HKSAR v. Leung Wah Chai

HCMA000648/1999

HCMA648/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 648 OF 1999

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Coram : Hon Woo J in Court

Dates of hearing : 21 and 24 September 1999

Date of judgment : 24 September 1999

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J U D G M E N T

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1. The Appellant was charged with possession of offensive weapon, contrary to s.17 of the Summary Offences Ordinance, Cap.228, in that, on 19 January 1999 at outside Room 239, 2/F, North Point Estate, West Wing, North Point, Hong Kong, he had in his possession an offensive weapon, namely, one paper cutter of 15 cm long in orange colour, with intent to use the said weapon for unlawful purposes.

2. At the trial before Mr Brennan, a Magistrate, the Appellant admitted the brief facts of the case produced by the Prosecution. The Magistrate convicted him. The basis of the conviction can be found in the Statement of Findings of the Magistrate :

"2. The facts of the case were not in issue. On the 19.1.99 PC58763 and 48908 at about 3:45 p.m. saw the appellant acting furtively outside Flat 239, 2/F North Point Estate, West Block. The officers stopped and searched the appellant and found a paper cutter hidden in his left sock. When questioned about the cutter he told the officer that he used the cutter to repair a vehicle for his friend. He was then arrested.

3. At 6:20 p.m. the same day the appellant was interviewed by DSPC 14493. He explained that he used the cutter to cut electrical wire at the garage where he used to worked (sic.). He had taken the cutter with him that day to help his friend CHAN Tak-wah repair his vehicle at Fort Street, North Point at 12 noon that day. He had been joined by his friend CHAN Tak-wah that afternoon and spent 11/2 hours repairing the Hi-Fi System on his car. Having done that he went to the West Block to find another friend to borrow money and it was in this area that he was stopped by the police. He gave the type and registration number of the car repaired.

4. Investigation followed and on the following day at 5:55 p.m. DSPC 14493 again interviewed the appellant Ex. P3. He still struck (sic.) to his story of repairing a friends car.

5. CHAN Tak-wah was traced and stated that he never met the appellant on the afternoon of the 19th and he last met him in August or September 1998.

6. Again SDPC14493 interviewed the appellant, this time on the 26.3.99. It was put to him that he had lied. He agreed and said that he had done so because he was afraid and in fact it was another friend called Ah Wah (sic.) and had repaired the car at Fortress Street."

3. The Magistrate then cited s.17 of the Summary Offences Ordinance, Cap.228 under which the Appellant was charged. Section 17 reads as follows :-

"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, shall be liable to a fine of $5,000 or to imprisonment for 2 years."

The Magistrate then went on :

"9. The charge laid in respect of this appeal is within that part of the section which requires the prosecution to prove that the appellant had it with him with intent to use it for unlawful purpose.

10. The cutter is an offensive weapon. It can readily and effectively be used to cause injury. R. v. Chan Fuk-hung (sic.) [1979] HKLR 498.

This was not the sort of article which the average person might reasonably carry in these circumstances. On top of that it was hidden in his sock.

11. I do not accept the reasons given for him having the cutter in his possession. These are given in his interviews. He lied about the name of the person he was supposedly helped, the car and the place. They were only changed after police investigation. I do not accept the same reasons given in his last interview."

4. After referring to the case of R. v. Chong Ah Choi & Ors. [1994] 3 HKC 68, the Magistrate continued :

"13. The appellant when first seen by the officers was acting furtively. When searched by the police officers it was found in his sock. He told the police he had been using it for a specific purpose with a specific person at a specific place. That was a lie. The only reasonable inference I can draw from the evidence as a whole is that he had the cutter for an unlawful purpose. I come to this conclusion not because the appellant lied but on the evidence as a whole."

5. Mr Fong, Counsel for the Appellant, raised three grounds of appeal. His first ground is that the Magistrate's conclusion was against the weight of evidence and he was wrong to conclude that the only reasonable inference was that the Appellant possessed the cutter with intent to use it for unlawful purposes. He submitted that the Magistrate erred in relying upon the evidence of the Appellant acting furtively, that the cutter was found in his sock and that he told the police a lie as bases for inferring the possession of the cutter was for an unlawful purpose. Counsel's reasons are as follows :

1) The evidence as to the Appellant's acting furtively only led to a stop and search by the police on the Appellant and could not go further to have any implication on the purpose of the Appellant in the possession of the paper cutter.

2) The evidence as to a paper cutter found in a sock of the Appellant did not implicate the Appellant and did not prove the Appellant intended to use the paper cutter for an unlawful purpose.

3) A lie was not itself evidence of guilt. The learned Magistrate had wrongly based on the lie that had been told by the Appellant as part of the circumstances of the case to draw inference that the Appellant intended to use the offensive weapon for an unlawful purpose. On this, Counsel referred to R. v. Wong Hon Cheong [1987] 1 HKC 95.

4) In any event, the three matters relied on by the Magistrate did not give rise to the only reasonable inference that the Appellant intended to use the paper cutter for an unlawful purpose. On this, Counsel relied on R. v. Chong Ah Choi & Ors. [1994] 3 HKC 68.

6. I must say that I do not agree with these four grounds at all. The Appellant's acting furtively, the paper cutter being hidden in his sock and his lying to the police when being accosted formed the circumstances surrounding his arrest and could very well be considered by the Magistrate, as he did, in drawing the inference whether the Appellant intended to use the offensive weapon for an unlawful purpose.

7. In R. v. Wong Hon Cheong (supra), it suffices to cite the holding in the report which represents the judgment of the Court of Appeal, as follows :

"(1) Lies, by themselves, did not prove guilt. They went no further than confirming or tending to support other evidence. Lies themselves might only discredit the defence evidence. A trial judge must be very careful to avoid giving the impression to the jury that lies by themselves might amount to proof of guilt. ..."

Here the Magistrate relied on the lies of the Appellant not as proof of guilt, but for confirming or tending to support other evidence. In R. v. Chong Ah Choi & Ors. (supra), the Court of Appeal had this to say (at pp.73H-74B) :

"... 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:

(i) the nature and condition of the implement itself;

(ii) all the circumstances surrounding the accused's possession of it, such as the time, the place, what legitimate use it might have at such a time and in such a place, whether it was carried concealed, his observed behaviour in general and so on; and

(iii) his reaction to being approached by the police, which involved whether he attempted to hide the implement somewhere, whether he attempted to discard it, whether he attempted to flee and so on.

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."

8. The three matters complained of by Counsel were accepted by the Magistrate as relevant evidence to draw the only reasonable inference against the Appellant. I am not persuaded that the Magistrate had erred. What I said above also disposes of the second ground of appeal which is that the Magistrate relied on a lie to find the Appellant guilty, which was simply not the case.

9. Counsel also argued that the place, Fort Street, referred to in the Appellant's first cautioned statement and the place, Fortress Street, referred to in the Appellant's second cautioned statement are in fact the same place in Chinese, and therefore, Counsel complained that the Magistrate was wrong to say that the Appellant lied in respect of the place where he supposedly helped his friend repair a car. As I see it, insofar as the Appellant lied as to the identity of his so-called friend whom he allegedly helped to repair a vehicle, that lie was wide enough to include everything said in his statement to the police. The significance is that the explanation given by the Appellant on his possession of the paper cutter was a lie, and whether each particular of that explanation was untrue or true would be a matter of little consequence.

10. The third ground of appeal is that the paper cutter found on the person of the Appellant cannot be an offensive weapon. For that, Mr Fong relied on the case of R. v. Ma Tak Yiu [1991] 1 HKC 447. That case involved the possession of a folding knife found in the pocket of the accused. Ryan J held that such a pocket knife was not by its nature an offensive weapon. The judge relied on the authority of Leung Chi Hung (Crim. App. 1412/83, unreported) which involved a pocket knife.

11. On the other hand, Mr Man for the Government, very fairly conceded that A.G. v. Chan Fuk-hing [1979] HKC 495 on which the Magistrate relied to find the paper cutter an offensive weapon had been rendered obsolete by the decision of Chong Ah Choi. The Magistrate held that the cutter was an offensive weapon because it could readily and effectively be used to cause injury; that was the decision of A.G. v. Chan Fuk-hing where Roberts CJ ruled that the phrase "or suitable" could usefully be defined as including anything that "can readily and effectively be used to cause injury". The term "or suitable" appears in the definition of "offensive weapon" under the Public Order Ordinance. In Chong Ah Choi, the Court of Appeal dealt with the term at p.76C-H of the report :

" A complication may arise out of the definition of the term 'offensive weapon' given in s 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 of 'offensive weapon'. The courts have, when dealing with cases under s 17 of that Ordinance, generally borrowed the definition of 'offensive weapon' given in s 2 of the Public Order Ordinance (Cap 245). Anyway, that section defines the terms 'offensive weapon' to mean 'any article made, or adapted for uses 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.

It may be noted in passing that the comparable English legislation, s 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'.

A possible solution to any problem under the Bill of Rights created by that formula may be one along these lines. If s 33 would within the R 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.

In practice, even such a reduced definition ought to afford adequate protection for the public."

12. Mr Fong referred me to a number of cases on the definition of "offensive weapon". All these are English authorities. In R. v. Petrie [1961] 1 All ER 466 where the police found a cut-throat razor under the passenger seat in which the appellant was sitting, the Court of Criminal Appeal held at p.468F of the report as follows :

"... if the article is something like a sandbag or a razor, the onus is on the prosecution to show that it was carried with the intention of using if to injure. The onus remains on the prosecution throughout, and if at the end of the day the jury are left in doubt about the intent of the accused, he is entitled to be acquitted."

R. v. Petrie was dealing with s.1(4) of the Prevention of Crime Act 1953 referred to in Chong Ah Choi.

13. In R. v. Dayle [1973] 3 All ER 1151 which involved a car jack and wheel brace, the Court of Appeal held at p.1154g of the report as follows :

"... if an article (already possessed lawfully and for good reason) is used offensively to cause injury, such use does not necessarily prove the intent which the Crown must establish in respect of articles which are not offensive weapon per se. Each case must depend on its own facts."

14. In R. v. Edmonds & Ors. [1963] 1 All ER 828 which involved an unloaded starting pistol, a piece of lead piping, a hammer shaft, a single barrelled shot gun and a number of live cartridges, the Court of Criminal Appeal held that the Prosecution had to make the jury sure that each of the accused had the common purpose of using one or more of the articles for inflicting injury on someone. It also held that the intent to injure as required by s.1(4) of the Prevention of Crime Act 1953 might include a reference to intent to frighten if the frightening was intimidation of a sort capable of producing injury by shock.

15. In R. v. Allamby; R. v. Medford [1974] 3 All ER 126 which involved three knives, two being domestic carving-knives and the third a vegetable knife, the Court of Appeal held it was not sufficient to prove that the accused had the intention to threaten someone at some time previously during the course of the car journey in which they took the knives. It held (at p.129j) :

"... The jury could properly look at the occasion 'in the broad sense of [the defendants] going down and coming back from Cornwall' but could do so only for the purpose of deciding whether the articles in their possession were offensive weapons at the time and place charged. ..."

16. The case of Ohlson v. Hylton [1975] 2 All ER 490 put the test more stringently. In that case, the defendant, a carpenter, was on his way home from work; he was carrying with him a bag containing the tools of his trade including a hammer. At an underground station, he became involved in an altercation with a passenger on the train. The defendant took the hammer from his briefcase and struck the passenger on the head with it. The Queen's Bench Division held at p.494c that :

"... an offence under s 1 [of the Prevention of Crime Act 1953] is not committed where a person arms himself with a weapon for instant attack on his victim. It seems to me that the section is concerned only with a man who, possessed of a weapon, forms the necessary intent before an occasion to use actual violence has arisen. In other words, it is not the actual use of the weapon with which the section is concerned, but the carrying of a weapon with intent to use it if occasion arises."

Further on, Lord Widgery CJ had this to say at p.496d :

"... The real question is whether the offensive use of the weapon is conclusive on the question of whether the defendant 'had it with him' within the meaning of the Act. Lord Goddard CJ thought that it was not and this must now be accepted as correct. Accordingly, no offence is committed under the 1953 Act where an assailant seizes a weapon for instant use on his victim. Here the seizure and use of the weapon are all part and parcel of the assault or attempted assault. To support a conviction under the Act the prosecution must show that the defendant was carrying or otherwise equipped with the weapon, and had the intent to use it offensively before any occasion for its actual use had arisen."

17. In view of all these authorities, I am of the opinion that the learned Magistrate was wrong in holding that the paper cutter was an offensive weapon per se although he was correct in drawing inferences from the circumstances surrounding the arrest and how the paper cutter was found on the person of the Appellant. On this basis, the Appellant could not have been found guilty of being in possession of an offensive weapon as charged although he might have been convicted under the other provisions in s.17 of the Summary Offences Ordinance, such as what was suggested by Mr Man, that the Appellant was in possession of "other instrument fit for unlawful purposes". However, because of the similarity between the term "fit for" and the term "suitable for" in the definition of "offensive weapon" under the Public Order Ordinance, with possibly Bill of Right implications, I do not think that it is fair to the Appellant or appropriate for this matter to be raised or gone into at this stage. The main basis of the Magistrate's ruling that the paper cutter was an offensive weapon is, in my view, wrong, and therefore the Appellant cannot be guilty as charged.

18. In the circumstances, the appeal is allowed, the conviction quashed and the sentence set aside.

Representation:

Mr Jonathan Man, GC of DPP, for HKSAR

Mr Stephen Fong, inst'd by M/s Choy & Co., for the Appellant