R v Chin

• Jurisdiction: Jamaica
• Judge: White, J.A.
• Judgment Date: 17 December 1987
• Neutral Citation: JM 1987 CA 117
• Docket Number: Criminal Appeal No. 101 of 1986
• Court: Court of Appeal (Jamaica)
• Date: 17 December 1987

Court of Appeal

White, J.A.; Wright, J.A.; Downer, J.A. (Ag.)

Criminal Appeal No. 101 of 1986

R.

and

Chin

Appearances:

David Muirhead, Q.C., for applicant

Miss Paula Llewellyn for the crown

Practice and Procedure - Appeal against conviction for illegal possession of a firearm under the Firearms Act — Whether the finding of the judge was unreasonable — The appellant took the firearm into his possession knowing that he had no lience to do so — Conviction reasonable on the evidence — Appeal dismissed.

White, J.A.

1 Stafford Chin was convicted by Morgan, J., in the Gun Court for the illegal possession of two semi-automatic pistols, contrary to section 20(1)(b) of the Firearms Act. He was fined $1,000.00, or in default, to serve 12 months imprisonment.

2 The charge resulted from the discovery by Detective Sergeant Hubert Miller on the 19th December, 1905, of the two firearms in question in a vault at the home of the applicant. These firearms were (a) a new .38 Browning pistol, serial number 425 PXO 5546, and (b) a new .38 Walther pistol, serial number 71402H. The Sergeant, who was the sole witness for the prosecution, said that he cautioned the applicant and asked him how he came in possession of the firearms. Chin replied that a Mr. Ernest Hoo had asked him to clear them at the Airport, and he had done this in August 1986. Chin was later arrested at the Halfway Tree Police Station on this charge.

3 Under cross-examination, the Sergeant said that Mr. Hoo attended at the station in the evening of the 19th December, 1986. Enquiries disclosed that Mr. Hoo was a licensed firearm dealer and importer. He said “that these two licences were part of his stock.” Sergeant Miller said he interviewed Mr. Hoo, who told him that on the morning of the 19th he had taken the two firearms to Mr. Chin, for him to express an opinion as to whether it was feasible to attach target sights to them. The firearms had been cleared by Mr. Chin, taken from him and brought back to him by Mr. Hoo on 19th December, 1986, Mr. Hoo asked Mr. Chin to keep the guns in safety in his vault that day as he was in Kingston for business. According to the Sergeant, Mr. Hoo did not tell him that he intended to collect it on that day.

4 After the learned trial judge had ruled that there was a case to answer the applicant gave sworn evidence, and called Mr. Ernest Hoo as his witness. The applicant spoke of Mr. Hoo coming to him on the 19th December, 1986, and asking him to advise whether the two guns exhibited in Court could be fitted with adjustable sights, instead of the fixed sights, which were then on the firearms. Mr. Hoo then requested him to keep the firearms in his vault. He added that he had cleared those firearms at the Airport in August 1986, and Mr. Hoo had then taken charge of them. He said that when Sergeant Miller and the other police officer came to his premises, upon enquiry by them, he informed them that he had cleared the firearms with Mr. Hoo in August, 1986. He admitted that he informed the Sergeant that he had no licence for these two firearms. It was common ground that for other firearms found in his vaults, the applicant was properly licensed.

5 Because of his nervousness, the applicant said he did not mention to the police while they were at his house that Mr. Hoo had brought the guns to him on that morning. He is a member of the Gun Club, he knew that the guns came in legally, and he did not know that it was “illegal for his to just hold it for him.” To a question form Crown counsel, he added: “down at the Club ma'am, I have always overheard people say they keep guns for people once they have a firearm ………. I f you are the holder of a firearm licence you can keep a gun for some other people.”

6 Mr. Hoo's evidence tended to confirm how Mr. Chin came to be in possession of the firearms on the 19th December, 1986. He identified them as those which had been cleared at the Airport with the help of a Mr. Sasso, and the applicant at some earlier date.

7 Six Grounds of Appeal were formulated in writing and argued before us by Mr. Muirhead. They are as follows:

• “1. The finding of the learned trial judge that the accused took possession of the firearm in August 1986 and remained in possession until 1 December 1986, is unreasonable and not supported by the evidence.

• 2. The finding of the learned trial judge that the accused was in illegal possession of the firearms is contrary to the provisions of section 20 of the Firearms Act as the accused was an agent of Ernest Hoo, an owner within the exceptions under the Act.

• 3. The learned trial judge was in error in holding that the accused was in possession of the firearms as the evidence establishes that the accused had the barest custody or only custody thereof;

• 4. The conduct of the accused was such that it did not constitute any offence within the provisions of the Act in accordance with the principles of law stated in R v. RUPERT JOHNSON 31 WIR 297;

• 5. If contrary to the assertion of the accused, he had possession and not mere custody or custody of the firearms the said possession was not unlawful even if it was outside the exceptions created by the Firearms Act.

• 6. The learned trial judge improperly rejected the submission of NO CASE TO ANSWER and contrary to law, failed and/or declined to properly consider the submission before ruling thereon.”

8 Before this Court, Mr. Muirhead urged, firstly, that the learned trial judge improperly rejected the submission of No Case to answer, and, contrary to law, failed and/or declined to properly consider the submission before ruling thereon. This stricture refers to the ruling by Morgan, J., at the end of submissions by Mr. Muirhead, for the applicant, and Miss Strawe for the Crown. The learned trial judge ruled as follows

“I had a look at the section. I have had to look at the other sections in the Act, and I have come to the conclusion that before I consider the submissions I ought to hear evidence — Case to answer.”

9 This, Mr. Muirhead contended, indicated a misdirection of herself, because she said, that evidence was requisite before she could rule. He adverted us to the well-known and frequently cited Practice Note by Lord Parker, L.C.J., published in [1962] 1 All E.R. 448 D.C. To this, he added the decision of the Court of Appeal (Criminal Division), in R. v. Galbraith [1981] 2 All E.R. 1060. In that judgment, Lord Lane, C.J., at page 1061d-e, identified:

“………. two schools of thought: (1) that the judge should stop the case if, in his view, it would be unsafe (alternatively unsafe or unsatisfactory) for the jury to convict; (2) that he should do so only if there is no evidence on which a jury properly directly could properly convict. Although in many cases the question is one of semantics, and though in many cases each test would produce the same result, this is not necessarily so. A balance has to be struck between on the one hand a usurpation by the judge of the jury's functions and on the other the danger of an unjust conviction.”

10 Notwithstanding, the judgment sets out what the approach of the judge should be when there is a submission of ‘he case’. He says at page 1062e-g:

“……….. (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the Crown's evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the Crown's evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are general speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.”

11 Bearing these views in mind, we apply these criteria to this case. First of all, at the end of the prosecution case, the position was that the appellant, upon the evidence which had been given up to then, was found in possession of two firearms for which he had produced no licences. Despite the fact that the Crown witness related what he had been told by Mr. Hoo, the fact is that at that stage the real question in the case was: was the appellant prima facie in illegal possession of the firearms? The legal arguments propounded to the trial judge were intended to show that on the interpretation of the relevant statutory provisions, the appellant should not have been called upon, and the law applicable should have been interpreted favourably to him with the consequence of the accused being discharged.

12 Remarkably, Lord Goddard, C.J., noted in R. v. Abbot [1955] 2 All E.R. 899 cited by Mr. Muirhead, the opinion of all members of that Court was that at the close of the case for the prosecution, there was no evidence against the appellant at all, and that was the opinion of the learned trial judge. That case fell squarely within (1) set out in R. v. Galbraith (supra). In R. v. Galbraith the evidence was such that, on the Crown's evidence, there was a case for the appellant to answer in that, in the circumstances presented by the evidence, it seems to us that this was eminently a case where the jury should be left to decide the weight of the evidence on which the Crown...