HKSAR v. Wong Tin Lung

HCMA000021/1999

HCMA 21/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 21 OF 1999

(On appeal from Eastern Magistracy Case No. ESCC 2266 of 1998)

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Coram: Deputy Judge McMahon in Court

Date of Hearing: 26 March 1999

Date of Judgment: 26 March 1999

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J U D G M E N T

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1. The Appellant was convicted after trial at Eastern Magistracy of an offence of possession of offensive weapons in a public place contrary to s. 33(1) of the Public Order Ordinance, Cap. 245.

2. The facts of the case as found by the learned magistrate were that a police patrol which had laid an ambush at the 41st Floor of premises in Tai Hang Road apprehended the Appellant as he left those premises on that floor carrying a plastic bag containing 2 knives, one of 60 cm in length, the other of 46 cm in length.

3. The Appellant had given evidence explaining his possession of the knives on the basis that he had been in the premises for the purpose of lending his friend, one Ko Kit, who lived there, $1,500.

4. He said in evidence that he had spent some period of time chatting with Ko before leaving, and as he was about to leave Ko had given him the bag containing the knives and asked him to dispose of it in the rubbish bin behind the firedoor in the corridor outside the flat.

5. He said he had at no stage been aware of the contents of the bag until he was intercepted by police shortly after leaving the flat and the bag was searched.

6. The magistrate rejected the Appellant as a witness of truth and placed no weight on his evidence.

7. The learned magistrate accepted the police witness as a witness of truth and inferred from his evidence and the nature of the exhibits carried in the plastic bags and the way they were carried in the plastic bag that the Appellant must have been aware that the bag he was carrying in fact did contain knives.

8. The Appellant appeals on 4 fundamental grounds.

9. Firstly: that the magistrate erred in law and failed to consider properly the issue of possession and the evidence relating to it.

10. Secondly: that the magistrate wrongly decided that the Appellant knew the nature of the contents of the bag he carried by himself eliciting evidence as to the contents of the bag from a police witness by way of asking leading questions.

11. And thirdly: that for that reason the magistrate's findings of fact on that issue were unsafe and unsatisfactory.

12. Fourthly: that the prosecution wrongly failed to disclose that Ko Kit's fingerprints were on the plastic bag and one of the knives in the plastic bag and;

13. Finally, as a general ground, that the conviction was unsafe and unsatisfactory.

14. To a considerable extent the grounds of appeal and the arguments advanced in respect of each run one into the other.

15. There was no dispute that the Appellant had been found by police whilst in the act of carrying the knives away from Ko's flat. That was common ground at trial. Accordingly the fundamental issue in the case was whether the Appellant knew that the plastic bag he carried contained knives.

16. In his evidence, he said he did not know, as he had simply been asked by Ko to dispose of the plastic bag in the rubbish bin outside the flat. He thought the bag contained rubbish.

17. The learned magistrate rejected the Appellant's evidence as I have said. He gave detailed reasons as to why he rejected the Appellant as a witness of truth, and why he rejected the Appellant's girlfriend and sister, who also gave evidence, concerning a somewhat collateral matter, as to the Appellant having arranged to take them to the movies that night.

18. That assessment of the credibility of the Appellant and his witnesses in my view cannot be challenged. There were in fact matters which appeared to be inherently improbable in the Appellant's evidence. He said, e.g., Ko Kit stepped momentarily out of the flat to point out where the rubbish bin was, behind a smoke door some 4 steps away. Yet the Appellant was in a hurry, he said, to go to a movie. It seems somewhat unusual that a person would ask another to dispose of rubbish in a rubbish bin some 4 steps away rather than doing it himself.

19. After rejecting the Appellant's evidence, the magistrate reminded himself properly that the onus of proof beyond reasonable doubt nevertheless remained on the prosecution.

20. The magistrate then went to the prosecution evidence which consisted, apart from some formal agreed facts, of one police witness (PW1) and the exhibits in this case being the knives in the bags in which they were found.

21. PW1 had been part of the police team lying in ambush outside Ko's flat and had been present when the Appellant was intercepted and had in fact himself searched the plastic bag the Appellant was carrying and found the knives. The magistrate found him to be a credible witness and accepted his evidence.

22. So, as to the first ground of appeal, whilst it was true that the prosecution evidence as to the Appellant's possession of the knives was somewhat limited in scope and could not extend further than the brief period of time between when the Appellant had left Ko's flat and his interception by police, the fact of the knives being carried by the Appellant was never in issue. The Appellant accepted he had custody and control of them. He simply placed in issue the fact as to whether he knew what they were.

23. The evidence of PW1 was accepted by the magistrate as to a handle of one of the knives protruding from the plastic bag. He was entitled to accept that evidence.

24. Mr Grounds complains that this evidence was elicited from PW1 by the magistrate himself asking leading questions. This may be so, and it does appear to be so at least from the questions asked by the magistrate at page 37 of the transcript, though I note at page 23 of the transcript PW1 himself volunteers this information without any prompting. The magistrate's questions, even if partly leading, occurred in a later part of the evidence and were designed to clarify this earlier answer of PW1.

25. Even if some of those later questions were leading, once asked the answers of PW1 formed part of the evidence. The fact that some perhaps of the questions eliciting these answers were leading goes to weight only. The magistrate appeared to be aware of that having made that comment in the course of evidence in another area of the trial. That disposes of the second ground of appeal.

26. In addition to PW1's answers the magistrate himself had an opportunity to observe at trial that the knives, or one of them, did indeed protrude from the plastic bag in which they were carried.

27. As to this, he said in his findings:-

"I placed the larger machete in the Sogo bag. It protruded therefrom. The tip of the handle was clearly visible. I found that the defendant had been able to see it. The weight of the two machetes was not insignificant and it presented as a narrow, heavy and peculiar load in the large shopping bag."

28. He was entitled to arrive at his conclusion as to the facts of the case from his own viewing of the exhibits.

29. In my view it did not matter that the evidence in the case went no further than to show the Appellant's possession was for a relatively short period of time before interception. Nor that there was no evidence from the prosecution case as to how the Appellant had come into possession of the knives or reliable evidence of what the Appellant intended to do with the knives. The issue was whether, for the period of time that he had custody or control of the knives, the Appellant knew what they were.

30. So far as that aspect of the case is concerned and of the magistrate's findings and reasoning is concerned, no criticism can be made.

31. There is however one aspect of the evidence which causes me concern. In his Statement of Findings the magistrate says:

"The defendant stated that he had chatted for about one half an hour with Ko and had lent him some money; Ko was the one who had 'pushed' him out of the door. The defendant knew the bag contained two knives. PW1 arrested and cautioned the defendant. The defendant replied that the knives didn't belong to him; they were Ko's and he had asked him to throw them in the refuse room."

32. That seems to be a summary of the evidence of PW1 as understood by the learned magistrate. The statement that "the Defendant knew the bag contained knives" could only have been based on evidence which appears at page 27 of the transcript where PW1 is asked to relate what the Appellant said to PW1 after his apprehension.

33. That evidence was:-

"Q. Anything else said by the defendant?

A. Yes.

Q. What was that?

A. He said, 'We chat inside the room for half an hour.'

Q. Anything else?

A. Then the defendant left.

Q. Anything else?

A. Before the defendant, that man gave something to the defendant to let him go to the refuse room.

Q. Has he mentioned what was the things?

A. Two knives.

Q. Did you ask any further questions?

A. Yes.

Q. What was that?

A. I asked the defendant how much money he lent him.

Q. Did he answer you?

A. He said, '1,500.'

Q. Officer, after the defendant said this to you, did you do anything?

A. Yes.

Q. What was that?

A. Then I declare arrest to him.

Q. For what offence?

A. For possession of offensive weapon.

Q. Did you caution him?

A. Yes.

Q. Did he say anything under caution?

A. Yes.

Q. What was that?

A. The defendant said those two knives doesn't belong to him, that's KO Kit's. KO Kit ask him to throw it to the refuse room."

34. That evidence, Mr Grounds has urged upon me, may not mean in the context of the whole of the evidence in the case, bearing in mind it was the fundamental issue, that the Defendant admitted he knew 2 knives were in the bag. Though the whole case revolved around this particular issue and this evidence on the face of it was damning, it was not apparently regarded by counsel at the time as an admission.

35. There was no voire dire or agreement as to the Appellant's statement being voluntary, there was no cross-examination on this particular point. It seems most likely says Mr Grounds that PW1 meant by his answer "two knives" not that the Appellant had said this but that that was the "something" he had referred to in his earlier answer.

36. Whatever the position, it seems to me most unsatisfactory that this evidence was never challenged at trial. It may be that there was some confusion of mind, of at least defence counsel, as to what PW1 meant by his evidence. It seems somewhat unusual that apart from reciting this as the evidence given by PW1 in his Findings, the learned magistrate did not again refer to it. On the face of it the evidence, as I say, if accepted, was fatal to the Appellant's case.

37. This aspect of the case together with what I will come to in respect of Ground 4 in my view renders the conviction unsafe.

38. The 4th ground is concerned with the failure of the prosecution to disclose to the Appellant that Ko Kit's fingerprints were found on one of the knives within the bag and on the inside of one of the bags holding the knives. This was indeed a breach of the prosecutions duty to disclose and Mr Tam today very fairly has admitted as much. In prosecuting an individual for possession of items such as offensive weapons it seems to me to be somewhat obvious that the prosecution should disclose, if they know, whose fingerprints were found on those objects.

39. In my view the presence of the fingerprints of Ko Kit on those items was in fact material.

40. In R. v. Keane (1994) WLR 746, Lord Taylor CJ said:

"As to what documents are material we would adopt a test suggested by Jowett, J in R .v. Northan (unreported) 12 December 1993. The judge in that case said

'I would judge to be material in the realm of disclosure which can be seen on a sensible appraisal by the prosecution (1) to be relevant or possibly relevant to an issue in the case (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use (3) to hold out a real as opposed to a fanciful prospect of providing a lead on evidence which goes to (1) or (2).' "

41. In the present case the fingerprints of Ko on the items, one of them inside a bag and another on one of the knives that the Appellant was carrying, was material at least to the simple issue as to whether Ko had prior dealings with these objects and had given those objects to the Appellant.

42. The Appellant's case was indeed that Ko had provided him with these objects carried in these plastic bags. It seems to me that this aspect of the evidence would have perhaps been relevant to the defence mounted in respect of the Appellant's possession of these items. Accordingly in my judgment the fingerprints of Ko were material and should have been disclosed to the defence at trial.

43. There is no duty on the defence to make their own enquiries. In R. v. Ward (1993) 1 WLR 619, the Court of Appeal expressly held that the duty to disclose was a positive duty placed upon the prosecution. The prosecution must make its own enquiries in each case as to whether there is material requiring disclosure. In my view if they fail to do so and make no disclosure even if that failure is innocent and in no way malicious, it may result in a conviction being held to be unsafe in the event that the undisclosed material becomes relevant during trial. This ground alone would have been sufficient to allow the Appeal.

44. For these reasons, the appeal against conviction is allowed. The conviction is quashed and the sentence set aside.

Representation:

Mr Simon Tam, Senior Government Counsel, for the Respondent (HKSAR).

Mr Christopher Grounds instructed by M/s David Hui & Co. for the Appellant Wong Tin Lung.