shown him. He said at that counter they would not stamp his T
passport for him, clearly still at the courtesy channel. He was
U pointed to another queue. It was here that he was approached by U
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A A
the immigration officer identified as PW2. The defendant did not
understand what he said. He argued with him and threw his
B B
passport to the ground. The defendant said people kept pointing
C at him with their fingers. He quarrelled with PW2 for over a C
minute. Then the three police officers arrived and they were
D armed with sub-machine guns. From his description, they held D
their guns at what he described as the low port position with
E E
the barrel pointed downwards.
F F
17. The defendant said he turned towards PW3 because he
G wanted to say sorry to the policeman because of the G
inconvenience he had caused to other passengers. He wanted to
H show that he was apologetic. He extended his left hand towards H
PW3. He did this because in Korean culture, if a person is older
I I
than the person he wishes to apologise to, then the apology is
accompanied by tapping the person gently on the arm. He extended
J J
his arm to pat PW3 at the elbow. When he tried to touch PW3, the
K
police officer was very alert. PW3 turned on the gun, came into K
contact with the defendant’s hand. He was then grabbed around
L the neck by the police officer, and others pointed their fingers L
at him for him to kneel on the floor. Whilst kneeling, the
M defendant continued to say sorry, sorry, sorry. The defendant M
said he had no intention to grab or snatch the gun from PW3 nor
N N
did he try to do so. So he did not try to pull the weapon
towards his body.
O O
P 18. Now, the charge. The defendant is charged with an P
attempt to possess arms and ammunition without a licence. In
Q order for there to be an attempt, the defendant must intend to Q
commit the offence and do an act that is more than merely
R R
preparatory to the commission of that offence. The court must
consider whether the defendant intended to commit the offence
S S
which it is alleged he attempted to commit and did he in
T relation to that offence do an act which was more than merely T
preparatory to the commission of that attempted offence, the
U offence here being possession of arms and ammunition without a U
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V V
A A
licence, the arms and ammunition being the Heckler and Koch
machine gun and its magazine. The fact of the weapon being arms
B B
and ammunition is not disputed. The dispute exists as to whether
C the defendant attempted to have possession of the Heckler and C
Koch machine gun.
D D
19. A person has possession of an object if he knowingly
E E
has it in his physical or actual custody or otherwise within his
physical control. The prosecution allege in this case that the
F F
defendant intended to take actual physical custody of the
G firearm and that his act of seizing the gun was more than merely G
preparatory to exercising such custody, that his intention was
H to snatch the gun from PW3 and have sole custody of it. They say H
this is the only possible explanation for the evidence.
I I
20. Clearly, the first issue to be determined is whether
J J
the defendant did attempt to take the gun, take the firearm. As
K
a question of fact, did he attempt to take possession of it? It K
is his case that he did not. The evidence on this issue came
L from the prosecution, from PWs 2 through to 5 and the CCTV L
recording, and for the defence from the defendant.
M M
21. PW2, the immigration officer, gave evidence as
N N
follows. Just when he turned, referring to the defendant, he
tried to pull the MP5 gun off one of the police officers. He
O O
said, “I did not know his service number.” When he pulled the
P gun, the police officer immediately reacted. The three officers P
shouted at him to stop this act.
Q Q
22. PW3, that is PC9908, said:
R R
“After saying something to me unknown, he used his
S S
left hand to clutch the front of my gun around the
area of the front handle. Then after he clutched it,
T he pulled it towards himself and turned away. He was T
still clutching and my centre of gravity moved
forward. I immediately warded him off with my left
U hand. After he was warded off, he relaxed his grip. U
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A A
Around four to five seconds he held the gun. The gun
was attached to my body by a sling.”
B B
23. From a sketch made P7 made by PW3, it showed that he
C had been pulled about 3 feet. C
D D
24. PW4, Sergeant 33692, said:
E E
“The defendant faced PC9908. Then I suddenly saw the
defendant use his left hand to clutch the front of the
F barrel of the MP5 gun carried by 9908. Once I saw 9908 F
immediately pushed towards the defendant with his left
G hand.” G
He added, “My judgment was the act of the defendant had amounted
H H
to assault. It is not known what he would do later.”
I I
25. PW5, PC6782, said:
J J
“When he got to the area next to 9908, he turned
K right, reached out his left hand and clutched the MP5 K
by the front handle. He held the barrel a very short
time. Very quickly, 9908 pushed him away.”
L L
26. The CCTV recording provided an obscure view of the
M M
interaction between PC9908 and the defendant. On that recording,
N 9908 appears to be subject to a forceful action and appears to N
be pulled forward before regaining control. In other words, the
O CCTV recording is entirely consistent with the evidence of the O
three police officers and the immigration officer.
P P
27. On this issue, the defendant’s evidence was that he
Q Q
was addressing PW3 in order to apologise to him. In order to do
this to conform to the Korean cultural norm, the defendant would
R R
tap PW3 on the arm. It is said that this is supported by the
S apologies made by the defendant to the other witnesses, PW1 and S
2. The defendant says he did not hold PW3’s firearm. He merely
T came into contact with it when PW3 reacted to the touch. T
U U
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A A
28. In resolving this and the other issues in the case, I
bear in mind that the burden to prove its case lies on the
B B
prosecution at all times and to prove its case beyond a
C reasonable doubt. I also bear in mind when assessing the C
evidence the defendant is a man of clear record, and in this
D case, it is clearly relevant to his propensity to commit an D
offence of this nature and also to the credibility evidence
E E
given by him.
F F
29. On consideration of the evidence as a whole, I found
G that the prosecution witnesses who witnessed the incident G
directly, that is PW2 through to 5, gave a clear and consistent
H account of what they saw. The cross-examination whereby the H
defendant’s version was put to them led to them each denying
I I
that this version of events occurred in the way put to them.
There were also no material inconsistencies arising as a result
J J
of such cross-examination. There was no exaggeration in their
K
evidence. I found that the evidence of these witnesses was K
truthful, consistent and reliable.
L L
30. The defendant’s evidence appeared to be an attempt to
M explain the surrounding events on the basis of an overreaction M
by PW3, that all this arose as a result of a misunderstanding.
N N
31. I did not consider this to be a truthful account. The
O O
defendant on his own evidence had clearly taken drink earlier in
P that day. He agreed with the prosecuting counsel that he had P
been angry, that he had thrown down his passport on his own
Q admission and had spoken in a loud and scolding voice. The Q
defendant, it appears, was being difficult and had at times
R R
tried to create a scene.
S S
32. I found that the defendant’s explanation was a
T fabrication to explain his rash and uninhibited act in grabbing T
PW3’s firearm. He clearly regretted it immediately. I know that
U far from being an overreaction, I found that PW3’s actions were U
CRT31/29.1.2014/SC 8 DCCC 941/2013/Verdict
V V
A A
considered and professional and served to de-escalate the
incident immediately.
B B
C 33. Nevertheless, I find I must reject the defendant’s C
explanation in its entirety. I accept the evidence of the
D prosecution witnesses, particularly that of PWs 3 through to 5 D
that the defendant had grabbed PW3’s firearm, the Heckler and
E E
Koch MP5 machine gun, that he had done this with his left hand
on the barrel, that he had pulled that firearm and held onto it
F F
for the estimated four to five seconds, pulling PW3 along until
G such time as the officer was able to gain control of the G
situation by warding off the defendant.
H H
34. This finding clarifies the defendant’s act, namely,
I I
reaching out and pulling PW3’s firearm. The prosecution say that
this clearly constitutes an attempt to obtain physical custody
J J
and control and thus possession of the firearm, that it is an
K
act that would have continued had PW3 not contained the K
situation and warded the defendant off. This of course would
L necessitate a finding that this was the defendant’s intention L
when he seized hold of PW3’s firearm.
M M
35. The defence submitted that such a conclusion cannot be
N N
drawn beyond a reasonable doubt, that the act of seizing the
firearm should be seen as a completed act with the intention
O O
limited to being that of inconveniencing PW3 or using limited
P force upon him. In support of this they say is the evidence of P
PW4, the sergeant. He had said, “My judgment was the act of the
Q defendant had amounted to assault. It is not known what he would Q
do later” was his evidence.
R R
36. There was evidence that the defendant was suffering
S S
from alcohol intoxication when he was medically examined at
T 1310 hours that day at Princess Margaret Hospital. Given his T
evidence and the evidence of the other witnesses, it is
U reasonable to assume he was so affected at 11.30 am that day. U
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A A
The defendant did not at any time allege that his consumption of
alcohol affected his mental state, certainly not his ability to
B B
form an intention. Although it is evident that the consumption
C of alcohol may have disinhibited him and caused him to act out C
of character, in any event it is not a material consideration in
D evaluating the defendant’s intent on the evidence. D
E E
37. In order to establish the offence charged, it is
necessary for the prosecution to establish to a criminal
F F
standard the required intent, in this case, an intent to take
G possession of the firearm to assert actual custody over it. It G
is the prosecution’s case that the defendant’s act of seizing
H hold of the barrel provides evidence from which an inference can H
be drawn that this was the intention of the defendant, namely,
I I
to take possession of the firearm.
J J
38. It is settled that whether a person intends a result
K
is decided by reference to all the evidence, drawing such K
inferences as appeared proper in the circumstances, and that if
L an inference is to be drawn, it must be the only inference that L
can reasonably be drawn on the basis of the facts proved. It
M must be irresistible. M
N N
39. I have already found that the facts proved show the
defendant seized hold of PW3’s firearm with his left hand above
O O
the forward handle. PW3 estimated he maintained this grasp for
P four to five seconds whilst pulling the firearm towards him. P
This resulted in PW3 being propelled forward. The CCTV recording
Q shows PW3 being forcefully dragged by the defendant for a short Q
period. The only things preventing the defendant having sole
R R
actual custody of the weapon were PW3’s grasp upon the weapon
and the sling attaching the firearm to his body. If either of
S S
these factors had been in any way compromised, the force used by
T the defendant was clearly sufficient for the defendant to take T
possession of the firearm. It is and was the only logical
U outcome of his action. U
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A A
40. Clearly, this evidence is sufficient to establish to a
B B
criminal standard the defendant’s intention, and I find that it
C must have been the defendant’s intention to take physical C
control or custody of the firearm at the time when he laid his
D hand upon it and pulled the weapon. It was a brief, D
ill-considered and unsuccessful attempt but it can only be
E E
characterised on the evidence and I find is proved on this
evidence as being such an attempt, namely, to take actual
F F
custody of the Heckler and Koch MP5 sub-machine gun.
G G
41. I find in conclusion the defendant intended to take
H the firearm and attempted as a fact to do so. I find that H
finding on the evidence to be irresistible. That being the case
I I
and it being not disputed that the firearm, subject of the
particular offence, is a firearm now in issue, I find the
J J
prosecution have proved all the elements of this offence and I
K
enter a conviction accordingly. K
L L
M M
(T Casewell)
N Deputy District Judge N
O O
P P
Q Q
R R
S S
T T
U U
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A A
DCCC 941/2013
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 941 OF 2013
C C
----------------------
D D
HKSAR
E v E
Jang Youngsu
F F
----------------------
G G
Before: Deputy District Judge Casewell
Date: 29 January 2014 at 9.30 am
H Present: Mr Maurice Tracy, Counsel on fiat, for HKSAR H
Mr Roderick Wu, instructed by S H Chan & Co, assigned
by the Director of Legal Aid, for the defendant
I Offence: Attempted possession of arms and ammunition without a I
licence (企圖無牌管有槍械及彈藥)
J J
---------------------
K Reasons for Verdict K
L
--------------------- L
M The Charge M
1. The defendant faces one charge of attempted possession
N of arms and ammunition without a licence, contrary to section 13 N
of the Firearms and Ammunition Ordinance, Cap 238 and
O O
section 159G of the Crimes Ordinance, Cap 200. And the defendant
is Korean.
P P
Q 2. On the morning of 24 August 2013, he arrived in Q
Hong Kong by air at the Hong Kong International Airport. He
R proceeded to immigration control at Level 5 (Airside), Passenger R
Terminal 1. The defendant went to line 22 which is a courtesy
S S
channel or special immigration channel for use by those with
diplomatic passports and the like.
T T
U U
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A A
3. The defendant was intercepted by PW1 and told he could
not use that channel. The defendant became upset upon being told
B B
this. It was noted he also smelt of alcohol. Eventually, he was
C seen by an immigration officer, PW2, who directed him towards C
normal clearance. At some point, the defendant’s behaviour
D attracted the attention of three police officers, PW3 to 5, on D
anti-terrorist duty. Each of these officers was armed with a
E E
Heckler and Koch MP5 sub-machine gun and 20 rounds of ammunition
and spare ammunition. These officers stood near to the defendant
F F
and the immigration officer.
G G
4. Shortly after that arrival, the defendant allegedly
H grabbed one of the sub-machine guns held by PW3 and pulled it H
and the officer towards him. The defendant was subdued and
I I
apologised.
J J
The Prosecution Case
K
5. The prosecution called a total of six witnesses. They K
were the lady who first dealt with the defendant and confirmed
L to him that he could not use channel 22. That is PW1. The L
immigration officer who dealt with the defendant, that is PW2,
M and PW3 to 5, the three police officers of the anti-terrorist M
patrol, it was those officers who along with PW2 all were said
N N
to have witnessed the incident where the defendant was said to
have grabbed or attempted to snatch PW3’s sub-machine gun.
O O
P 6. PW3’s evidence was that at 11.30 am, he was in the P
arrival hall A He was carrying his Heckler and Koch MP5
Q sub-machine gun with a magazine containing 20 rounds on the Q
machine gun. The gun had three settings. The setting was on
R R
safety, ie the safety catch was on.
S S
7. He saw the defendant quarrelling with the immigration
T officer, PW2. He smelt alcohol on the defendant, but the T
defendant could walk without difficulty. He heard the
U immigration officer tell the defendant to go and queue up with U
CRT31/29.1.2014/SC 2 DCCC 941/2013/Verdict
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A A
the other travellers. The defendant ignored this advice. He
said eventually the defendant turned as though to leave but when
B B
he was approximately 3 feet away from PW3, he turned towards him
C and spoke to him in Korean. The defendant then used his left C
hand to clutch the front part of the machine gun around the
D front handle. Then after he clutched the gun, he then pulled it D
towards himself and turned away.
E E
8. The defendant still clutched the gun and PW3’s centre
F F
of gravity moved forward. PW3 then warded the defendant off with
G his left hand. After the defendant was warded off, he relaxed G
his grip. He had held the gun for four to five seconds, and at
H all times the gun was attached to PW3 by a sling. The defendant H
was eventually told to lie down, which he did.
I I
9. PW2 and PWs 4 and 5 all saw the defendant’s action of
J J
grabbing and pulling PW3’s gun. There was also a CCTV camera
K
recording the area. The camera had an elevated location and was K
a distance away. It provided a view of the incident, obscured at
L times by the presence of the witnesses. PW3 can be seen to move L
as if pulled.
M M
10. In other evidence, there was agreed evidence read from
N N
a firearms expert. This established that PW3’s firearm and
ammunition fell within the relevant definitions of the
O O
ordinance. That is not disputed. There was a medical report
P that showed that the defendant was suffering that afternoon from P
alcohol intoxication and a left knee abrasion.
Q Q
11. The defendant has also made a statement which is
R R
produced by agreement. These are made following caution.
S S
12. At the time, the defendant apologised. He said:
T T
“I haven’t understood but I strongly feel the
U
responsibility for the unsavoury happening in the U
Hong Kong airport today, and I am deeply reflecting
CRT31/29.1.2014/SC 3 DCCC 941/2013/Verdict
V V
A A
myself on that. This is the first trip together with
my wife and daughter after 12 years of marriage. From
B the first day of the trip, I showed shameful aspect to B
my wife and daughter. So I am reflecting on myself who
is in lack of ability. Please handle in a lenient
C way.” C
D 13. Now, the defence put to the witnesses that the D
defendant had never tried to seize PW3’s weapon and did not grab
E E
the gun. Now, this was denied by all the witnesses to whom it
was put.
F F
G 14. And now the defence case, and the defence case G
consisted of the evidence of the defendant. He is a national of
H South Korea. By occupation, he is a labour attorney. He is a H
person of clear record both in Korea and in Hong Kong. He had
I I
come to Hong Kong for a vacation. He was planning to stay in
Shenzhen with a friend. He had travelled from Incheon
J J
International Airport with his wife and 12-year-old daughter.
K
The aircraft was delayed on leaving. The total journey had taken K
some four to five hours. On the flight, he had drunk slightly
L less than half a bottle of Scotch whisky. L
M 15. On arrival, the family had proceeded towards M
immigration clearance. He had become separated from his wife and
N N
daughter, and they had gone through ahead of him. Now, the
defendant said he carried a piece of luggage and a bag. At
O O
immigration clearance, there were a lot of people in the queue.
P He saw a queue with few people in it, so thought he could use P
that channel.
Q Q
16. He said that PW1, Miss So, had spoken to him. He had
R R
not understood her as she did not speak to him in Korean. He
said he showed he was apologetic by placing his hands upon her
S S
shoulders from behind. He eventually went to queue up where she
T had shown him. He said at that counter they would not stamp his T
passport for him, clearly still at the courtesy channel. He was
U pointed to another queue. It was here that he was approached by U
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A A
the immigration officer identified as PW2. The defendant did not
understand what he said. He argued with him and threw his
B B
passport to the ground. The defendant said people kept pointing
C at him with their fingers. He quarrelled with PW2 for over a C
minute. Then the three police officers arrived and they were
D armed with sub-machine guns. From his description, they held D
their guns at what he described as the low port position with
E E
the barrel pointed downwards.
F F
17. The defendant said he turned towards PW3 because he
G wanted to say sorry to the policeman because of the G
inconvenience he had caused to other passengers. He wanted to
H show that he was apologetic. He extended his left hand towards H
PW3. He did this because in Korean culture, if a person is older
I I
than the person he wishes to apologise to, then the apology is
accompanied by tapping the person gently on the arm. He extended
J J
his arm to pat PW3 at the elbow. When he tried to touch PW3, the
K
police officer was very alert. PW3 turned on the gun, came into K
contact with the defendant’s hand. He was then grabbed around
L the neck by the police officer, and others pointed their fingers L
at him for him to kneel on the floor. Whilst kneeling, the
M defendant continued to say sorry, sorry, sorry. The defendant M
said he had no intention to grab or snatch the gun from PW3 nor
N N
did he try to do so. So he did not try to pull the weapon
towards his body.
O O
P 18. Now, the charge. The defendant is charged with an P
attempt to possess arms and ammunition without a licence. In
Q order for there to be an attempt, the defendant must intend to Q
commit the offence and do an act that is more than merely
R R
preparatory to the commission of that offence. The court must
consider whether the defendant intended to commit the offence
S S
which it is alleged he attempted to commit and did he in
T relation to that offence do an act which was more than merely T
preparatory to the commission of that attempted offence, the
U offence here being possession of arms and ammunition without a U
CRT31/29.1.2014/SC 5 DCCC 941/2013/Verdict
V V
A A
licence, the arms and ammunition being the Heckler and Koch
machine gun and its magazine. The fact of the weapon being arms
B B
and ammunition is not disputed. The dispute exists as to whether
C the defendant attempted to have possession of the Heckler and C
Koch machine gun.
D D
19. A person has possession of an object if he knowingly
E E
has it in his physical or actual custody or otherwise within his
physical control. The prosecution allege in this case that the
F F
defendant intended to take actual physical custody of the
G firearm and that his act of seizing the gun was more than merely G
preparatory to exercising such custody, that his intention was
H to snatch the gun from PW3 and have sole custody of it. They say H
this is the only possible explanation for the evidence.
I I
20. Clearly, the first issue to be determined is whether
J J
the defendant did attempt to take the gun, take the firearm. As
K
a question of fact, did he attempt to take possession of it? It K
is his case that he did not. The evidence on this issue came
L from the prosecution, from PWs 2 through to 5 and the CCTV L
recording, and for the defence from the defendant.
M M
21. PW2, the immigration officer, gave evidence as
N N
follows. Just when he turned, referring to the defendant, he
tried to pull the MP5 gun off one of the police officers. He
O O
said, “I did not know his service number.” When he pulled the
P gun, the police officer immediately reacted. The three officers P
shouted at him to stop this act.
Q Q
22. PW3, that is PC9908, said:
R R
“After saying something to me unknown, he used his
S S
left hand to clutch the front of my gun around the
area of the front handle. Then after he clutched it,
T he pulled it towards himself and turned away. He was T
still clutching and my centre of gravity moved
forward. I immediately warded him off with my left
U hand. After he was warded off, he relaxed his grip. U
CRT31/29.1.2014/SC 6 DCCC 941/2013/Verdict
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A A
Around four to five seconds he held the gun. The gun
was attached to my body by a sling.”
B B
23. From a sketch made P7 made by PW3, it showed that he
C had been pulled about 3 feet. C
D D
24. PW4, Sergeant 33692, said:
E E
“The defendant faced PC9908. Then I suddenly saw the
defendant use his left hand to clutch the front of the
F barrel of the MP5 gun carried by 9908. Once I saw 9908 F
immediately pushed towards the defendant with his left
G hand.” G
He added, “My judgment was the act of the defendant had amounted
H H
to assault. It is not known what he would do later.”
I I
25. PW5, PC6782, said:
J J
“When he got to the area next to 9908, he turned
K right, reached out his left hand and clutched the MP5 K
by the front handle. He held the barrel a very short
time. Very quickly, 9908 pushed him away.”
L L
26. The CCTV recording provided an obscure view of the
M M
interaction between PC9908 and the defendant. On that recording,
N 9908 appears to be subject to a forceful action and appears to N
be pulled forward before regaining control. In other words, the
O CCTV recording is entirely consistent with the evidence of the O
three police officers and the immigration officer.
P P
27. On this issue, the defendant’s evidence was that he
Q Q
was addressing PW3 in order to apologise to him. In order to do
this to conform to the Korean cultural norm, the defendant would
R R
tap PW3 on the arm. It is said that this is supported by the
S apologies made by the defendant to the other witnesses, PW1 and S
2. The defendant says he did not hold PW3’s firearm. He merely
T came into contact with it when PW3 reacted to the touch. T
U U
CRT31/29.1.2014/SC 7 DCCC 941/2013/Verdict
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A A
28. In resolving this and the other issues in the case, I
bear in mind that the burden to prove its case lies on the
B B
prosecution at all times and to prove its case beyond a
C reasonable doubt. I also bear in mind when assessing the C
evidence the defendant is a man of clear record, and in this
D case, it is clearly relevant to his propensity to commit an D
offence of this nature and also to the credibility evidence
E E
given by him.
F F
29. On consideration of the evidence as a whole, I found
G that the prosecution witnesses who witnessed the incident G
directly, that is PW2 through to 5, gave a clear and consistent
H account of what they saw. The cross-examination whereby the H
defendant’s version was put to them led to them each denying
I I
that this version of events occurred in the way put to them.
There were also no material inconsistencies arising as a result
J J
of such cross-examination. There was no exaggeration in their
K
evidence. I found that the evidence of these witnesses was K
truthful, consistent and reliable.
L L
30. The defendant’s evidence appeared to be an attempt to
M explain the surrounding events on the basis of an overreaction M
by PW3, that all this arose as a result of a misunderstanding.
N N
31. I did not consider this to be a truthful account. The
O O
defendant on his own evidence had clearly taken drink earlier in
P that day. He agreed with the prosecuting counsel that he had P
been angry, that he had thrown down his passport on his own
Q admission and had spoken in a loud and scolding voice. The Q
defendant, it appears, was being difficult and had at times
R R
tried to create a scene.
S S
32. I found that the defendant’s explanation was a
T fabrication to explain his rash and uninhibited act in grabbing T
PW3’s firearm. He clearly regretted it immediately. I know that
U far from being an overreaction, I found that PW3’s actions were U
CRT31/29.1.2014/SC 8 DCCC 941/2013/Verdict
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A A
considered and professional and served to de-escalate the
incident immediately.
B B
C 33. Nevertheless, I find I must reject the defendant’s C
explanation in its entirety. I accept the evidence of the
D prosecution witnesses, particularly that of PWs 3 through to 5 D
that the defendant had grabbed PW3’s firearm, the Heckler and
E E
Koch MP5 machine gun, that he had done this with his left hand
on the barrel, that he had pulled that firearm and held onto it
F F
for the estimated four to five seconds, pulling PW3 along until
G such time as the officer was able to gain control of the G
situation by warding off the defendant.
H H
34. This finding clarifies the defendant’s act, namely,
I I
reaching out and pulling PW3’s firearm. The prosecution say that
this clearly constitutes an attempt to obtain physical custody
J J
and control and thus possession of the firearm, that it is an
K
act that would have continued had PW3 not contained the K
situation and warded the defendant off. This of course would
L necessitate a finding that this was the defendant’s intention L
when he seized hold of PW3’s firearm.
M M
35. The defence submitted that such a conclusion cannot be
N N
drawn beyond a reasonable doubt, that the act of seizing the
firearm should be seen as a completed act with the intention
O O
limited to being that of inconveniencing PW3 or using limited
P force upon him. In support of this they say is the evidence of P
PW4, the sergeant. He had said, “My judgment was the act of the
Q defendant had amounted to assault. It is not known what he would Q
do later” was his evidence.
R R
36. There was evidence that the defendant was suffering
S S
from alcohol intoxication when he was medically examined at
T 1310 hours that day at Princess Margaret Hospital. Given his T
evidence and the evidence of the other witnesses, it is
U reasonable to assume he was so affected at 11.30 am that day. U
CRT31/29.1.2014/SC 9 DCCC 941/2013/Verdict
V V
A A
The defendant did not at any time allege that his consumption of
alcohol affected his mental state, certainly not his ability to
B B
form an intention. Although it is evident that the consumption
C of alcohol may have disinhibited him and caused him to act out C
of character, in any event it is not a material consideration in
D evaluating the defendant’s intent on the evidence. D
E E
37. In order to establish the offence charged, it is
necessary for the prosecution to establish to a criminal
F F
standard the required intent, in this case, an intent to take
G possession of the firearm to assert actual custody over it. It G
is the prosecution’s case that the defendant’s act of seizing
H hold of the barrel provides evidence from which an inference can H
be drawn that this was the intention of the defendant, namely,
I I
to take possession of the firearm.
J J
38. It is settled that whether a person intends a result
K
is decided by reference to all the evidence, drawing such K
inferences as appeared proper in the circumstances, and that if
L an inference is to be drawn, it must be the only inference that L
can reasonably be drawn on the basis of the facts proved. It
M must be irresistible. M
N N
39. I have already found that the facts proved show the
defendant seized hold of PW3’s firearm with his left hand above
O O
the forward handle. PW3 estimated he maintained this grasp for
P four to five seconds whilst pulling the firearm towards him. P
This resulted in PW3 being propelled forward. The CCTV recording
Q shows PW3 being forcefully dragged by the defendant for a short Q
period. The only things preventing the defendant having sole
R R
actual custody of the weapon were PW3’s grasp upon the weapon
and the sling attaching the firearm to his body. If either of
S S
these factors had been in any way compromised, the force used by
T the defendant was clearly sufficient for the defendant to take T
possession of the firearm. It is and was the only logical
U outcome of his action. U
CRT31/29.1.2014/SC 10 DCCC 941/2013/Verdict
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A A
40. Clearly, this evidence is sufficient to establish to a
B B
criminal standard the defendant’s intention, and I find that it
C must have been the defendant’s intention to take physical C
control or custody of the firearm at the time when he laid his
D hand upon it and pulled the weapon. It was a brief, D
ill-considered and unsuccessful attempt but it can only be
E E
characterised on the evidence and I find is proved on this
evidence as being such an attempt, namely, to take actual
F F
custody of the Heckler and Koch MP5 sub-machine gun.
G G
41. I find in conclusion the defendant intended to take
H the firearm and attempted as a fact to do so. I find that H
finding on the evidence to be irresistible. That being the case
I I
and it being not disputed that the firearm, subject of the
particular offence, is a firearm now in issue, I find the
J J
prosecution have proved all the elements of this offence and I
K
enter a conviction accordingly. K
L L
M M
(T Casewell)
N Deputy District Judge N
O O
P P
Q Q
R R
S S
T T
U U
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V V