Attorney General v. Chan Shui-leung

CACC000470/1982

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

Criminal Appeal No. 470 of 1982

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BETWEEN:

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Coram: O'Connor, J.

Date: 2 July 1982

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JUDGMENT

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Offensive weapon - charge under Public Order Ordinance - magistrate dismissed charge as of opinion should have been under Summary Offences Ordinance - discretion of Attorney General as to choice of charge - lawful authority or reasonable excuse- weapon taken for use in a gang fight - charge relating to return journey

1. This is an appeal by the Attorney General by way of case stated from the order of a magistrate, dismissing a charge of possession of offensive weapon in a public place contrary to S.33(1) of the Public Order Ordinance Chapter 245. The Attorney General's consent to the charge was before the learned magistrate when the respondent appeared before him and pleaded guilty. The facts alleged by the prosecution were that in the early hours of the morning, the respondent and two other men boarded a taxi outside Admiralty Mass Transit Railway Station and directed the driver, to take them to Kwai Chung. When they arrived at Lai Chi Kok Road the taxi stopped at a police roadblock. The police noticed that the respondent was injured. He was searched and scissors were found in his pocket. The respondent later made a statement to the effect that he had taken the scissors to Central in order to have a fight with another gang. The magistrate adjourned the case, with a suggestion that a Crown Counsel consider the charge in the light of the agreed facts. Apparently, the magistrate thought that a charge under S.17 of the Summary Offences Ordinance Chapter 228 would be more appropriate. Of course conviction under S.33(1) of the Public Order Ordinance carries a mandatory sentence, whereas a conviction under the Summery Offences Ordinance does not. On a later occasion, Crown Counsel appeared and supported the charge, contending that the choice of charge was a matter for the Attorney General. I have been told by Crown Counsel, and the magistrate's record confirms it, that the magistrate invited the respondent to change his plea but through the duty lawyer who was representing him the respondent refused to do so. Indeed the duty lawyer expressed the view that the choice of charge was a matter for the Attorney General. The magistrate thereupon dismissed the charge. In the case stated the magistrate states that he found the following facts :

2. The following questions are posed by the magistrate for this court :

3. The first question above is not happily worded, but from the case stated as a whole I take it that the question intended is, whether a court on finding that the charge is proved is entitled to refuse to proceed in accordance with that finding, on the ground that it considers that the facts were such that the charge ought not to have been brought under the Public Order Ordinance, but should have been brought under the Summary Offences Ordinance. I intend to treat that as being the question to which an answer is sought. The learned magistrate was clearly of the opinion that the Public Order Ordinance, S.33(1) was only intended to be used for the more serious cases of possession of offensive weapon, whereas the Summary Offences Ordinance was intended for minor cases. Furthermore, he appears to have been of the opinion that the offences under the two Ordinances did not overlap and that on any particular set of facts, only an offence under the Public Order Ordinance or under the Summary Offences Ordinance would have been committed, not under both. He was of the view that he was entitled to consider whether the facts established before him were minor or major, and accordingly whether the offence committed was under the Summary Offences Ordinance or under the Public Order Ordinance.

4. The Attorney General has a wide discretion in the institution of criminal proceedings, he can decide whether or not to lay a charge at all he can, to some extent, decide in which forum the charge will be heard, whether the Magistrate's Court, District Courts or High Court, LAM Shu-tsang v. A.G., Civil Appeal No. 42 of 1977. He may decide whether a lesser or more serious charge be brought  for example he may decide on particular facts whether to charge murder or manslaughter. He may decide  on particular facts, whether to lay a charge that results on conviction, in a mandatory or a discretionary penalty. This arises very often in regard to the decision whether to lay a charge that, on conviction, would result in a mandatory disqualification or to lay a charge that would not have that result, R. v. Saddleworth J.J. ex prate Staples (1968) I.W.L.R.556. There is no reason why the legislature could not make a matter an offence under two identical laws and leave the decision to the Attorney General as to which the prosecute for, or indeed is there anything to prevent one of those offences carrying a mandatory penalty whereas the other does not. See the remarks in Ex paste Coorey (1944) 45 S.R.(N.S.W.) 287 at 312-315, Cody v. Joseph Pease (pty) Ltd.(1945) St.R.Qd. 81 at 89-91, Fraser Henleins Pty. Ltd. v. Cody (1945) 70 C.L.R. 100 at 118-120. Another discretionary power that resides in the Attorney General is to bring a prosecution to an end by the entry of a nolle prosequi. For the attitude of the court to the exercise by the Attorney general of his functions see Reg.v. CHEUNG Sou-yat(1979) H.K.L.R. 630.

5. The case of the Attorney General v. CHUNG Yim-fai, Criminal Appeal No. 757 of 1978 was a case stated in respect of a decision of a magistrate who had before him a defendant charged with the offence of possession of offensive weapons contrary to S.33(1) of the Public Order Ordinance. At the conclusion of the evidence, the magistrate found the offence proved, but saw fit to amend the charge to a lesser one of possession contrary to S.17 of the Summary Offences Ordinance. It was held that course was not open to him. In his judgment Cons J., said :

"The Attorney General has well established prerogative powers and duties in proceedings. 'In exercising these powers he Subject Q direction by his administrative colleagues or to the control or supervision of the Court' per Viscount Dilhome in Gouriet's case. What charge should be preferred in any particular circumstances is a matter for the Attorney's discretion and his discretion alone. No magistrate should seek the use of section 27 to exercise that discretion in his stead. There may well be circumstances which influence his choice that are not apparent to the magistrate or which, although perfectly legitimate in themselves, might not perhaps commend themselves to the magistrate."

Those remarks of the learned judge are apposite to the present case, in which the magistrate has disapproved of the offence being brought under the Public Order Ordinance rather than the Summary Offences Ordinance, and by dismissing the charge, has endeavoured to circumvent the Attorney General's discretion. It is for the Crown to decide what form the prosecution shall take, and for the magistrate to decide whether the evidence supports it. It is unnecessary for me to deal with a court's power to stay proceedings as an abuse of process, or whether any such power resides in a magistrate's court.  In the present case, there are no grounds at all on which the court could find the proceedings to be an abuse of process. I answer "no" to the first question, as clarified by me.

6. The second question posed by the magistrate is whether he was correct in law in holding that the intention of the accused at the time he was apprehended was relevant. By 'intention' I take it the magistrate was not referring to the intention to possess the offensive weapon, but the intention to use it or not to use it to cause injury to the person. The learned magistrate seems to have been unaware of the difference between an offensive weapon as defined in the Prevention of Crimes Act 1953 in England and as defined in our Ordinance. According to the definition in our Ordinance, if the article is 'suitable' for causing injury to the person, it is not necessary for the prosecution to prove any intention to so use it. The distinction between the definition in England and that in Hong Kong was referred to in Attorney General v. CHAN Fuk-hing(1979) H.K.L.R.495. The scissors were suitable for causing injury to the person, and accordingly the Crown was not obliged to prove any intention to so use them, nor was any such intention an ingredient of the offence charged. However, the intention with which he possessed the article would be relevant as regards whether or not he had a lawful authority or reasonable excuse for his possession of it. The charge related to the defendant's possession of these scissors when he was returning from a meeting, to which he had gone armed with the scissors, in order to fight with another gang. In these circumstances he did not have lawful authority for excuse for possession of the scissors at any time in the course of that expedition, see the remarks in relation to a flickknife in R.v. Allamby & Medford 59 Cr. App. R189. That case was referred to in Reg. v. YU Kiu-kwan (1976) H.K.L.R. 668 where, on the facts of the particular case, it was found that there was a reasonable excuse for possession. To the second question as clarified by me I would answer "yes". The accused's intention is relevant as to whether he had lawful authority or reasonable excuse for his possession. The evidence did not establish either lawful authority or reasonable excuse.

7. My answer to the third question is "no".

8. The Attorney General does not seek to have the case reopened, so I make no order for reopening it or a retrial.

Representation:

G.J. Plowman, Acting Senior Assistant Crown Prosecutor for the Crown/Appellant

Respondent in person absent.