HKSAR v. Yan Chun Nam
Read the full judgment text of HCMA 115/2021 on BabelCite. This High Court CFI judgment was delivered on 11 October 2021.
1. The appellant was charged with an offence of possession of offensive weapon in a public place, contrary to sections 33(1) and (2) of the Public Order Ordinance, Cap. 245 of the Laws of Hong Kong. The particulars of offence state that the appellant, on 11 November 2019, in a public place inside Shing Fat Vehicles Company Limited Open Space Carpark, Tsing Yin Street, Tuen Mun, New Territories, Hong Kong, without lawful authority or reasonable excuse, had with him an offensive weapon, namely on
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[English Translation – 英譯本] HCMA 115/2021 [2021] HKCFI 2932 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 115 OF 2021 (ON APPEAL FROM TMCC 530/ 2020) ______________________
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JUDGMENT A. Introduction 1.The appellant was charged with an offence of possession of offensive weapon in a public place, contrary to sections 33(1) and (2) of the Public Order Ordinance, Cap. 245 of the Laws of Hong Kong. The particulars of offence state that the appellant, on 11 November 2019, in a public place inside Shing Fat Vehicles Company Limited Open Space Carpark, Tsing Yin Street, Tuen Mun, New Territories, Hong Kong, without lawful authority or reasonable excuse, had with him an offensive weapon, namely one device capable of emitting laser ray. 2.The appellant pleaded not guilty to the charge. He was convicted after trial by Mr Edward Wong Ching Yu, Magistrate (hereinafter referred to as “the magistrate”) of Tuen Mun Magistrates’ Courts and sentenced to a rehabilitation centre. The appellant lodged an appeal against conviction. B. Prosecution case 3.Ms Tsoi Mung-fan Moonar, Acting Senior Public Prosecutor, representing the respondent, set out the facts of the present case in her written submissions, which I adopt as follows:
C. Defence case 4.The appellant elected not to testify in court or call any witness. D. Magistrate’s findings 5.The magistrate made the following findings in respect of the charge:
E. Grounds of appeal 6.Mr Douglas KH Kwok and Mr Howard HC Tang, counsel for the appellant, put forward two grounds of appeal:
E.1. Ground of appeal (1) 7.Mr Kwok submitted that the “time” and “place of the offence” set out in the charge are material elements, and the court was required to form its basis on the place specified in the charge and the intention of the possession at that particular place. 8.The appellant cited the English case Allamby, suggesting that when the evidence involved different places, the intentions of having the relevant article in possession at different places were different. 9.The evidence in Allamby showed that the two defendants were intercepted with weapons found upon search on their return journey. Even though it had been their intention to use the weapons in their possession as offensive weapons when travelling from Reading to Cornwall, they had no such intention on their return journey. 10.The appellant also cited R v Yu Kiu-Kwan[8] to support his contention. In that case, the Court of Appeal had also considered the legal principles laid down in Allamby. 11.The appellant basically argued that when applying the relevant legal principles to the present case, the magistrate’s ruling that the appellant had participated or intended to participate in the protest did not conform with the legal principles laid down in Allamby and Yu Kiu-Kwan. The charge was about “the intention expected in future in relation to the possession,”, but the magistrate erroneously based his conviction on “some time in the past” and “the intention of some time in the past in relation to the possession”. 12.In the written submissions, the appellant summarised the evidence and timeline of the present case in table form as follows:
13.The appellant submitted that as what happened with the two defendants in Allamby whose intention of having possession of the articles on their return journey was no longer for the purpose of offensive weapons, or as the appellant in Yu Kiu-Kwan whose intention did not exist anymore when he was on his way home, even if the court drew the inference that the appellant once did participate in 1) the assembly at Pui To Road and Tuen Mun Heung Sze Wui Road at 2220 hours on the date of the offence, and/or 2) the assembly in the vicinity of Yan Ching Street at 2300 hours on the date of the offence, the fact was that the time and the place of the offence particularised in the charge were 2302 hours (or 2308 hours) on the date of the offence in an open car park at Tsing Yin Street, that is to say, the intention in question in relation to the appellant’s possession [was his intention] there and then. The appellant contended that the assemblies which took place previously could not be adopted as the basis for conviction, and at most they could only be relied upon to infer whether the appellant intended to participate in any subsequent protest(s). The appellant submitted that ground of appeal (2) arose from this contention. E.2. Ground of appeal (2) 14.Mr Kwok submitted that, first, there was no evidence showing any protest had happened 1) at the junction of Pui To Road and Tuen Mun Heung Sze Wui Road and 2) beyond the vicinity of Yan Ching Street, or there was any protest 1) at 2220 hours on the date of the offence and 2) at any time after 2300 hours on the date of the offence. Most importantly, there was no evidence showing that the appellant, while taking his route of fleeing (i.e. along Ho Pong Street to Tsing Yin Street), was on the way to the place where there was or was going to be a protest[13]. In fact, according to PW1’s testimony (see the above timeline), the advance made by the police at 2305 hours on the date of the offence had already dispersed the protesters and the passers-by. However, there was no mention in PW1's testimony if any protester later returned to the scene of the protest in the vicinity of Yan Ching Street or if any protest took place in the direction of Tsing Yin Street. 15.Besides, as what PW11 observed from the appellant’s movements, it was obvious that at the place of the offence, the appellant was fleeing and not attacking. According to the above timeline, from 2302 hours to 2308 hours on the date of the offence, PW11 saw the appellant being chased by the police and afterwards go into the place of the offence. PW11 had never lost sight of the appellant. PW11’s testimony also mentioned that the appellant was hiding himself between vehicles at the scene of the offence at that time. As pointed out by the appellant, it was worth noting that PW11, who had been observing the appellant all along, did not mention that the appellant was then in any way using exhibit P26(a) or trying to take out exhibit P26(a) from his backpack. 16.The appellant submitted that even if the appellant’s original intention was to participate in the protest, he, after being chased, no longer had such intention. Similarly, the intention to use exhibit P26(a) did not exist anymore, just like what happened in Allamby and Yu Kiu-Kwan. 17.The appellant went on to say that PW11 admitted that there was no battery inside exhibit P26(a) when the appellant was being searched. At that point in time, exhibits P26(a), P26(b) and P26(a)’s cover linked with its key(s) were placed in different pockets of the backpack (see the above timeline). Although this fact was not much related to the appellant’s escape, it consistently showed that the appellant simply had no intention to use exhibit P26(a) at all when he was intercepted and apprehended. Conversely, the inference that the appellant was projecting at the police with exhibit P26(a) at the same time while he was escaping, or he had hidden himself to await an opportunity to project at the police seemed to have gone too far and also contradicted PW11’s testimony. Therefore, the trial magistrate was too careless to say that the separate locations where exhibits P26(a), P26(b) and P26(a)’s cover linked with its key(s) were placed had no significant bearing on the determination of the intention specified in the charge. He failed to fully consider the fact that the appellant was on the way of fleeing. 18.Summing up the aforesaid, the appellant’s submission was that given the absence of evidence of any subsequent protest, the appellant was on the way of escaping, and P26(a), P26(b) and P26(a)’s cover linked with its key(s) were placed separately and so on, all the evidence in the present case was in favour of supporting the inference that the appellant had no intention to use P26(a) as an offensive weapon at the place of the offence. Such circumstantial evidence was like “strands of a rope” which worked by “cumulatively, in geometrical progression, eliminating other possibilities”[14]，i.e. eliminating the possibility of P26(a) being an offensive weapon. It was also similar to Secretary for Justice v Shing Kai-chung[15] in that if it could be drawn from the facts a reasonable inference adverse to the appellant and also a reasonable inference in the appellant’s favour, then the court must not draw an inference adverse to him. 19.Therefore, the inference drawn by the trial magistrate that the appellant intended to participate in the protest and use P26(a) as an offensive weapon was not a safe inference, nor was it the only reasonable inference. F. Respondent’s response F.1. Respondent’s response - ground of appeal (1) 20.The respondent submitted that the present case was different from Allamby as it did not span two days from the time the article was used for an unlawful purpose (intimidating others) to the time of arrest. What the trial magistrate had been discussing all along was the appellant’s intention at the time and place particularised in the charge[16]. 21.Yu Kiu-Kwan is also not applicable to the present case because it was not in dispute that the relevant weapon in the case was an offensive weapon per se. In Yu Kiu-Kwan, there was evidence from the defence that the relevant weapon was brought to a martial arts class for showing to the instructor. 22.In the present case, there was no direct evidence to point out the appellant’s intention. 23.In the absence of direct evidence, the intention of the appellant’s possession of the laser pointer had to be left to the trial magistrate to draw an inference. M Poon J (as she then was) stated in the case of HKSAR v SHY[17], at para 46:
24.The assemblies took place at 2220 hours and 2300 hours on the date of the offence near the place of the offence were precisely the surrounding circumstances under which the article was in possession, including the time, the place, the possible legitimate and reasonable use of the article at such time and place. The court was entitled to draw an inference on the basis of the assembly which took place at the time on the date of the offence in the vicinity of the place in the charge. F.2. Respondent’s response - ground of appeal (2) 25.In respect of the present case, the appellant said that there was no protest after the time particularised in the charge, namely around 2300 hours, and that at the time and place in the charge, the appellant was in the course of escaping with the laser pointer, the battery and the cover linked with a key/keys put in different pockets of the backpack, which were therefore in favour of supporting the appellant’s case that he had no intention to cause any injury to anyone with the laser pointer. 26.However, the appellant has neglected the surrounding circumstances at the time of the offence. It was not the case that no protest took place at the time in the charge, i.e., around 2300 hours. In fact the protesters left because the police advanced forward around 2305 hours. At the time and place in the charge, the appellant was not merely escaping, he, together with about 10 people in dark clothes, was being chased after by anti-riot police officers and running towards Tsing Yin Street which was only about 150 to 200 metres away from the location of the protest. Although the laser pointer and the battery were placed in different pockets of the backpack, all the parts were then available and could be assembled in a simple way quickly. Moreover, the appellant was also in possession of articles commonly used in protests, such as labour gloves, four tubes of saline solution and face masks. 27.In addition, in respect of the nature of the laser pointer itself, namely, under its normal operation, a direct exposure to the laser beam emitted within 40 metres might cause ocular injury, it was the only reasonable inference that the appellant had possession of the laser pointer under such circumstances with the intent to cause injury to other people. G. Appellant’s reply 28.The appellant further replied to the respondent’s submissions. Mr Kwok emphasised that in Allamby, the Court of Appeal did not regard “the case having spanned two days” as an important basis for the decision. The appellant argued that regardless of whether the incident had spanned two days or two minutes, it was only the intention at the time of the offence, instead of any earlier one, that the judge had to consider. 29.In response to the respondent’s point that Yu Kiu-Kwan was not applicable to the present case because it was not disputed that the weapon in question in that case was an offensive weapon, the appellant argued that the respondent misunderstood the scope of application of Allamby. Allamby involved a domestic knife and the relevant principle was applicable to a weapon not offensive per se. In Yu Kiu-Kwan, the relevant legal principle was in fact extended to a weapon which was offensive per se. Therefore, Yu Kiu-Kwan was also applicable to the present case. 30.The appellant contended that the magistrate had only discussed “possession” without addressing intention at paragraph 38 of the Statement of Findings. 31.The appellant stated:
Discussion and analysis 32.Magistracy appeal is by way of rehearing on the evidence before the trial magistrate (supplemented by any further evidence which the appellate court may admit): Chou Shih Bin v HKSAR[19]. In respect of the facts of the case, the appellate court has to take into account that the trial magistrate does enjoy the advantage of having received the evidence first hand. The appellate court shall not intervene the magistrate’s findings on facts unless it is satisfied that the magistrate has gone plainly wrong. If the magistrate has committed a material irregularity in dealing with a case, the appellate court may have the conviction quashed after considering whether it is just to do so. Even if the appellate court does not or is not able to identify any error made by the magistrate, or the grounds of appeal have failed, the appellate court is still required to decide whether the guilt of the appellant has been proved beyond all reasonable doubt on the evidence adduced by the prosecution. If the appellate court cannot be certain on that, then the appeal must be allowed: HKSAR v Ip Chin Kei and Others[20]. 33.According to the testimony and evidence before the magistrate, by 2220 hours on that day, about 30 protesters had already assembled at the junction of Pui To Road and Tuen Mun Heung Sze Wui Road and thrown a few petrol bombs towards the police front line, and they were projecting laser beams at the police front line and setting up barricades on the roadway. 34.At 2300 hours, about 20 protesters (some with their faces covered) assembled at the sitting-out area on Tuen Mun Heung Sze Wui Road, near the vicinity of Yan Ching Street, and they kept on yelling, setting up barricades and projecting laser beams at the body of the police officers. 35.At 2302 hours, PW11 conducted a sweeping operation along Tsing Yin Street and saw that the appellant and about 10 people in dark clothes were being chased after by anti-riot police officers and running towards Tsing Yin Street. A few of them (including the appellant) ran into the place in the charge. The appellant hid himself between vehicles. This car park was about 150 to 200 metres away from the location of the protest (a walking distance of about only 4 minutes). After the appellant was arrested, apart from the laser pointer in question, labour gloves, face masks and four tubes of saline solution were also found on him. 36.It was not at the location of the protest that PW11 saw the appellant and gave chase, and he in fact saw the appellant and others being chased by anti-riot police in Tsing Yin Street. The appellant exercised his right and did not testify to explain why he was present at the place in the charge and tried to get away from the anti-riot police. In light of all the circumstances in the present case, in my view, the only irresistible and reasonable inference is that the appellant had participated in that protest. 37.The place where the appellant was arrested was a car park at a walking distance of about 4 minutes from the location of the protest. Could the prosecution successfully prove that the appellant was in possession of the offensive weapon there and then? 38.Obviously, the laser pointer in question was not an offensive weapon per se. According to the interpretation of an offensive weapon under section 2 of the Public Order Ordinance[21], the prosecution had to prove that the appellant was at the material time in possession of the laser pointer “intended for the use of causing injury to others by him or by some other person”. 39.The facts in Allamby and Yu Kiu-Kwan, which the appellant relied upon, were vastly different from those in the present case. 40.In Allamby, the two defendants (A and M) travelled by car from Reading to Cornwall at that time, intending to persuade M’s ex-girlfriend to change her mind and reconcile with M. On the next day, on their way from Cornwall back to Reading, they were intercepted and searched by the police officers in Wiltshire, where three domestic knives and a flick knife were found. They were charged with possession of offensive weapons, i.e. four knives, in a public place [on the day of the return journey]. The stance of the defence was that, whatever intention might have attached to the three domestic knives on their way to Cornwall, such intention no longer existed on their return journey. The trial judge directed the jury that the two defendants could be convicted as long as the jury was certain that the defendants had the intention to give the domestic knives the character of offensive weapon within the meaning of the relevant legislation during the period commencing when they left Reading and ending at the time of their arrest, even if the jury could not be certain if they had the intention to use the knives for causing personal injury at the time and place particularised in the charge. Subsequently, the two defendants were convicted. 41.In their appeal, the Court of Appeal quashed their convictions. The Court of Appeal pointed out that in proving the articles in the defendants’ possession (the domestic knives) fell within the legal definition of offensive weapon, the material elements shall be the time and place particularised in the charge. The trial judge should have left it to the jury to consider whether the defendants had abandoned the intention to use the domestic knives for causing injury at the time and place particularised in the charge. James L.J. said in his judgment[22]：
42.In Yu Kiu-Kwan, the appellant was a student of martial arts. He went to the home of his martial arts instructor with two metal rods joined by a steel chain (“a nunchaku”) made by him four years ago for showing it to the instructor. His instructor told him not to use it in his practice, saying that only limbs and not implements should be used when practising martial arts. His instructor told him to take the nunchaku, which was a weapon per se, back home. The appellant was intercepted on his way home with the nunchaku found upon search. He was charged with possession of an offensive weapon in a public place. 43.Apart from the appellant’s testimony, his instructor also testified in court, saying that he had told the appellant to throw away the nunchaku as it was an illegal weapon, and had also told him to take it home and not to play with it in the street. 44.The magistrate found that the appellant should have been aware that the weapon was not a weapon to be used by him as a martial arts student in practising, and that there was no justification for him to have brought it to show to his instructor. 45.The focus of the appeal was whether the magistrate, in applying his mind to the carriage of the weapon to the home of his martial arts instructor, was considering the right moment of time. The particulars of the charge were that the appellant had in his possession an offensive weapon, namely, two metal rods joined by a steel chain, in a public place outside Block 14, Pak Tin Estate. The appellant lived at Pak Tin Estate and he almost arrived home when he was arrested. Therefore, the appellant was arrested when he was on his return journey instead of his outward journey. 46.The appellate court applied Allamby and the judgment of James L.J. and allowed the appeal. 47.In the present case, the appellant exercised his right not to testify or call any witness. No evidence showed that he was “on his return journey” or that he was fleeing from the protest scene at that time. Even if he was on his return journey, based on my analysis below, the fact that he was “on his return journey” was not material either. 48.Both the time and place of the appellant’s arrest were not far away from the location of the protest. I have found that the only reasonable inference is that the appellant had participated in the protest. Then what was the intention of his possession of that laser pointer at the time and place in the particulars of the offence? 49.The prosecution had to prove that the appellant was in possession of the laser pointer “intended for the use of causing injury to others by him or by some other person”. “Intended” means being minded. Admittedly, there is no evidence in the present case showing that the appellant had used the laser pointer in question at the location of the protest. However, what I have to consider is whether the evidence supports the allegation that the appellant’s possession of the laser pointer at the time and place of the offence was ‘intended’, i.e. being minded, for the use of causing injury to others by him or by some other person. 50.The case took place on 11 November 2019. By that time, substantial social events had occurred in Hong Kong, incidents which seriously disrupted public order, such as unlawful assembly, road blocking and provocation against the police, happened nonstop. In the protest happened in the present case, people not only threw petrol bombs, but also provoked the police officers in a way frequently seen in protests, i.e. projecting laser beams at the police officers. 51.The unlawful assemblies and protests happened in 2019 were not isolated incidents, but happened from time to time. Such a background is much different from the isolated incidents involved in Allamby or Yu Kiu-Kwan. Moreover, in Allamby, the trial judge’s failure was in not directing the jury to consider whether the two defendants still had the intention to use the domestic knives as offensive weapons on their “return journey”. In Yu Kiu-Kwan, the defendant and his instructor testified to support that the defendant was merely on his “return journey” of bringing the nunchaku back home. 52.I have made the finding that the appellant had previously participated in the protest. He fled from the scene of the protest, but it does not mean that the protest ceased or completely ended during his escape. The appellant was in possession of or carried the laser pointer in question while participating in the protest, by which he obviously “intended” or was minded to use it as an offensive weapon for causing injury to police officers by him or by some other person. Even if on the day of his arrest he had not taken out the laser pointer to project beams at the police officers in the previous protest, it does not mean that he was not “minded” to do so. He fled from the scene of the protest and was arrested somewhere at a walking distance of 4 minutes away, similarly, it neither meant that he, at that particular point of time, did not “intend” or was not minded to use the laser pointer as an offensive weapon for causing injury to others. I disagree with the appellant’s submission that his escape from the scene indicated that he no longer had the intention nor was minded to use the laser pointer as an offensive weapon for causing injury to others ―― especially when there was no evidence in this regard. 53.In light of all the circumstances in the present case, in particular where the appellant was, his equipment and so on when he was arrested, I am of the view that the only reasonable inference that can be drawn from the appellant’s possession of the laser pointer there and then is that he “intended” or was minded to use the laser pointer as an offensive weapon for the use of causing injury to others by him or by some other person. 54.The facts showed that various parts of the laser pointer were placed separately, but they could be assembled in a simple way quickly, which therefore had no bearing on the intention of the appellant. 55.I find that the prosecution has proved that the appellant was in possession of an offensive weapon in a public place with no lawful authority or reasonable excuse, and therefore he was guilty of the offence. I. Conclusion 56.The prosecution has proved that the appellant was guilty of Charge 3 beyond all reasonable doubt. The appeal against conviction is dismissed.
Ms Moonar Mung-fan Tsoi, Acting Senior Public Prosecutor, of the Department of Justice, for the respondent Mr Douglas KH Kwok and Mr Howard HC Tang, instructed by JCC Cheung & Co., for the appellant Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Justin Yuen, solicitor. [1] Admitted facts, pages 30-31 of the Appeal Bundle [2] Paragraphs 13-15 of the Statement of Findings, pages 39-40 of the Appeal Bundle [3] Paragraphs 8-12 of the Statement of Findings, pages 37-39 of the Appeal Bundle [4] Paragraphs 16-19 of the Statement of Findings, pages 40-41 of the Appeal Bundle [5] Paragraphs 27-32 of the Statement of Findings, pages 43-45 of the Appeal Bundle [6] Paragraphs 20-26 of the Statement of Findings, pages 41-43 of the Appeal Bundle [7] [1974] 1 WLR 1494 [8] [1973-1976] HKC 478 [9] See Mark X1 of D2A. [AB/189] [10] See Mark X2 of D2A. [AB/189] [11] See Mark X3 of D2A. [AB/189] [12] See [AB/51] [13] The appellant was at that time going to the place of the offence, which was in the opposite direction with the location of the protest near Yan Ching Street. See D2. [AB/188] [14] See DPP v Kilbourne [1973] AC 729, at 758, which states “Circumstantial evidence is evidence of facts from which, taken with all the other evidence, a reasonable inference is a fact directly in issue. It works by cumulatively, in geometrical progression, eliminating other possibilities.” [15] Unreported, HCMA 266/2013, 13 September 2013 [16] Paragraphs 38, 40(a) and (c) of the Statement of Findings, page 47 of the Appeal Bundle [17] HCMA 13/2020 [18] Allamby (ibid) (page 1498H), original text: “The jury could properly look at the occasion ‘in the broad sense of the defendants going down and coming back from Cornwall’ but could do so only for the purpose of deciding whether the articles in their possession were offensive weapons at the time and place charged. It was a misdirection to tell the jury as the recorder did ‘the question really boils down to this - why were they taking the knives to Cornwall?’ By stating the issue in that way the recorder withdrew from the jury the issue of fact of the intention of the defendants at the time and place relevant to the charge, and the defendants were thereby deprived of the opportunity, to which they were entitled, of obtaining the decision of the jury on the question whether the domestic knives were at the relevant time and place offensive weapons within the meaning of the statue.” [19] Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70 [20] HCMA 301/2011 [21] 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; [22] R v Allamby and Medford [1974] 1 WLR 1494, at page 1498E-G |
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