HKSAR v. Chui Siu Wing

HCMA000151/2001

HCMA151/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.151 OF 2001

(ON APPEAL FROM TWCC 2959 OF 2000)

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Coram: Hon Pang J in Court

Date of Hearing: 3 April 2001

Date of Judgment: 24 April 2001

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J U D G M E N T

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1. The appellant, Chui Siu Wing, was jointly charged with one Lee Wing Hong (2nd defendant) with one charge of possession of offensive weapon in a public place, contrary to section 33(1) of the Public Order Ordinance.

2. The charge alleged that on 23 February 2000 at outside No.131 Chuen Lung Street, Tsuen Wan, the appellant and the 2nd defendant were jointly in possession of three beef knives, one dinner knife, one wooden pole and one length of water pipe without lawful authority or reasonable excuse. The items specified were recovered by the police from inside a private car of which the appellant was the registered owner.

3. The 2nd defendant pleaded guilty to the charge and he appeared as a defence witness in the trial of the appellant.

4. The prosecution case was that two police officers had been keeping observation of the appellant's car which was parked outside No.131 Chuen Lung Street in Tsuen Wan. Shortly after 10 a.m., the officers saw the appellant and another man surnamed Ching, who later appeared at the trial as the 3rd defence witness, approached the car on foot and got into the car. The appellant was seen seated at the driver's seat and Ching sat next to him. As the car started pulling away, the police stopped the vehicle. A search was conducted on the vehicle where the items described in the charge were subsequently recovered. The three beef knives were found inside a bag on the floormat of the front passenger's seat. The wooden pole was recovered in the side pocket of the driver's door. The dinner knife was found inside the seat pocket at the back of the driver's seat. The length of piping was recovered in the boot of the car.

5. The appellant denied having knowledge of the items found inside his car except the length of water pipe which he admitted to be his. In his evidence, he told the court that in the early hours of 25 February, the 2nd defendant came to the Music Pub where the appellant worked and had a drink. He asked to borrow the car from the appellant who then handed over the car key to the 2nd defendant. Later that morning, the 2nd defendant telephoned the appellant and told him to go to a restaurant to get his key back. He went with Ching to a restaurant in the Tsuen Wan area where he met the 2nd defendant who returned the key to the appellant. The appellant then went to collect the car which was park outside No.131 Chuen Lung Street at the spot where the police had been keeping observation. The appellant was not aware of the presence of the items until the time when they were recovered by the police.

6. It was common ground that when cautioned by the police, the appellant responded by saying "Ah Sir, these knives are not mine. About 5 a.m. I loaned my car to a customer, Ah Tim (the 2nd defendant). I don't know what those are. Not done by me.".

7. The 2nd defendant, who had pleaded guilty earlier to the same charge, gave evidence for the appellant. He told the court that in the early hours on 23 February, he borrowed the car from the appellant. At about 7 a.m. in the same morning, he picked up his friend Ah Wai who had with him a paper bag which contained the three knives which were subsequently recovered by the police. Ah Wai was accompanied by two other persons. The party then drove to the vicinity Chung On Street to seek out their friends who were allegedly being attacked by members of a rival gang. They were, however, unable to find their friends and Ah Wai and the two other persons then alighted from the car. It must have been Ah Wai who had left the three knives on the floor of the front passenger's seat.

8. Had the learned magistrate found that the defence account of the events was likely to have some truth in it, the prosecution would have failed to prove beyond reasonable doubt that the appellant had the requisite knowledge to establish that he was in possession of the items specified in the charge at the time when the police stopped the car. The learned magistrate, however, made the following observation at paragraph 68 of the Statement of Findings :

"68. I did not believe the evidence of the appellant nor D2 or DW3. I was very sure they had each given dishonest evidence to assist the appellant."

He then went on to state his reasons for disbelieving the appellant and the defence witnesses. Later at paragraph 75, the learned magistrate stated :

"75. I was in no doubt the accounts presented in evidence by the appellant, D2 and DW3 were an orchestrated litany of lies."

The magistrate inferred, from the evidence before him, that the appellant was in law, in possession of the items specified in the charge with the exception of the length of piping.

9. Mr Mullick who appear for the appellant on this appeal but who did not appear in the court below, submitted that the learned magistrate erred in his approach to the evidence. It was submitted that there is plainly no evidence upon which the learned magistrate could infer that the appellant had knowledge of the presence of the offensive weapons seized by the police. Further, the learned magistrate erred in law in not stating his reasons for disbelieving the appellant's evidence. That being the case, it was said, the conviction of the appellant was rendered unsafe or unsatisfactory.

10. It must have been abundantly clear to the learned magistrate that the appellant contested the prosecution's case on the basis that he was not aware of the presence of the offensive weapons inside his car. The account put forward by the appellant of having earlier lent his car to the 2nd defendant was found to be a pack of lies. The evidence of the 2nd defendant was also rejected by the learned magistrate. The response of the appellant, when cautioned by the police, must be looked at in the light of all the evidence. Although what the appellant said was consistent with innocence, the learned magistrate must have been aware that any such denial of knowledge by the appellant is not evidence of the truth of the matters so stated. The prosecution case is that the appellant and the 2nd defendant were in joint possession of the weapons. The earlier plea and admission by the 2nd defendant to the charge did not absolve the appellant from legal liability. The learned magistrate further reminded himself at paragraph 77 of the Statement of Findings that :

"77. I was well aware the appellant's guilt did not automatically follow from my having disbelieved his evidence."

He also reminded himself that the appellant was until then, a man of good character and no doubt he would have reminded him of the effect of good character on the appellant's credibility and propensity to commit the offence for which he was charged. As is clear from paragraph 68 of the Statement of Findings, the learned magistrate found that the reasons behind the orchestrated litany of lies was put forward to assist the appellant so that he can escape legal liability.

11. There was ample evidence before the learned magistrate to enable him to come to the conclusion as he did. The conviction was neither unsafe nor unsatisfactory.

12. For the reasons given, the appeal against conviction is dismissed.

Representation:

Mr P.K. Madigan, SGC of the Department of Justice, for the Respondent

Mr John Mullick, instructed by Messrs Yeung & Chan, for the Appellant