HKSAR v. Khan, Zubair

HCMA 115/2026

[2026] HKCFI 5131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 115 OF 2026

(ON APPEAL FROM KCCC 1712/2025)

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BETWEEN

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J U D G M E N T

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1.The appellant was convicted after trial of one count of possession of offensive weapon in public place[1]. He was sentenced to 6 months’ imprisonment.

2.He now appeals against conviction and sentence.

Prosecution case

3.The prosecution called four witnesses: Mr. Chan Wai Sun Simon (PW1), Police Constable 21130 (PW2), Mr. Marshall James Alexander (PW3) and Mr. Tam Siu Wa (PW4).  The appellant admitted that he was in possession of an orange cutter (Exhibit P1) and he was the man being pushed on the ground and arrested by the police. 

4.PW1 testified that on 22 June 2025 at about 6:45 p.m., while travelling on an MTR train towards Tsuen Wan, he heard an argument and saw a South Asian man chasing and shouting at another man.  After the other man left at Tsim Sha Tsui Station, PW1 saw the South Asian man holding an orange cutter with the blade extended about one inch and swinging it erratically for about 5 to 6 seconds while holding a can of beer in his other hand.  PW1 said nearby passengers moved away and confirmed Exhibit P1 was the cutter held by the South Asian man.  

5.PW1 further said two Caucasian men intervened.  One of them restrained the South Asian man from behind and the other snatched the cutter from him.  PW1 got off the train at Jordan Station to assist.  On the platform, the South Asian man was pinned to the ground and PW1 called the police.  The police and MTR staff arrived about 5 to 6 minutes later.

6.PW3 said when the train reached Tsim Sha Tsui Station, he saw a South Asian man shouting and then waving an orange paper cutter with the blade extended about 5 centimetres.  He said there were children and many other people around.  PW3 grabbed the man’s wrist, told him to drop the cutter, and succeeded in removing it after about 30 seconds to 1 minute.  Another man restrained the South Asian man from behind.  PW3 then pulled him off the train at Jordan Station, helped pin him to the ground, and handed the orange cutter to an MTR staff member in a yellow jacket.  He confirmed that Exhibit P1 was the item involved.

7.PW2 testified that at about 7:04 p.m. he received a report and arrived at Jordan Station at about 7:08 p.m., where he saw a South Asian man pinned to the ground on the platform.  He made enquiries with PW1 and PW3, obtained the cutter from PW4, and later arrested the South Asian man for possession of offensive weapon at 7:35 p.m.

8.PW4, an MTR staff member, testified that at around 7:00 p.m. he attended the platform to deal with a passenger emergency case.  He saw a Caucasian man restraining a South Asian man, received an orange cutter from another Caucasian man, took it to the captain office, and later handed it to the police. He confirmed that Exhibit P1 was the cutter he received.

Defence case

9.The appellant elected not to give evidence and did not call any defence witness.

10.The defence position, as reflected in cross-examination and in the appellant’s letters treated as closing submissions[2], was that the prosecution should have obtained or adduced the MTR CCTV footage, which he said was the most objective and strongest evidence in his favour.  He alleged that the failure to obtain CCTV footage was to cover up lies by PW1 and PW3.

11.The appellant also challenged PW3’s account by asserting that he had been grabbed from behind suddenly after he got off the train, and he challenged the credibility and reliability of PW4.  He further complained that the trial should have been concluded on the first day rather than adjourned part-heard.

Magistrate’s findings

12.The magistrate noted that the prosecution did not rely on the cutter being manufactured or adapted for use to injure, and that the central issue was whether the appellant possessed the cutter with intent to injure others.

13.Regarding the evidence of PW1 and PW3, the magistrate found that there were no material discrepancies in their testimony, that their accounts contained nothing inherently impossible, and that their evidence remained unshaken under cross-examination.  She also found that PW3’s use of the terms “cutter” and “knife” referred to the same object and did not amount to inconsistency or falsehood.  She found both of them honest and reliable and accepted their evidence[3].

14.The magistrate found PW2 and PW4 honest and reliable as their testimonies were not exaggerated or untruthful and their evidence about the events on the platform and the handling of the cutter were consistent with each other and with the accounts of PW1 and PW3.  She accepted their evidence[4].

15.Applying the principles on identification evidence, the magistrate was satisfied that PW1 and PW3 had accurately identified the appellant as the South Asian man who was waving the cutter in the train carriage.  She also accepted that Exhibit P1 was the cutter held by the appellant at the material time[5].

16.On the issue of intent, the magistrate found that the appellant was holding a cutter with the blade extended about 1 inch or 5 centimetres and waving it inside a crowded train carriage.  She considered that nearby passengers ran away, that the situation was dangerous, and that there was absolutely no need for the cutter to be taken out and waved in those circumstances.  She held that the only reasonable inference was that the appellant possessed the cutter with the intent to cause harm to people around him[6].

17.The magistrate further found that the appellant had no lawful authority or reasonable excuse for possessing the cutter and that the MTR carriage was a public place.  She therefore concluded that the prosecution had proved all elements of the charge beyond reasonable doubt and convicted the appellant[7].

Mitigation

18.The appellant did not say anything during mitigation[8]. He has 18 previous conviction records, all of which are not of similar nature to the present offence[9].

Reasons for sentence

19.The magistrate observed that there is no sentencing tariff for the offence but custodial sentence is the usual sentence.  She considered the appellant’s act as highly dangerous as he was waving a cutter with the blade extended in a crowded MTR carriage during peak hour.  She also noted the appellant’s conviction records and the fact that he committed the present offence shortly after his release from prison.  She adopted a starting point of 6 months’ imprisonment and, there being no mitigating factor, sentenced the appellant to 6 months’ imprisonment[10].

Grounds of appeal

20.In the notice of appeal against conviction and sentence, the appellant relied on the general grounds.  At the appeal hearing, the appellant complained about the prosecution’s failure to produce the CCTV footage and that the witnesses were lying.  He also said he had no intention to hurt others.

Consideration

21.The Court of Final Appeal in HKSAR v Hui Lai Ki (許麗琪) (2024) 27 HKCFAR 265 held that magistracy appeal is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit within its statutory power.  The judge must be satisfied that the appellant’s guilt has been proved beyond reasonable doubt on the evidence, failing which the appeal must be allowed.  On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate to convict.  It was recognized that an appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand.  Hence, it must exercise caution when considering findings of facts based on oral testimony.  Yet, despite those limitations, it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.  On an appeal against sentence, the intermediate appellate court should consider all the facts, mitigation and relevant authorities.

22.As the appellant did not dispute that he was in possession of the cutter (Exhibit P1) and he was the one being pushed on the ground and arrested by the police, the magistrate was correct in pointing out that the only issue was whether the appellant had the intention to hurt others.

23.Having gone through the Statement of Findings, I find the magistrate had carefully assessed the reliability and credibility of the witnesses.  I agree with her conclusion that all the prosecution witnesses were honest and reliable.  Based on the evidence accepted by the magistrate, it was shown that the appellant was in possession of the cutter and he was waving it erratically inside a crowded MTR carriage with the blade extended.  The magistrate was entitled to find the circumstances was dangerous and there was no need for the appellant to take out and wave the cutter.  The evidence supports the only reasonable inference that the appellant intended to use the cutter to injure others.  The MTR carriage is not doubt a public place and the appellant clearly had no lawful authority or reasonable excuse for possession of the cutter.  Therefore, there is sufficient evidence to support the conviction.

24.The appellant complained about no CCTV footage was adduced by the prosecution.  The magistrate had made inquiries with the prosecution who confirmed that no CCTV footage was seized due to poor quality of the footage.  The magistrate had explained the same to the appellant.  I agree with the magistrate’s conclusion that no unfairness was caused to the appellant[11].

25.Regarding the sentence, as the appellant is aged above 25, section 33(2)(d) of the Public Order Ordinance, Cap. 245, provides that the only sentencing option is imprisonment.  As the magistrate has rightly pointed out, the act of the appellant was highly dangerous at the material time as he waved the cutter in a crowded MTR carriage during peak hour.  Further, he committed the present offence shortly after release from prison.  Having considered the circumstances of the case and the authorities[12] referred by the respondent, I find the 6 months’ imprisonment imposed on the appellant is not manifestly excessive or wrong in principle.

26.In view of the above, the appellant’s appeal against conviction and sentence is dismissed.

Ms Vivian Tsang, PP, of Department of Justice, for the respondent

The appellant appeared in person