The Queen v. Kwan Shun Wing

HCMA000250/1986

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 250 OF 1986

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BETWEEN

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Coram: Hon. Jones, J. in Court

Date of hearing: 1 April 1986

Date of delivery of judgment: 3 April 1986

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JUDGMENT

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1. The appellant appeals against his conviction at North Kowloon Magistracy on the 4th January 1986 for offences of Possession of an Instrument fit for an Unlawful Purpose contrary to s.17 of the Summary Offences Ordinance, Cap. 228, and to Resisting Arrest contrary to s. 63 of the Police Force Ordinance, Cap. 232. A fine of $250 was imposed on both charges. The appellant was also charged with Loitering, but at the hearing the prosecution offered no evidence.

2. The evidence for the prosecution was given by one witness, an off duty police officer DPC 16052 who said that about 7.30 p.m. on the 3rd December 1985 he was in Tung Choi Street when he saw the appellant acting suspiciously by a mobile hawker stall. He saw the appellant on two separate occasions approach females from behind. On the first occasion he tampered with a handbag and on the second touched the rear trousers pocket of another lady. The police officer kept the appellant under observation for about 10 minutes. Eventually the appellant walked away to the junction of Soy Street and Fa Yuen Street where he entered a building and walked to the 2nd floor. Here he was stopped by the police officer in the corridor and searched. The police officer found a wallet which contained a blade with one side sharpened. When he was asked why he was carrying the blade, the appellant made no reply. As a result, the police officer cautioned the appellant and was about to hand-cuff him when the appellant punched him on the chest and he fell to the ground. The appellant then ran off but was caught by the police officer after a short chase.

3. The appellant gave evidence and said that he is a civil servant with a clear record. He disputed the allegations that he had been at the hawker stall and said the first time he saw the police officer was in a public toilet. Although he agreed that a wallet was found on him, he denied that it contained the blade. He also denied the allegation of assault, but admitted that he ran away because he was himself struck by the police officer who, he contended, had blackmailed him. He claimed that the blade was first shown to him at the police station by the police officer who asked him to admit that it belonged to him. In effect the appellant says that he was framed.

4. Eleven grounds of appeal were argued by Mr. Gunston who appeared on behalf of the appellant. I will deal with the final ground first which was that as the police officer at the time of the alleged offence was off-duty, the appellant could not have been guilty of resisting him in the execution of his duty. Section 21 of the Police Force Ordinance however provides : -

"Every police officer shall for the purposes of this Ordinance be deemed to be always on duty when required to act as such and shall perform the duties and exercise the powers granted to him under this Ordinance or any other law at any, and every place in the Colony where be may be doing duty."

I interpret this section to mean that a police officer is required to act if he has reasonable grounds for suspecting that an offence has been committed. This test is subjective. As there was ample evidence, if believed by the learned magistrate, to arouse his suspicions, he was required to take appropriate action. Accordingly this ground of appeal must fail.

5. The next two grounds may be taken together. The first reads:

"The evidence of PW1, the sole prosecution witness was that he found a blade inside a wallet which was inside the appellant's right trousers pocket, but this evidence did not in any way prove that the blade was an instrument fit for an unlawful purpose in respect of which the appellant was unable to give a satisfactory account of his possession thereof, nor did the learned magistrate indicate in his statement of findings on what basis he found the appellant guilty of being in possession of an instrument fit for an unlawful purpose and being unable to give a satisfactory account of his possession thereof."

6. The second ground reads:

"The said blade was not in the circumstances in which it was found, an instrument fit for an unlawful purpose and the appellant was under no obligation to give a satisfactory account of his possession thereof, and the learned magistrate erred in assuming that such a blade was an instrument fit for an unlawful purpose."

7. Section 17 of the Summary Offences Ordinance reads:

"         Any person who has in his possession any wrist restraint or other instrument or article manufactured for the purpose of physically restraining a person, any handcuffs or thumbcuffs, any offensive weapon, or any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes, with intent to use the same for any unlawful purpose, or being unable to give satisfactory account of his possession thereof, shall be liable to a fine of $5,000 or to imprisonment for 2 years."

Mr. Gunston referred me to a number of authorities including Tang Chi-ming v. R. [1968] H.K.L.R. 716 where section 17 was considered by the Full Court. In this case Sir No Rigby had this to say at page 725:

"...............the prosecution must first prove that the accused was found in possession of an implement which can properly be described as one of those specifically named in the section, or an implement capable in fact of being used either as an offensive weapon or "fit for unlawful purposes" from its common though not exclusive use for that purpose or from the particular circumstances of the case in question. Once possession of such an implement has been shown the burden shifts to the accused to give a satisfactory account of his possession thereof. Quite clearly, the more sinister and suspicious the circumstances in which the accused is found in possession of the implement the greater will be the burden placed upon him to give a satisfactory explanation of his possession of that implement. Each case - and the conclusion reached in each case - must necessarily depend upon its own particular facts."

That passage has been cited and approved in subsequent cases and was in fact referred to by Li J. as he then was in the unreported decision of Wong Chun-lung v. R. (Cri. App. 929/1979).

8. Criticism was directed to the learned magistrate's failure to consider whether, the blade is an instrument capable of being used for an unlawful purpose. Although a one-sided razor blade can be used for an innocent purpose, it can obviously be used for an unlawful purpose particularly by a pick pocket for cutting a lady's handbag and to slit a pocket. Whereas for example a perfectly innocent explanation can be given for carrying a pen knife which can be used for an unlawful purpose one may ask the rhetorical question, 'why does a person carry on his person a one sided razor blade'? In my judgment the facts in this case speak for themselves. There was clearly no necessity for the learned magistrate to make a detailed analysis of the article to determine whether it came within the ambit of the section. As the evidence of possession was accepted, it raised a prima facie case so that the burden shifted to the appellant to provide a satisfactory explanation for his possession. In the absence of any explanation by the appellant the learned magistrate was quite entitled to draw the inference that the blade was fit and intended for an unlawful purpose for there was no other reason to carry such an article These two grounds of appeal must therefore fail.

9. Ground 3 reads:

"The learned magistrate should not have admitted evidence relating to the charge of loitering when the prosecution stated that it was offering no evidence on this charge and the charge had been dismissed."

This evidence in my judgment was clearly admissible to show what aroused the police officer's suspicions. The submission that the evidence should have been excluded because it related to the loitering charge would have made the evidence unintelligible. The evidence, as I have said, was relevant to show why the police officer's suspicions were aroused and why he took the action that he did. This ground of appeal also fails.

The fourth ground reads:

"As there was no good or sufficient reason for PW1 to arrest the appellant, the appellant should not have been found guilty of resisting arrest."

10. The evidence by the police officer, having been accepted justified his subsequent actions so this ground must fail.

11. The remaining grounds of appeal can conveniently be dealt with together. They are as follows:

I find no merit in grounds 6, 7 and 9 which related to matters of the evidence for the learned magistrate to decide. The fact that the evidence of the police officer was not corroborated was irrelevant.

12. With regard to ground 5 Mr. Gunston attacked the finding of the learned magistrate made in reference to his submission of no case to answer. At page 19 of the record the learned magistrate had this to say in his statement of findings:

"I rejected a submission of No Case to Answer. I comment, with some restraint, that for Defence Counsel to argue that the C Charge should not have been Resisting Arrest by a Police Officer in the Execution of his Duty, as he was "off-duty", was misconceived and wholly untenable. To refer to some unknown authority for this proposition without being able to produce it compounded the insult. I mention this now simply because the Appellant gave evidence which I later rejected, and I found at the conclusion of the case, looking at the evidence as a whole, as a finding of fact, that the Appellant was always looking for a technical acquittal."

13. It is unfortunate that the learned magistrate referred to a technical acquittal for the appellant gave evidence in which he denied the allegations. In the circumstances; I do not consider that this comment was valid. However, there was no merit in the ground of appeal.

14. Complaint was also made by Mr. Gunston against the following passage in the statement of findings in relation to the 8th ground which reads:

"Further matters emerged which had not been put or used as part of his defence - in certain other cases there may have been good reason for not so doing, or merit in withholding same, but not in my view in this case - and having had the advantage of closely observing the demeanour of the Appellant, the manner in which he gave his evidence, the quality of his testimony when removed from the relative security of evidence in chief, and the way in which his Defence was put and conducted, I found I could not safely place any reliance upon the appellant as a witness of fact or truth."

Mr. Gunston submitted that the conviction was unsafe in as much as the learned magistrate relied upon the evidence that arose as a result of the question that the learned magistrate had asked the appellant at the conclusion of his evidence as to what he meant by 'blackmail'. However, this question came about following the allegation of blackmail that had been made by the appellant in his evidence in chief, but which had not been explored by either the defence or the prosecution. The learned magistrate was perfectly entitled to make the comment that he did in his findings and to reject the evidence that was given by the appellant. It is in fact pertinent to observe that Mr. Gunston did not ask the appellant any questions on this aspect arising as a result of the learned magistrate's question. Accordingly the 8th ground of appeal fails.

15. The issue in this case was purely one of fact depending upon the credibility of the two witnesses. The learned magistrate took into account as he was entitled to do, the demeanour of the appellant and found him to be an untruthful witness. He rejected the allegations made by the appellant that he had been blackmailed or had been framed. No reason in fact was suggested as to why the police officer should have framed the appellant. Mr. Gunston urged me to have regard to the appellant's clear record his position as a civil servant and the danger of conviction where the only evidence adduced by the prosecution was that of a detective constable. However, the facts were for the learned magistrate to decide. An appellate court will not interfere with a decision on the facts unless sufficient grounds have been shown. Having accepted the evidence that the appellant was found in possession, the appellant was required to give a satisfactory explanation. No explanation was provided by the appellant with the result that the appellant was properly convicted of the charge of Possession of an Instrument fit for an Unlawful Purpose. Again the evidence before the learned magistrate supported the conviction of resisting arrest for the police officer had reasonable grounds to stop and search the appellant. The appeals against conviction will therefore be dismissed.

Representation:

Mr. P.J. Dale (Attorney General's Chambers) for Respondent

Mr. D.B. Gunston (Hampton, Winter & Glynn) for Appellant