Ng Shing Ho v. The Queen

CACC001016/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 1016 OF 1974

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Coram: Huggins, J.

Date of Judgment: 31st December 1974.

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JUDGMENT

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1. The Appellant was charged before the magistrate upon an amended charge which alleged possession of an offensive weapon in a public place. The particulars were that he had two offensive weapons, "a triangular file and a hammer", without lawful authority or reasonable excuse. This charge was laid under s.33(1) of the Public Order Ordinance. Section 33 requires that the Attorney General shall consent to any prosecution under this section. A consent was filed but it was drawn to my attention that the consent related to two weapons, namely "a triangular scraper and a hammer": therefore the charge as laid did not correspond to the consent which was given. Counsel for the Appellant asked for leave to amend the grounds of appeal which were originally filed, but he did not complain of this particular defect - if defect it was - in the charge sheet. I raised the matter with counsel for the prosecution and he has submitted that there was a weapon in question which could be variously described - and was in fact variously described in the course of the evidence. Having seen the weapon I do not entirely accept that submission, because the weapon clearly cannot be properly described, in my view, as a triangular file: there are no serrated edges, which are the indicia of a file. This was a scraper and the consent correctly described it as such. However, I think there is force in the contention that the defence were in no way misled by this matter. No point has been taken by the Appellant and that is indicative of the fact that no misunderstanding ever arose and I think that although there was an error - and an error which I hope care will be taken to avoid in future - the charge is not invalidated as being wholly inconsistent with the consent which was given.

2. The contention on behalf of the Appellant on the appeal has been that the verdict was unsafe and unsatisfactory. The evidence for the Crown was that of police officers who saw the Appellant in the street at 11 o'clock in the morning on a day in October. He had in his left hand a blue cloth bag and in his right hand a pair of white gloves. The police said that he was behaving furtively. They approached and revealed their identities and asked what was in the bag. The evidence is that he replied nervously "Nothing". The police searched the bag and found a hammer and a triangular scraper wrapped up in paper. One officer asked him "What are these for?" and, according to him, the Appellant said "Nothing, nothing". The Appellant was then cautioned and made a statement, in the course of which, to the learned magistrate's surprise, the Appellant admitted a criminal intent. The police evidence was that the Appellant, having been arrested was taken to the police station and there made a further statement. When the first statement was tendered in evidence it was objected to as being involuntary, and the learned magistrate properly held a trial within a trial. He expressly said that the purpose of this trial within a trial was to determine if "this statement is admissible". The ruling at the end of the trial within a trial was: "Court will admit these statements". (Emphasis supplied). It may be pedantic to object that the tense of that verb was wrong and that the proper course was for the magistrate to rule whether or not he did there and then admit the statement which had been objected to: and, if the document was being admitted, to have it marked as an exhibit and the statement immediately read in open court. That was not done. Nothing was marked until the police led evidence of the second statement, when the notebook in which both statements had been recorded was put in and the record says (as I understand it to be) "Provisional Exhibit 3": elsewhere exhibits are given references "P1" and "P2" but here the record says "P exhibit 3". A common practice is to put in the word letter "P." or something of that kind when a provisional exhibit is being marked, However, it is clear from what is said in the findings that the learned magistrate did in fact admit both these statements. When the second one was tendered the magistrate did not hold a second trial within a trial: he enquired from the Defendant if he objected to the statement and the Defendant said that he did. He said why he objected and the learned magistrate then apparently asked him whether he wished to question the witness (with a view, I take it, to holding a trial within a trial) and that the Defendant said he could think of no new questions. That, of course, was entirely irrelevant, because it was for the prosecution to prove beyond all reasonable doubt that this statement was voluntary before it was admitted. Counsel for the Crown very properly concedes that the second statement should never have been admitted until it had been proved to be voluntary.

3. The question then arises whether, the second statement having been improperly admitted, that is fatal to the conviction. The two statements were before me and I have read them with some care. The first statement was a short one but it was entirely conclusive of guilt if it was believed, as the learned magistrate indicated. The Appellant said:

"The triangular file, hammer and gloves are mine. I wanted to rob the Ying Wah Goldsmith Shop at Castle Peak Road with Hak Chai".

In the second statement he said almost the same thing but somewhat more elaborately. He also indicated that it was Hak Chai who was going to bring the bag containing these weapons, but, as counsel for the Crown rightly points out, there is in fact nothing that is material which is added to what was said previously. In my view the wrongful admission of this second statement, carticularly in the circumstances in which it was admitted, was not fatal to the conviction.

4. As to the other grounds upon which it is said that the verdict was unsatisfactory or unsafe, first counsel sought leave to allege a misdirection concerning the proper test to be applied in considering the admissibility of the statements, but he did not pursue that matter - and in my view rightly, because the learned magistrate gave no reasons at all for his decision on the admissibility of the statements.

5. The next matter to which I must refer is the rather amazing submission that the statements which were admitted in evidence at the instance of the Crown were "self-serving documents". I hardly know how to deal with that submission except to say that it is in my view a totally absurd submission.

6. The learned magistrate in his statement of findings said that the tools which were found on the Appellant seemed to him singularly inappropriate for the job of replacing one engine with another. Now the evidence which the Appellant had given was that he owned two generators with which he had been supplying electricity to some members of the public. He said that both those generators had broken down, that on the day in question he was waiting in the street for a relative who was going to bring him money with which to buy a new engine to drive those two generators and that when he had bought the engine he was going to repair the two generators. It was not suggested by the Appellant that the tools were going to be used for substituting the new engine for the old one. In my view very little turns upon this: whether it was to replace the engine or to repair the generators, these were not particularly suitable tools.

7. The objection is taken that it was not proved that these were offensive weapons. The definition of "offensive weapon" in the Public Order Ordinance is

"'Offensive weapon' 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".

I entirely agree with the submission of counsel for the Crown that on any common sense view of these two weapons they were suitable for causing injury to the person. Consequently it was not relevant to whether or not they were offensive weapons that the Appellant did or did not intend to use them for that purpose. Anybody who has sat in these courts for more than a matter of weeks knows the frequency with which triangular scrapers are used as weapons and the fact that they are so commonly used is indicative of the fact that they are suitable as weapons.

8. The question then was whether or not the Appellant had any lawful authority or excuse. The burden was on him to establish that. He gave evidence and he called his wife to support his evidence. Objection is taken that the learned magistrate did not say expressly that the degree of proof required from the defence was less than that required from the Plaintiff. That is true and I can but what was said in Lam Tin Chung v. Reg. 1970 H.K.L.R. 105, 113, without attempting to set any precise limits on what is required in a criminal case, that the closer a judgment comes to what would be expected in a summing-up the less danger is there that an appellate court will find itself compelled to interfere. Nevertheless, it has been held repeatedly that the court will assume, in the absence of any contra-indication, that a trained magistrate knows what the burden of proof is which is upon the prosecution and in my view the court should equally assume that a magistrate knows what is the burden of proof when any matter has to be proved by the defence.

9. Objection is further taken at the approach of the learned magistrate to the evidence of the wife. In my view what he said was wholly unobjectionable. The same cannot be said for what was said by the prosecutor. He, when the woman's evidence-in-chief had been given, said that he was not going to cross-examine her because she had been in court during the hearing and also because she had done nothing but agree with what had been put to her in the form of leading questions. He was, of course, entitled not to ask questions if he thought it was unnecessary, but the fact that the witness had been in court was no reason why she should not be believed and the fact that leading questions had been allowed to be put to her was not of itself sufficient to justify her being disbelieved. Both matters might, to some extent, be matters to be considered in assessing the weight of the evidence, but it is quite clear that the learned magistrate thought that her evidence did not take the matter any further, whether it was true or false, and he made no finding one way or the other: he merely said that he did not consider her evidence assisted the Appellant. All the woman said was that her husband had left with those tools from home in the morning, and she confirmed that the generators had broken down. What the prosecutor had said was not the responsibility of the learned magistrate and although an attempt was made to connect the two statements - one of the prosecutor and one of the magistrate. I do not think that that was justifiable.

10. That, I think, covers all the matters to which I need refer. It would have been proferable, as has been said on a number of occasions, if there had been clearer findings on all the matters of fact which had been raised in the course of the evidence, but the important thing for the purpose of this appeal is that there were sufficient findings of fact to justify the conclusion which the learned magistrate reached and I can see no ground upon which I could properly interfere with the conviction.

11. The appeal is dismissed.

31st December 1974.

Representation: