The Queen v. Leung Chi-hung

CACC001412/1983

BETWEEN

---------

Coram: Roberts, C.J., Sir Alan Huggins, V.-P. & Barker, J.A.

Date of Judgment: 27th January 1984

___________

JUDGMENT

___________

Sir Alan Huggins, V.-P.:

1. Certainty in the law is always desirable but never more so than in relation to criminal offences. Where a criminal offence carries a mandatory sentence, any doubt as to what constitutes the offence may lead to serious injustice.

2. Section 33(1) of the Public Order Ordinance prescribes mandatory sentences for the offence of possession of an offensive weapon in a public place and s.2 defines "offensive weapon" as

"Any article made, or adapted for use, or suitable, for causing injury to the person, or intended by the person having it in his possession or under his control for such use by him or by some other person".

That definition would cause no real difficulty were it not for the words "or suitable'', words which are not found in the comparable English legislation. As was pointed out in Lok Chi-wai v. Reg. 1973 H.K.L.R. 577, 580:

"Nearly everything, animate or inanimate, could be used to cause injury and was to that extent 'suitable' for causing injury."

It cannot have been intended that, for example, the possession of a pencil, a key or a tie-pin should impose on the possessor a burden of showing reasonable excuse in a court of justice. Yet each of them is capable of producing grievous bodily harm.

3. In the case cited I expressed the view, obiter, that the intention was to include "anything which can readily and effectively be used to cause injury" and that view was adopted by my Lord the Chief Justice in Chan Fuk-hing v Reg. 1979 H.K.L.R. 495. It may well have been these decisions which led the judge in the present case to say that the pocket knife found on the Appellant was indeed an offensive weapon.

4. The circumstances of the present case were these. The Appellant was arrested in connection with a robbery, an offence for which he was subsequently tried and of which he was acquitted. The evidence on that charge was that the robber carried a knife. At the time of the Appellant's arrest he was searched, but no weapon was found. He was taken to a police station and there he was searched again. On this occasion the pocket knife in question was found in a hip pocket in his trousers, it being lodged in the fold of a wallet. The judge, who examined the knife, described it as a "simple folding knife". In the course of an interrogation at the police station it was described as an "8 inch knife", but we are told that in fact the knife was about three inches long when closed. Unfortunately it was not available for our inspection but we will assume that the estimate of eight inches was based upon a closed length of four inches. Although not an unusually large pocket knife, it could, of course, be used to cause serious injury.

5. In the two cases previously cited the court was concerned with knives of a kind which are not normally carried on the person: one was "an ordinary fruit or vegetable knife with a blade about 3½" in length" and the other a melon knife with a blade 11½ inches long. They were not pocket knives. What was said in those cases must be read in the light of that fact.

6. We agree with Pickering, J. in the unreported case of Attorney General v Hui Kwok-keung 1973 Cr. App. No. 863 that the introduction of the words "or suitable" into the definition renders indecisive the distinction drawn in England between weapons which are offensive per se and those which are not made or adapted for the specific purpose of offence. In both the reported cases cited it was recognised that the words "suitable for" must be construed more narrowly than ''capable of" and we are satisfied that justice so requires. The definition must be applied with common sense and it is not enough to say that s.19 of the Interpretation and General Clauses Ordinance requires a large and liberal interpretation and that injustice can be avoided by a reasonable application of the law by the Executive. The requirement that no prosecution for this offence shall be instituted without the consent of the Attorney General does not prevent an arrest for the offence and all the consequences that may ensue therefrom.

7. Obviously a thing is not "suitable" only for the purpose for which it was manufactured. The melon knife in Chan Fuk-shing v R. (supra) was manufactured for cutting melons but was obviously suitable and, when carried in a public place, probably intended for cutting heads: it was not necessary to prove that the defendant in fact intended to use it as an offensive weapon. It is difficult to decide what precise line of demarcation was intended by the Legislature, but we think that any article which the average person might reasonably carry about him every day would not be "suitable" for use as an offensive weapon, even if capable of such use. The piece of stone in Harrison v Thornton (1979) 68 Cr. App. Rep. 28 was held to be an offensive weapon "since, when the defendant picked it up, he intended to use it for causing injury to the person of Borg". We think it would be unnecessary in Hong Kong to prove a comparable intent, because the piece of stone would not only be capable of causing injury but would not be a thing which the average person would normally carry and no injustice would be done if the carrier were required to justify his possession.

8. We do not say that the test we have suggested will necessarily be sufficient to cover all future cases, but it seems to us that the knife carried by this Appellant was not such that it fell within the statutory definition of an "offensive weapon" unless an intent to use it as an offensive weapon was proved.  The Appellant having beer acquitted on the robbery charge, it was accepted by the Crown that there was no evidence which could arguably support a finding of such an intent, nor did the judge suggest that there was.

9. For these reasons we granted leave to appeal, allowed the appeal, quashed the conviction and set aside the sentence of 9 months imprisonment.

27th January 1984.