The Queen v. Liu Wai Keung and Another

HCMA000300/1989

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H E A D N O T E

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POSSESSION OF OFFENSIVE WEAPONS - LIKELIHOOD OF IMMINENT ATTACIY - APPELLANTS' ACTION REASONABLE - SATISFACTORY EXPLANATION.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 300 OF 1989

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 25 Apirl 1989

Date of delivery of judgment: 12 May 1989

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J U D G M E N T

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1. The appellants were convicted by Mr Lim at North Kowloon Magistrates Court of possession of offensive weapons, contrary to section 17 of the Summary Offences Ordinance, Cap. 228 and were sentenced to two months imprisonment suspended for 12 months.

2. The appellants were room attendants at an apartment house in Argyle street. Early on the morning of 11th November 1988, the premises having closed for the night they were off duty and laying mah-jong. At 6:30 a.m. the door bell was rung by three men wanting a room.

3. In his Statement of Findings, the magistrate cited the evidence of 2nd appellant in his recitation of the subsequent events. This is no doubt because he had found the evidence of the visitors - only two of them testified - to be unreliable. They admitted they were drunk their evidence was contradictory; and the magistrate dismissed a further charge of assault. 1st appellant did not give evidence.

4. 2nd appellant said he went to the door when he heard the bell. Through the glass panel he saw three men who appeared to be drunk. He said they were closed. He then returned to his mah-jong game. The next thing he heard was the sound of breaking glass. The appellants armed themselves with a wooden pole and iron bar respectively and went to investigate. They found the glass door panel had been broken. They opened the door and asked the men if they had broken the glass. They also noticed that a small pot outside the door had been broken. The appellants demanded compensation and threatened to ring the police. The matter was eventually reported to the police and three wooden poles and the iron bar were seized.

5. According to 2nd appellant the poles and bar were kept in the kitchen and accounts office for the purpose of self-defence; there had been a robbery at the premises in the past. They had pot been used on this occasion to strike or threaten the three men

6. The question is whether this amounts to a "satisfactory account" in terms of section 17. The magistrate cited R v. Sin Kan-chuen & Others [1979] H.K.L.R. 460, in which it was held:

''1. The term 'satisfactory account' in section 17 of the Summary Offences Ordinance is to be construed less strictly than the term 'reasonable excuse' as used in section 33 of the Public Order Ordinance and hence imposes a lesser onus on the defendant.

2.    In deciding what is a satisfactory account for possession of offensive weapons for the purposes of section 17 of the Summary Offences Ordinance a threefold test should be applied as to:

(a)     the reasonableness of the thoughts of the appellant,

(b)     the reasonableness of the thoughts of the reasonable man in the position of the appellants,

(c)     the view of the courts.

3. Persons are entitled to defend their homes from imminent or even potential attack. However they must give full, considerations as to whether the attack is likely, the method of securing their homes and the weapons with which they choose to repel an attack.

4.    Cases depend very much on their own facts in the instant case the lapse of time between the robbery and the possession of the weapons, the lack of immediacy of a possible attack and the nature of the offensive weapons were matters rightly taken into account by the trial magistrate in ruling that a satisfactory account had not been given."

7. The magistrate found that the appellants had sufficient time to call the police but instead decided to arm themselves in order better to negotiate compensation. He found also that there was no imminent danger, because the door and the iron grille were shut.

8. Certainly one possible course of action open to the appellants was to call the police and delay opening the door until their arrival. That is what counsel for the Crown submits is shat they should have done. The chances are however that the three drunks would not have obligingly remained so long outside the door; the cost of the breakages would mot have been recovered.

9. Another alternative would have been to open the door and confront the men unarmed. This would have involved exposing themselves to the risk of assault.

10. The question is whether it was reasonable in these circumstances to arm themselves before opening the door. Clearly if that had been done for the purpose of enforcing their demand for compensation, it would not have been reasonable. That seems to be the construction the magistrate was put upon their action, but it seems to me that it is an equally reasonable inference that they armed themselves for self-protection.

11. That being the case is it a satisfactory explanation?  Each case depends on its own facts. An important consideration is the likelihood of imminent attack.

12. In Evans v. Hughes [1972] W.L.R. 1452, in an appeal by the prosecutor, Lord Widgery C.J., giving the judgment of the Divisional Court said at P.1455:

"The outcome of those authorities, and my own reading of the Act, assisted as it has been by Mr Worsley's argument, is that it may be a reasonable excuse for the carrying of an offensive weapon that the carrier is in anticipation of imminent attack and is carrying it for his own personal defence, but what is abundantly clear to my mind is that this Act never intended to sanction the permanent or constant carriage of an offensive weapon merely because of some constant or enduring supposed or actual threat or danger to the carrier. People who are under that kind of continuing threat must protect themselves by other means, notably by enlisting the protection of the police, and in order that it may be a reasonable excuse to say, 'I carried this for my own defence,' the threat for which this defence is required must be an imminent particular threat affecting the particular circumstances in which the weapon was carried."

13. Here there was a likelihood of an imminent attack. In my judgment, it was reasonable to carry such weapons in case the need for self-defence arose.

14. The appeal is allowed and the convictions quashed.

Representation:

Miss C. Fung, Crown Counsel, for Respondent

Mr A. King, inst'd by M/s David K.W. Tsang & Co., for Appellants