HKSAR v. Ngan Man Lung

HCMA000151/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 151 OF 1998

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Coram : Hon Mr Justice Cheung in Court

Date of hearing : 29 April 1998

Date of delivery of judgment : 29 April 1998

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J U D G M E N T

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The appeal

1. The Appellant was convicted after trial for possession of offensive weapon in a public place and being a member of a triad society. He was sentenced to a total of 18 months' imprisonment. He appealed against conviction and sentence, but at the hearing today he abandoned his appeal against sentence.

Facts

2. The facts revealed that on 24th July 1997, shortly after 11 p.m., a police officer, PW1, received information from a pedestrian and he went to the Shun Lee Estate. He saw four people near a theatre, one held in his hand a long object wrapped in white cloth, the other, who was the Appellant, carried a baseball bat. The two others were empty-handed. The group of four people went to a flower bed under a staircase. When they came out after a short while, they were not carrying anything in their hands. Later on, five knives wrapped in white cloth together with a baseball bat were found in the flower bed. PW1 alerted his colleagues on the beep radio. Subsequently the four men were intercepted and arrested by the police.

3. Under caution, the Appellant denied that the baseball bat or the knives belonged to him, but he admitted that he was a member of the Sun Yee On Triad Society. He was cautioned when he was being interviewed but he was not cautioned again when the triad matter was raised. He did not give evidence or call any evidence on the cautioned statement. He did not give evidence himself on the general issue. He called one witness, namely DW1.

Offensive weapon

4. On the first charge, the first issue is whether the Appellant was the one observed by PW1 carrying the baseball bat. It was put to PW1 that the Appellant did not carry the baseball bat. PW1 was under investigation by the ICAC, but having heard and assessed his evidence, the Magistrate accepted the evidence of PW1. This is something that the Magistrate was clearly entitled to do. PW2 and PW4 confirmed that PW1 pointed out the Appellant as the one carrying the baseball bat.

5. The Appellant complained that PW1 had denied in Court that the four defendants were stopped by a traffic police officer. The traffic police officer, DW1, gave evidence that he and his colleagues from the other team arrived at the scene almost at the same time. PW1 denied there was a police officer. PW4 denied that there was a police officer. PW4 also stated PW1 pointed out D2 instead of D1. He later corrected himself by saying that PW1 pointed out D1. PW5, when asked about the interception by the traffic police officer, replied that he did not know about it and then disagreed that the traffic officer had asked if they need assistance.

6. In my view, there is no substance in the complaint that the prosecution witnesses had denied about the presence of the traffic police when in fact the traffic police officer agreed that he was present at the scene. The position is that the police officers arrived almost at the same time. The evidence of PW1, PW4 and PW5 on this issue is not something that would cast doubt on their evidence. PW4 did not give any mistaken evidence on the identity of D3 who was the Appellant.

7. The Appellant complained that while PW1 in his evidence stated one of the defendants carried in his hands a long object in white cloth, PW2's evidence in Court was that PW1 said that D1 carried a white bag. In my view, the question whether D1 was carrying the object wrapped in the white cloth or carrying a white bag is not a matter that affects the reliability of the prosecution evidence. D3 was observed to be the one carrying the baseball bat.

8. While the bat itself may be an innocuous object, its presence together with the five knives at 11 p.m. at night are clearly objects that the Magistrate may find as offensive weapons and are intended to be used for such purposes.

Triad membership

9. On the triad membership charge, the allegation by the Appellant was that he was assaulted by the police officer and was asked to co-operate and answer questions. He was under an inducement to admit the triad membership and that he might not be charged with the offence of possession of offensive weapon.

10. The Magistrate recognised that there was no further caution when the triad membership matter was raised, but he concluded that the statement was voluntarily made. The ultimate issue is whether the statement was voluntary. The only witness on this issue is that of the police officer. The Magistrate's finding on this issue cannot be disturbed.

Conclusion

11. Accordingly, I would dismiss the appeal.

Representation:

Mr Cheung Wai Sun, Deputy Principal Government Counsel, for Director of Public Prosecutions

Appellant in person