The Queen v. Lo Kin Sang

CACC000333/1990

BETWEEN

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Coram: Hon. Fuad, V-P., Power & Macdougall, JJ.A.

Date of hearing: 9 January 1991

Date of judgment: 9 January 1991

Date of handing down of judgment: 24 January 1991

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant was convicted after trial before Deputy District Judge Z.E. Li of possession of an offensive weapon in a public place contrary to section 33 (1) of the Public Order ordinance Cap. 245. His application for leave to appeal against that conviction was subsequently refused and we said that we would give our reasons later. This we now do.

2. The evidence for the prosecution was that at 9.59 p.m. on 29 August 1989 police officers on patrol in a police vehicle received a call concerning a fight at the Viceroy Restaurant in Hoi Pa Street. They proceeded to Tai Ho Road, Tsuen Wan, where they saw the applicant holding a hockey stick and running across the road from the direction of the Viceroy Restaurant. The unchallenged evidence was that the applicant ran within a foot of the front of the police vehicle and climbed over the centre railing. Two of the police officers alighted and gave chase. Despite their shouted command that he stop, the applicant kept running. Eventually he was caught and questioned.

3. In response to a question from one of the police officers as to why he was running so fast and had not stopped when ordered to do so, he replied that he was being chased by several persons whom he did not know. On being asked why he continued to run when he saw a police vehicle with a flashing blue light, he replied that he had not seen it. As to the hockey stick, the applicant explained that he had picked it up in a McDonald Restaurant in market Street.

4. He was then taken to the Tsuen Wan Police Station where he gave a written statement under caution in which he said that shortly after 9 p.m. he was on the opposite side of the road to the McDonald Restaurant, intending to look for an old schoolmate whom he thought might be inside, when suddenly more than 10 persons holding wooden sticks rushed at him and beat him. Seeing a hockey stick lying on the ground he picked it up, fought his way free, and escaped. He was unable to explain why he was attacked, and stated that he had no grudge or financial dispute with anyone. He also stated that he did not know any of the other 8 persons who together with him had been arrested by the police that evening. There was evidence admitted pursuant to sec. 65C of the Criminal Procedure Ordinance that at about 10 p.m. on 29th August 1989 a fight between 30 to 40 males occurred inside the Viceroy Restaurant and that they then ran out into the street.

5. In giving evidence at the trial the applicant gave a fuller account of the matter. He testified that he had earlier attended the cinema with his girlfriend and that after having had dinner together he saw her off at the bus stop opposite the Ho King theatre shortly after 9 O'clock and then went to a McDonald Restaurant two blocks away in the hope of finding his old school friend. He said that he had no other means of contacting his friend and had forgotten his telephone number. He repeated his earlier assertion to the police that he had suddenly been attacked outside the McDonald Restaurant, and added that his attackers had kicked him and hit him with sticks, and that many other people were being chased. After he had run a few steps in his attempt to escape, he saw the hockey stick on the ground, picked it up, warded off his attackers and ran off across Tai Ho Road where he climbed over the centre railing. At no time while he was running did he look back, nor was he aware that the police were chasing him. When he reached Tsuen Hing Path he paused, and, seeing that no one was chasing him, sat down in a state of exhaustion. The police then came over and grabbed hold of him.

6. Although he claimed that his attackers had hit him on the back and hands, he agreed that he did not complain to the police that he had sustained any injuries. His explanation was that he did not feel that it was necessary to see a doctor. He also agreed in cross-examination that had he seen a police officer while he was running from his attackers he would have been relieved. However he denied having seen any police officers or the police vehicle with the blue light.

7. Accepting that 10 minutes had elapsed between the commencement of the attack and the time the police apprehended the applicant, and taking into account that it would take around 10 minutes to walk from the cinema to the restaurant, the deputy district judge observed in his Reasons for Verdict that there was a period of about 40 minutes for which no explanation had been given for the applicant's movements. He did not believe the applicant and concluded that he was not an innocent pedestrian who had been set upon by a group of attackers, but was one of those involved in a gang fight for which he had armed himself with a hockey stick with the intention of causing injury.

8. The first ground of appeal was that the deputy district judge's assessment that approximately 40 minutes of time had not been accounted for involved significant factual errors. Mr. Macrae, who appeared for the applicant in this court but not in the court below, did not press this contention. We think he was right not to do so. The evidence plainly justified the assessment. There were no factual errors. However, Mr Macrae was critical of the observation made by the deputy district judge in his Reasons for Verdict that, from knowledge acquired in his 12 years experience in Tsuen Wan, it would not have taken as long as 10 minutes to walk from the cinema to the McDonald Restaurant. While we accept that a judicial officer is entitled to use his knowledge of local conditions he should, if he intends to use that knowledge to make a finding, inform the parties of that intention. Having said that, we are satisfied that, whatever he may have indicated based on his personal knowledge, in fact, the deputy district judge did not rely on it when making the simple time calculation to which we have referred, but accepted the applicant's testimony that he took 10 minutes to reach the restaurant. There is therefore no substance in this ground of appeal.

9. The ground on which Mr. Macrae principally relied was that the deputy district judge failed properly to consider four factors which it is contended went to support the applicant's account of what had occurred. The first two of these were the applicant's immediate response to questions when intercepted by the police, and his subsequent cautioned statement. The deputy district judge was plainly aware of these exculpatory statements, for he referred to them in his Reasons for Verdict. We do not consider that he was obliged to make any particular reference to the fact that the applicant had consistently asserted that he was the victim of an unprovoked attack, and was not a participant in a fight. However, had he referred to these consistent assertions by the applicant that he was an innocent victim, it would equally have been open to him to make reference to the serious contradiction between the applicant's initial version that he nad picked up the hockey stick in the McDonald restaurant and his later assertions that he had picked it up in the street on the opposite side of the road to the restaurant.

10. The third and fourth factors related to a statement of a police constable, admitted pursuant to section 65C of the Criminal Procedure ordinance, that he had seen 15 males armed with rods or wooden clubs running from nearby Hoi Pa Street at about 10.05 p.m. - a time when the police observed the applicant running alone across Tai Ho Road - and to a statement admitted pursuant to sec 65B of the Criminal Procedure ordinance from a Mr. Mui that at around 9.25 p.m. he had seen a large group of males holding wooden poles, knives and saws and chasing three males, shortly after which he and a friend accompanying him were struck with wooden poles.

11. Mr. Macrae submitted that in the light of this activity it was reasonable to infer that there might have been an abandoned hockey stick lying on the ground which the applicant had fortuitously picked up to defend himself when attacked by his assailants. Moreover, the fact that there had been an unprovoked attack on Mr. Mui and his friend lent credence to the applicant's assertion that he had seen set upon by marauding attackers.

12. We note, however, that in his Reasons for Verdict the deputy district judge acknowledged that Mr. Mui's statement clearly disclosed that there had been "prolonged street combat between rival gangs with sticks and knives". He also accepted that the possibility existed that, as in the case of Mr. Mui, innocent passers-by might have been mistakenly attacked. Plainly, he took these matters into consideration in arriving at his conclusion that the applicant was guilty of the offence charged. In our view therefore there is no force in this ground of appeal.

13. By the applicant's own admission he would have been relieved to encounter police officers in the course of his alleged flight from his pursuers, yet he passed within one foot of a police vehicle with its blue light flashing and ignored a police call to stop. Added to this was his failure to give an explanation as to his movements during 40 of the 60 minutes that elapsed between the time he left his girlfriend and the time he was attacked. As we have already observed, his own testimony was that he only needed 10 minutes to walk to the restaurant. We have already referred to his contradictory versions as to where he picked up the hockey stick. It seems to us that the contradiction is of such a nature that it far more likely to be the product of a false than of a true account of what had happened.

14. The deputy district judge had the advantage of hearing and seeing the applicant give evidence. He did not believe him. There was no dispute that the applicant had an offensive weapon with him in a public place. It was for him to establish on a balance of probabilities that he had lawful authority or reasonable excuse for having it. We are unable to say that in the light of all the evidence the deputy district judge was wrong in coming to the conclusion which he did. Accordingly the application for leave to appeal against conviction was refused.

Representation:

Mr. D.G. Saw for Crown Prosecutor

Mr. A. Macrae instructed by M/S Paul Kwong & Co. for applicant