Fan Wai Hong v. The Queen

CACC000364/1976

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Coram: Pickering, J.A.

Date of Judgment: 27th April, 1976.

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JUDGMENT

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1. The appellant was convicted of having with him in a public place without lawful authority or excuse an offensive weapon, namely, a knife and was sentenced to six months' imprisonment. He appeals against conviction.

2. The evidence of P.C. 10010 LAU Shing-tin was that whilst on plain-clothes duty in Tong Mei Road near Shantung Street with two other police officers, he saw the appellant acting "in a suspicious manner". This piece of pure opinion evidence was not amplified by any description of what the appellant was doing that was suspicious. However that may be, the appellant was searched and a knife was found upon him.

3. It is common ground that the knife was the one exhibited in the court below and shown to me and it was a long-bladed knife of the type used by fruit hawkers. Indeed, upon his being searched the appellant told the police that he used the knife to making a living and this was also his explanation in court. During the trial, moreover, the appellant put it to the arresting witness that the knife produced was not the knife which had been found upon his person, a suggestion which was denied. It was the appellant's evidence that the police had found a small knife upon him in his pocket and that he used this knife every day in the course of his business as a hawker. His employer gave evidence that the knife belonged to him and that he had given it to the appellant for use in the course of his work. This witness described the knife as a small knife and a folding one.

4. It will thus be seen that there is a contradiction between the evidence of the police as to the type of knife found upon the appellant and that of the appellant and his witness. The mirror steams over even further, however, by virtue of the fact that in his Statement of Findings the learned magistrate describes the knife exhibited to him and to me as "a folding one or what is commonly called a pocket-knife" whereas it is common ground that the knife exhibited was that produced in this Court, namely a long-bladed knife having a blade of ten or twelve inches.

5. The fact which remains is that the appellant had upon his person a knife of some sort but there is no evidence to contradict his assertion that he needed that knife for the purpose of his business so that he had lawful excuse for his possession of it.

6. Mr. Alderdice, for the Crown, very properly concedes that having regard to the confusion between Crown witnesses, defence witnesses and the Bench as to the nature of the knife, he cannot support the conviction. I agree that the conviction was unsafe and unsatisfactory and the appeal is allowed and the conviction quashed.

Representation:

Howell of Gunston & Chow for appellant.

Alderdice, C.C., for respondent.