HKSAR v. Wong Christopher Milton

HCMA 729/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 729 OF 2005

(ON APPEAL FROM ESCC 420 OF 2005)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing:  23 November 2005

Date of Judgment:  23 November 2005

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J U D G M E N T

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1.This Appellant, a man of previous good character in his mid-30s, appeals against his conviction after trial before E. Yip, Esq. in the Magistrate’s Court at Eastern on a charge of possession of an offensive weapon in a public place, contrary to s. 33(1) of the Public Order Ordinance, Cap. 245.  The particulars of the charge were that on 31 October 2004 at the junction of Quarry Bay Street and Mount Parker Road in Shau Kei Wan he, without lawful authority or reasonable excuse, had with him in that public place an offensive weapon, namely a butterfly knife.  A number of facts were admitted under s. 65C of the Criminal Procedure Ordinance, Cap. 221.  They included: the fact that the Appellant was in possession of a butterfly knife at 4.22 in the morning on the date and at the place mentioned in the charge; the fact that the knife is an offensive weapon per se; and the fact that it was 19cm long, having a handle of 11cm and a blade of 8cm.

2.So it was not in dispute that the Appellant was in possession of an offensive weapon in a public place.  But it is a defence to such a charge if the possession was with lawful authority or reasonable excuse.  And the Appellant raised at the trial a defence of reasonable excuse.  His testimony in support of that defence was summarized by the Magistrate as follows in his Statement of Findings:

“In 1995, in Canada, he was assaulted on the street.  Although the police made an arrest, he could not identify the assailant as his spectacles were broken during the assault. In the early hours of 22 September 2001, he was walking to his office in Tsimshatsui when 3 unknown youths assaulted him on the street.  As a result he suffered injuries and received stitches.  He did not report to the police because he was unable to identify the assailants.  After this incident, he bought Exh. P1 from a shop in Mongkok to protect himself against similar attacks near his office.  He intended to scare off would-be assailants.  He carried Exh. P1 for a week.  As nothing further happened, he put away Exh. P1 in a drawer. At 00.30 a.m. of 28 October 2004, he was walking along Quarry Bay Street near Mount Parker Road.  He walked round the street corner and saw 5 males down the street.  One of the males threatened to hit him in a violent and foul language.  He was scared and just walked on.  He saw and heard no more of them.  He did not report to the police because he was unable to recognize them, the location was very close to his home, and the police could not protect him 24 hours a day. At 4 a.m. on 31 October 2004, he took the public light bus to go home after a drink with friends.  He saw the 2 police officers.  As he walked on round the corner, he accidentally bumped against the metal grille of a shop.  It gave a sound.  The shopkeeper yelled at him.  The 2 police officers stopped him and asked for his identity card.  He produced it to them.  They searched him.  Before they got hold of the knife, he had already told them that he had a knife.  They forbid him to take it out by himself.  PW1 seized the knife strapped to the belt at the back of his waist.  He later explained that he had been hit previously.  PW2 said it was illegal to carry it.  He said he had previously been attacked.  He asked PW2 what he should do if he was being attacked again.  PW2 told him to call the police.  In the police station, he said that he had previously been attacked in Canada. It remained his normal practice to take the public light bus to go home from office despite the encounter of 28 October 2004.  There was an alternative walkway.  It would take an extra 10 minutes.  He would adopt this alternative walkway to avoid the male if he saw him soon enough upon reaching the corner.  He still brought along the knife despite this practical means to avoid the male because he thought some other unexpected people might come down the street to attack.”

3.It is not clear what view the Magistrate formed as to the truth or otherwise of the Appellant’s testimony about his background and about the street assaults on him in 1995 and 2001.  As to the Appellant’s testimony about what had happened on 28 October 2004, the Magistrate said this:

“In my judgment the alleged encounter of 28 October 2004 never took place.  I reject his alleged belief that he was under any immediate and particular threat spawned by the alleged encounter.”

4.The Appellant’s real difficulty, as I see it, is this.  It is well established by the decided cases that carrying an offensive weapon for protection affords a reasonable excuse only when it is being done to meet an imminent and immediate threat of danger.  A useful outline of the legal position is provided in Archbold Hong Kong 2005 at p. 1408, para. 25-125:

“Where the defendant carried the weapon as a result of a recent attack which he fears might be repeated, it is a question of degree whether he has a reasonable excuse.  Carrying the weapon a day or two after the attack is probably reasonable, but for eight days is borderline (Evans v Wright, above); for 16 days (Bradley v Moss [1974] Crim L R 430, DC) or four weeks (Pittard v Mahoney [1977] Crim L R 169, DC) is excessive.”

The interval between 28 and 31 October is not necessarily to be regarded as excessive.  The facts fatal to the defence of reasonable excuse are these.  The 28 October incident, even on the Appellant’s own account, was not a physical attack upon him.  It was, on his own account, a threat of physical assault which he was able to avoid by walking away.  And there is no evidence of an imminent and immediate threat of danger on 31 October.  The evidence was of a general fear of being confronted by violent persons in the streets.  That is not enough for the defence of reasonable excuse.  So this appeal must be dismissed.

5.It is just, however, to make it clear that it is dismissed on that basis.  Having regard to the various points made by the Appellant’s counsel, I do not think that it would be just to support the Magistrate’s rejection of the Appellant’s testimony.  So the Appellant must live with this conviction.  But at least he can tell people that it is not based on his possession of an offensive weapon for some unascertained and therefore sinister purpose.  It is based on his excessive reaction to a fear generated by the aggressive behaviour of others.  On that basis, the appeal is dismissed.

Mr Richard Wong, instructed by Messrs Robertsons, for the Appellant

Ms Catherine Ko, SGC of Department of Justice, for the Respondent