HKSAR v. Ip Chi Wang

HCMA000377/2003

HCMA377/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.377 OF 2003

(On Appeal From KCCC 19885 Of 2002)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 4 July 2003

Date of Judgment: 8 July 2003

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J U D G M E N T

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1.This is an appeal against conviction and sentence.

2.The appellant was convicted after trial of an offence of possession of an offensive weapon, contrary to section 33(1) of the Public Order Ordinance ("the Ordinance"). He was sentenced to nine months' imprisonment.

3.As far as the appellant's appeal against conviction is concerned, the facts of the case as found by the magistrate were that the appellant was seen by a police officer, PW1, entering a laneway at the charged location and then removing a machete which had been concealed in his trousers.

4.The officer shouted at the appellant to put the knife down and the appellant did so, placing it before him on the ground. The appellant was then arrested. Under caution, he said he had gone to the back lane to urinate. Subsequently, a search was conducted of the rear lane and by admitted facts produced at trial, two other knives and a paper sheath were also found in the lane.

5.In arriving at his findings of fact, the magistrate relied extensively on the evidence of PW1 who was the sole prosecution witness. The appellant did not give evidence but called two of his friends or acquaintances, DW1 and DW2, who gave evidence to the effect that he had been drunk and they had seen him simply go to the rear lane to urinate and that he had not been carrying a knife. The magistrate, for sound reasons, rejected their evidence as unreliable.

6.The grounds of appeal relied on by the appellant are able to be summarized as follows :

(1) the magistrate was wrong to reply upon the evidence of PW1 given inconsistencies in PW1's evidence; and

(2) the magistrate was wrong to find the knife was an offensive weapon.

7.So far as the first ground of appeal was concerned, there were two claimed differences between the contents of PW1's post-recorded notebook entry of this offence and PW1's evidence at trial relied upon by Mr Suen for the appellant.

8.The first was that the notebook entry stated that PW1 saw the appellant dump the knife "outside the rear lane of No.2 Hart Avenue". Mr Suen argues that those words are wholly inconsistent with the officer's evidence that he saw the appellant dump the knife at a spot inside the laneway.

9.The same point was argued before the magistrate. He said this in his Statement of Findings :

" PW1 was always alleging that the incident of dumping the knife occurred inside the lane, not outside in Hart Avenue. Indeed, the contrary has not been suggested. If the officer's account involved a dumping of the knife in Hart Avenue, there would be no need to mention the lane at all. It would be completely irrelevant. It is the defendant's own case that he was intercepted inside the lane.

This point about what is in the pocket notebook is a red herring. It stems from a form of loose expression by PW1 consistent with his general level of articulacy. He did not mean that the dumping of the knife was 'outside the lane in Hart Avenue'; it was 'outside in the lane'. It does not undermine him in any way."

The magistrate's findings in this regard are wholly in accord with common sense.

10.The complaint of the appellant is purely one based on a semantic interpretation of the notebook entry. There is no merit in this argument.

11.Although not substantially raised before the magistrate, another inconsistency in the notebook record made by PW1, adverted to by Mr Suen before me, was the reference to the knife being "dumped" by the appellant when PW1's evidence was that the appellant had, when commanded to do so, simply placed the knife on the ground in front of himself.

12.Again in my view, this was explicable by the magistrate's finding that PW1 was not the most of articulate of persons and that he, in his notebook and evidence, used less than precise language. In my judgment, given the magistrate's general findings as to PW1 expressing himself on occasion in somewhat looser language than perhaps was desirable and the obvious reality that the magistrate was aware of any difference between PW1's notebook entry and PW1's evidence in this regard, there is again no substance to this complaint.

13.I deal now with the second ground of appeal. Mr Suen argues that in any event, there was insufficient evidence upon which to base any finding that the knife in question was an offensive weapon.

14.Section 2 of the Ordinance is in these terms in defining what is meant by an offensive weapon :

"'offensive weapon' (攻擊性武器) means 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;"

15.The provision obviously envisages at least two categories of objects being offensive weapons :

(1) objects which are of their nature made or altered for the purpose of being used as a weapon per se; and

(2) objects which though not necessarily made or altered for use as a weapon, are intended to be used as such in the circumstances of the particular case.

It may be that there is a third category of objects "suitable" for use in causing injury to persons contained within the definition. It is not necessary for the purposes of this case to decide that.

16.I have seen the knife. It is obviously an offensive weapon per se. It is a very large kukri knife with a customized grip and various holes drilled in the blade presumably to lighten it. It is plainly made for the purpose of causing injury to people. The magistrate's finding that it is an offensive weapon irrespective of any considerations of matters of proof of an intent to use it for any particular purpose cannot be criticized.

17.But the magistrate in this case in any event and quite properly on the evidence, found not only was the knife a weapon by its own nature, but that also the circumstances of the appellant carrying it in a concealed manner in a public place were such as to cause the magistrate to properly infer that the appellant possessed the knife to use it or in some way deal with it for the purpose of some future criminal activity.

18.I entirely agree with the magistrate's reasoning and findings in this regard.

19.In regard to this ground of appeal, Mr Suen also complains that the magistrate wrongly inferred that the appellant was in possession of the knife for the purposes of using it as an offensive weapon when the prosecution evidence was consistent with it merely being intended to be discarded or abandoned by the appellant and that accordingly, the appellant may have had a reasonable excuse for his possession of it.

20.With respect to the appellant's argument in this regard, the prosecution evidence as accepted by the magistrate most certainly did not leave open any possibility that the appellant was or may have been, as a good citizen or otherwise, simply throwing the knife away.

21.The appellant was seen by PW1 to have withdrawn the knife from his trousers in the back alley. He put it down only when told to do so. At no stage was it ever suggested in evidence before the magistrate that the appellant may have been properly disposing of the knife and therefore had a reasonable excuse for its possession by him.

22.Whatever purpose the appellant may have had in withdrawing a knife from his trousers was properly not something speculated upon by the magistrate, though he had taken note of the fact that in the laneway were found other knives and a sheath.

23.In his Statement of Findings, the magistrate said of the appellant's possession of the knife :

" In any event, if it is proved that the defendant was carrying it concealed, in a public place, then the inevitable inference is that it was being carried for some offensive purpose and that it was, therefore, an offensive weapon. To think otherwise would, in my judgment, involve a flight from reality. This was a public place; there is no issue about that."

And later, he said this :

" There is no express reference to the question of lawful authority or reasonable excuse in my contemporaneous reasons for verdict. Nevertheless it formed part of my consideration of the case and there plainly was no such lawful authority or reasonable excuse: none was suggested and it would be absurd to think that either of those elements could exist in a case of possession of a lethal weapon concealed in clothing."

24.In my judgment, any criticism that the magistrate failed to give proper consideration to the possibility that the appellant was simply taking the knife to the laneway to abandon it is without merit. The magistrate had considered the possibility of any reasonable excuse existing for the appellant's possession of the knife and rejected it.

25.I must add that the presence of other knives in the lane, together with the appellant going there with the knife concealed in his clothing, having just left the Para Para Disco in Hart Avenue at 7:30 a.m. in the morning where he had been drinking with his friends, must have completely removed, in the real world, any basis for a claim that the appellant was taking a knife to that location to simply abandon it by throwing it away.

26.For the above reasons, the appeal against conviction is dismissed.

27.The appellant also appeals against his sentence of nine months' imprisonment. He was 22 years old at the time of the offence.

28.Section 33(2)(c) of the Ordinance provides, inter alia, for the sentencing of an offender of the age of the present appellant to a sentence of not more than three years' imprisonment.

29.In passing the sentence, the magistrate said :

" This was a truly wicked weapon which you were carrying concealed on your body in a public place where people were congregating. It has a sharpened edge and a pointed heavy curved blade. It is capable of easily causing severe injury or death. Everybody knows how, on occasions, such weapons are produced in confrontations where lethal choppings occur.

This is the reason why the law takes such a severe view of these cases, why this is one of the few offences where the law lays down a mandatory term of imprisonment and where the maximum, here in the magistracy, is increased from the normal two years' imprisonment. There is a determination by the community to banish such lethal weapons."

30.In my judgment, the magistrate was right in the circumstances of this case to regard it as a serious offence warranting an immediate custodial sentence. No doubt he took into account also the appellant's previous record of an offence of blackmail.

31.Mr Suen suggests that the magistrate went too far in asserting that such knives are used for lethal choppings. I disagree. That is a perfectly sensible consideration an experienced Hong Kong magistrate is entitled to take into account. It is not a mere assumption as Mr Suen argues. The magistrate's reasoning in this regard cannot be criticized.

32.Mr Suen argues also that the sentence of nine months' imprisonment was too severe given the 10 months' delay which took place between the date of the offence and the appellant being charged. No reason was advanced for that delay. But in my view, that period of delay was not so great as to warrant any significant reduction of sentence. The sentence of nine months' imprisonment, given the nature of the weapon involved and taking into account the circumstances of the case including the period of delay before charge, cannot be said to be too severe.

33.The appeal against sentence is dismissed.

Representation:

Mr Vincent Wong, SGC of the Department of Justice, for HKSAR

Mr Suen Kam Hee, instructed by Messrs Cheung & Yip, through the Director of Legal Aid, for the Appellant