Tsang Yat-tung v. The Queen

CACC000035/1980

Coram: Garcia, J.

Date of Judgment: 4 February 1980

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JUDGMENT

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1. The appellant was convicted of possession of an offensive weapon contrary to section 33(1) of the Public Order Ordinance, Cap. 245.

2. The facts found by the learned magistrate are that on the 29th September, 1979 at about 10.25 p.m., a party of police officers found the appellant and another person on the top of a slide in a playground at Shek Yam Estate in Kwai Chung. The two men were then asked to descend from the slide and a police officer ascended to the top of the slide and discovered two knives contained in a cardboard box which was inside a plastic shopping bag. The two knives so found had 7" blades and the learned magistrate further found that they were offensive weapons and plainly suitable for causing injury.

3. The evidence given by the arresting officer regarding the discovery of the appellant and his companion, and the said knives was that at the relevant time, he and his sergeant and another police constable were walking past the slide when they saw two Chinese males walking towards them. The sergeant then shone his torch on the two persons and the latter turned round pretending not to have seem them. They were stopped by the police party and searched and the appellant was seen holding a plastic bag in his right hand and upon opening the bag, a cardboard box with the two knives were found inside.

4. The appellant was then asked on the spot what he was going to do with the knives and his reply was that he was going to commit a crime and just to show the knives and threaten someone with them. The two were then arrested and later the same night, at 11.35 p.m. the appellant made a short statement as follows -

"I, TSANG Yat-tung, understand. I hope my relatives will not be informed. If I have no place to live. If I want to work on tomorrow. Now, I have nothing to say."

5. The following morning at 10.50 a.m. he was questioned by a detective constable as to the source and purpose of the two knives and he gave replies which amounted to an admission of the offence and that the knives had been purchased from the company by whom he was then employed.

6. The admissibility of his later statement was objected to by the appellant on the ground that it was obtained by threats but after a voire dire the learned magistrate admitted it in evidence.

7. The appellant's evidence was that he and his companion were on top of the slide on the evening in question in order to wait for a friend to get a better view of her approach and that some police officers had shone their torches on them and requested them to come down from the slide. A police officer then went up to the top of the slide and brought down a plastic bag but the appellant stated that he did not notice a plastic bag because it was dark there.

8. In paragraph 6 of the learned magistrate's Statement of Findings, he states -

"the defendant's account of his having been discovered at the top of the slide and an officer having shortly afterwards discovered the knives there was a convincing one. To have invented it would have required an almost irrational inventiveness and imagination which having seen him, I was quite sure the defendant did not possess. Had he in fact been stopped in the circumstances described by the arresting officer, far simpler defences could have been invented. It was quite plain that the arresting officer was not confident of a conviction based on a true account of the incident and had embellished his evidence so as to put the plastic bag in the hand of the defendant, thereby sacrificing the chance of a conviction against two defendants for the certainty of a conviction against one. Those findings cast doubt on the correctness of my decision as to the admissibility of the second set of answers to the detective's questions since it was alleged that the phrase 'polythene bag which was held in your hand' in one of the questions, was implicitly assented to by the defendant. Accordingly, I decided that the only safe course was not to treat as in any way incriminating, any of the defendant's alleged remarks. I also ignored the replies alleged to have been made by the defendant at the scene."

9. Although he did not say in so many words, implicit in these findings is that the police witness was not telling the truth and that the knives were not in the appellant's hand at the time he was arrested.

10. Despite those findings, the learned magistrate went on to reason that the appellant's assertion of his innocence and his ignorance of the presence of the knives on top of the slide was so absurd as to make the assertion incredible because (a) his explanation for being at the top of the slide was unbelievable because to put themselves there in the dark would make themselves inconspicuous to the person they were expecting; (b) of the necessary implication that someone had previously deposited or abandoned or lost two brand new knives in a box inside a quite large polythene bag; (c) in a space of 3 feet by 4 feet the appellant had completely failed to notice the said bag, and (d) by pure coincidence, knives of the same type could be purchased at the appellant's place of work, although the learned magistrate attached only slight importance to the latter fact.

11. The evidence given by the appellant as to (a) was that they had gone to the top of the slide from where they could see their friend coming as the surroundings were quite bright, and whether they made themselves inconspicuous seems to me to be irrelevant in this context. There is no evidence to indicate that the plastic bag had been brought to the top of the slide by either, the appellant or his companion, and it is not unreasonable to infer also that in the dark the plastic bag would not have been apparent to the appellant. As to (d), the learned magistrate himself states that it was pure coincidence and he only attached slight importance to that fact.

12. Since he had disbelieved the evidence of the arresting officer, and it appearing that he gave no weight to what was alleged to have been said by the appellant at the time of his arrest and of his answers to the detective on 30th September, 1979, it seems to me that the learned magistrate had placed upon the appellant the burden of proving his innocence. There is no such burden of proving his innocence. There is no such burden of proof in criminal cases.

13. The learned magistrate had in my view serious doubts as to the guilt of the appellant when he heard the evidence adduced by the prosecution and, in the circumstances, he ought to have given the appellant the benefit of his doubts.

14. In my judgment the verdict is unsafe and unsatisfactory and the conviction is quashed. The appellant is therefore discharged.