R. v. Chong Ah Choi and Others
Read the full judgment text of HCMA 281/1994 on BabelCite. This High Court CFI judgment.
1. In the small hours of the morning of May 29 last year, the police received a "999" call. In response, a party of uniformed police officers rushed to a karaoke establishment in Kwun Tong. Outside that establishment, they saw four men. Two were each holding an iron bar.
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HCMA000281/1994 1994, No. 281 (Magistracy Appeal) H E A D N O T E So much of section 17 of the Summary Offences Ordinance, Cap.228, as provided that a person could be made liable thereunder for his possession of any implement listed therein on the basis of his "being unable to give satisfactory account of his possession thereof" is inconsistent with the Bill of Rights and has been repealed accordingly. 2. The only basis on which a person can be made liable under the section is proof beyond reasonable doubt by the prosecution that his possession of such an implement was "with intent to use the same for an unlawful purpose." 3. Generally, the prosecution would seek to discharge that onus by relying on what is the only reasonable inference to be drawn from all the facts duly proved, which facts would include:-
4. The Court continued:-
5. And concluded:-
6. Contrasting the second basis of liability under section 17 of the Summary Offences Ordinance, Cap.228, with section 33 of the Public Order Ordinance, Cap.245, the Court noted that, subject to one complication, section 33 was comparable with section 1 of the Prevention of Crime Act 1953, and would seem to come within the test laid down in Reg. v. Edwards [1975] 1 QB 27 at pp.39H-40B and approved Attorney General v. Lee Kwong-kut [1993] AC 951 at p.972F-G. That complication arose out of the extremely wide definition of "offensive weapon" in section 2 of the Public Order Ordinances, Cap.245, which includes articles "suitable" for causing injury to the person. But that complication could be removed simply by holding that the formula "or suitable" in that definition had been Bill repealed, leaving the definition to cover any article made, or adapted for use, for causing injury to the person, or intended by the person having it in his possession or under his control for such use by him or some other person. That would bring it in line with the definition in the comparable English legislation. And it would leave a still effective section 33 on foot. 7. And contrasting section 17 cases with ones involving things like drug trafficking and corruption, the Court said:-
IN THE COURT OF APPEAL 1994, No. 281 (Magistracy Appeal) _________________
_________________ Coram: Sir T.L. Yang CJ, Bokhary JA & Mayo J Date of hearing: 30, September 1994 Date of judgment: 4, October 1994 _________________ J U D G M E N T _________________ Bokhary JA (delivering the judgment of the Court): The facts 1. In the small hours of the morning of May 29 last year, the police received a "999" call. In response, a party of uniformed police officers rushed to a karaoke establishment in Kwun Tong. Outside that establishment, they saw four men. Two were each holding an iron bar. Another was holding a metal pipe. And yet another was holding a slab of wood. 2. Upon the officers' arrival, the four men moved off but were ordered by the officers to stop and did so. 3. The 1st and 2nd appellants were the ones holding iron bars. The 3rd appellant was the one holding a metal pipe. The man holding the slab of wood is not before us. 4. As far as the appellants are concerned, this is what happened when the officers questioned them about the implements which they had been seen holding. The 1st appellant said at once that he had picked up the iron bar "for fun". Initially, the 2nd appellant remained silent. But under caution, he said that the implement, which he inaccurately called a "crowbar" was not his, adding that he had come with the 1st appellant to sing. The 3rd appellant never responded to the query as to his possession of the metal pipe. When first questioned, all he said was that the others were his friends. Under caution, he added that he had been singing with the fourth man. All four men were arrested. The charges 5. On November 17 last year, the four of them appeared before T.S. Jenkins Esq in the Magistrate's Court in Kwun Tong, each charged with possession of an offensive weapon, contrary to section 17 of the Summary Offences Ordinance, Cap.228. The pleas 6. The 1st appellant pleaded guilty on that day, while the other three men pleaded not guilty but were found guilty on the 30th of that month. It might be mentioned that the 2nd appellant did not go into the witness-box. The 3rd appellant did. But he denied possession, rather than sought to give an innocent account for it. 7. All four men were sentenced to detention in a training centre. The appeals 8. Three of them - being the three appellants now before us - appealed. The 1st appellant appealed against sentence, while the 2nd and 3rd appellants appealed against conviction and sentence. 9. The case having been dealt with in the Magistrate's Court, the appeals went to the High Court. There, on June 1 this year, Leonard J did two things in the light of a point taken under the Bill of Rights. First, he granted the 1st appellant leave to appeal against conviction out of time. Secondly, he directed (pursuant to section 118(1)(d) of the Magistrates Ordinance, Cap.227) that the three appeals against conviction be argued before this Court. That is how this matter comes to be before us. Section 17 as enacted 10. As enacted, section 17 of the Summary Offences Ordinance, Cap.228, reads:-
11. So the section does not say that it is an offence under it merely to be in possession of any of the implements listed in it. Rather, it says that possession of any such implement is an offence if it is "with intent to use the same for any unlawful purpose" or in the event of the accused "being unable to give satisfactory account of his possession thereof." Two alternative bases 12. There are, therefore, two alternative bases of liability under the section. The second basis 13. In the present case, the charges were laid under the second basis. Thus, the charge against the 1st appellant says to him: "You are charged that [on the date and at the place in question] you did have in your possession an offensive weapon, namely one iron bar, and were unable to give a satisfactory account of your possession thereof." And the charges against the others were in the same form. Whether inconsistent with the Bill of Rights 14. The point taken on behalf of the appellants is that the second basis is inconsistent with the Bill of Rights and has therefore been repealed. We have heard well-presented arguments on each side of the question; and we thank counsel on both sides for their assistance. 15. Now, where a charge is laid under the first basis, the onus is on the prosecution to prove an unlawful purpose and prove it beyond reasonable doubt. But where a charge is laid under the second basis, that onus vanishes, and there arises instead an onus, albeit on a mere preponderance of probabilities, which is on the accused to prove an innocent purpose. A departure from article 11(1) 16. Plainly, the second basis constitutes a legislative departure from the Common Law rule, now entrenched in article 11(1) of the Bill of Rights, that it is for the prosecution to prove the accused's guilty beyond reasonable doubt. Whether justified : the test 17. As to such departures, the Privy Council, calling them "exceptions", said inAttorney General v. Lee Kwong-kut [1993] AC 951 at pp 969G-970B that:-
Whether the present exception passes that test 18. The crucial question here is whether the present exception passes the test. The "more likely than not" criterion 19. Beginning with the "more likely than not" criterion laid down by the United States Supreme Court in Leary v. United States 395 US 6 at p.36 and adopted by the Privy Council in Attorney General v. Lee Kwong-kut (supra) at p.970A, the most that can be said for the present exception in connection with that criterion is this. Where some (but not all) of the implements listed in section 17 are concerned, the nature of the implement would be such that in certain instances (but not in every instance) one could say with substantial assurance that possession thereof would be inherently more likely than not to be for an unlawful purpose. 20. That is so even if one were to consider only offensive weapons and ignore the other implements listed in the section. Where articles made for causing injury to the person e.g. a pair of knuckledusters are concerned, one can generally say with substantial assurance that possession thereof would be inherently more likely than not to be for an unlawful purpose. 21. But it is otherwise where, towards the other end of the scale, one is dealing with something like a hammer, which is not made for causing injury to the person but can, in the hands of someone with evil intent, fulfil that function. In such a situation, everything turns upon the surrounding circumstances. And the question whether the implement is an offensive weapon merges with the question whether the person in possession of it had it in his possession for an unlawful purpose. 22. Taken as a whole, the second basis does not meet the "more likely than not" criterion. Primary responsibility to prove guilt 23. Next, it falls to be considered whether in the case of a section 17 charge laid under the second basis, it remains primarily the responsibility of the prosecution to prove the guilt of the accused to the required standard. Plainly it does not. 24. In Attorney General v. Lee Kwong-kut (supra) itself, the Privy Council had to decide whether section 30 of the Summary Offences Ordinance, Cap.228, was Bill inconsistent. That section was the one which created the offence of unlawful possession. The Privy Council upheld the Hong Kong courts' view that the section was Bill inconsistent. In doing so, their Lordships emphasised (at p.973B-C) this. The most significant element of the offence created by the section was guilty possession. But the substantive effect of the section was to place the onus on the accused to establish that he can give an explanation as to his innocent possession of the property. And the burden on the prosecution was reduced to proving matters which are likely to be a mere formality in the majority of cases. 25. Where section 17 is concerned, the question goes to what use the accused was going to make - either immediately or if and when the opportunity or occasion were to arise - of the implement in his possession. Where section 30 was concerned, the question went to how he had come by the property in his possession. But in the context of what we have to decide, the distinction is without a difference. Simply by replacing the word "property" with the word "implement", what the Privy Council said about section 30 applies, in our judgment, with equal force to section 17. Maintaining the principle 26. Finally, there arises the question whether it is reasonable, given the importance of maintaining the principle which article 11(1) enshrines, to import a reverse onus provision such as the second basis into section 17. 27. Now, in section 17 cases, the prosecution will always start by seeking to prove (unless the defence admits it) that the accused had the implement in his possession. Generally, it would do so by the direct evidence of the arresting officer and anybody else who may have been there at the time. 28. And in a charge laid under the first basis, the prosecution will seek to prove that the accused had such implement in his possession for an unlawful purpose. Generally, it would do so by relying on what is the only reasonable inference to be drawn from all the facts duly proved. Those facts would include:-
29. Of course, no inference of guilt would be drawn by the court unless it is the only reasonable one. At the same time, if guilt is indeed the only reasonable thing to infer, then the court would not be deterred from inferring it by fanciful notions to the contrary. 30. That is easily illustrated. In the course of the argument, both counsel observed that even a pen can be pressed into service as a weapon of offence. But that does not mean that a man found, let us say in a dark alley, with a pen in his pocket is in the same position as a man found there with a knife in his pocket. The man with the pen is hardly likely to be arrested. The man with the knife, however, may soon find himself in the dock with a prima facie case against him. 31. Sometimes it may be alleged by the prosecution that the accused made some admission. If so, any issue as to that will be investigated as such issues are investigated by magistrates day in and day out. 32. None of that is at all out of the ordinary. It does not place any difficulty in the way of the prosecution beyond the sort which the prosecution is normally expected to overcome before it can persuade a court to convict an accused of an offence. 33. There can be no justification for the second basis. Its disappearance from section 17 will reduce the risk of wrongful convictions. But there is no basis for saying that its disappearance will result in the risk of wrongful acquittals being increased at all, let alone to the extent which would begin to justify its retention. Fails 34. In our judgment, the answer to the question whether the present exception passes the Lee Kwong-kut test is: no, it fails it miserably at every turn. 35. We use those emphatic words for these reasons. You can go by: the nature of the issues which arise; their complexity or lack of it; such difficulties as they may or may not throw up; the extent of the evil against which the forces of law are battling; the insidious or other nature of such evil; the type of accused involved; or anything else you care to name. Whatever you go by, in Hong Kong today, prosecutions for the summary offence created by section 17 simply bear no comparison whatsoever with, for example, cases involving cancerous activities such as drug trafficking and corruption and the ill-gotten proceeds of such activities. The second basis is repealed for Bill inconsistency 36. For the reasons which we have given, we hold: that the second basis is Bill inconsistent, and that so much of section 17 as embodies it, being so much of the section as reads "or being unable to give satisfactory account of his possession thereof," has been Bill repealed. Section 17 as it now stands 37. So section 17 now provides:-
Section 33 38. Section 33 of the Public Order Ordinance, Cap.245, which creates the offence of possession of an offensive weapon in a public place, was referred to by both counsel in the course of the argument. 39. Opening these appeals, Mr Macrae for the appellants sought to contrast prosecutions such as these with ones under section 33. And he remarked that, unlike the second basis of liability under section 17, section 33 was difficult to challenge under the Bill of Rights. 40. When his turn to address us came, Mr Bailey for the respondent sought to capitalize on that concession: submitting that it undermined the appellants' case on the second basis of section 17: because, he submitted, there was no material difference between it and section 33. 41. That submissions makes it necessary for us to consider section 33 even though no charge preferred under it is before us. 42. Subsection (1) of section 33 provides that any person "who, without lawful authority or reasonable excuse, has with him in any public place any offensive weapon" shall be guilty of an offence. 43. As we see it, all that Mr Macrae's concession amounts to is that section 33, which prohibits the doing of something save with lawful authority or reasonable excuse, is one of those provisions which may be justified under the test laid down by Lawton LJ in Reg. v. Edwards [1975] 1 QB 27 at pp39-40 and approved by the Privy Council in Attorney General v. Lee Kwong-kut (supra) at p.972F-G. 44. Lawton LJ., delivering the judgment of the Court of Appeal in England, and having examined a line of cases from the 17th century to the present time, said (at pp 39H-40B) that:
45. Reading section 33 in the light of that statement of the law, we can readily understand the distinction which Mr Macrae drew between the second basis of section 17, on the one hand, and section 33, on the other hand. 46. A complication may arise out of the definition of the term "offensive weapon" given in section 2 of the Public Order Ordinance, Cap.245. We pause to mention that the Summary Offences Ordinance, Cap.228, contains no definition of the term "offensive weapon". The courts have, when dealing with cases under section 17 of that Ordinance, generally borrowed the definition of "offensive weapon" given in section 2 of the Public Order Ordinance, Cap.245. Anyway, that section defines the term "offensive weapon" to mean "any article made, or adapted for use, or suitable, for causing injury to the person, or intended by the person having it in his possession or under his control for such use by him or some other person." The inclusion of the formula "or suitable" casts that definition very widely indeed. 47. It may be noted in passing that the comparable English legislation, section 1 of the Prevention of Crime Act 1953, does not include that formula. Subsection (4) of that section defines "offensive weapon" to mean "any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him or some other person." 48. A possible solution to any problem under the Bill of Rights created by that formula may be one along these lines. If section 33 would come within the Reg. v. Edwards (supra) situation but for the inclusion of that formula in the legislative scheme in question, then it is not the whole of the scheme which is to be taken as having been Bill repealed, but only that formula. The result of that would be to leave the statutory definition of "offensive weapon" in this form: "any article made, or adapted for use, for causing injury to the person, or intended by the person having it in his possession or under his control for such use by him or some other person." 49. In practice, even such a reduced definition ought to afford adequate protection for the public. 50. It retains articles made for hurting people e.g. a pair of knuckledusters. It retains articles adapted for that purpose e.g. a sharpened pole. And it retains any article intended for that purpose. 51. As far as the first two are concerned, they would seem to come within the Reg. v. Edwards (supra) situation without more. 52. And as far as the third is concerned, whatever the article, it would be covered where the necessary intent is present. What we have already said makes it clear that fanciful nations cannot stand in the way of proof by the prosecution beyond reasonable doubt where the surrounding circumstances provide such proof. And once the prosecution establishes a prima facie case of the necessary intent, there is no reason to regard possession of an article in the third category as less significant than an article in the first or second category. 53. In our view, Mr Macrae's concession as to section 33 does not assist Mr Bailey on the second basis of section 17. Result 54. Coming back to section 17, we have held that the second basis of liability thereunder had long gone by the time these appellants were convicted under that basis. In the result therefore, these appeals must be allowed. The appellants' convictions of possession of an offensive weapon are quashed. And their sentences of detention in a training centre are set aside. It is besides the point that they might have been duly convicted under charges laid under the first basis if charges so laid had been preferred against them. The charges actually preferred against them were bad in law. And this case must therefore end in their favour. In future 55. As to the application in future of section 17 as it now stands, our decision in this case, properly applied, will not result in any failure to charge anyone who ought to be charged under the section. Rather, it will lead to cases being investigated, presented and tried with enhanced care and an enhanced sense of relevance - which is conducive to protecting the public from criminals while at the same time protecting law-abiding people from being wrongly treated as if they were criminals.
Representation: Mr A.C. Macrae (instructed by the Director of Legal Aid) for all the appellants Mr S.R. Bailey & Mr Simon Tam (of the Attorney General's Chambers) for the Crown |
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