Chan Fu-kui v. The Queen

CACC000363/1983

BETWEEN

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Coram: Jones J.

Date: 3rd May, 1983

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JUDGMENT

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1. On the 3rd February 1983 the appellant was found guilty of possession of offensive weapons contrary to section 17 of the Summary Offences Ordinance, Cap. 228. He was sentenced to a period of detention in a detention centre.

2. The appellant appeals against his conviction.

3. The facts reveal that the appellant with another man was seen by two Police officers at about 5.25 a.m. on the 18th December 1982 approaching a car parked near a church at a village in the New Territories. The appellant opened the driver's door. When the Police approached and announced their identity the appellant tried to run away. However, he was caught and arrested after a struggle. The other man managed to escape.

4. The appellant was informed that he was arrested for a robbery. The appellant denied any involvement and said he only wanted to take the car to go to work.

5. One of the five keys in the possession of the appellant opened the boot of the car where two knives were found.

6. The appellant informed the Police at the scene that he had no knowledge about the knives. He also said that the car was owned by Wu Pak. However, it was not in dispute that the car had been taken away without the permission of the true owner Mr. Yim Chi-hong on the 23rd November 1982.

7. The appellant did not give evidence. Had he done so the learned magistrate said that he might have reached a different finding. He clearly had in mind that the appellant might have given a satisfactory explanation for his possession by giving evidence. However, he did not draw an adverse inference by his failure to do so.

8. By his decision the learned magistrate rejected the explanation given by the appellant to the Police.

9. Mr. Westbrook who appeared for the appellant challenges the decision on the grounds that possession of the key did not prove knowledge. He criticised the learned magistrate's findings that the appellant never denied that he knew the weapons were in the boot as he was not asked whether he was aware of their presence.

10. There is no doubt that the conviction cannot be sustained if knowledge has not been proved. Possession of the key does not prove knowledge, but it is evidence that the car was in the appellant's possession, custody or control. The subsequent actions of the appellant were not those of an innocent man. The learned magistrate was entitled to draw an adverse inference from this conduct which led him to the irresistible conclusion that the appellant did have knowledge. No satisfactory account for- possession having been given the appellant was properly convicted.

11. The appeal is therefore dismissed.

Representation:

Mr. Westbrook (D.L.A.) for Appellant.

Mr. S. Leung (Legal Department) for Crown/Respondent.