HKSAR v. Chan Yiu Shing

[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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Reasons for Decision

1.There were originally two defendants in the present case, each charged with one count of “possession of offensive weapons in a public place”[1]. Both were convicted after trial. Both appealed against conviction. I dismissed both appeals.

2.The Applicant, who was the 1^st Defendant in the original case, now applies to me pursuant to s.32 of the Court of Final Appeal Ordinance[2] for a certificate that points of law of great and general importance are involved in the decision in this case.

3.On the day of hearing of this application, having heard the submissions, I refused to certify any of the points of law raised by the Applicant.  I now give my reasons.

The Prosecution Case

4.On the day in question, there was an anti-parallel-trader procession in the Yuen Long District.  At about 7 p.m., a team of plainclothes police officers patrolling in vicinity of On Ning Road saw the Applicant and the other Defendant walking abreast each other on an unnamed road.  The Applicant was wearing black hard plastic protective clothing similar to armours and a reflective vest, carrying an orange backpack, and wearing a waist belt connected to multiple waist bags.  The police officers stopped them because of their clothing and behaviour.

5.Upon inquiry, the Applicant indicated that he was in Yuen Long to do first aid work.  In his two black nylon bags, the police officers found:

(1)  One white plastic bag containing a total of four transparent plastic bottles fitted with spray actuators [exhibits P2-5], each containing a brownish-black liquid;

(2)  One transparent plastic bottle fitted with a spray actuator and containing brownish-black liquid [exhibit P6] and a folding knife.

The Applicant indicated that the liquids in exhibits P2-5 were capsicum oil, as to exhibit P6 and the folding knife, he indicated that he had “nothing to say”.  The police officers arrested him for the offence of “possession of offensive weapons”. Other items on the Applicant’s person included a helmet, a headlamp, a gas mask, protective goggles, gloves, a walkie-talkie, an earphone cable, a torch, a lighter and a mobile phone.

Points of Law raised by the Applicant

6.Mr. Alexander Cheung, representing the Applicant[3], raised the following points of law:

(1)  Having admitted “uncharged acts” evidence to show the setting and context in which the offence occurred, could that then be relied upon to infer or support that the Defendant had a propensity to commit (typographical error) a similar offence?  Could such evidence be considered without any special directions?

(2)  In cases where the issue of whether an article in possession, in particular a food or household item, was to be defined as a weapon on the basis of intention, should the matter first be considered solely on the basis of the prosecution evidence the question of whether such an article comes within the definition, before considering whether the defence had a reasonable excuse?  In the foregoing type of cases, is the prosecution required to prove the subjective intention of the Defendant himself, or the intention of a reasonable third person under the same circumstances viewed objectively?

Point of Law (1)

7.The uncharged acts referred to by Mr. Cheung were:

(1)  The Applicant was also in possession of a folding knife;

(2)  his clothing and equipment.

8.Mr. Cheung referred to the Court of Appeal’s judgment in HKSAR v. Kwok Hing Tony[4] and submitted that the magistrate did not clearly deal with the knife, nor did she give herself the relevant directions on uncharged acts in her consideration.

9.At the material time, there was indeed a folding knife on the Applicant’s person, and the prosecution had originally charged the Applicant in respect of this knife, but later withdrew the charge.  Clearly, the reason was that the prosecution did not consider that there was sufficient evidence to show that the knife was an offensive weapon or that it was an instrument fit for unlawful purposes.

10.In her Statement of Findings, the magistrate also mentioned that apart from the liquids involved, the police officers also found a folding knife on the Applicant during the search.  When the police officers inquired into the use of that knife, the Applicant responded that he had “nothing to say”.  The foregoing was mentioned when the magistrate recounted the prosecution case[5], and she also mentioned the Applicant’s account on the use of the knife in his testimony[6]. In her Statement of Findings, the magistrate never again mentioned this knife, not even in explaining why she disbelieved the Applicant’s exculpatory account.

11.Hence, there is nothing to indicate that the magistrate took this knife into account in considering whether the liquids in question were offensive weapons, let alone any consideration adverse to the Applicant based on this knife.

12.In the appeal, Mr. Cheung complained that the magistrate had not given any or any adequate considerations to this knife, therefore, it was not clear whether this knife had affected her judgment with regard to the liquids in question.[7]

13.In my view, under the circumstances of the present case, the magistrate was not bound to make a finding in relation to this knife.  More importantly, she did not even take this knife into account when she considered whether the liquids in question were offensive weapons. Thus it could hardly be said that she improperly took this issue into account in her consideration.

14.Hence, this knife is irrelevant to the decision in this case.

15.As to the Applicant’s clothing and equipment at the time, the magistrate analysed the Applicant’s account and reached her judgment[8].  This was also taken into account in her ruling on the liquids in question[9].

16.My ruling was that: The clothing and equipment in question were not legally inadmissible uncharged acts, nor the kind of admissible evidence that has to be considered with a special direction, but the kind that is related to the issue to be determined in the case, and should be admitted on such basis unless being excluded by the rules.

17.Therefore, the decision in this case did not involve the point of law raised by Mr. Cheung as well; it only involved the question of whether the inference drawn by the court, having considered the overall relevant circumstances, was the only reasonable inference supported by the evidence, and the magistrate has adopted the proper standard of proof in this aspect[10].

Point of Law (2)

18.In the original trial, the prosecution witnesses included the several police officers who stopped and questioned the Applicant and the other Defendant, a forensic scientist and a doctor.  The forensic scientist testified on the nature and certain properties of the liquids in question, and pointed out that no oil was found in the composition of the liquids in question.  The doctor testified on the effects of capsaicin and the liquids in question have on humans.

19.The magistrate found a prima facie case against the two defendants including the Applicant and both then testified and explained the reason why they were present at the scene and in possession of the liquids in question, and pointed out that the possession of such liquids was not for causing injury to other persons.

20.The magistrate stated that she disbelieved the exculpatory parts of their testimonies.  Having considered the overall evidence, she found that the liquids in the Applicant’s possession were offensive weapons, was of the view that that was “the only reasonable and irresistible inference”, and found that he was in possession of such liquids without lawful authority or reasonable excuse[11].

21.In the appeal, the Applicant complained that the magistrate had put the cart before the horse and shifted the burden of proof.  I did not agree.  Since the Applicant raised an innocent reason for possession, the magistrate must take that into account in considering whether the liquids in question were offensive weapons[12]. Before the Applicant testified, the magistrate had already ruled that there was a prima facie case, indicating that she had already made the finding required at that stage on the issue of whether the liquids in question were offensive weapons.

22.In the present case, the liquids in question were not offensive weapons per se, as the magistrate clearly pointed out[13], therefore the court must make a finding on the purpose of the possession of such liquids before ruling on whether such liquids were offensive weapons.  In the present case, having heard the overall evidence and before making the foregoing determination, the court could not ignore the innocent account given by the Applicant.  The effect of the Applicant’s account was not confined to whether there was a reasonable excuse, it also related to whether the liquids in his possession were offensive weapons.  Certainly, the court could not directly determine the liquids to be offensive weapons merely because the Applicant’s exculpatory account was disbelieved, the whole of the evidence must be taken into consideration in determining whether the court could be sure that the possessor had the unlawful intent as stated in the legislation.  The magistrate clearly stated that the burden of proof was nonetheless on the prosecution[14]. Furthermore, the magistrate’s approach in the present case was correct, and was clearly distinguishable from the questionable approach in Lee Shing-po[15] cited by Mr. Cheung in the appeal and in this application.  I am not satisfied that this argument raised by the Applicant meets the standard of having great and general importance.  The relevant laws, including the burden and the standard of proof of the issues of whether an article is an offensive weapon and whether there is any reasonable excuse, are very clear. There is nothing that needs clarification.

Point of Law (3)

23.I will not certify this point of law for the following reasons:

(1)  This argument is not relevant to the verdict in the Applicant’s appeal. The Applicant did not even raise in the appeal this argument that an objective intention of a third person under the same circumstances was to be considered. The Applicant’s written submission also stated that: “The only issue in the present case was the (Applicant’s) intention of possessing such liquids”[16]; and,

(2)  The matter the court had to consider was obvious, it could be seen in the definition of offensive weapons in the Ordinance[17]:

“offensive weapon means 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[18].”

24.According to this definition, what was to be determined by the court is the intention of the person in possession or in control of the article in question, there was no objective consideration.  I am of the view that this point is not reasonably arguable[19], it does not meet the standard for granting a certificate.[20]

Alexander H.F. Cheung instructed by Messrs. Tang, Wong & Chow, assigned by Director of Legal Aid for the Appellant.

Raymond Cheng, Assistant Director of Public Prosecution and Antony Leung, Acting Senior Public Prosecutor of the Department of
Justice for the HKSAR

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