HKSAR v. Chan Yiu Shing and Another

[English Translation – 英譯本]

HCMA 377/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 377 OF 2016

(ON APPEAL FROM TMCC NO. 601 OF 2015)

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JUDGMENT

1.The two appellants in the present case were each charged with one count of ‘Possession of Offensive Weapon in Public Place’[1] . They appeared at Tuen Mun Magistracy where they pleaded not guilty to the charge. The Magistrate[2] found both of them guilty after trial and sentenced D1 to nine months’ imprisonment and D2 to six months’ imprisonment. They now appeal against their convictions and D1 additionally appeals against his sentence.

The Prosecution Case[3]

2.On the day in question, a procession against parallel goods traders was staged in Yuen Long district. At about 7 p.m., Senior Detective Police Constable 139 (PW1) and other police officers, including Detective Police Constable 47072 (PW4) and Detective Police Constable 4427 (PW3), were on plainclothes duty, patrolling in the area around On Ning Road. They saw D1 and D2 walking two abreast on an unnamed road. D1 was wearing an armour-like black hard plastic protective gear and a reflective vest. He was carrying an orange-coloured rucksack on his back and wearing a belt on which multiple waist bags were strung around his waist.  The police officers intercepted them because of the way they dressed and acted.

3.Upon enquiries, D1 stated that he went to Yuen Long to do first-aid work. Inside the two black nylon bags of D1, the police found:

(1) one white plastic bag containing 4 transparent plastic bottles with nozzles [Exhibits P2 to 5], all of which contained brownish black liquid;

(2) one transparent plastic bottle with nozzle which contained brownish black liquid [Exhibit P6] and a folding knife.

D1 stated that the liquid in Exhibits P2 to P5 was chilli oil; as for Exhibit P6 and the folding knife, he stated that he “had nothing to say”.  PW1 arrested him for the offence of “Possession of Offensive Weapon”. Other items on D1 included a helmet, a headlamp, a gas mask, goggles, gloves, a walkie-talkie, a coil earpiece, torches, a lighter, and a mobile phone.

4.As for D2, PW4 found a red cutter in the black waist bag on the front of his waist and therefore arrested him for the offence of “Possession of Offensive Weapon”. Inside D2’s waist bag, therewere also a transparent spray bottle containing red liquid [Exhibit P8], an electronic spirit level, a mobile phone battery and paper.

5.Earlier in that afternoon, a large number of protestors, some of whom standing and some shouting slogans constantly, congregated on the pavements in the area around Sau Fu Street and Tung Lok Street in Yuen Long.  At around 5:40 pm, in view of the heavy pedestrian flow at the location, the police set up a cordon to prevent protestors from dashing into the road. At around 6:10 pm, some 40 protestors charged at the police cordon at the intersection of Castle Peak Road and Fook Hong Street, trying to dash into the road.  The situation became chaotic. It was at around 8:30 pm[4] that the situation quieted down.

6.Dr. So Man Ho (PW6), a forensic scientist, stated that each of the bottles of the relevant exhibits had an operating button associated with a nozzle at the top, which would allow the liquid inside the bottle to be discharged from the nozzle in the form of fine spray over a range of 50 centimetres. For the liquid concerned, all contains capsaicin, dihydrocapsaicin and isopropyl alcohol. Capsaicin and dihydrocapsaicin are natural compounds present in chilli peppers. When a mixture of these two kinds of capsaicin and isopropyl alcohol is put into a spray bottle and meant to be discharged over a range, it indicates that the liquid is not intended for general household use. He also stated that some personal protective devices in the form of spray bottle are often found to contain these two kinds of capsaicin and are used to target at the subject in the eyes or face to elicit a burning sensation in the soft mucosal tissues. Isopropyl alcohol is an industrial solvent commonly found in household and personal care products such as rubbing alcohol, which cancause irritation if it comes into contact with the eyes. Dr. So opined that isopropyl alcohol acted as a solvent in the exhibit liquid because capsaicin and dihydrocapsaicin, being insoluble in water, would require alcohol to mix them with water. The isopropyl alcohol content in the liquid of Exhibits P2 to P6 and P8 was 14% v/v or 15% v/v. This shows that they were prepared using the same method, that is extracting the two kinds of capsaicin mentioned above with ordinary household alcohol and then undergoing some processing procedures through which the alcohol content was made similar. Since no oil content was found in the liquid of Exhibits P2 to P6 and P8, he did not consider Exhibit P40 (i.e. another bottle of chilli oil found in D2’s car) was the source from which they were produced.

7.Dr. Poon Wai Ming (PW2), a forensic pathologist, stated that the content of capsaicinoids in the liquid in Exhibits P2 to P6 and P8 was lower than the known concentration of capsaicinoidsin pepper spray. Those six bottles of liquid, if discharged in the form of spray, were expected to produce effects similar to those of pepper spray products (by reference to products for law enforcement, anti-riot purpose, suspect control or self-defence). For example, (i) in case of contact with the skin, conditions such as burning or stinging sensation on skin, stinging pain in eyes, lacrimation, inability to open eyes and so on would develop; (ii) if inhaled, conditions such as burning or stinging sensation in mucous membrane of nose and mouth, coughing, breathing difficulty and so on would arise. However, the severity would be far lower than the effects pepper spray products would have on the human body. The pain would only be a mild to moderate degree of discomfort. He said that these six bottles of liquid were substances which would cause people to feel slight discomfort, the degree of which would be equivalent to the pain, lacrimation and closing of eyes caused by having sand blown into eyes, or skin redness and swelling caused by exposure to the scorching sun. For this liquid, the larger the dose sprayed out, the stronger the effect would be.

Defence case

8.Both appellants testified in court during the trial.  D2 also called a witness, Ms. Wu.  Their testimonies can be summarized as follows[5]:

D1

9.On the day in question, he went to Yuen Long to assist RC Medical Team in providing voluntary first aid services.  The voluntary medical team provides first aid services and health checkup in the communityand in places where processions are held.  When he was intercepted by the police, he was planning to go to a first aid station located outside the Hong Kong Jockey Club to provide first aid services to the injured and the unwell.   However, he did not know the way.  He only knew that there was a “Jockey Club” as a landmark in the vicinity.  He was wearing protective gear because he needed it to protect his knees and elbows when giving first aid such as cervical spine immobilization.  In respect of the helmet and the shoulder pads, since he only had one set of gear to protect his elbows and knees, he needed an extra one.  It so happened that there was a protective armour at home so he put it on.   As for the folding knife on him, he would use it to cut open the clothes of patients when necessary in order to bind up the wounds.

10.The contents of Exhibits P2 to P6 were chili oil given to him by his relatives in the mainland.  The bigger bottle [Exhibit P6] was for his own consumption and he had also consumed some of it.  Thus, it was kept in a bag for personal belongings, along with the folding knife, the wallet and the mobile phone; whereas Exhibits 2 to 5 were kept in another bag because he intended to take them to friends whom he had arranged to meet after work.

D2

11.He was a “scaffolder” by profession.  He loved hot spicy food very much.  The bottle of chili oil [Exhibit P40] kept in his vehicle was bought from “Ka Lai Yuen”, a noodle shop in Yuen Long.  He loved the level of spiciness and the aroma of the chili oil of “Ka Lai Yuen” very much.  Thus, he usually had it with him when going out.  He had already consumed this chili oil over 20 times.

12.As for Exhibit P8, the bottle of chili oil kept in his waist bag, it was given to him by Ken, a friend.  Shortly before the day in question, while he was having a meal with Ken, Ken asked him to comment on Exhibit P8.  This chili oil only had a hot flavour without aroma.  He found its packaging more handy and hygienic than that of the one he had with him all the time.  On four or five occasions when he patronized some snack shops, he had “sprayed” some chili oil from Exhibit P8 on the snacks such as ‘Shao Mai’ and fish balls before eating.

13.Around noon on the day in question, he was sorting out bamboo sticks with a cutter [Exhibit P7] in a truck.  During the period, Ken arranged to meet with him in Long Ping MTR Station.

14.He and Ken took a stroll on the streets in Yuen Long and chitchatted with each other.  Afterwards, he felt very tired and as he needed to go to work the following day, he parted from Ken upon reaching Long Ping Station.

15.He bumped into D1 at Long Ping Station.  D1 asked him “the way”.  He learned that D1 needed to go to the “Jockey Club by the Nullah” to perform first-aid duties so he led him to that place.  They were intercepted by the police on the way. The police also made enquiries of him about why he brought Exhibit P7 with him when going out and what Exhibit P8 was.  He answered that Exhibit P7 was for the purpose of making a scaffold while Exhibit P8 was the chili oil he had with him for consumption when dining out.  The police asked him if he knew D1, he answered in the negative.  D1 only asked him the way.  However, he learnt that D1 had served in the military from a War Game group.

Ms. Wu, a defence witness

16.She was D2’s girlfriend, and they had known each otherfor 7 years.  She did not know D1, nor did she know if there was any relationship between D2 and D1.

17.D2’s mother is Thai.  Their family liked their food very spicy.  When dining out, D2 would order spicy food and would often add the chili oil he had with him.  He would definitely do so when eating “Shao Mai” and fish balls.  As he particularly liked the chili oil of “Ka Lai Yuen”, he often had a little bottle of chili oil with him and would also keep it in his vehicle.  D2 had showed her Exhibit P8 at home and indicated that it was easy to carry around.

18.D2 did not have a habit of tidying up his waist bag so he often had with him scaffolding tools such as cutters and pliers.

19.On the day in question, she left home at 8 o’clock in the morning while D2 was still sleeping.  She did not see D2 again on that day.

The Magistrate’s assessment of the credibility of the witnesses

20.Concerning the assessment of the credibility of the witnesses, the Magistrate’s findings were as follows:

(1) The six prosecution witnesses were all honest and reliable, and the expert witnesses also gave their impartial opinions separately;

(2) the exculpatory accounts given by D1 and D2 were unbelievable;

(3) the testimony of the defence witness was unbelievable.

The Magistrate’s findings on facts

21.The offensive weapons the prosecution referred to were sprays containing capsaicin the two appellants each had in possession.  The prosecution did not allege that the sprays were offensive weapons per se, but that they were items in the possession of the person for the purpose of causing injury to others by him or by some other person[6].

22.The Magistrate found that the relevant sprays the two appellants each had in possession were for this unlawful purpose.  There was no evidence in the case to show that the appellants had lawful authority or reasonable excuse for the possession.  Therefore, both of them were found guilty of the charge.

Grounds of appeal against conviction

D1

23.D1 was represented by Mr. Alexander H.F. Cheung[7]. The grounds of appeal he advanced can be summarized as follows:

(1) The Magistrate erroneously shifted the burden of proof onto the defence.

(2) The Magistrate erroneously took into account uncharged acts when she considered whether the relevant articles were offensive weapons.

(3) The Magistrate erroneously found that the relevant articles were offensive weapons.

(4) The Magistrate did not handle the defence evidence properly.

(5) The conviction was unsafe and unsatisfactory.

D2

24.D2 was represented by Mr. Randy Shek[8], who put forward the following grounds of appeal:

(1) The Magistrate erroneously failed to direct herself on uncharged acts.

(2) The Magistrate erroneously found that D2 had the relevant exhibits in his possession for the purpose of causing injury to others by him or by some other person.

(3) The Magistrate erroneously found D2’s exculpatory testimony unbelievable and rejected the exculpatory explanations.

(4) The conviction was unsafe and unsatisfactory.      

Discussion and consideration

D1

Ground of Appeal (1)

25.Mr Cheung submitted that the only issue in the present case was whether the chili spray was an offensive weapon.  In deciding this issue, the crux was the purpose of D1’s possession of the said spray.  The Magistrate should have firstly decided whether the article was an offensive weapon before dealing with the defence raised by D1, instead of accepting the prosecution’s evidence upon a comparison of both sides’ evidence.

26.For that reason he criticised the Magistrate for shifting the burden of proof, which was that she considered first whether D1 had raised any reasonable defence and then accepted the testimonies of the prosecution witnesses.  By doing so, the Magistrate was at fault for putting the cart before the horse.

27.In the present case, the chili spray was not an offensive weapon per se.  The duty of the Magistrate was to make a finding, based on the evidence in the case, on whether the prosecution could prove that the appellants were in possession of the said article with an intent to cause injury to the person by him or by some other person.  That is to say, as submitted by Mr Cheung, the key question was the purpose of D1’s possession.

28.In relation to the issue of purpose, unless there is direct evidence such as an admission, the court has to consider whether the purpose in question is the only reasonable inference that can be drawn from the evidence as a whole.  In this regard, it must be emphasized that the court has to consider the relevant evidence as a whole, including the evidence of the prosecution and the defence.

29.In the instant case, D1 gave evidence at trial.  His testimony clearly denied the unlawful purpose.  Hence, if the Magistrate, after proper assessment, found this part of D1’s testimony truthful or may be true, such a finding would mean that it is impossible for the prosecution to prove that D1 was in possession of the chili spray for the purpose specified in law.  Under such circumstances, the only conclusion would be: the spray was not an offensive weapon.

30.Thus, evaluating D1’s testimony was an essential part in the consideration of the Magistrate.

31.In her Statement of Findings, in the paragraphs relating to the evaluation and analysis of the evidence[9], the Magistrate first stated that she was satisfied that the prosecution witnesses were honest and reliable and accepted their testimonies. Then she moved on to her evaluation of the evidence given by both appellants and the defence witness.  From her overall analysis, I do not see the Magistrate had put the cart before the horse in her evaluation and consideration at all. It was inevitable that in considering whether the articles were offensive weapons, there must be involved the making of findings on D1’s testimony, otherwise it would be impossible to safely determine the relevant issues.

32.In his submissions, Mr Cheung mentioned s.94A of the Criminal Procedure Ordinance[10].  What he referred to was the provisions in s.94A(2).  The full text of s.94A reads as follows:

“(1) It shall not be necessary in an indictment, charge, complaint or information alleging an offence to negative any exception or exemption from or qualification to the operation of the law creating the offence.

(2) For the avoidance of doubt it is hereby declared that in criminal proceedings—

(a) it is not necessary for the prosecution to negative by evidence any matter to which this subsection applies; and

(b) the burden of proving the same lies on the person seeking to avail himself thereof.

(3) This section applies to criminal proceedings in the District Court or a magistrate’s court.

(4) The matters to which subsection (2) applies are any licence, permit, certificate, authorization, permission, lawful or reasonable authority, purpose, cause or excuse, exception, exemption, qualification or other similar matter.”

33.D1’s testimony can be seen as evidence supporting his defence[11]. However, this is not the only relevance this piece of evidence has in respect of the issues of this case.  As stated above, the relevant issues included whether the article was an offensive weapon, which concerned the purpose of possession.  As D1 produced evidence on the reason why he was in possession of the said chili spray, the Magistrate must take D1’s evidence into account in her evaluation and consideration while dealing with the relevant issues.

34.In her evaluation and consideration of D1’s testimony, clearly the primary concern of the Magistrate was whether the articles were offensive weapons. Otherwise, she would not have to emphasize that for the articles to be found offensive weapons, such conclusion must be the only reasonable inference that could be drawn from the evidence.  This standard of proof is only applicable where the burden of proof is on the prosecution, and not where the defence has to produce evidence in support of their defence.  From that, it can be seen that what the Magistrate did was what Mr Cheung argued that she should first do: To decide whether the relevant spray was an offensive weapon.

35.As the Magistrate had made findings on the credibility of D1’s testimony when considering whether the article was an offensive weapon, when she considered other issues, such as whether there was any legal authority or reasonable excuse, her findings on the evaluation of credibility would not change and must be the same.  Since the Magistrate found that the relevant parts of D1’s testimony were incredible, obviously her findings on the issues of whether there was any legal authority of reasonable excuse must be the same as her current finding. Section 94(A) does not have much effect in the consideration of this appeal.

36.The Magistrate did not put the cart before the horse in her consideration.  This ground of appeal fails.

Ground of Appeal (2)

37.Mr Cheung complained that the Magistrate erred in inferring that D1 was a person with a propensity to commit crimes from his clothing and outfit, especially when those were not charged acts.

38.In her detailed Statement of Findings, the Magistrate explained the reasons for finding the chili spray to be an offensive weapon[12], one of which being D1’s clothing and outfit[13].

39.I completely agree with the Magistrate on how she dealt with the matters.  D1’s special clothing and gear at the time was part of the evidence as a whole.  It was relevant to the consideration of the purpose of D1’s possession of the chili spray and should be taken into account.

40.In R v Chong Ah Choi[14], the Court of Appeal pointed out that in considering whether an inference can be drawn, the court is entitled to take into account the following[15]:

(1) the nature and condition of the implement itself;

(2) all the circumstances surrounding the accused’s possession of it, such as the time, the place, what legitimate use it might have had at such a time and in such a place, whether it was carried or concealed, his observed behaviour in general, his reaction to being approached by the police and so on.

41.In relation to whether the Magistrate took the uncharged acts into account, I agree with the submission made by Mr Jonathan T H Man, Senior Assistant Director of Public Prosecutions[16] (Mr Man) representing the respondent, that this concept in law does not apply in this case.

42.An “uncharged act” mainly concerns some specific circumstances, with the most obvious one being what the Court of Final Appeal had pointed out in Chim Hon Man v HKSAR[17]:

“There was a general principle that in the absence of any act or acts being identified as the subject of an offence charged in an indictment, the prosecution could not lead evidence that was equally capable of referring to a number of occasions, anyone of which might constitute an offence described in the charge, and invite the jury to convict on anyone of them.[18]”

The undesirability of such circumstances can be seen in the judgment written by Sir Anthony Mason, NPJ:

“Knowledge of the particular act, matter or thing which is the foundation of the charge is important in enabling the accused to ascertain and prove what, if any, defence, for example, an alibi, he may have to the offence charged and to subject a complainant's evidence to searching scrutiny by reference to the surrounding circumstances. An accused person may be subjected to unfairness and embarrassment if he is called upon to meet a charge of one offence based upon evidence of the commission of multiple offences, more particularly if the evidence is such that it does not enable each such offence to be clearly differentiated from the others. The degree of unfairness or embarrassment may vary according to the circumstances. If the prosecution case is based on evidence of many offences in an extended period of time the unfairness may be considerable.[19]”

43.“Uncharged acts” are many and varied and are especially common in sexual offence cases. The Court of Appeal has the following observations in HKSAR v Chu Chi Wah (No.1)[20]:

(1) In cases involving sexual abuse against children, evidence concerning “uncharged acts” can be relevant and admissible evidence.  Such evidence can be background information which explains the relationship between the defendant and the victim; explains why the victim cannot remember the details of a particular event; explains the victim’s behaviour, including why she did not make any complaint; and explains why the defendant could flagrantly and confidently make the victim submit and allow him to sexually abuse her again and again without the need to use any threat or inducement.

(2) The court is not bound to refuse to admit the evidence of “uncharged acts” by reason of its nature alone: The issue of whether such evidence is admissible or not must be decided on the individual circumstances of each case. Even though such evidence is not used as identification evidence of the defendant, or as “similar fact evidence” to prove that the defendant had committed the offence charged, or raised by the defendant to challenge the credibility of the complainant, the court may admit such evidence if refusing to do so would result in the jury having an incomplete or incomprehensible account of events[21].

44.As to whether a piece of evidence can be admitted into evidence, the basic principle is that it is admissible if it is directly or indirectly related to an issue to be decided in the case and there is no statutory provision requiring it to be excluded. For evidence that is relevant but should be excluded, usually it is because the prejudicial effect of such evidence outweighs its probative value.

45.The Court of Appeal has the following observations[22] in HKSAR v Kwok Hing Tony[23]:

“(a) The issue of whether evidence of “uncharged acts” is admissible or not must be decided on the individual circumstances of each case, and the court is not bound to refuse to admit such evidence by reason of its nature alone;

(b) Even though such evidence is not used in a particular case as identification evidence of the defendant, or as “similar fact evidence” to prove that the defendant had committed the offence charged, or is deployed by the defendant to challenge the credibility of the complainant, the court may still admit evidence of “uncharged acts” in circumstances including the following:

(i) to prove the setting and context in which the offence occurred;[24] or

(ii) to explain the defendant’s confidence in repeating the offence; or

(iii) to explain unusual acts on the part of the complainant (such as the lack of surprise or fear, or the lack of complaint, or acts of acquiescence); [or]

(iv) to explain why the complainant is unable to recall the specific date and details of the offence charged.”

46.There is no principle of law that uncharged acts must not be used as evidence. An obvious example that uncharged acts can definitely be used as evidence is this: A person armed with a gun may be charged with a single count of robbery, but in his trial, although he is not charged with any offence relating to the firearm he possessed, the evidence that he is armed with a gun at the time of the robbery is undoubtedly admissible.

47.In my view, what Mr Cheung referred to (see para.37 of this Judgment) is definitely not the evidence of uncharged acts which is inadmissible in law or evidence which is admissible but requires consideration under special directions. Instead, it is the type that is relevant to the issue to be decided in the case and which should be allowed to be produced if there is no statutory provision requiring its exclusion.

48.This ground of appeal fails.

Ground of appeal (3)

49.In his submission, Mr Cheung said that the Magistrate erred in finding that the chili spray concerned was an offensive weapon, the reason being that even though D1’s testimony should not be accepted, this finding was not the only reasonable inference supported by the evidence. Taken to its highest, it was only a suspicious case. He set out the following matters to support his arguments:

(1) The following findings made by the Magistrate were arbitrary:

(a) D1 knew at the time that exhibits P2-P6 were not chili oil and were inedible;

(b) He would definitely use the chili spray to attack and injure others;

(c) Given how D1 was dressed and his intention to go to the vicinity of where violent clashes had taken place, an inference was made that he was going there to take part in the protest procession;

(d) Even though D1 would definitely take part in the protest procession, no further inference could be made that he would take part in violent clashes;

(e) Nor could any inference be made that he intended to injure others by using the five bottles of chili spray in his bag instead of the small knife, helmet, gloves or armour in his person.

50.In giving her reasons for making the relevant inference, the Magistrate set out the following matters[25]:

(1) The location where D1 was intercepted by the Police was about 2-minute walking distance from the location of the protest procession;

(2) D1 was walking towards the location where there were protest procession activities, on the way to the location relating to the protest procession;

(3) At the location of the protest, there were around 40 people storming the police cordon, attempting to rush out to the road;

(4) D1 knew at the time that clashes had taken place at the protest procession;

(5) He was wearing protective gear including chest guard, spine guard, elbow guard and knee guard, and carrying a helmet, headlamp, knuckle protection gloves, goggles, gas mask and walkie-talkie;

(6) Exhibits P2-P6 were not for consumption and were inedible. They were similar to pepper spray products, which would discharge a fine spray over a range of 29-61cm at the press of a button. The total concentration of capsaicinoids contained in the liquid was milder or lower than that of pepper spray products, and so the discomfort caused would be general or mild. However, if the liquid was sprayed at the human eyes and face, it would still cause discomfort to the eyes, skin and respiratory tract, similar to the pain, lacrimation and closing of the eyes caused by sand blown into the eyes or the erythema, swelling and stinging pain of the skin after exposure to sunlight, and coughing;

(7) Exhibits P2 to P6 were put in the water bottle holder and waist bag at the waist of Mr Chan, which could be taken out conveniently for use at any time;

(8) The label on exhibit P6 was marked with “Ethyl alcohol” [large font] and “For external use only”, and the liquid in the transparent bottles of exhibits P2-P5 and the liquid in the transparent bottle of exhibit P6 looked the same and both of them were oil-free.

51.The Magistrate also pointed out: “I am sure that he [D1] knew at the time that exhibits P2-P6 were not chili oil and were inedible.  Further, the protective gear he was wearing and the equipment he was carrying further reflected that he knew about the clashes and expected them.  He was prepared to and would use those protective gear and equipment in response to those clashes, and would definitely use exhibits P2-P6 in those circumstances to attack and injure others.”

52.One of the issues Mr. Cheung argued is that the Magistrate’s consideration was based on D1’s knowledge that the liquid concerned was not edible.  He criticized this finding as lacking sufficient supporting evidence.

53.I beg to disagree with this submission.  According to the forensic scientist’s expert opinion, each bottle of the liquid in question contained capsaicin, dihydrocapsaicin and isopropyl alcohol.  Isopropyl alcohol is an industrial solvent, whereas both capsaicin and dihydrocapsaicin can cause a burning sensation to soft mucosal tissues.

54.According to the expert opinion of Dr Poon[26], capsaicin is an active component of red chili peppers and will produce a sensation of burning pain when coming into contact with bodily tissues. Ingestion of capsaicin may cause an acute stinging sensation to the lips, the tongue or the oral mucosa, and epithelial cell sloughing or mild mucosal bleeding may occur.  Capsaicin can produce nausea, vomiting, abdominal pain and diarrhea if ingested in large amount by adults or small amount by children.  Inhalation of tiny particles of capsaicin as it disperses will lead to coughing and difficulty in breathing.   Ingestion of dihydrocapsaicin will produce similar but less potent effects.  Isopropyl alcohol is an alcohol commonly used as a disinfectant.  It can also cause central nervous depression and ingestion of a large dose will lead to poisoning.    

55.Dr. Poon pointed out[27] that bodily contact with/exposure to/inhalation of a mixture of capsaicin, dihydrocapsaicin and isopropyl alcohol can cause a burning sensation or stinging pain to the skin with erythema; intense lacrimation, pain to the eye and blepharospasm on eye exposure; and coughingand difficulty in breathing on inhalation.  These effects would lead to considerable pain, irritation and discomfort, and might temporarily incapacitate a subject who inhaled them.

56.Dr. Poon also pointed out[28] that given the much lower total capsaisinoid concentrations found in the liquid contained in the six spray bottles when compared with pepper spray products, it is unlikely that they would have caused the reported effects of irritation to the skin, eyes and respiratory track by pepper spray products, although the possibility that they can cause a mild degree of irritation cannot be excluded.  Nor is there any evidence to suggest that they would cause any external injuries or malfunction of the body.  The liquid cannot be regarded as noxious.

57.The Magistrate accepted the expert’s opinion and such findings could not be faulted.  According to the expert, although the extent of discomfort brought on by such chili liquid is much lower than that from sprays generally used for self-defence, such discomfort would still be considerable.  D1 must have had some knowledge about the discomfort brought on by such substance when it came into contact with the body, including when it was put into the mouth.  The Magistrate’s comments about “knowing that it was not edible” should also be understood on this basis instead of inedibility in the sense of ingestion of a poison.   Such finding was supported by evidence.  In any event, the appellant’s assertion that he possessed these sprays for consumption is totally unbelievable.  I agree with the finding of the Magistrate.

58.Given that the Magistrate rejected the exculpatory testimony of D1, her next step would be to determine whether the evidence she accepted would support the inference that D1 had the unlawful intention in question.  In this regard, there is no direct evidence.  Consequently, the crux lies in whether this conclusion is the only reasonable inference supported by the overall circumstantial evidence.

59.As regards how to handle, evaluate and consider the circumstantial evidence, the Court of Appeal in HKSAR v. Tsang Chi Wai[29] referred to the English case R v. Exall and made the following observation:

“ 21. Pollock CB also indicated in R v. Exall 176 ER 850 at p.853 that-

‘It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.

Thus it may be in circumstantial evidence — there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of.’

22. In our view, based on the evidence in the present case, there is no need for the trial judge to adopt the standard of beyond reasonable doubt or to draw the only reasonable and irresistible inference in determining whether every primary fact has been proved.”

60.In my opinion, the matters that the Magistrate took account of [30] are circumstantial evidence she was entitled to and ought to consider.  Of course, the probative weight of each matter is not the same.  However, generally speaking, I agree with the Magistrate’s conclusion and consider that the inference drawn by her is supported by sufficient evidence and is the only reasonable inference that can be drawn from the evidence. 

61.Mr Cheung argued that the use of force would not necessarily occur again at the location of the protest and that the possibility of D1’s participation was not sufficiently supported by the evidence.  He also pointed out that although D1 was in possession of five bottles of the chili liquid, four of them were wrapped in a plastic bag and could not be easily taken out as described by the Magistrate. Moreover, the outfit that D1 was wearing at the time, which was described as armour, was merely the type that was generally worn by BMX riders.  Further, apart from this set of gear, he was also wearing a reflective vest printed with the words "First Aid", showing that he intended to join in to provide first aid service.      

62.In my opinion, such matters would not affect the finding that the liquid D1 had in his possession was an item intended to be used by him or by other persons to cause injury to others.  Upon D1's exculpatory assertion being correctly rejected, I do not see any other purpose of having the liquid in possession and it made no difference even if D1’s appearance there might have been for other legitimate purposes.  His possession of the liquid must have been for the purpose of causing injury to others.

63.D1's testimony in relation to the knife on his person was that he would use it to cut open the clothing of an injured person if necessary when giving first aid.  The Magistrate did not make a finding with regard to the knife.  Nor did she mention the knife in particular in her reasons for conviction.  I agree with Mr Man's submission that the Magistrate should not speculate on the purpose of each and every item found on D1's person.  The Magistrate had no duty to make a finding on this item, which was not the subject of the charges.  Instead, it was her duty to determine whether or not she was certain that D1 possessed the chili pepper sprays in question for the purpose of causing injury to others.  In considering the matter, the Magistrate knew full well that D1's testimony was that he went to that area for the sake of giving first aid.  Even so, giving first aid and bringing along an item intended for causing injury to people were not contradictory to each other.

64.In considering the matter, I have also taken account of the relevant points in Mr Shek’s submission [31].

65.Mr Cheung also criticized the Magistrate for wrongly regarding the ingredients set out on the outside of exhibits D1 and D2 as hearsay evidence without considering the fact that exhibit D3 could prove that the exhibits concerned were purchased from a food website and that the liquid foodstuffs were contained in spray bottles in terms of their packing.

66.In taking the view that she could not rely on the words on the packing of exhibits D1 and D2 to conclude what substance was contained in them, the Magistrate was applying the hearsay rules.  Although it would appear to be harsh, it could hardly be said to be wrong in law.  The fact that the items were purchased from a food website did not mean that they must be foodstuffs.  Even though an inference may be drawn, as pointed out by the Magistrate, there was no proof that the contents were chili oil.  I do not think that there is any problem with the Magistrate’s finding.

67.This ground of appeal fails.

Ground of appeal (4):

68.This ground of appeal relates to the assessment of D1’s credibility by the Magistrate.

69.The Magistrate rejected D1's testimony and gave her reasons as follows:

(1) He was evasive during cross-examination and was unwilling to say that he knew about the protest and clashes at his destination.  It was only under the prosecution’s persistent questioning that he had no other option but to admit knowledge.

(2) His version that he was going to go to the betting centre was not credible.  If it was true that, due to a large number of injured persons and insufficient manpower, he was suddenly required to go to the Jockey Club betting centre to perform first-aid outside, given that he did not know the address of the betting centre and he had never been there before, he would have asked the medical team for clear information about the location.

(3) His explanation of the armour and equipment was not credible.

(4) He gave contradictory versions about the origin of these chili liquid.

(5) Given that he was not familiar with Ah Ming, who supplied him with the chili liquid, and that he also had doubts about the safety of Mainland manufactured foodstuffs, in the absence of any information indicating the origin (i.e. the manufacturer and brand name), production date, expiry date, etc of Exhibits P2 to P5, his evidence that he took Ah Ming’s words so easily and believed that the chili liquid was edible was far-fetched.  Furthermore, the label on exhibit P6 bore the words "Ethyl alcohol" and "For External Use only".

(6) He said that he purchased the chili liquid at $10 a bottle and intended to sell them to friends at $7 a bottle.  When questioned as to why he would sell them at a loss, his response was that it was a promotion at the time.  The Magistrate opined that since he was not operating a related business, why would there be a need for him to promote it?

(7) Under cross-examination by the prosecution on the issue of whether he would consume the chili liquid in question, having learned from Dr. So's testimony that the isopropanol was not edible, he kept on changing his evidence to justify his assertion.

(8) Considering that he was not a spicy food lover, nor did he eat spicy food at every meal, it was unreasonable for him to be carrying exhibit P6 on his person all the time. The assertion that he could take it out to consume whenever he wanted to was, in the Magistrate’s opinion, just an excuse that he fabricated.

70.It was within the Magistrate’s power to assess the credibility of a witness.  She also had the privilege of observing the witnesses personally.  Unless there was an obvious error in her assessment, the appellate court would be slow to interfere with those findings. In HKSAR vs. Hung Mei Ling Marine[32], Yeung VP stated:

"103. Mr Lok is asking this court to re-evaluate the evidence of the witness based on the transcripts instead of the conclusion that trial Magistrate reached upon hearing and seeing the witness giving evidence.  Unless there is information indicating that the trial Magistrate was erroneous, or that he failed to discharge his duty, this court should not and will not re-assess the witness’s credibility.  This approach should not be adopted by the appellate court in handling cases. "

71.In any event, the Magistrate's assessment of D1’s credibility was well-founded and the Appellant failed to provide sufficient grounds for this court to disturb the Magistrate’s findings. This ground of appeal fails.

Ground of appeal (5)

72.This is only a catch-all ground of appeal.  No fresh argument was advanced by Mr Shek.

73.Based on my previous analysis and consideration, I do not think that the conviction against D1 is unsafe or unsatisfactory. 

Conclusion on D1’s appeal against conviction

74.I would therefore dismiss D1's appeal against conviction and affirm the conviction.

D2

Ground of appeal (1)

75.Mr Shek pointed out that D2 no longer relied on this ground of appeal.  I therefore will not consider this ground of appeal.

Ground of appeal (2)

76.Mr Shek's argument was that the overall evidence did not support the conclusion of the chili oil spray being an offensive weapon.  The reason was that this conclusion was not the only reasonable inference supported by evidence, especially when there was no evidence that D2 participated or would participate in the protest nearby.  D2 was only wearing ordinary clothing and only had a bottle of spray in his waist-bag.  The prosecution’s evidence was not sufficient to prove that the liquid in question was not edible and there was no opinion evidence from food manufacturing and packaging experts.  Furthermore, the following opinions put forward by Dr. Poon suggested that D2’s argument of self-use was not inherently impossible:

"The liquid mixtures thus would not cause any harmful effects to the human body if ingested in quantity normally associated with the use of pepper oil as food seasoning i.e. a few millitres.  They are thus suitable for human consumption if not used in excessive quantity, similar to beverages with high alcohol content such as whisky or vodka." [33] and “On the other hand, the liquid mixtures would not cause any significant effects if ingested in quantity normally associated with the use of pepper oil as food seasoning.”[34]

77.Mr Man submitted in response that the Magistrate reached the conclusion and drew an irresistible inference of guilt upon careful consideration of all the circumstantial evidence of the case.  It was not, as stated by Mr Shek, that the prosecution mainly depended on the testimony of the two expert witnesses.  He also relied on HKSAR v Tsang Chi-wai (transliteration)[35] in support of his submission.

78.The Magistrate found that the liquid was an offensive weapon and set out the matters that she had taken into account as follows[36]:

(1) D2 was walking with D1 at the time, therefore the surrounding circumstances were the same as those described in paragraph 50(1) - (4) of this Judgment;

(2) The liquid in question was not edible, and its contact with different parts of the body might cause the reactions described in paragraph 50(6) of this Judgment;

(3) There was no label whatsoever on the transparent bottle containing the liquid[37] and the liquid was oil-free;

(4) That bottle of liquid was placed inside a waist bag which was placed in front of D2’s waist, so that the liquid could be conveniently taken out at any time.

79.The Magistrate was satisfied with the testimony of the expert witness, Dr Poon.  Such finding was beyond criticism and this was not an issue raised by D2 on appeal. Mr Shek submitted that Dr Poon's expert evidence rebutted the inference on which the conviction was based since the chili liquid in question was edible. 

80.In this case, it was the Magistrate's duty to decide whether an article which is not offensive per se should be deemed to be an offensive weapon by law due to the intention or purpose of the person having it in his possession.

81.Therefore, even though the liquid in question might be edible or might not be harmful when consumed, that does not mean that it would not become an offensive weapon because of the possessor’s intention to use it to attack others.  To give an example, when a person makes clear of his intention to use a glass bottle containing red wine he is holding to hit someone on the head, that bottle of red wine becomes an offensive weapon.  The same also applies to other tools with a legitimate purpose, such as a mobile phone.

82.This part of the definition of "offensive weapon" is often focused on an object with a legitimate purpose, which only comes to be defined as an offensive weapon because of the possessor’s intent or purpose.

83.Therefore, it was the duty of the Magistrate to consider all the relevant evidence to determine whether an inference could be drawn that D2 was in possession of the bottle of chili liquid for the purpose of causing injury to others, either by himself or by other persons, and whether it was the only reasonable inference that could be drawn from the evidence as a whole.

84.Dr Poon’s expert evidence was one of the matters which the Magistrate had taken into account. Apart from what Mr Shek submitted[38] and what was stated in paragraphs 54-56 of this Judgment, the other main points of his opinion [39] are as follows:

(1) The total capsaisinoid (i.e. capsaisin and dihydrocapsaicin) concentrations for the 6 samples are 46 µg/mL, 42 µg/mL, 32 µg/mL, 111 µg/mL, 27 µg/mL and 171 µg/mL respectively.

(2) The total capsaisinoid concentrations of pepper spray products are reported to be between 0.95 µg/µL to 32 µg/µL (i.e. 950 µg/mL to 32000 µg/mL).

(3) Capsaisinoids are the active and pain-producing components of hot peppers, and the pungency of oleoresin capsicum, the pepper extract used to produce pepper spray products, was found to be proportional to its total capsaisinoid concentration. Given the much lower total capsaisinoid concentrations in the six samples when compared with pepper spray products, a much lesser degree of irritation to the skin, eyes and respiratory tract would have occurred when the contents of the 6 bottles were delivered by spraying. Ingestion of capsaisinoids may cause acute heat and stinging sensation of the lips, tongue and oral mucosa.

(4) The effects of capsaisinoids ingestion are thus related to the quantity consumed. Ingestion of 3 ml of the strongest of the six samples would be equivalent to ingestion of 1 g of capsaisinoids from the strongest fresh pepper.

85.Undoubtedly, in the opinion of the expert, ingestion of the liquid involved, unless in large amount, generally will not cause substantive health problems. However, the discomfort so caused will be sufficient to make a reasonable finder of fact disbelieve that one would add this liquid to his food and put it in his mouth. Moreover, while there are instances of liquid food being contained in spray bottles, adding chilli liquid by spraying is, after all, not a common practice. Irritation to the skin may also be easily caused during handling. Without oil as an ingredient, the liquid is also different from common chilli liquid condiment. Furthermore, even if one likes spicy food very much, chilli condiments are often readily available at eateries and there is no reason why it had to be carried around like this, particularly when D2 also said it did not have any aroma. In D2’s vehicle, there was also a bottle of chilli sauce which he said he liked very much. However, he left it in the vehicle. This bottle of chilli sauce contained oil and was different from the one he carried around.

86.It was the submission of Mr Shek that, in establishing it was an offensive weapon, the prosecution mainly relied on the evidence of the two expert witnesses to prove that the liquid in question was harmful to human beings.

87.With respect, I do not agree. As Mr Man submitted, the Magistrate made the finding only after considering the relevant evidence as a whole. The expert opinions were about the nature of the liquid in question and its effects on human beings, which were relevant to the following two issues:

(1) the assessment of the credibility of the appellant’s version; and

(2) his intention in possessing this liquid.

88.In the present case, these two issues are relevant to whether the articles concerned are offensive weapons. It is because in the light of the circumstances of the present case, it was only when the appellant possessed the articles concerned with intent to use the same for causing injury to the person that the article would fall within the statutory definition of offensive weapon. If the appellant’s version that he possessed this chilli liquid only for consumption was found to be true or possibly true, it would not be possible for the prosecution to prove that the intent concerned was the only reasonable inference supported by the evidence. It was only when the appellant’s version was not accepted that the court needed to consider whether the evidence, taken as a whole, supported the inference required. During these two stages, the nature of the liquid concerned and its effects on human beings were among the factors to be considered.

89.The reasoning behind the Magistrate’s conclusion has been discussed in paragraph 78 of this Judgment.

90.Mr Shek emphasized that if the incident in question was unlikely to cause any injury to people, compelling evidence would be required to prove the intent of causing injury to others with the articles.

91.Mr Shek also pointed out that although the location where D2 was arrested was not far away from the location of the protest, the streets in the surrounding area were accessible to and from all directions and one could hardly conclude that D2 must have been heading for the protest area. Of course, although D2 was then walking towards the location of the protest, he could have changed directions at any time. However, it must be borne in mind that he was walking with D1, who at that time was planning to go to the vicinity of the protest area. D2’s testimony was that he was showing D1 the way. It can hardly be said that the Magistrate was wrong to reject his evidence and that the finding should be overturned. According to D2’s own testimony, he and D1 did not know each other. He was tired and had parted with his friend Ken, intending to leave Yuen Long. Nevertheless, he had walked with D1 for such a long distance. It was not unreasonable for the Magistrate to find that D2 was dishonest and untrustworthy. Furthermore, D2 also had a chilli spray on him. In my view, the Magistrate’s finding that D2 was heading for the location of the protest is not one which ought to be overturned.

92.In HKSAR v Ip Chin Kei[40], McWalters J (as he then was) had the following observation regarding the approach to be taken in magistracy appeals:

(1) The appellate court will only depart from a Magistrate’s finding of fact or determination of a witness’ credibility if satisfied that it is plainly wrong;

(2) The test in determining whether an error by the Magistrate should lead to the appeal being allowed and the conviction quashed is whether it is just for such an order to be made; and

(3) Absent the appellate court identifying any error by the Magistrate, the appellate court must still perform its statutory duty of conducting a rehearing. This requires the appellate court to be satisfied that on the evidence adduced by the prosecution the guilt of the appellant has been proven beyond reasonable doubt, failing which the appeal must be allowed.

93.Referring to the case of R v Chong Ah Choi[41], I am of the view that the Magistrate’s conclusion is amply justified and safe and should not be interfered with or overturned. This ground of appeal fails.

Ground of appeal (3)

94.This ground of appeal is directed at the Magistrate’s rejection of D2’s testimony. Mr Shek criticized that this finding was incorrect, thereby rendering incorrect the Magistrate’s finding of rejecting that there was a defence available to D2.

95.First of all, Mr Shek submitted that the Magistrate was wrong in her assessment of the credibility of D2 and the defence witness. He also focused on criticizing the Magistrate’s analysis in paragraphs 28-30 of the Statement of Findings.

96.The way the Magistrate expressed her views did give the impression that paragraph 28 of the Statement of Findings contained the reasons for her rejection of D2’s evidence. However, taking the Statement of Findings as a whole, this is not the case. In paragraph 35, having set out the surrounding circumstances and the nature and effects on human beings of the liquid in question[42] which she had taken into consideration, the Magistrate pointed out: “(She) was sure he (D2) knew at the time that P8 was not chilli oil and not edible.” It clearly shows that the Magistrate had in fact concluded that D2’s possession of the liquid in question at the time was not for consumption. What the Magistrate had considered in the process was not limited to the matters set out in paragraphs 28-30 of the Statement of Findings.

97.As regards the defence witness, it is not possible for her to explain, in place of D2, the purpose or intent of his possession of a certain article. If her evidence was consistent with that of D2 or there were areas in her evidence supporting D2’s evidence, the court could take those into account in assessing whether D2’s evidence was credible. However, as pointed out by the Magistrate in paragraph 30 of the Statement of Findings, there were discrepancies in the testimonies of the two of them. Also, there were aspects in the performance of the defence witness in the witness box which made one disbelieve her.

98.In summary, having considered the above case of Hung Mei Ling Marine[43] and the circumstances as a whole, in my view, there is no good reason to interfere with the Magistrate’s finding in respect of her assessment of the credibility of D2 and the defence witness.

99.Another focus of Mr Shek’s arguments was that the Magistrate erred in rejecting that there was a defence available to D2. He submitted that as far as the present offence was concerned, even if the article in question was an offensive weapon, provided that there was a reasonable excuse for D2’s possession, he should not be convicted. He cited the case of HKSAR v Ho Loy[44], in which the Court of Final Appeal observed: A consideration of the defence of “reasonable excuse” involves looking to three matters:

(a) The matters said to constitute reasonable excuse must be identified;

(b) The court will then examine whether the excuse is genuine; and

(c) The court must make an assessment of whether that excuse is reasonable, which the court will do on an objective standard depending on the particular facts of the case.

100.Mr Shek criticized the Magistrate for only stating that she considered D2’s exculpatory explanations incredible without explaining whether it was because his explanations were untrue or unreasonable.

101.The accused bears an evidential burden to show that there is a reasonable excuse. In the present case, D2 testified in court. Apart from testifying that the chilli liquid concerned was for his own seasoning purpose, he did not point to any other matter which could constitute reasonable excuse. Mr Shek also submitted that the reasonable excuse put forward by the defence was only that the chilli liquid was for seasoning purpose and nothing else.

102.Obviously, the Magistrate’s finding was that D2’s assertion that he had possessed the chilli liquid concerned for seasoning purpose was untrue.

103.In the light of the circumstances of the present case, in finding that the article concerned was an offensive weapon, the Magistrate had already, on the highest standard of beyond all reasonable doubts, found that D2’s version mentioned above was untrue, which thereby also rejected the reasonable excuse advanced by D2. It was unnecessary to actually go through the second stage of consideration that is generally required.

104.This ground of appeal fails.

Ground of Appeal (4)

105.This is only a catch-all ground of appeal.  No fresh argument was advanced by Mr Shek.

106.In the light of my aforesaid analysis and consideration, I am not of the view that the conviction against D2 is unsafe or unsatisfactory.

Conclusion on D2’s Appeal against Conviction

107.Accordingly, the appeal against conviction in respect of D2 is dismissed and the conviction is affirmed.

D1’s Appeal against Sentence

108.In sentencing, the Magistrate had considered the English case of R v JM Proctor[45]and the case of HKSAR v Chan Ming-lok[46].  She had also taken into account the following matters:

(1) D1 was in possession of a liquid that may cause discomfort to people;

(2) The capsaicinoid concentration in the liquid was not high and no permanent injury would be caused;

(3) However, if it was delivered through spray, it would produce a moderate or mild degree of discomfort when coming into contact with the eyes, skin, mouth and nose etc;

(4) D1 intended to use such spray to attack and cause injury to others at the procession and protest location.  To do so in that kind of situation would intensify conflicts, evoke responses and emotions of the injured and the people present, escalate tensions, as a result of which more people would be directly or indirectly injured;

(5) The Court must impose a deterrent sentence;

(6) D1 had a total of 5 bottles of such liquid in his possession; and

(7) 4 letters of mitigation.

109.Mr Cheung, on behalf of D1, put forward the following grounds of appeal against sentence:   

(i) The Prosecutor referred the Magistrate to an authority which he asked the Court to follow in sentencing.  This was a deviation from the principle under which Prosecuting Counsel should not attempt by advocacy to influence the Court in regard to sentence;

(ii) The Magistrate stated clearly that she would follow the authority.  However, she overlooked the fact that the maximum penalty in England was higher than that in Hong Kong;

(iii) There were no sentencing guidelines for the present offence, and the sentence imposed went beyond the normal range of sentence.

110.It has been a long established practice that Prosecuting Counsel should not influence the trial Court by advocacy in regard to sentence, nor should he be permitted to invite the Court to pass a heavy sentence or a specific type of sentence.

111.I have perused the transcript of the trial.  The Prosecutor merely reminded the Magistrate that one of the cases annexed to his closing submission dealt with an appeal against sentence, and he stated “see if it can assist the Court”.

112.There were no sentencing guidelines for this type of cases.  In my judgment, what the Prosecutor did was well within the scope of duties allowed for the Prosecuting Counsel.  There was no attempt at all to influence the sentence of the Court by advocacy.

113.As seen from the Reasons for Sentence in the Statement of Findings, the Magistrate never mentioned that she had followed the sentence imposed in Proctor. After analysing the said case, she pointed out there were similarities between that case and the present one in that both involved the possession of a liquid which could cause discomfort to people.  However, she immediately went on to identify and list the differences on the facts between the two cases.  Before passing the sentence, she had considered all the circumstances of this case including the facts, the background of the case, the nature of the items concerned and the possible injury they might cause, D1’s personal background as well as the mitigation, etc.

114.In my view, the way the Magistrate dealt with the sentence cannot be criticized.

115.In England, the maximum penalty for this offence is one year higher than in Hong Kong.  The Magistrate did not expressly state whether she had taken this into account.  However, there was nothing before the court to suggest that she had overlooked the maximum penalty for this offence in Hong Kong.

116.The remaining issue therefore is whether the sentence as it stands is manifestly excessive.

117.It was the submission of Mr Man that 9 months’ imprisonment was appropriate.  The Magistrate had taken into account matters that she should consider.  Although the liquid concerned would only produce a mild degree of discomfort, one cannot ignore the fact that the act of D1 was premeditated and not for self-defence.  Besides, the use of such liquid would make the situation worse.

118.This offence was enacted to prevent people from carrying weapons in the public place with the intent to cause injury to anyone, or intending to resort to violence to deal with their own problems in place of lawful means.  The legislature has taken a serious view of this offence.  If the offender is not less than 14 years of age, a custodial sentence shall be imposed[47].  Nevertheless, on the other hand, the maximum penalty is merely 3 years’ imprisonment.

119.It is natural that there is no sentencing guideline for this type of offences since the sentencing in each case shall be determined in light of its overall circumstances, including the nature of the weapon concerned and the degree of injury that may be caused, as well as the ultimate intention of possessing the weapon.

120.D1 is not a man of clear record.  He has many previous convictions of offences relating to duty-not-paid goods.  In 2010, he was even sentenced to Community Service Order for an offence related to explosive substance.  Under such circumstances, it would be unrealistic for D1 to expect a lenient sentence that a first offender might expect from the court.

121.In this case, the actual bodily harm possibly inflicted by the pepper spray concerned is expected to be mild and temporary.  There is also a lack of concrete evidence in the case to prove the circumstances in which D1 would subsequently use the spray and how he would use it.

122.Nonetheless, as stated by the Magistrate[48] and Mr Man, the circumstances in which D1 committed this offence were indeed a matter of concern.

123.Furthermore, unlike many other cases relating to this offence, D1’s carrying of the offensive weapons was not an act done spontaneously out of high emotion or fear.  He must have paid great efforts in preparing such chili spray or arranging for such spray to be obtained, which involved a high degree of planning.  Besides, D1 had a total of 5 bottles of such liquid in his possession, which suggested that he had the intention of using them continuously.  The risk that some could have fallen in the hands of other people for illegal use could not be ignored either.

124.Bringing chili spray to protest and petition locations not only causes the aforesaid concern, it also affects the right of the public to participate in peaceful protests and petitions.  When the possibility of people bringing offensive weapons to protest and petition locations becomes a worrying concern, the public who only intend to express their views in a peaceful manner would probably hold back and give up their right of peaceful protest and petition.  This would affect the public in respect of the exercise of an important right, the consequences of which cannot be ignored.

125.All in all, I take the view that the sentence of D1 is severe and perhaps there is room for a slight downward adjustment, but it cannot be regarded as manifestly excessive.  Accordingly, the appeal against sentence is dismissed and the original sentence of 9 months is affirmed.

Alexander Cheung, instructed by Tang, Wong & Chow Solicitors and assigned by the Legal Aid Department, for the 1^st Appellant

Randy Shek, instructed by Cheung & Co., JCC Solicitors and assigned by the Legal Aid Department, for the 2^nd Appellant

Jonathan Man, Senior Assistant Director of Public Prosecution, and Cliff Ip, Public Prosecutor of Department of Justice, for the
Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.