Hon Cheung JA (giving the Reasons for Judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案理由書：

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.
申請人被控一項無牌管有槍械及彈藥罪，違反《火器及彈藥條例》第 13 條（香港法例第 238 章）。控罪所指的槍械及彈藥是一個子彈匣及 128 發子彈。案件經區域法院暫委法官陳錦昌審訊後，申請人被裁定罪名成立及被判處三年監禁。申請人就定罪及刑期提出上訴許可申請。

Prosecution case
控方案情

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.
案情顯示 2006 年 11 月 20 日警方在馬路上設置路障及截停控方第一証人（‘第一証人’）所駕駛的私家車。警方在汽車的行李箱內發現一個袋，袋內載着上述的彈藥。第一証人的證供是申請人准許他使用該輛汽車，當時他正駕車去購買食物，他不知道行李箱內藏有彈藥。

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.
該汽車的登記車主是控方第二証人（‘第二証人’）。他說他與申請人相識已十多年。該汽車是他在2002 年向申請人購買回來的，一直以來都是由申請人負責保養。2006 年 9 月底，第二証人因該汽車的車輛牌照過了期，於是將該汽車交給申請人去進行續領牌照手續及作例行檢查。第二証人說警方在汽車內所發現的彈藥不是屬於他的，他不知道這些物品屬於誰人。

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.
根據控方第三証人（即警務處牌照課的槍械牌照組的警長）的證供，所有槍牌持有人只可以使用屬於自己的子彈。

The applicant’s defence
申請人的答辯

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.
申請人選擇作供。他指自1996 年 8 月開始便領有槍牌及在槍會練習手槍射擊。他曾擁有五支射擊手槍。2005 年 8 月 30 日他申請取消槍牌及將五支手槍送給槍會。在案發前的八至十天，申請人在家中發現涉案彈藥。由於第二証人亦是槍會的會員，他打算將該批子彈轉贈給第二証人。由於當時第二証人將汽車交給他進行維修，所以他打算維修工作完成後一併將汽車及彈藥送交第二証人。申請人指若不是本案，他會在一、兩天內將汽車及彈藥送達第二証人。申請人否認他有意圖管有該批彈藥。他指既然他沒擁有任何槍械，管有有關子彈對他是毫無用處的。

Grounds of appeal
上訴理由

The applicant raises the following four grounds of appeal against conviction:
申請人就定罪提出以下四項上訴理由：

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.
陳法官在拒絕接納申請人的證供前，錯誤地沒有考慮或足夠考慮第二控方証人與申請人的證供是吻合的。

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.
原審暫委法官裁定申請人有意圖管有控罪書上所列舉的槍械彈藥與事實不乎。

The Deputy Judge erred in inferring, on the basis that the applicant might have contravened arms licensing regulations, that he was guilty.
原審暫委法官錯誤地因申請人可能觸犯了槍械牌照的規例而推論他有罪。

The verdict of the Deputy Judge on the applicant was unsafe and unsatisfactory.
原審暫委法官對申請人的有關裁決是不穩妥及不安全的。

The evidence on the applicant’s intention to give away the ammunition
申請人意圖轉贈的證供

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:
陳法官拒絕接納申請人有將這些彈藥轉贈給第二証人的意圖的說法。代表申請人的周柏柱大律師指根據第二証人的證供指出第二証人承認申請人曾向他提及他將會取消槍牌，並將槍械及剩餘的子彈送給他一事，但陳法官沒有在判決理由內提及有關的證供。第二証人有關申請人轉贈子彈的證供是這樣：

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?
‘問：如果我向你指出，被告人曾經喺 05 年嗰陣時候就同你提及佢想係取消佢嘅槍牌，而將佢其中一支好名貴嘅槍，價值四萬幾鈫，係想轉贈畀你嘅，但係後來你 check 過之後，發覺原來你嘅牌照就已經唔能夠係再持有額外嘅槍械，有冇啲咁嘅事？

A:I do not clearly remember the details, mention was more or less made.
答：細節唔記得好清楚，約莫提過。

Q:Roughly, did such thing happen? Did it happen?
問：大概有冇咁嘅事？有冇咁嘅事呀?

A:It was mentioned.
答：提過。

Q:So it was mentioned, was it not?
問：提過吖嘛?

A:Yes, it was mentioned.
答：係，提過。

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?
問：除此之外，被告人亦都係向你曾經提及佢剩番嗰啲子彈如果打唔晒，佢會就係畀你代佢打，喺槍會度打嘅，有冇向你提及過?

A:I do not know the time or the location, it was more or less mentioned.
答：唔知時間、地點，約莫係提過下。

Q:So it was also mentioned, right?
問：都有提過吖嘛，係咪?

A:It was briefly mentioned.
答：提過下。                                 ’

PW2 also said that he would not refuse to accept those bullets.
第二証人亦說他是不會拒絕接受這些子彈的。

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.
雖然申請人在警誡下所作的口供指第二証人不知道他會將剩餘的子彈轉贈給他，但根據第二証人的證供，申請人確實是對他說過有關的事。另外，雖然第二証人未能清楚道出申請人是在哪時對他說出有關的說話，但本庭認為從陳法官指若申請人有轉贈的意圖，他就理應馬上通知第二証人這個說法看來，他是有可能忽略了第二証人的證供。

The applicant continued to possess
申請人繼續管有

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:
但無論如何本庭不認為這一點會關鍵性地影響判決，理由是陳法官就申請人是否管有有關的子彈一事在他的判案理由中作出以下的裁決：

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.
‘52.…..本席要考慮的就是管有這一概念，如果被告人當時將物品擺進車尾廂，並將車輛交由 PW1 駕駛並將車輛直接歸還予 PW2，又或向 PWl 指出他不需要將汽車歸還的話，本席可能認為被告人已和那些車尾廂內所尋獲的東西分道揚鑣。換言之，可能在這情況之下，被告人是不能再描述為管有那些物品的了。但事實並非如此，被告人並不是將汽車放棄或轉贈予 PW1，他是給予 PW1 一些有限的准許去駕駛的，車輛是必須歸還予被告人的。他亦從來沒有向 PWl 指出車內的東西他不需要或不要了，可以全數轉贈予 PW1, 所以當車輛交予 PWl 以供 PW1 駕駛時，被告人的行為明顯及清晰地指出，汽車是必須歸還的，車內的東西也是必須歸還的。

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.
53．被告人既是那些東西的物主,種種證據亦顯示那些東西最終必須要回到他手內。如此看來，有甚麼證據可以支持另外的說法呢？本席認為唯一合理的說法或推論，就是被告人意圖繼續對車尾廂內的東西加以操控，並且期望車輛與及車尾廂內的東西會在 PWl 有限使用之後歸還到他管有之下。所以，本席認為，在本案本席所接受的證據看來，被告人絕無置疑是管有控罪內所述及的槍械和彈藥的。

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.
54．就算本席相信或接受被告人是有意圖將彈藥轉贈予 PW2，這也動搖不了本席在較早時候所達致的結論，因為就算被告人為法庭接受他已打算將彈藥轉贈予 PW2，但他從沒有將這意圖告訴 PW2，而當日 PWl 也並不是受被告人所託將汽車歸還予PW2。換言之，本席較早時候所分析的都適用在這情況內，就是被告人會期望汽車和車內的東西在 PWl 有限使用後會歸還到他手裡，他也期望車內的東西依然為他操控，他既沒有告訴 PW1 直接將車交回 PW2，也沒有告訴 PW2 邀請 PW2 來取回車輛，換言之， 被告人根本沒有意圖將他管有彈藥這一事情轉變到另一層面，即是放棄了他對子彈及彈匣的管有。’

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.
本庭同意陳法官有關管有的裁決。簡單而言，就算申請人存有將有關子彈轉贈給第二証人的意圖，但在他未有真正作出行動之前，他是一直在管有着有關的子彈的。申請人雖然讓第一証人駕駛藏有子彈的汽車，但明顯地他沒有放棄管有這輛汽車的意圖。從任何角度來看他也不可能有這樣的意圖，因為這輛汽車是屬於第二証人的；他亦沒有指示第一証人直接把汽車送交第二証人。故此，直到申請人將該輛汽車及藏於車內的子彈送達第二証人時，他仍是實質地管有着有關的子彈，所以他管有有關子彈的事實並不會因為他有轉贈的意圖而有所改變。

Intent to possess
意圖管有

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.
關於第二個上訴理由，本庭認為陳法官裁定申請人有管有這些子彈的意圖是正確的。

Substantial reasons for verdict
判決的實質理由

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.
陳法官指申請人不是一個可令人相信的証人，理由是申請人就很多重要的證據所作出的證供不單有歪常理，更令人難以置信，其中一個例子是申請人指他沒有細看過槍牌的條款。

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.
本庭不接納申請人的第三個上訴理由。陳法官不只是根據上述所說的去裁定申請人罪名成立；而更重要的是在法理上申請人一直是管有着有關的子彈，他有轉贈子彈給第二証人的意圖從未付諸實行，故此他一直是管有着有關的子彈的。

Motive or purpose of possession
管有的動機或目的

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.
關於第四點上訴理由，申請人指控方沒有任何證據可顯示他管有有關彈藥的動機、利益或目的。本庭認為就算申請人沒有動機或利益也不會構成任何免責理由，因為本案的關鍵是申請人在法律上是否管有有關的彈藥。

Conclusion
總結

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.
本庭認為陳法官裁定申請人管有有關彈藥是正確的，故此本庭駁回針對定罪的申請。

Application for leave to appeal against sentence
判刑申請

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.
陳法官認為本案的嚴重性在於有關的彈藥被收藏於一輛由第三者駕駛的車輛的行李箱內，有關彈藥落到不法份子手上的危險性或可能性是不可被抹煞的。陳法官認為本案唯一的適當判刑是即時監禁。

The case of Chan Chi Fun
陳志勳案例

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:
在香港特別行政區訴陳志勳 [2006] 1 HKLRD 128，本庭（上訴法庭胡國興副庭長及袁家寧法官）在考慮過多宗案例之後這樣說：

From the above cases, the factors that go to the mitigation or aggravation of a sentence can be summarized as follows:
從上述的案例看來，求情或減刑因素，而反之則是使案件嚴重化的因素，可歸納為以下幾點：

the types of arms and ammunition involved;
槍械及彈藥的類型；

whether the defendant physically carried the arms and ammunition;
被告人是否在身上攜帶槍械及彈藥；

whether the arms were loaded;
槍械是否裝上子彈；

whether the arms had been used;
槍械是否有使用過；

whether the defendant intended to use the arms for illegal purposes;
是否有意圖用槍械作非法用途；

whether the arms and ammunition were properly stored or whether they were easily accessible by criminals;
槍械及彈藥是否收藏好，或是否容易被歹徒得到；

whether the defendant has a clear record.
被告人是否有犯罪紀錄。

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 …
這類案件判刑的理據很清楚，刑罰的輕重端視乎法庭就案情及被告人的身世及背景而估計他管有的槍械及彈藥的潛在危險的大小，及動用該槍械及彈藥可能性的大小。若被告人是身懷或攜帶槍械而槍械裝上實彈，而且槍械亦曾用過，則經審訊後被定罪者的量刑基準應為 l2 年監禁…...’

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.
控辯雙方在上訴聆訊時同意涉案的子彈只是適用於申請人贈送給槍會的五支手槍。本案並無任何證據顯示申請人有將涉案子彈非法販賣給不法份子犯罪的意圖。更沒有證據顯示涉案子彈在歹徒手中會有用場，反之，本案的確有證據顯示申請人曾經在案發前對第二証人說過他會將該批子彈轉贈給他。在無相對的證據的情況之下，本庭認為必須根據申請人聲稱的意圖作出量刑。本庭認為以本案的性質來看，一年監禁的刑期是較為適合的。申請人是在　2007 年 6 月 5 日開始服刑，至今已服滿了約九個月的實質刑期。一般來說，法庭會因犯人在服刑期間行為良好扣減其三分之一刑期；若以這情況來計算申請人的刑期，他已經服滿了一年的刑期。本庭認為最適當的做法是更改刑期，讓申請人可即時出獄。本庭批准申請，視申請為正式上訴及將三年監禁的刑期更改為申請人可即時釋放的命令。

Mr. Alex Lee, Senior Assistant Director of Public Prosecutions, for the HKSAR.
答辯人：由律政司高級助理刑事檢控專員李運騰代表。

Mr. Peter Chow, assigned by the Legal Aid Department, for the applicant.
申請人：由法律援助處署派周柏柱大律師代表。