HKSAR v. Sam Ka Lam, Sam

[English Translation - 英譯本]

HCMA 281/2020

[2021] HKCFI 158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 281 OF 2020

(ON APPEAL FROM ESCC 29 OF 2020)

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Before:  Hon Barnes J in Court

Date of Hearing: 7 January 2021

Date of Judgment: 28 January 2021

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JUDGMENT

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Background

1.The Appellant was charged as follows:

(1)  Charge One

Possession of offensive weapon in public place, contrary to section 33(2) of the Public Order Ordinance, Cap. 245, Laws of Hong Kong (namely, in possession of a crossbow and 20 sharpened wooden sticks upon interception on the street)

(2)  Charge Two

Possession of offensive weapon with intent, contrary to section 17 of the Summary Offences Ordinance, Cap. 228, Laws of Hong Kong (namely, in possession of two crossbows and five arrows at the Appellant’s home)

The Appellant denied the charges and was convicted after trial before magistrate CHEANG Kei Hong (“the Magistrate”) in the Eastern Magistracy.

2.The Appellant originally appealed against conviction and sentence. Subsequently he withdrew his appeal against sentence before me and I dismissed his appeal against sentence forthwith. Now I only deal with the Appellant’s appeal against conviction.

Facts of the case

3.Ms NG Shuk Kuen, Laura, Assistant Director of Public Prosecutions (SD) for the Respondent presented the facts of the case for both the prosecution and the defence in her written submission, which I basically adopt:

Prosecution case

4.At about 4:45 in the afternoon on 1 January 2020, police constable 10327 (PW1) intercepted the Appellant outside Wu Chung House, 213 Queen's Road East, Wan Chai. The Appellant wore a black cap and a black jacket with a dark blue umbrella held in his hand and a black rucksack carried on his back. PW1 told the Appellant to let down his rucksack for a search and found inside the rucksack articles commonly used by demonstrators like a black face covering, goggles, masks, black gloves, black arm sleeves, black shin protectors, black plastic shoes, a 3M filter (Exhibits P2-P13), etc. There was inside the rucksack another black bag (the “Sport Bag”) with the word “Sport” on it. PW1 asked the Appellant what was inside the Sport Bag. He said it was an easel. PW1 then found upon search the items involved in Charge One from the Sport Bag, namely a crossbow (Exhibit P18) and twenty sharpened wooden sticks (Exhibits 19-20). He asked the Appellant how he had obtained the crossbow. The Appellant replied that a friend gave it to him. When PW1 pressed on for the identity of the friend, the Appellant no longer made any response.

5.Subsequently at about 1:00 a.m. on 2 January 2020, the police searched the Appellant’s residence in Wong Tai Sin and found the articles involved in Charge Two in the middle of the living room, namely two crossbows (Exhibits P25-P26) and five arrows (Exhibits P27-P28).

6.The Police subsequently ran some tests on the exhibits seized upon search. Simply put, the crossbow and sharpened wooden sticks of Charge One could be used in conjunction with one another; likewise, the crossbows and arrows of Charge Two could also be used in conjunction with one another as projectile weapons.

7.Having been arrested at the scene, the Appellant chose to remain silent under caution. In his subsequent cautioned interview, he also refused to offer any explanations regarding the exhibits seized upon search.

Defence’s case

8.The Appellant elected to give evidence and called Mr. Ho as a defence witness.

9.When the Appellant committed the present case, he was aged 37, holder of a doctorate degree working in the capacity as a research and development expert in a certain company and teaching as a guest lecturer in university. He had a clear record.

10.The Appellant said that he had started scouting since he was in primary school. Upon graduation, he was a scout leader in the secondary school that he once studied, responsible for teaching scouts the courses like model-making, archery, visual arts and so on. Besides, he also offered classes for children and scouts. He purchased a ground-floor shop at City Garden Shopping Centre in November 2019. He operated the shop as a training centre (“North Point Shop”) for speech, games and motor coordination.

11.The day before the material day, a friend of the Appellant, Miss Chow, called him telling him that she had just arrived in Hong Kong and would like to take a look at the procession. She arranged to meet the Appellant in the morning on 1 January.

12.The Appellant and Miss Chow took the MTR to North Point at about one to two o’clock in the afternoon. They started off walking from North Point to Victoria Park. Then they walked along Hennessy Road to the vicinity of the Southorn Stadium. After lunch, they walked to Pedder Street in Central and then they turned round and doubled back. However, the crowds kept rushing towards them, so from Queensway they turned into Queen’s Road East walking towards Causeway Bay. Once they reached Wu Chung House, PW1 intercepted and made enquiries with them.

13.The Appellant said the crossbow of Charge One was a model of his own making. Such article could also serve as a teaching tool for teaching archery to scouts. As to the sharpened wooden sticks, he glued two sticks together with white glue and then sharpened them. The sharpened wooden sticks could be loaded onto the crossbow and be shot. The Appellant already made and placed those articles inside one of the rucksacks at home one to two weeks prior to the incident with the view of taking them out to the secondary school or the North Point Shop for use in future. On the material day, since he was in a hurry to go out, he “casually packed light and went out carrying a bag”, so he was “unaware” of what was inside the rucksack and did not notice that he had taken those articles out and that he had no intent to use them for any violent purposes.

14.As to the rest of the articles found contained inside the rucksack upon search, they appeared to look like articles commonly used by demonstrators. The Appellant offered explanations about them, one by one. For instance, the Guy Fawkes mask, the face covering and so on were for decorating the North Point Shop whereas the goggles, masks, 3M filter, gloves and so on were used for the renovation work of the North Point Shop.

15.For the box of masks found inside the rucksack, the Appellant said they were for protecting himself against the pandemic. In cross-examination, the Appellant admitted that on the material day (1 January 2020), the Coronavirus pandemic in Hong Kong had yet to come.

16.For the articles particularized in Charge Two, the Appellant also said that he made the crossbows by himself. For the arrows, they were toy arrows per se with suckers attached to one end. However, the suckers could not suck onto polyfoam surface, so the Appellant replaced them with “metal tips of a soldering iron” for the purposes of teaching, namely in doing shooting demonstration and teaching archery to scouts.

17.Under testimony, defence witness Mr. Ho said that he was a scout brigadier and was the person-in-charge of a school scout team. He mainly said that the Appellant went to serve the school as a volunteer to assist him in teaching archery and model-making to students. Besides, the arrows they used in the training were merely placed inside the scouts’ utility room as there was no need to apply for any licence.

18.The defence did not show Mr. Ho the crossbows nor the sharpened wooden sticks seized in the case for him to make any comment on them.

The Magistrate’s reasons for finding

19.Having considered the evidence and arrived at a very detailed analysis of the same, the Magistrate refused to accept the explanations offered by the Appellant regarding his possession of the articles involved in the case. As the Appellant has not appealed against the Magistrate’s finding of facts, I am of the view that no detailed description is necessary here.

20.In short, the Magistrate was of the view that the Appellant deliberately carried the articles contained in his rucksack to the street. If the Appellant truly “casually packed light and went out carrying a bag”, all he needed was his wallet, not his rucksack. The rucksack containing more than ten articles, of which both in terms of volume and weight, was nowhere near to being “packed light” as alleged by the Appellant.

21.For the sharpened wooden sticks involved in Charge One, the sharpened tips were very sharp-pointed which could easily pierce and injure someone carelessly, causing harm and pain. The projectile momentum and penetrating force of the sharpened sticks on objects were even stronger when they were shot with the crossbows. The Magistrate did not believe that the Appellant needed them to teach scouts. The Magistrate did not accept that such articles could be used in the North Point Shop since the shop was very small, nor did he accept that such training was allowed to take place in the corridor outside the shop since he would not believe that the management company of the shopping centre would allow the Appellant to carry out such dangerous activity in the corridor outside the shopping centre.

22.The Magistrate accepted Mr. Ho’s evidence. But based on the fact that the defence had not shown the crossbows and the sharpened wooden sticks in question to Mr. Ho, Mr. Ho’s evidence could not corroborate with the Appellant that the crossbows and wooden sticks were for the purpose of teaching scouts archery. Furthermore, in giving evidence, Mr. Ho used the terms “bows” and “arrows” instead of “crossbows”.

23.The Magistrate considered the legal definition of “offensive weapon” (namely any article made, or adapted for use, 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) and pointed out that he was not of the view that the articles involved in the case were offensive weapons per se. The prosecution’s case was that the articles involved in the present case were in the Appellant’s possession for causing injury to others by him or by some other person.

24.The Magistrate carried out analysis based on the prosecution’s case. He pointed out that the articles of Charge One could be used in conjunction with one another and the sharpened wooden sticks could also be used alone to pierce and cause injury to others. Since the articles were made or adapted by the Appellant, certainly he was in the best position to most effectively master the use of the tools that he had made or adapted.

25.The Magistrate went on to consider the Appellant’s intent to have such articles in his possession. Having cited the relevant authorities[1], he relied on (1) the nature and state of those articles per se, (2) the fact that massive crowds of demonstrators gathered all over Hong Kong Island, with extremist aggressive demonstrators using excessive violence and (3) the articles inside the Appellant’s rucksack were in fact equipment used by the violent demonstrators, to draw an irresistible inference that upon arrest, the articles found in the Appellant’s possession were for use by himself or for some other person for causing injury to others.

26.For Charge Two, the Magistrate found that of the two crossbows (P25 and P26) found from the Appellant’s home, the shorter one (P26, 30 cm long) could not be shown as a weapon upon examination. As a result, the Magistrate only considered the Appellant’s intent in his possession of the longer crossbow (P25, 60 cm long) and other articles. The Magistrate pointed out that he was not satisfied with the Appellant’s excuse (namely P25, P27 and P28 were for the purpose of teaching scouts); nor did he believe the relevant articles were for the Appellant’s motor coordination training class.

27.The Magistrate made it clear that in analysing Charge Two, he did not take into consideration exhibits P18-P21 (namely the crossbow and sharpened wooden sticks involved in Charge One).  Relying on the Appellant’s clothing and the articles in his possession at 4:45pm on 1 January 2020 when he was intercepted and on the fact that as at 1 January 2020, there was no sign for the series of violent demonstrations to come to an end, he drew an irresistible inference that the Appellant was having P25, P27 and P28 in his possession intended for such use by him or by some other person to cause injury to others.

Grounds of Appeal

28.Mr. Kwan acting for the Appellant submitted one ground of appeal respectively for the two charges. He basically argued that in analysing the intent of the Appellant having in his possession the articles so particularized in the charges, the Magistrate erred in drawing the wrong inferences.

Ground One

29.Regarding the intent of having the crossbow and sharpened wooden sticks of Charge One in his possession, the Appellant submitted that when drawing an inference that the Appellant was “an out-and-out violent demonstrator with an intent to use violent weapons” and that his intent of having in his possession the crossbow and sharpened wooden sticks was to cause injury to others, the Magistrate erred in relying on:

(1)  the events that were happening at places and times other than at the scene and time of arrest: “On the day in question in the afternoon, massive crowds gathered all over Hong Kong Island to demonstrate. There were also extremist demonstrators using various means of violence”. The Appellant submitted that there was not any evidence produced in court which could prove the latter (namely the violent events); and

(2)  the way the appellant was dressed and attired (namely black cap, jacket and mask) and the black articles inside his rucksack.

30.Mr. Kwan submitted that no prosecution witness had given any evidence that there were “extremist aggressive demonstrators using various means of violence” on Hong Kong Island on the afternoon of the New Year’s Day 2020. The finding of the Magistrate about the happening of such violent events was highly likely based on what he learnt from the media on the day in question or thereafter, which was beyond the realm of “judicial notice”.

31.Mr. Kwan emphasized that the Magistrate only let the defence know he has taken “judicial notice” in drawing inference when he delivered the verdict, which denied the defence the chance to deal with and respond to the issue, thus bringing about injustice to the Appellant.

32.Mr. Kwan raised no dispute about the Respondent’s submission on the legal principle of judicial notice. He only emphasized that for the cases relied upon by the Respondent, they all came with affidavits and supported the facts stemming from relevant social movements, yet there was no relevant evidence in the present case.

33.Mr. Kwan also emphasized that the court should deal with the case with prudence and refrain from casually treating anyone dressed in black as a person of violence because there was the likelihood of wrongly accusing an innocent man.

34.Mr. Kwan submitted that a person in a public place having in his possession the articles not amounting to offensive weapons per se and at the same time in his possession protective equipment should not bear any risk of being convicted. Mr. Kwan submitted that setting aside the aforementioned “judicial notice” and the equipment of the Appellant, the rest of the evidence was insufficient to prove his intent.

Ground Two:

35.For the intent of possessing the crossbows and arrows specified in Charge Two, the Appellant submitted that in drawing the inference that the Appellant possessed the crossbows and arrows found at his home with intent to harm others, the Magistrate mistakenly relied on:

i.   the Appellant’s clothing and attire (namely a black cap) and the black articles found inside his rucksack during his earlier arrest on the street; and

ii.  “that as at 1 January 2020, there was no sign for the series of violent demonstrations to come to an end”.

36.Mr. Kwan complained that the realm of “judicial notice” taken by the Magistrate regarding Charge Two was even wider than that of Charge One. Even if the Magistrate could rely on taking “judicial notice” to arrive at a common knowledge that “there was no sign for the series of violent demonstrations to come to an end in Hong Kong”, yet such common knowledge could not form the basis on which the Magistrate could draw an irresistible inference with regard to the crossbows and arrows found in his possession at his home. The Magistrate could not, based on how the Appellant was attired and equipped earlier on (somewhat over 9 hours earlier), draw the only inference that the articles found in the Appellant’s home were intended for the use of himself and others for the purposes of causing injury to others in the subsequent demonstrations.

Response of the Respondent

37.The Respondent pointed out that “judicial notice” was a finding of a fact which is so generally accepted and known that the court could accept it as a fact in the absence of any established evidence. The Respondent agreed that a fact of which “judicial notice” could be taken must be so obvious that no other evidence was required to be established. The Respondent cited Bruce & McCoy: Criminal Evidence in Hong Kong (Issue 82) in support of his argument[2].

38.In respect of the point that the court is entitled to take “judicial notice” of Hong Kong’s political events, the Respondent submitted that the authors of the aforementioned authority cited the following three cases in support of their argument:

(1)  SJ v Persons Unlawfully and Wilfully Conducting Etc (HCA1957/2019) [2019] 5 HKLRD 500

(2)  Kwok Wing-hang & others v Chief Executive in Council & Another (No. 2) [2019] 6 HKC 452

(3)  Kwok Wing-hang & others v Chief Executive in Council & Another (No. 4) [2019] 6 HKC 627

39.The Respondent submitted that the social controversies, disturbances, resistances, violent events, etc. that had been triggered off since the government proposed to amend the Fugitive Offenders Ordinance in 2019 were widely publicized and were so generally known that the majority of people in the society were aware of them. Most of these were indisputable facts, and the court had already taken “judicial notice” of some of those issues. The three cases cited and the present case originated exactly from the same social background.

40.The Respondent further submitted that before the Magistrate heard the case (namely in August 2020), it was an indisputable fact that aggressive demonstrators often adopted the black bloc strategy and were outfitted with protective equipment, in respect of which the court could take “judicial notice”. Furthermore, on 1 January 2020 New Year’s Day, it was common knowledge that many violent demonstrations took place all over Hong Kong Island.

41.The Respondent submitted that the Appellant did not make any confession about the articles in his possession upon interception and investigation nor was there any direct evidence showing the intent of his being in possession of such articles. Under those circumstances, the court had made references to Chan Yiu Shing and Chong Ah Choi in drawing inferences.

42.The Respondent stated that the factors which the Magistrate had taken into consideration include (i) as at 1 January 2020, there was no sign for the series of violent demonstrations to come to an end; (ii) at about 4:45p.m. on that day, massive crowds of demonstrators gathered all over Hong Kong Island, with extremist aggressive protestors using violence. In other words, the Magistrate not only considered the circumstances in which the Appellant was intercepted for investigation, but also took into account the situations of demonstrations elsewhere at various time intervals.  That also seemed to be the main complaint lodged by the Appellant. However, the Respondent was of the view that under the circumstances of the present case, the Magistrate did not err in having taken such facts into consideration.

43.For Charge One and Charge Two, the Respondent pointed out that the Magistrate rejected the Appellant’s version about the alleged lawful purposes of the articles. Having considered all the circumstances, the Magistrate appropriately drew reasonable inferences that the Appellant had committed the two charges.

My considerations

44.The ground of appeal raised by the Appellant was basically about how the Magistrate had inappropriately taken “judicial notice” without telling the Appellant about it in the trial, thus denying him of the chance to deal with it in reply, doing him injustice.

45.With regard to “judicial notice”, I endorse the submission made by the Respondent: Whenever a fact is generally accepted or known, a court may accept it as a fact in the absence of any evidence. A fact in respect of which “judicial notice” is taken must be a fact so evident that no other evidence is required to be established.

46.Whilst in all the three cases cited by the Respondent, affidavit evidence was submitted to show various circumstances of the social movements stemming from the 2019 “Extradition Law Amendment Incident”, I do not agree that the Magistrate could take “judicial notice” of a fact only if evidence is available. In fact, everyone knows that the 2019 “Extradition Law Amendment Incident” was the cause that triggered off the subsequent series of wide-spread and continuous demonstrations.

47.The Magistrate took “judicial notice” of the fact that on 1 January 2020, “in the afternoon on that day massive crowds of people demonstrated all over Hong Kong Island, and there were also extremist aggressive demonstrators using all sort of violence…”. Was what the Magistrate pointed out an unequivocal fact that enabled him to take “judicial notice” in the absence of any established evidence?

48.I am of the view that demonstrations that took place on important or special festive occasions such as 1 July, 1 October or the New Year’s Day as in the present case impressed upon everyone’s unique memory and cognizance. Demonstrations that took place on any ordinary day are simply incomparable to those that happened on such special festive occasions. In other words, it was not inappropriate for the Magistrate to take “judicial notice” of such a generally known event that happened on a special festive occasion (New Year’s Day) that “massive crowds demonstrated all over Hong Kong Island, with extremist aggressive demonstrators using various means of violence”.

49.I am of the view that even if the Magistrate did not consider the fact that demonstrations had actually happened on New Year’s Day but only considered the fact that there was no sign for the demonstrations triggered by “Extradition Law Amendment Incident” to come to an end and aggressive demonstrators still used violence in such demonstrations as at 2020 New Year’s Day, the Magistrate could still take such “judicial notice” (namely the “judicial notice” taken for drawing the inference for Charge Two).

50.I disagree with the Appellant’s submission that regarding Charge One, if the Magistrate had taken “judicial notice” of facts not limited to those relating to the New Year’s Day, it would do even more injustice to the Appellant.

51.With regard to the Appellant’s complaint that the Magistrate had not informed the defence in the trial that he would consider the violent events that happened on the New Year’s Day elsewhere and at other times, I have considered the evidence of the Appellant that “he and his friend went to take a look at the demonstration.” He also testified that they started off walking from North Point following the crowds to Victoria Park. They then proceeded to Hennessy Road and would even like to get into the proximity of the Southorn Stadium. After lunch, they walked to Pedder Street and then turned round and walked back but the crowd kept coming towards them, so they turned into Hopewell Centre on Queen’s Road East and walked on until they reached Wu Chung House where PW1 intercepted and made enquiries with them outside the building. Such evidence did clearly show that the Appellant not only knew demonstrations were taking place on that day, but he also admitted that he was part of the demonstration procession. In testifying, he offered explanations for all the articles involved especially the crossbows, sharpened wooden sticks, black face covering, Guy Fawkes mask, goggles and so on (although the Magistrate did not accept his explanations). I could see that the emphasis that he would like to place in his explanations was to point out that such articles had nothing to do with the demonstration. Therefore “demonstration” was one of the ambits involved in the present case.

52.Furthermore, in its final submission, the prosecution submitted   [3]:

“Well, the court also has to consider all other things that he carried and whether such things were in line with the crossbow and the sharpened wooden sticks that he brought along. Inside the rucksack, there was equipment all in black, not metallic black, your worship, that was equipment all in black, namely masks, 3M, facial scarf, gloves and the like, all of which — the defendant claimed were for the renovation work of his premises at Garden City, but that was also equipment frequently used by people who participated in social movements. Had the defendant only wanted to take a look at the demonstration with his friend, it was not necessary for him to carry any of the things contained inside the rucksack. All he needed was an octopus card, an ID card and a key. Moreover, say for taking along with him drinking water, the defendant said, “I had to take along my rucksack for carrying water to drink”. Since there were convenience stores everywhere, there was no need to carry water along.”

53.In his final submission, in reply the senior counsel acting for the defence submitted[4]:

“The prosecution raised the point that such kind of equipment including masks, a 3M filter, a black face scarf, black gloves, black arm sleeves, black shin protectors. Your worship, may I have your attention that such equipment can be used to protect oneself — protect the person who wear them. They are not offensive. They are protective in nature…

… the prosecution said that such things were things that were frequently found from people participating in social movements, if the defendant — didn’t have such kind of equipment with him, he would run a high risk of being mistaken as a police undercover agent and would be dealt with in private … You can’t say that such things were directed against him … to his disadvantage.”

Certainly, in the present case, the Appellant has never alleged that he was in possession of the masks, goggles and the like because he was in fear of being “dealt with in private”. However, it was evident that the defence knew and had regard of the fact that having such articles in one’s possession would be viewed as having association with violent social movements.

54.The Magistrate applied the principle in R v Chong Ah Choi:

“56(i) After that, I need to consider at the material time, the defendant’s intent of his having in his possession P18, P19 and P20. With regard to this issue, I quote paragraph 46 of the judgment of Maggie Poon J of the Court of First Instance of the High Court in HKSAR v SHY HCMA 13/2020:

‘46. In the absence of direct evidence, it was necessary for the magistrate in the trial to draw inference on the appellant’s intent of having in his possession the laser pointer. In HKSAR v Chan Yiu Shing, Albert Wong J had the relevant paragraphs translated as follows:’

“40. In R v Chong Ah Choi, 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:

(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.””

55.The Magistrate drew the following inferences based on the facts as follows[5]:

“ (ii) I have already found that P19 and P20, a total of 20 sharpened wooden sticks, each could be used with bare hands by the user to injure people; such sharpened wooden sticks could be used in conjunction with P18, the crossbow, thus rendering even stronger penetrating power to injure people should the sharpened wooden sticks be shot with it.

(iii) It was at 4:45p.m. on 1 January 2020 when the defendant was in possession of P18, P19 and P20. On that day in the afternoon, massive crowds gathered for demonstrations all over Hong Kong Island. There were also extremist aggressive demonstrators using various means of violence. According to the evidence of the defendant, when he and Chow arrived at Peddar Street and turned around to walk back along the same road, crowds kept rushing toward them causing the defendant and Chow to turn into Queen’s Road East walking towards Hopewell Centre. Although the evidence showed that at the point of interception, they were located outside Wu Chung Building where it was scarcely crowded, PW1 gave evidence saying that at the Southorn Stadium nearby, there were still people demonstrating. I am of the view that although at the location where the defendant was intercepted, it was scarcely crowded, he did not necessarily have to use the articles involved in the present case only in a place where there were a lot of people. Therefore, whether the scene in question was the scene of demonstration wouldn’t affect how I considered and analyzed the case. I’m required to consider the overall situation of the present case.

(iv) Besides, when the defendant was intercepted by PW1, he was already wearing a black cap (Exhibit P23) cushioned with sponges as lining for protection, a black mask on his face (Exhibit P24) holding a dark blue umbrella and wearing a black jacket. If the defendant put the following set of exhibits (all seized upon search from the rucksack carried by him) on his face:

(a) Exhibit P2 (a black face covering); or

(b) Exhibit P3 (a Guy Fawkes Mask); or

(c) Exhibit P4 (a pair of black goggles) and Exhibit P7 (a 3M gas mask filter) (with P24, the black mask removed from his face); or

(d) Exhibit P4 (a pair of black goggles) and Exhibit P8 (a black face scarf), (both the black scarf and P24 could be worn at the same time);

and if he further put on all of the following exhibits: P9 (a pair of black gloves), P10 (a pair of black arm sleeves), P11 (a pair of black kneepads), P12 (a pair of black plastic shoes), (I have carefully examined P23, the black cap that the defendant wore. The lining of his cap was cushioned with half a centimetre thick soft pad. I do not accept the defendant’s explanation of having the need to modify the cap because it was too large to fit his head. I am of the view that the lining was added to protect his head in case violence was used.) with the defendant’s overall outfit coupled with the crossbow (Exhibit 18) and the 20 sharpened wooden sticks (Exhibit P19 & P20) in his possession, the defendant was an out-and-out violent demonstrator with intent to use violent weapons (I have not neglected the fact that the defendant wore a pair of flip-flops upon interception by PW1. Yet the defendant also brought along with him a pair of plastic shoes (Exhibit P12). He could put them on anytime he felt like to replace his flip-flops).  From the defendant bringing along with him the aforementioned articles of equipment, I do, without any reservation, draw an irresistible inference that the exhibits P18, P19 and P20 in the defendant’s possession at the material times, which were made or adapted by him and could cause injury to people, were intended by the defendant for such use by himself or by some other person. I therefore find the crossbow and 20 sharpened wooden sticks involved in Charge One fall within the definition of offensive weapons as stipulated in Cap 245, Laws of Hong Kong. Indeed, on 1 April 2020 when the police conducted a shooting test, as soon as the sharpened wooden stick of exhibit P19 hit the ground, it broke into two wooden sticks, which exactly tallies with my inference. The defendant intended to use that to cause injury to people. Therefore, once the defendant shot out the sharpened wooden stick to injure people and as soon as it hit the ground and broke into two wooden sticks, the defendant would not be bothered to pick them up for use again because his purpose was only to injure people with the sharpened wooden sticks. Once such purpose was achieved, the breaking up of the wooden sticks did not matter anymore.

57. I have not neglected the fact that when PW1 intercepted the defendant, neither the defendant nor Chow was chanting any slogan, waving any banner with catchword on it or making any hand gestures that evolved into aggressive movements. None of those circumstances had any bearing on my drawing an irresistible inference, namely the exhibits P18, P19 and P20 in the defendant’s possession at the material times, which were made or adapted by him and could cause injury to people, were intended by the defendant for such use by himself or by some other person. In any event, the defendant having in his possession exhibits P18, P19 and P20, could have waited for a chance, time and place suitable for P18, P19 and P20 to be taken out of his rucksack for use by him or by some other person to cause injury to people.

58. In view of my aforementioned analysis, given the scene of crime being a public place, the fact that I have already rejected the defendant’s evidence and explanations as to why he was in possession of P18, P19 and P20 and in the absence of any lawful authority for him to be in possession of such articles at that time, I find all elements of Charge One proved beyond all reasonable doubts by the prosecution and the defendant was guilty of Charge One.”

56.I am of the view that the Magistrate had appropriately taken into consideration the principles in Chong Ah Choi in drawing the inference. I agree that he has drawn the only irresistible inference that the defendant was in possession of the crossbow and sharpened wooden sticks (articles made or adapted by the defendant himself which could be used for causing injury to others) intended by him or by some other person for the purpose of causing injury to people. I am of the view that even if the Magistrate could not take into consideration that violent demonstrations had actually taken place on New Year’s Day 2020, violent demonstrations originated from the Law Amendment Incident had indeed no sign of coming to an end as at New Year’s Day. The Appellant was in possession of a crossbow and 20 sharpened wooden sticks, articles capable and powerful enough to injure people. Besides, the defendant’s clothes and equipment were similar to those articles (e.g. Guy Hawkes mask, etc.) commonly used by other demonstrators. Based on all the circumstantial evidence, the only reasonable inference to be drawn was that the Appellant was having in his possession the crossbow and the sharpened wooden sticks intended for use by himself or some other person to cause injury to people.

57.As to how to deal with, assess and consider circumstantial evidence, the Court of Appeal in HKSAR v Tsang Chi Wai[6] cited an English case R v Exall and made some observation:

“21. Pollock C.B. in R v Exall 176 ER 850 pointed out on page 853 in his judgment:

‘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.’[7]

22. This court holds that given the evidence of the present case, it was not necessary for the trial judge to apply the standard of proof by beyond reasonable doubt or drawing ‘the only reasonable and irresistible inference’ to prove each basic fact.”

58.In the present case, the crossbow and the sharpened wooden sticks in the defendant’s possession, coupled with his clothing, his equipment and so on are cords stranded together that bring about the above irresistible inference.

59.There is nothing unsafe in the conviction of Charge One. I dismiss the Appellant’s appeal against conviction of Charge One.

Ground (Two)

60.The main argument of the Appellant was that the Magistrate should not have taken into consideration the way the Appellant was attired and what was in his possession (excluding the crossbow and the sharpened wooden sticks of Charge One) at about 4:45p.m. on 1 January 2020 (which was about 9 hours before the crime of Charge Two took place) in order to draw an inference.

61.The Appellant submitted that even if the Magistrate could consider there was no sign for the series of violent demonstrations in Hong Kong to come to an end up to the day in question, that was still insufficient for the Magistrate to draw the inference that the Appellant had committed Charge Two.

62.The Magistrate said in paragraph 61 of his Statement of Findings:

“61.       I have already rejected the defendant’s explanations that P25, P27 and P28 were teaching tools for him to teach classes of model-making and/or archery to scouts, nor do I believe that P25, P27 and P28 were used by the defendant for motor coordination training. Besides, at about 4:45p.m. on 1 January 2020, upon interception by PW1, the items of clothing that he wore on his body (including P23, P24 and an umbrella) and the exhibits P2, P3, P4, P5, P6, P7, P8, P9, P10, P11, P12 and P13 found in his possession (in analysing Charge Two, I do not consider P18, P19, P20 and P21), in particular P5 and P6 which were in total quite a number of masks which the defendant could use in future (and the rest of the above exhibits could also be used by the defendant after 1 January 2020). As at 1 January 2020, there was still no sign for the series of violent demonstrations to come to an end. I draw an irresistible inference that P25, P27 and P28, namely the articles that the defendant made or adapted and could cause injury to people’s bodies, were by no means teaching materials or training equipment, but were intended for use by himself or some other person for the purpose of causing injury to people’s bodies. Therefore, I find that the crossbow (i.e. P25) and the 5 arrows (i.e. P27 and P28) involved in Charge Two all fall into the definition of “offensive weapon” of Cap. 228, Laws of Hong Kong (and Cap. 245, Laws of Hong Kong). Also based on the above observation, I draw an irresistible inference that the defendant, having in his possession in his premises exhibits P25, P27 and P28, namely offensive weapons that could cause injury to people, intended to use them at demonstrations on 1 January 2020 or thereafter in conjunction with his other articles of clothing and equipment (including exhibits P2, P3, P4, P5, P6, P7, P8, P9, P10, P11, P12 and P13) for the purpose of causing injury to people by him or some other person. Therefore, I also find that all the elements concerning exhibits P25, a crossbow, and P27 and P28, a total of 5 arrows, involved in Charge Two were proved beyond all reasonable doubts by the prosecution. Accordingly, I find the defendant guilty of Charge Two with regard to exhibits P25, a crossbow and P27 and P28, a total of 5 arrows.”

63.In considering Charge Two, the Magistrate emphasized that he had not taken into consideration the crossbow and the sharpened wooden sticks particularized in Charge One.  In my view, his approach towards the Appellant was rather too lenient.

64.In my view, it was a right approach for the court to consider the two charges separately, but it does not mean that the court could not or should not take into account the circumstances of Charge One when considering Charge Two. If the article involved in the case was a chopper or a sharp weapon that an ordinary person would generally use, I would agree that the court should not consider the defendant having in his possession another chopper or another sharp weapon in a public place. However, the crossbows involved in the present case were different from any commonly seen sharp weapons. I have examined the two crossbows involved in both Charge One and Charge Two. The two crossbows of Charge Two were similar to that of Charge One. The only difference was that one of the two crossbows (P25) in Charge Two was longer than that of Charge One while the other one (P26) was shorter. Certainly, I have taken into account that exhibit P26 the crossbow cannot be used to successfully shoot out exhibit P27 (plastic bows) or P28 (wooden arrows with metal tips), and the Magistrate has ruled that P26 was not a weapon. The Magistrate found that P27 and P28 could be projected from exhibit P25 (the longer crossbow) causing injury to people whereas exhibit P27 the arrows with metal tips could be used with bare hands to injure people.

65.The fact that the crossbow that the defendant took to a public place was similar to the two subsequently found from his home formed the overall circumstantial evidence, and the Magistrate should have taken the crossbow of Charge One into consideration.

66.The Magistrate did not accept that the articles involved in the case found from his home were for teaching or physical training. In view of the social circumstances then, the way the Appellant was equipped going out earlier on and the fact that he went to the scene of demonstrations carrying with him weapon-like equipment, I hold the view that the only reasonable inference to be drawn was that the Appellant’s intent of having in his possession the crossbow and arrows was for them to be used in conjunction with other articles of equipment by himself or by some other person in causing injury to people in future demonstrations.

67.There is nothing unsafe in the conviction of Charge Two. I dismiss the Appellant’s appeal against conviction of Charge Two.

68.I would mention that although the Magistrate pointed out the intent of the Appellant having in his possession a crossbow and arrows involved in Charge Two was “on 1 January 2020 or thereafter in demonstrations, used in conjunction with other articles of the defendant’s clothing and equipment … were for use by him or some other person for the purpose of causing injury to people”[8], based on the fact that Charge Two happened in the small hours on 2 January, about 9 hours after the Appellant was intercepted for enquiries, his saying “1 January” was obviously a slip of tongue, namely a “typographical error”.

Verdict

69.Based on the above reasons, I dismiss the Appellant’s appeal against conviction for Charge One and Charge Two.

Ms. Laura NG, Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent

Mr. Steven Kwan, Counsel instructed by Messrs. O Tse & Co. for the Appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor.