HKSAR v. Yim Ting Fung

[English Translation – 英譯本]

HCMA 91/2021

[2022] HKCFI 1935

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 91 OF 2021

(ON APPEAL FROM ESCC 688/2020)

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JUDGMENT

1.The appellant faced two charges. The first charge was Possession of Offensive Weapon in Public Place, contrary to section 33(1) of the Public Order Ordinance (Cap 245). The particulars of offence alleged that the Appellant, on 1 May 2020, outside 105 to 107 Wing Lok Street, Central, a public place, without lawful authority or reasonable excuse, had with him an offensive weapon, namely one extendable baton. The second charge was using a vehicle without prescribed obligatory reflectors.

2.The appellant pleaded guilty to the second charge. He was convicted of the first charge after trial by the magistrate, and was sentenced to 3 months’ imprisonment.

3.The appellant now appeals against the conviction of the first charge.

The Prosecution Case

4.At around 8:17 p.m. on the date of the offence, when PW2, PC 21793, was conducting an anti-crime patrol on Wing Lok Street with his teammates, he saw a private car with registration mark WE 6417 (“the private car”) parked outside 105 Wing Lok Street, Central. At that time, the Appellant’s wife was sitting alone at the front passenger seat in the private car. The police officers conducted an investigation into the private car. PW1, PC 21129, arrived at around 8:25 p.m. to assist.

5.Witnessed by the appellant who subsequently arrived, PW2 searched the private car. The exhibits seized included a 66 cm extendable baton which was placed inside the storage box at the front passenger seat, and a front license plate marked WH 8336 which was placed inside a hidden compartment at the boot. The car plate number WH 8336 was unregistered.

6.At 2110 hours, a police constable found upon search from the boot of the private car a black face shield, a pair of gloves, a transparent glass bottle containing transparent liquid and a pair of transparent goggles.

7.PW1 arrested the appellant for the offence of ‘Possession of Prohibited Weapon’.

8.PW4 is a staff member of Eden Vehicle Trading Company Limited (literal translation). He sold the private car to the appellant on 9 January 2020 for HK$26,000. At that time, the extendable baton was not inside the private car. Before handing over the car to the appellant, he had checked the vehicle, but it was not a thorough check.

The Defence Case

9.The appellant testified that at the time of the offence, his occupation was a decoration worker. Since 1 June 2016, he worked as a project foreman at the engineering department of the company of his elder brother (DW2). The items found in the car such as goggles, turpentine and gloves etc. were all required in his job. He did not know that there was a hidden compartment in the private car in question. After purchasing the private car, he had not picked up other passengers apart from his wife.

10.DW2 was the elder brother and employer of the appellant. He stated that the appellant had worked at his company since June 2016 as a project foreman and worked at the field for most of the time. Most of the case-related equipment was required in doing repair work.

Grounds of Appeal

11.The grounds of appeal of the appellant basically were that the magistrate had erred in ruling that the location where the police officers found the extendable baton, namely the storage box at the front passenger seat in the private car, was a public place specified under the Public Order Ordinance.

Discussion

12.During the trial of the case, the defence basically had no dispute about the prosecution case. The greatest dispute was whether the private car was a public place specified under the Ordinance when the police officers found the extendable baton involved in the case in the private car. Relying on Mok Chi Ho v The Queen [1979] HKLR 118, the magistrate ruled that the private car was a public place, and convicted the appellant on this basis[1]:

‘32. With reference to the judgment of the appeal of the English authority Mok Chi-ho v The Queen [1979] HKLR 118, the prosecution stated that a private car on a public road was a public place as specified by Section 33(1) of the Public Order Ordinance. It was stated by the prosecution that the defendant’s private car was parked on Wing Lok Street, which was a public road. Therefore, the private car is considered as a public place.

……

‘34 . In my view, the facts of the authority Mok Chi-ho are that there was a private car parked in a public place and then knives were found underneath the passenger seat therein. One of the disputes in the appeal was that private car could not be a public place. The appeal court dismissed this ground of appeal. In this case, the facts stated that the exhibit P-1 was found upon search in the storage box in front of the passenger seat. The defendant was located in a public place at that time, while the private car he possessed was also parked in a public place. Therefore, the private car on a public road is a public place as specified by Section 33(1) of the Public Order Ordinance. Therefore, I disagree with the Defence’s argument.’

13.Mr Tang, counsel representing the appellant, criticised that the magistrate wrongly relied on Mok and ruled that the private car was a public place, without doing any analysis of Mok. He submitted that Mok did not indiscriminately state that when contrabands were found in a vehicle parked in a public place, that private car must be a public place.

14.In Mok, police officers saw a private car travelling on the road with 5 passengers on board at 2:05 a.m. After 45 minutes, this private car was seen parking on another road, with the defendant and the driver on board. Under the seat of the defendant, the police officers found 3 knives. The defendant said that these knives were for self-defence. The defendant was convicted of one count of Possession of Offensive Weapon in Public Place and one count of Loitering. The appeal of the defendant was dismissed. The Court stated that a private car parking on a public road was a public place as specified in Section 33(1) of the Public Order Ordinance.

15.Mr Tang analysed the Canadian authority Rex v McLeod[2]which was considered in Mok. It emphasises that, in order to determine whether a private car parked in a public place is a public place, the court needs to consider multiple factors. In this case, the defendant was drinking beer in a vehicle parked in a public place, and was thus convicted by the magistrate for the offence of drinking in a public place. The Canadian appellate court found that there was no sufficient evidential foundation to interfere with the magistrate’s judgment[3]:

"3 It is not disclosed whether the motor vehicle was being used for private or public purposes; it might have been a passenger bus or it might have been a motor cycle. We do not know how many people were in or around the vehicle at the time; whether the car was an open jeep, a truck, or enclosed family car; whether the drinking took place publicly in open view; whether the respondent was one of a party in several motor cars who had gathered at respondent's car for a drink, or other relevant circumstances, in the absence of which a court of review is unable to determine if the law has been correctly applied to the facts in the particular case.

……

5 Since the motor vehicle was in that public place, then, if drinking took place therein, there was most certainly evidence up to that point to enable the stipendiary magistrate to find that drinking occurred in a public place. It is true there may have been evidence to show that the drinking did not occur publicly in a place open to public view or access. But if there was such evidence, in my opinion it ought to have been set forth in the stated case. Without such evidence it is judicially impossible in my judgment for a court in any method of review, let alone upon a stated case, to declare the stipendiary magistrate was wrong in a decision which as here is basically a decision of fact."

16.In Mok, TL Yang J (as he then was) cited the 3^rd paragraph of this extraction, mentioned the contents of the 5^th paragraph, and stated that the determination of this case was already sufficient to deal with the appellant’s appeal in Mok against the conviction of the first charge[4], which was Possession of Offensive Weapon in Public Place. Mr Tang thus opined that the appeal in Mok was dismissed because there was not enough evidence in the case for the court to consider that the location where the 3 knives were found was not a public place. In my view, he clearly misunderstood what Yang J meant.

17.The various factors for consideration suggested in McLeod were obviously focusing on the situation of consuming alcoholic beverages in public place. Yang J did not point out if and how these factors were applicable to the interpretation of the definition of Public Place as specified in the Public Order Ordinance, which related to Mok and this case. What is more important is that he did not state that the lacking of evidence of these factors in Mok was the reason why the appeal was dismissed. On the contrary, he indicated clearly that he ruled the appeal failed based on the facts of the case[5]. This shows that his decision was made after considering the facts of Mok and the judgment of McLeod.

18.In fact, the statement about the burden of proof relating to ‘Public Place’ in McLeod easily gives rise to confusion and misunderstanding. O’Halloran JA of Canada said the following in his judgment[6]:

"5 Since the motor vehicle was in that public place, then, if drinking took place therein, there was most certainly evidence up to that point to enable the stipendiary magistrate to find that drinking occurred in a public place. It is true there may have been evidence to show that the drinking did not occur publicly in a place open to public view or access. But if there was such evidence, in my opinion it ought to have been set forth in the stated case. Without such evidence it is judicially impossible in my judgment for a court in any method of review, let alone upon a stated case, to declare the stipendiary magistrate was wrong in a decision which as here is basically a decision of fact.

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10 But in any event it was not the duty of the Crown to prove a negative, viz., that the motor vehicle was one to which the public did not resort or did not have access; see s. 30 (1) of The Summary Convictions Act (and see analogously Rex v. Daniels, [1942] 1 W.W.R. 43, 77 C.C.C. 76, [1942] 1 D.L.R. 199, Abr. Con. 1856, and Rex v. Staviss, 16 M.P.R. 508, 79 C.C.C. 105, [1943] 1 D.L.R. 707, Abr. Con. 1858, examined in Rex v. Wheeler, [1945] 1 W.W.R. 61 at 67, 60 B.C.R. 525, 83 C.C.C. 105, [1945] 1 D.L.R. 745, Abr. Con. 1857). All the Crown was required to do was to adduce evidence that the respondent was drinking in a public place. The duty then rested upon the defence either in cross-examination of Crown witnesses or as part of its own case, to show factually (if it sought to regard it as a defence) that the motor vehicle was not one to which the public had resort or access. It seems to me, with respect, this aspect of the matter is settled by s. 87 of The Government Liquor Act, considered by this Court in Rex v. New Dominion Club, supra.”

19.This statement of O’Halloran gives people an impression that the defendant has the burden of proof to provide evidence to rebut the prosecution’s submission which states that, the vehicle related to the case can be considered as a public place because it is parked in a public place. Obviously, he said so because of the Canadian legislation and caselaw. This is different to the Hong Kong situation. Regarding the private car in this case, the prosecution has the burden of proof to prove beyond reasonable doubt that it is a public place. This burden and standard of proof surely apply to public places as specified in other ordinances as well. The defence has no burden to provide any evidence to prove that the vehicle or place involved is not a public place. Whether the defence has or has not raised any factors for consideration as suggested in McLeod, the burden of convincing the court still rests on the prosecution. After considering all the evidence in the case, she had already proved beyond reasonable doubt that the vehicle or place involved was a public place.

20.Mr Tang pointed out that the storage box where the extendable baton was found was closed. Therefore, the extendable baton could not be seen from the outside. There was only the appellant’s wife in the car. Apart from her and the appellant, no one could enter or use any part of the private car. By reference to some authorities related to ‘Soliciting for an Immortal Purpose’ and offences connected to massage establishments, Mr Tang indicated that a space in a public place that is not available for public use cannot be considered as a part of the public place. He therefore implied that the space inside the private car was not a public place.

21.Obviously, Mr Tang had the wrong focus. In this case, there is no evidence showing that the public is allowed to enter or use the space inside the private car. It is common sense that no car owner would allow any member of the public to do so. I believe that it is impossible to have any dispute in the trial regarding this issue. The prosecution’s allegation is based on the fact that the private car was parked in a public place, while the extendable baton was found in a storage box inside the car. Therefore, it satisfied as public place specified in the Public Order Ordinance. This is the key issue of this case.

22.There is no dispute that the private car was parked in a public place when the case occurred. Yang J cited the authority of Mansfield v Kelly (1972) VR 744 in Mok. The defendants in that case were sitting and drunk at the front seat of a vehicle parked in a public place. The Australian Full Court held that, as the vehicle was parked on a street, the defendants were on that street as well[7]. This shows that whether the private car is a public place or not does not depend on whether the appellant allows others to enter and use the space of this private car. One of the important factors for consideration is the location of the private car when the case occurred. Certainly, the court also needs to consider other factors, including how to interpret public place specified in the Public Order Ordinance.

23.Mr Tang also referred to some authorities such as Walker v Crawshaw [1923] NZPoliceLawRp 128 and R v Holmes 3 Car & Kir 360, which were examples that private spaces being exposed to the public eye could be considered as public places. However, the definitions of public place, the conduct regulated by the legislation and the circumstances of those cases are totally different from this case. The place related to the latter case is even a public bus that was available for public use.

24.Although the extendable baton in the case was placed in a storage box inside the private car that could not be seen by outsiders, and the appellant would not allow the public to enter or use the space of the private car, the appellant could still take out and use the extendable baton no matter to where he drove the private car. It is much more convenient than placing it in private premises. This has no material difference from the appellant carrying the extendable baton on his person.

25.According to the Long Title of the Public Order Ordinance, one of the purposes of the Ordinance is to maintain public order. When interpreting the definition of public place in the Ordinance, the Court has to consider this purpose. Surely, the legislation would not allow anyone to take out easily at any time at a place he could reach by driving a motor vehicle an offensive weapon, including an extendable baton, that could be used to disturb public order. On this premise, undoubtedly, the private car parked in a public place at the material time was a public place specified in the Public Order Ordinance.

26.As I had stated above, there is no great factual dispute in this case. For this reason, it is indeed not necessary for the magistrate to state specifically the issues that the extendable baton was found in a hidden storage box, and that the appellant would not allow the public to enter and use the space of the private car. Being a professional judge, the magistrate must have already considered the factors raised in McLeod when considering that case. Many authorities have also pointed out that it is not necessary for a professional magistrate or judge to list out in great detail everything he had considered in his mental process of reaching the verdict. In my view, under the circumstances of this case, the magistrate had sufficient evidential foundation to rule that the private car was a public place as specified in the Public Order Ordinance.

27.The grounds of appeal of the appellant are not substantiated.

Conclusion

28.The appeal against conviction is dismissed, and the conviction is affirmed.

Respondent: Mr Liu Wai Hung, Acting Senior Public Prosecutor of the Department of Justice, for the HKSAR

Appellant: Mr Howard HC Tang, instructed by Kenneth Lam Solicitors

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