HKSAR v. Woo Tim Wing

[English Translation – 英譯本]

HCMA 26/2021

[2022] HKCFI 666

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 26 OF 2021

(ON APPEAL FROM KCCC 688 OF 2020)

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BETWEEN

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Before: Hon Andrew Chan J in Court

Date of Hearing: 23 February 2022

Date of Judgment: 31 May 2022

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JUDGMENT

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1.The appellant was originally charged with two offences, one of “unlawful assembly” and the other of “possessing articles with intent to damage property”. After trial, he was acquitted of the offence of “unlawful assembly”, but convicted of the offence of “possessing articles with intent to damage property” and sentenced to immediate imprisonment for 9 weeks. He now appeals against the conviction.

Prosecution case

2.In the particulars of offence, the prosecution alleged that on 10 November 2019 in Mongkok, the appellant had in his custody three cans of lighter fluid, intending without lawful excuse to use the said articles to damage property belonging to another. Around 11:00 p.m. on 10 November 2019 in the area of Mongkok Road and Canton Road, a large crowd of people was gathering and some were even holding rod-like objects in their hands and shouting loudly. Having seen the gathering crowd while on board a police vehicle, PW1 (a police officer) and his colleagues got off the vehicle swiftly to chase after them. Later, the police officer intercepted and arrested the appellant at Shanghai Street. At the time, the appellant was wearing a black outer garment, which was the same attire worn by the demonstrators, with an iron rod, arm guards, shin guards, white Guy Fawkes mask, respirator, armor vest, three cans of lighter fluid, etc. in his possession.

Defence case

3.The appellant elected not to give evidence nor call any witness.

Grounds of Appeal

4.Generally, the grounds of appeal can be summarized into two points:

(1) The magistrate did not give full consideration to the particulars of offence in which the prosecution did not state what property the appellant intended to damage, and such deficiency constituted an unfair trial;

(2) the magistrate erred in drawing the inference that the appellant intended to use the lighter fluid to support combustion that night.

Discussion

5.In relation to the first ground of appeal, the appellant said that the particulars of offence did not specify in fact what property the appellant intended to damage, therefore the particulars of offence were erroneous and deficient because the appellant did not know how to defend himself as he did not know what property the prosecution was targeting, thus causing procedural unfairness, and accordingly the conviction was unsafe and unsatisfactory.

6.In respect of this ground, firstly, we have to discuss whether the elements which the prosecution has to prove for the offence of “possessing articles with intend to damage property” include the damaged property. The offence of “possessing articles with intent to destroy or damage property” under section 62 of the Crimes Ordinance stipulates as follows:

“Possessing anything with intent to destroy or damage property

A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it-

(a) to destroy or damage any property belonging to some other person; or

(b) to destroy or damage his own or the user’s property in a way which he knows is likely to endanger the life of some other person,

shall be guilty of an offence.”

7.Literally, the actus reus of this offence is having in his custody or under his control whilst its mens rea is the intention to use, or cause or permit another to use to destroy or damage property. In this case, the appellant did not dispute that he had in his custody the three cans of lighter fluid concerned but only disputed his intention. The first ground of appeal focuses on whether or not the prosecution has to prove that the appellant intended to damage some specific property to which the answer is negative.

8.According to the English version of the provision, we can see that when talking about destroy or damage property, the provision refers to any property. Although this is not clearly stated in the Chinese version, this criminal offence originated in the United Kingdom. In other words, to take it literally from the English version only, it seems that the prosecution does not have to prove what the specific property is.

9.In R v Buckingham[1], the English Court of Appeal said the following when dealing with the same provision:

“… The section, like so many sections which create offences in the criminal law, is directed to the proof of two different things; one is actus reus and the other mens rea. The actus reus plainly is having in his custody or under his control ’anything,’ in this case the jemmy; the mens rea is the intention without lawful excuse to use that jemmy ‘to destroy or damage any property belonging to some other person.’ In other words there has to be both custody or control of the jemmy and at that time the requisite intention, the requisite intention of course being an intention as to use in the future.”

“… But there is, if I may say so, a most helpful passage in Smith and Hogan’s Criminal Law (3^rd ed., 1973) at pp. 544 and 545 where under the title ‘Possession Offences,’ the learned authors discuss section 3 of the Criminal Damage Act 1971. In the third paragraph headed ‘Mens Rea’ the authors say ‘The offence may be committed only where D intends to use, or cause or permit another to use, the thing to destroy or damage property. It is not enough that D realises that the thing may be so used: he must intend or permit such use. But it is not necessary that D should intend an immediate use of the thing; the offence is aimed at prescribing what is essentially a preparatory act and it is therefore enough that D possesses with the necessary intent even though he contemplates actual use of the thing at some time in the future. And it would also seem to be clear that a conditional intent (an intention to use the thing to cause damage should it prove necessary) will suffice.

This Court would adopt that passage as a correct statement of the law…”

10.According to the above three paragraphs of the Judgment, we can see that what the prosecution has to prove, just as I have mentioned, are the actus reus and mens rea of the offence only, and the mens rea is the intention as to use in the future. The English Court of Appeal even said that a defendant’s intention to use in the future when necessary would suffice.

11.In Buckingham, when the appellant was arrested by the police, he had a jemmy in his possession. At the time, he was leaving an abandoned building. The basis on which the prosecution charged him was not that before the appellant entered the abandoned building, he intended to use the jemmy concerned to damage the building such as the door, window, etc. to facilitate his entry; instead it was when he was leaving, at the time he was stopped by the police, the prosecution alleged that the appellant would use it in the future when necessary. The English Court of Appeal upheld the decision of the appellant’s conviction. Although the case did not directly say that the prosecution did not have to prove what property was destroyed, if the basis of the conviction was the appellant’s use in the future when necessary, I believe that no one (including the appellant) would have known what property the appellant would destroy or damage when he actually used it in the future. Therefore, the prosecution cannot possibly be asked to state the specific property in the particulars of offence.

12.Moreover, the provision also includes causing or permitting another to use the said articles to destroy or damage property belonging to another. Should the argument of the appellant be tenable, the prosecution has to prove that when the person possessing the articles hands/lends them to a person intending to cause damage, the former has to know what property the latter is going to damage. Is this really the legislative intent?

13.Furthermore, from another rather similar and simple example, that is, “the offence of wounding with intent to do grievous bodily harm” under section 17 of the Offences against the Person Ordinance, we can also see that the prosecution does not have to set out what grievous bodily harm the offender intends to inflict either.

14.In cases where people gathered and caused trouble or destruction recklessly, and the offenders used inflammable articles intending to damage property belonging to another, their motives and purposes for committing the offences might plainly be an intention to vent their grievances by destruction, causing the owners (of either public or private property) to suffer financial loss. As to what property or whose property was damaged or destroyed, it was not important to them at all.

15.As to the second ground of appeal, the magistrate said the following in paragraphs 15 to 18 of his Statement of Findings:

“15. As to Charge 2 against D1, there is no doubt that during the incident, D1 did appear in the vicinity of the place where the crowd gathered wearing the usual attire of ordinary demonstrators. Of course, this is in itself not sufficient to infer and conclude that he intended to damage or act illegally, and it is not necessarily that the lighter fluid relating to Charge 2 could only be used for the unlawful purpose of arson. However, upon considering the three cans of lighter fluid seized from D1’s possession, apart from the two cans put inside his rucksack, the other one was put inside his left front trouser pocket, the court is of the view that the only irresistible inference is that D1 did intend to use the can of lighter fluid inside his trouser pocket that night.

16. Lighter fluid is not an item of usual personal effects. It is by itself dangerous to a certain extent[2]. If D1 had not intended to take it out to use at any time, he should have put it together with the other two cans inside his rucksack. At the time, his rucksack definitely had enough room for one more can. Why did he have to put one of them in a position within his reach? The only irresistible inference must be that he had entertained the idea of using that can of lighter fluid at any time.

The purpose of the lighter fluid

17. Upon further considering that D1 was in the vicinity of the place where the crowd gathered at the time, although this does not in itself mean that D1 had the intention to commit an offence, he was also holding a metal rod in such a scenario, I am sure that at the time there was no way that D1 intended to use the lighter fluid concerned for cleaning or dilution under such circumstances. The only irresistible inference must be that he intended to use the lighter fluid to support combustion.

18. D1 did not have a lighter with him. The court cannot be sure that he intended to commit arson, but his purpose of carrying the lighter fluid must be that he intended to use the lighter fluid to support combustion should any article be set alight. Therefore, the court is of the view that the only irresistible purpose of D1 possessing the lighter fluid must be to damage property belonging to another by way of supporting combustion.”

16.I agree with the magistrate’s finding of facts in this aspect. The incident happened at some time past 11 p.m., and some people were gathering and causing trouble at the location where the appellant was. The lighter fluid involved in this case was generally used as fuel for lighters. If it was used as a combustion gas for a lighter, the amount required was very limited, but the appellant had as many as three cans at the same time. Considering the appellant’s attire and personal effects as well as the environment at the time, I cannot see what reasonable excuse the appellant had. Furthermore, the appellant elected to remain silent. In respect of the finding of facts, the appellate court will not interfere with the finding unless the magistrate’s verdict runs contrary to logic or is inherently improbable, which is not the case here.

17.There is no merit in this appeal and the appeal is dismissed.

Mr Ivan Cheung, Assistant Director of Public Prosecutions (Acting), of the Department of Justice, for the HKSAR.

Ms Queenie Ng and Mr Matthew Cheung, instructed by O Tse & Co., for the Appellant.

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