HKSAR v. Lee Shing Po

HCMA 64/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 64 OF 2005

(ON APPEAL FROM NKCC 5964/2004)

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BETWEEN

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Before: Hon Beeson J in Court

Date of Hearing: 6 April 2005

Date of Judgment: 9 June 2005

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J U D G M E N T

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1.The Appellant was charged with one count of Possession of Offensive Weapon, contrary to section 33(1) of the Public Order Ordinance, Cap 245.  He pleaded not guilty and was convicted after trial and sentenced to 6 months’ imprisonment.

2.He appeals against both conviction and sentence.

Facts

3.The facts of the incident were not really in dispute.  The prosecution case was that at 12:55 am, a police officer saw the Appellant near a discotheque in Mongkok.  He kept on touching his trousers pocket and the police officer stopped him and made inquiries of him.  The Appellant said he was waiting for a friend.

4.The officer searched the Appellant and found a knife, with a 3 inch blade and 4½ inch handle, in his right front trouser pocket.  The blade was inserted into a piece of hose, 4 inches in length.  The handle and the sheath together measured 8½ inches.

5.The police officer asked the Appellant why he had the knife in his pocket, but the Appellant did not reply.  The police officer repeated his question and the Appellant said he kept the knife to cut fruit.  The police officer arrested the Appellant and under caution, the Appellant said, “I use the knife to cut fruit.  If you do not believe me, there is nothing I can do.”

6.The Appellant gave evidence.  He said he had bought the knife from a store at 10 o’clock on the previous evening i.e. 14 May.  He did not ask for a receipt but he was given one anyway.  The receipt was dated 15 May 2004, the day after that on which he said he bought the knife.  He could not explain why the receipt was so dated.

7.The Appellant said he went to a restaurant to have a meal and was on his way home to Sau Mau Ping, by taking public transport, when he was stopped by the officer.

8.The Appellant’s evidence was that he told the police officer he had bought the knife for cutting fruit.  He did not produce the receipt at the time because he feared that police would throw it away.  He had had a previous bad experience with the police and did not trust them.

9.The stallholder of the shop was called.  He confirmed that the receipt was a genuine one and that the writing was that of his wife.  He said the knife seized was of a type on sale at his stall and that the hose sheath could be supplied to the customer on request.  Normally when a knife was sold at the stall, it would be wrapped in newspaper and placed in a plastic bag.  A receipt would be issued if demanded by the customer at the time of sale, or later.

10.The police officer agreed that the shop at which the Appellant claimed he bought the knife was about 10 to 15 minutes walk from the place where he was intercepted.

11.The Magistrate rejected the Appellant’s evidence and found that he did not have a reasonable excuse for being in possession of the knife and convicted the Appellant.

Grounds of Appeal

12.The perfected grounds of appeal were:-

1.	The Magistrate failed to make a positive finding as to the heading under which the knife found in the possession of the Appellant fell, in the definition of “offensive weapon” found in section 2 of the Public Order Ordinance.
2.	There was no, or no sufficient, evidence to support a finding beyond reasonable doubt that the knife was:
	(a)	an offensive weapon per se
	(b)	adapted to be used as such, or
	(c)	was possessed at the relevant time with intent to injure.
3.	In all the circumstances of the situation, the conviction was unsafe and unsatisfactory, and/or there was a lurking doubt as to the Appellant’s guilt.

Mr Cahill, who appeared for the Appellant, submitted that the prosecution must prove beyond reasonable doubt under which heading the knife fell in order to find it an offensive weapon.

13.The Magistrate had delivered an oral judgment on conviction, in which he stated:-

“The prosecution says that it is an offensive weapon, because it falls within the definition of section 2 of the Public Order Ordinance, and I do not think there is any issue about that.”

A similarly brief reference was made in the Statement of Findings. (B14 para. 10)

14.It was submitted that this issue should have been addressed specifically by the Magistrate.  The definition of ‘offensive weapon’ in s2 of the Public Order Ordinance, Cap.245 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 Court of Appeal in the Queen v Chong Ah-choi and Others [1994] 2 HKCLR 263 (Magistracy Appeal 281 of 1994) considered that definition in light of the Bill of Rights and opined that the formula ‘suitable for’ cast the definition so widely that it was Bill inconsistent and should be repealed.  A possible solution suggested by the court was to exclude the formula ‘suitable for’ from the definition, so as to modify it.

16.It is not clear from the Magistrate’s Statement of Findings whether his comment ‘The knife fell squarely within the definition of an offensive weapon contained in section 2 of Cap.245’ referred to the modified definition suggested in Chong Ah-choi, but it is assumed it does.  Thus the article must be an offensive weapon per se, adapted to be used as such, or possessed with the intent to injure.  Counsel submitted that on the evidence the knife did not fall under the first two headings.  There was no agreement or concession at trial that the knife constituted an offensive weapon per se.  The knife was an ordinary fruit knife of a type commonly used in domestic kitchens.  It was not an adapted item.

17.Counsel for the Appellant submitted that the Magistrate failed to identify the particular heading the prosecution was relying on, or to address the evidence on that aspect.  There was no, or not sufficient, evidence on which the Magistrate could be satisfied beyond reasonable doubt that the knife fell under any of the headings in the definition section.

18.It was further argued that the Magistrate, despite the absence of sufficient evidence had found that the prosecution had proved that the knife was an offensive weapon, and then went on to consider the reasonable excuse offered by the Appellant in his evidence.  His rejection of the explanation offered by the Appellant did not prove that the knife was an offensive weapon.

19.Counsel for the Appellant relied on HKSAR v Omar Haroon Mohomed, HCMA 46 of 1999, in which the oral reasons of the Magistrate had omitted any finding as to whether or not the knife concerned was an offensive weapon.  The Respondent in Omar had conceded that the article was not an offensive weapon per se, nor was it an article adapted to be used as such.  Therefore the only definition left was that it was an article being used with intent to injure, which would make it an offensive weapon.

20.The Recorder in Omar held that it was incumbent on the Magistrate to make a finding that the article was an offensive weapon and on that finding to come to the conclusion that the defendant was guilty of possession of an offensive weapon in a public place.  Omar is a very brief judgment, from which the facts do not appear clearly but it must be correct that the Magistrate should make a finding that the item complained of was an offensive weapon.

21.In the instant case there was no admission made at trial that the knife was an offensive weapon, nor was there any concession, by the Appellant’s counsel, that the knife was an offensive weapon.  There was no point taken by Appellant’s counsel that it was not.

22.In the instant case, the knife , an ordinary fruit knife, cheap and easily obtainable, cannot be regarded as an offensive weapon per se.  Nor does it come within the second category of an item which is not ordinarily regarded as a weapon, but which is adapted in such a way that it can be used as such e.g. a toothbrush with a sharpened handle, or a broken bottle.  Presumably it was the third category into which the weapon fell, but the circumstances prior to the search could make it difficult for the Magistrate to infer an intention to use the knife for offensive purposes.  He may have done so but if that was the case, he should have given details of the evidential basis for his drawing an irresistible inference.

23.The evidence showed that the Appellant was standing alone in the street near a discotheque at 1255am.  The Magistrate described him in his Statement of Findings as ‘loitering near a discotheque’.  He kept touching his trouser pocket – possibly the right front trouser pocket from which the knife was taken during the search.  His touching his pocket made the officer suspicious.

24.The Appellant did not answer when first asked why the knife was in his pocket.  On being asked a second time he said he kept the knife to cut fruit, according to the officer.

25.The Magistrate seems to have assumed there was agreement that the knife came within the definition, and purported to make a finding to that effect but without stating into which of the categories he considered it fell.  He proceeded then to consider the question of ‘reasonable excuse’ as it was advanced by the Appellant.  Eventually he was not satisfied with the Appellant’s explanation and convicted him.

26.Most of the matters covered by the Magistrate in his oral judgment and his Statement of Findings relate to his view of the explanation offered by the Appellant, but as the obligation to give a reasonable excuse does not arise until the Magistrate is satisfied that the item in the Appellant’s possession is an offensive weapon, such examination seems premature.

27.There appears very little evidence, if any, from which it could be inferred that the Appellant possessed the knife with intent to injure.  There was no evidence of any prior, present or potential fight or disturbance.  No other people were linked to the Appellant, or said to be nearby.  Nothing was said by the Appellant to the officer which might reveal an intent to use the knife with intent to injure.  The Appellant did not run when approached by the officer.  Nor, apart from it being placed in his pocket, was the knife concealed e.g. in his shoe, or strapped to his leg or waist.

28.Although the Appellant was said to be ‘loitering’ near the discotheque, thereby suggesting he was there for some nefarious purpose, all the evidence amounted to was that he was standing near the discotheque when the officer saw him.

29.In all the circumstances I am of the view that the Magistrate, by omitting to state the basis for finding that the knife was an offensive weapon, had failed to find the knife was an offensive weapon.  His consideration of whether the Appellant’s explanation amounted to a reasonable excuse was thus premature.  In considering the evidence advanced relating to reasonable excuse, he could not infer retrospectively possession of the knife with an intention to injure.

30.For that reason I allow the appeal against conviction, quash the conviction and sentence.  As the sentence was served by the time of the appeal, a retrial is not appropriate.

Mr David Leung, SGC, of Department of Justice for the Respondent

Mr Peter Cahill, instructed by DLA, for the Appellant on appeal against conviction