Liu Kam-man v. The Queen

CACC000100/1972

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 100 OF 1972

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Coram: Full Court (Briggs, Huggins and Leondard JJ.)

Date of Judgment: 12.4.72.

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JUDGMENT

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1. The Appellant pleaded guilty to being in possession of an offensive weapon in a public place contrary to Section 33(1) of the Public Order Ordinance. He was sentenced to nine months imprisonment on December 9, 1971.

2. The facts are simple. At about 7.30 p.m. the Appellant was stopped by an alert detective in a public street. He searched him and found on him a sheath knife which was in an inside pocket. He was questioned by the detective as to his reason for being in possession of such a weapon at such a time and place, and was unable to give any reasonable explanation or excuse. It is material to note that he was alone at the time.

3. In his statement of findings the Magistrate referred to the fact that the maximum penalty for this offence is a sentence of two years imprisonment: while the Appellant could have been charged with an offence, worded in similar terms, under Section 17 of the Summary Offences Ordinance. The maximum penalty for such an offence is three months.

4. This appeal first came on before a single judge in the normal way. It was referred by him to the Full Court. The judge in his reference set out two points which he thought the Full Court might wish to consider: these are as follows:-

5. The Appellant was granted legal aid and we allowed counsel to address us as if there were an appeal against conviction before us.

6. It was suggested both by the Magistrate who tried the case and by the Judge who referred the case to this Court that it was possible that the legislature did not intend Section 33 of the Public Order Ordinance to cover this type of case. It is notorious that that ordinance was passed in 1967 which was a period of considerable public disorder.

7. The long title of the ordinance reads as follows:-

"To consolidate and amend the law relating to the maintenance of public order, the control of organizations, meetings, places, vessels and aircraft, unlawful assemblies, riots and matters incidental thereto or connected therewith."

8. The question is whether the long title governs or places a gloss on the wording of Section 33(1) of the ordinance, leading to the conclusion that that section is only applicable where there is some element of public disorder, or of association with other persons, at the time the offence is committed.

9. The words of the section are as follows:-

"Any person who, without lawful authority or reasonable excuse, has with him in any public place any offensive weapon shall be guilty of an offence and shall be liable on summary conviction to a fine of five thousand dollars and to imprisonment for two years."

10. Mr. Carolan for the Respondent pointed out that the Public Order Ordinance is based upon the English Public Order ct 1936: he also referred us to the case of ...(illegible)ard v. H ...(illegible) lman⁽¹⁾, which was not drawn to the attention of the single judge.

11. In that case the Respondent broke the glass of a basement door in the premises of a man with whom he had a quarrel, a Mr. Rees. He then stood in the public street shouting abuse towards the house. Mr. Rees came out into the street. At about the same time his son-in-law arrived on the scene. The Respondent continued to insult Mr. Rees and his son-in-law.

12. He was convicted by the magistrate of malicious damage to the door, and for using threatening words and behaviour whereby a breach of the peace might be occasioned, the latter offence being laid under section 5 of the Public Order Act.

13. That section reads as follows:-

"Any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of an offence."

14. The Respondent appealed against his conviction under Section 5 of the Act to the Quarter Sessions. His appeal was allowed on the ground that that section must be read in the context of the Public Order Act 1936.

15. It is notorious that that Act was passed to control an existing situation in the East End of London. A certain political party, the members of which paraded in uniform, used to march in the streets and hold public meetings causing riots and breaches of the peace.

16. The Quarter Sessions were of the opinion that the Public Order Act was limited to conduct arising out of political meetings and could not be applied to brawls between neighbours even though occurring in a public place.

17. There was an appeal to the Divisional Court and the appeal was allowed, the case being remitted for re-hearing or continuation.

18. The judgment of the court was given by Lord Parker C.J.

19. In his judgment he refers to the title of the Public Order Act which reads thus:-

"To prohibit the wearing of uniforms in connexion with political objects and the maintenance by private persons of associations of military or similar character; and to make further provision for the preservation of public order on the occasion of public procession and meetings and in public places."

20. In his judgment Lord Parker said this:-

"Two things I think are clear; one is that it is impossible to look at the long title of the Act as controlling the operative words of the Act itself unless those words are ambiguous. For my part, even looking at s.5 in the context of the whole of the Act, I find that they are completely unambiguous, but I confess that if one does go and look at the long title, I would even then see no reason for limiting the operation of s.5, certainly not in the way suggested by Kent Quarter Sessions. In my judgment these words are plain; they are intended to preserve peace and order, not only to preserve public order in the sense of many people being involved, but to preserve public order in the sense of preserving order in a public place. Looked at in that way, there is no possible inconsistency between the long title and the words of the section."

21. The same reasoning applies in this appeal. The words of Section 33(1) are plain and unambiguous. The wording of the long title are irrelevant. It is clear that the Public Order Ordinance applies to individual persons committing an offence on their own as well as to two or more persons committing an offence in concert.

22. We consider therefore that the Appellant was rightly convicted on his plea.

23. It was conceded by counsel for the Appellant that the prosecution had an unfettered discretion whether to charge a person for an offence under the Public Order Ordinance or under the Summary Offences Ordinance.

24. The Magistrate imposed a sentence of 9 months imprisonment. The Appellant was alone, and he pleaded guilty. He is a man of 25 years old. However he has a bad record and he was at the time addicted to drugs.

25. We consider that in the circumstances nine months was an excessive sentence. The sentence in each case must depend of course upon the facts of each case. When the offence is committed in conjunction with others or where the offensive weapon is used to threaten, a severe sentence is called for. But in the present case the Appellant was alone and the weapon concealed.

26. We consider that the correct order to make is to allow the appeal against sentence and to substitute such a sentence of imprisonment as will enable the Appellant to be discharged at the rising of the Court. That is equivalent to a sentence of about 6 months' imprisonment.

Representation:

(1) 1964 2 All E.R. 729