The Queen v. Chan King Tak

HCMA000294/1988

1988, No. 294

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H E A D N O T E

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Summary offences Ordinance - possession of offensive weapon - particulars wrongly alleged failure to give reasonable excuse defendant need only give satisfactory account - wrong test applied.

IN THE SUPREME COURT 0F HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO 294 OF 1988

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 10th June 1988

Date of delivery of judgment: 10th June 1988

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J U D G M E N T

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1. The appellant was convicted, by Mr Stretton at North Kowloon Magistrates Court, of possession of an offensive weapon, contrary to section 17 of the Summary Offences Ordinance, Cap. 228. Unfortunately, the particulars of offence alleged that he possessed the offensive weapon without lawful authority or reasonable excuse. This is the wording in section 33 of the Public Order Ordinance, Cap. 245 which create a similar but more serious offence. Section 17 requires only that a defendant give a satisfactory account of his possession of the weapon.

2. That, in itself, may well have been fatal to this conviction, but the matter is put beyond doubt, as is conceded by counsel for the Crown, by the magistrate's statement of findings where he says :-

"I accepted that the appellant was armed with the cutter for self defence but found this to be neither lawful nor reasonable and I rejected self defence as being a reasonable excuse in the circumstances in which he had found himself."

It is clear from this that he applied the wrong test. The requirement to give a satisfactory account is a less onerous burden upon a defendant than that of showing lawful authority or reasonable excuse.

3. The appeal is allowed and the conviction quashed.

Representation:

Mr M.D. Wilson, Crown Counsel, for Respondent

Mr S. Chiu, assigned by D.L.A., for Appellant.