The Queen v. Ma Tak Yiu

HCMA001706/1990

MAGISTRACY APPEAL NO. 1706 OF 1990

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HEADNOTE

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CHARGE LAID UNDER S.17 OF THE SUMMARY OFFENCES ORDINANCE CAP 228. SMALL FOLDING POCKET KNIFE OF A KIND WHICH THE AVERAGE PERSON :SIGHT REASONABLY CARRY EVERY DAY NOT "SUITABLE" FOR USE AS AN OFFENSIVE WEAPON, EVEN IF CAPABLE OF SUCH USE, UNLESS INTENT PROVED.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1706 OF 1990

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Coram: Hon. Ryan, J. in Court

Date of hearing: 19 February 1991

Date of delivery of judgment: 28 Feruary 1991

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JUDGMENT

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1. The appellant, aged 19, was convicted on a charge laid under section 17 of the Summary Offences Ordinance, Cap.228, of being in possession of an offensive weapon, and being unable to give a satisfactory account. He now appeals against that conviction.

2. S.17 of the Summary Offences Ordinance provides:

"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 $5,000.00 or to imprisonment for 2 years."

3. The charge referred to a folding knife with a brown handle. The brief facts were that on the 4th September 1990, at 7 p.m., a police party saw the appellant in Woosung Street. He was said to be walking around and looking around which the police party thought to be suspicious. The appellant was searched and was found to have a folded pocket knife, 4" long when folded, in the pocket of his jeans. The appellant, when questioned, said the pocket knife was his and that he had been swimming. The police party were not satisfied with the reply and the appellant was arrested and cautioned. He was recorded as having replied: "Ah sir, the knife is mine, I don't really have anything to say".

4. The appellant gave evidence at the trial of being a sales representative earning $8,000 per month. He said that on the day in question he had been swimming at Kowloon Park with a friend TO Shiu-kay, and on the way back from the pool had stopped to have a drink of herbal tea. The police party had come up and searched him and TO and had found nothing incriminating. They had then proceeded to search the large black bag which he had been carrying in which were his swimming trunks and towel in a plastic bag and a small black bag in which there was the pocket knife.

5. The two police officers who gave evidence made no mention in their evidence in chief of having searched To or the large black bag. In cross-examination, they agreed that the appellant had been carrying such a bag, that they had searched it and that the plastic bag of clothing and a small black bag were inside. They also agreed that TO was at the scene, but claimed that he had come up only after the appellant had been stopped and questioned, and they agreed that TO had been searched.

6. The appellant said that he and TO had earlier gone to the appellant's home to get his swimming trunks and that at the time that he put his trunks into the big black bag, he did not notice the presence of the small black bag in which he says there was the knife. The explanation given to the magistrate by the appellant, which he claimed he had also given to the police party at the scene, was that the pocket knife was used by him for camping and that he had forgotten that it was in the bag.

7. TO gave evidence which corroborated the evidence of the appellant.

8. The magistrate found that the pocket knife was an offensive weapon and that it had been found in the pocket of the appellant's jeans as described by the police officers. She rejected the appellant's explanation for such possession as being unsatisfactory.

9. The first ground of appeal is that the magistrate erred in founding that the pocket knife was an offensive weapon.

10. In R. v. Tang Chi-ming (1968) HKLR 716, Sir No Rigby at p.725 said :-

It is therefore for the prosecution to prove as an element of the charge, the article in the possession of the appellant was an offensive weapon and only then does the burden shift to the appellant to provide a satisfactory account.

11. There is no definition of "offensive weapon" in the Summary Offences Ordinance, but the term is defined in the Public Order Ordinance, Cap. 295, as follows :-

"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 by some other person."

The equivalent English statue does not include the phrase "suitable for" in the definition. of an offensive weapon and it is the interpretation of these words which has caused the courts in Hong Kong some concern.

12. In R. v. LOK Chi-wai (1973) HKLR 577, the appellant was found loitering in a public convenience for upwards of five minutes and when searched was found in possession of a fruit knife with a blade three and a half inches long. There was no evidence that the appellant intended to use the knife as a weapon although there were grounds for suspicion.

13. The question for the court to resolve was whether there was evidence upon which the. magistrate could have properly found the knife to be an offensive weapon.

14. It was argued that anything animate or inanimate could be used to cause injury and was to that extent suitable for causing injury. It was conceded by the Crown that some limit bad to be placed on the words "suitable for" and at p.580, Huggins J. had this to say :-

"Mr Lee has suggested that the intention was to include anything that can readily and effectively be used to cause injury. With respect, I think it may well be as good an explanation as one could find, but it is unnecessary for me to decide."

The learned judge went on to find that in the circumstances of the case, the magistrate was justified in finding the knife to be an offensive weapon.

15. In R. v. CHAN Fuk-hing (1979) HKLR 495, the appellant had been found with a melon knife 14" in length, wrapped in a newspaper and tucked into his waist band. Roberts C.J. stated that the burden of showing that an article is being carried by a defendant with the intention of using it to injure only arises in Hong Kong if the prosecution has not established the article was made or adapted to use or suitable for causing injury to the person. In considering the phrase "or suitable", the learned Chief Justice was of the view that it must be interpreted more narrowly than "capable of". He referred to the passage from a judgment of Huggins J in the LOK Chi-wai case and said at p.498 :-

"It seems to me that the definition suggested in that case and given the approval of Huggins J., is a useful guide to magistrates. It is of course for the magistrate, as a matter of fact, to decide whether or not it can readily and effectively be used to cause injury."

16. He found the magistrate was correct on the evidence to find the melon knife to be an article suitable for causing injury to the person.

17. The authority most relevant to this appeal is that of the Court of Appeal, which included Roberts C.J. and Huggins J., in R. v. LEUNG Chi-hung (1983) Cri.App.1412. In that case, the appellant had been found to be carrying a pocket knife described by the judge as a simple folding knife. The knife was found in the hip pocket of the appellant's trousers and was about 3" long when folded. The knife in question in that case was therefore quite similar to the one in this appeal. Sir Alan Huggins delivered the judgment of the court and said that "Although not an usually large pocket knife it could be used to cause serious injury." He referred to the definition of an offensive weapon in the Public Order Ordinance and went on to say :-

"That definition would cause no real difficulty were it not for the words 'or suitable', words which are not found in the comparable English legislation. As was pointed out in Lok Chi-wai v. Reg. 1973 HKLR 577, 580:

'Nearly everything, animate or inanimate, could be used to cause injury and was to that extent 'suitable' for causing injury.'

It cannot have been intended that, for example, the possession of a pencil, a key or a tie-pin should impose on the possessor a burden of showing reasonable excuse in a court of justice. Yet each of them is capable of producing grievous bodily harm."

On page 3 of the judgment he went on to say :-

"Obviously a thing is not suitable only for the purpose for which it was manufactured. The melon knife in Chan Fuk-shing v. R. (supra) was manufactured for cutting melons but was obviously suitable and, when carried in a public place, probably intended for cutting heads: it was not necessary to prove that the defendant in fact intended to use it as an offensive weapon. It is difficult to decide what precise line of demarcation was intended by the Legislature, but we think that any article which the average person might reasonably carry about him every day would not be 'suitable' for use as an offensive weapon, even if capable of such use."

18. Further on in the judgment he said -

"We do not say that the test we have suggested will necessarily be sufficient to cover all future cases, but it seems to us that the knife carried by this Appellant was riot such that it fell within the statutory definition of an 'offensive weapon' unless an intent to use it as an offensive weapon was proved."

As there was no evidence of such intent, the court allowed the appeal and quashed the conviction.

19. This and the other two authorities to which I have referred dealing with the words "suitable for" related to charges laid under s.33 of the Public Order Ordinance which is couched in somewhat different terms to those of s.17 of the Summary Offences Ordinance. S.33 provides that any person who without lawful authority or reasonable excuse has, with him, in any public place an offensive weapon shall be guilty of an offence. Once possession is proved, the burden shifts to the accused to show that he has lawful authority or reasonable excuse.

20. In respect of a charge which was laid under s.17, the prosecution has to prove that the accused was in possession of an offensive weapon with intent, or in possession and unable to give satisfactory account. The charge laid in respect of this appeal falls within the second limb of s.17.

21. In my view, there is little or no difference between being required to give a reasonable excuse or a satisfactory account.

22. In any event it would be wrong for a court to hold that a pocket knife of a type which the average person might carry, found in circumstances which were not suspicious, was an offensive weapon in respect of a charge laid under s.17 when on the authority of Leung Chi Hung such a pocket knife has been found not to be an offensive weapon in respect of a charge laid under s.33, a more serious offence.

23. I find that the magistrate was wrong to rule the pocket knife to be an offensive weapon and allow the appeal.

Representation:

Miss Opai, C.C., for crown/Respondent

Mr A. Macrae, inst'd. by Sammy S.Li & Co. for Appellant.