The Queen v. Poon Sin-bik

CACC001051/1983

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 1051 OF 1983

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BETWEEN

Coram: Hon. Barnes, J.

Date: 6th October 1983.

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JUDGMENT

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Barnes, J.

1. At the conclusion of the hearing I decided to dismiss this Appeal. but announced, in deference to the arguments advanced by Mr. Hampton on behalf of the Appellant, that I would reduce my reasons to writing. This I now do.

2. The Appellant was charged with the offence of Possession of an Offensive Weapon contrary to section 33 of the Public Order Ordinance, Cap. 245. In the particulars of the offence it was alleged that the offensive weapon was a wooden pole.

3. The Appellant pleaded not guilty but was convicted by the learned magistrate after trial. The Appeal is against that conviction.

4. The prosecution case was that a police officer had seen the Appellant holding a wooden pole whilst in the company of three others each of whom was holding either a wooden pole or a waterpipe. On being questioned by the police officer the Appellant gave an explanation as to why he had the wooden pole. At the time he was in the public area of a housing estate. Later, at a police station, the police officer recorded the explanation given at the scene by the Appellant under caution. This was read over by the Appellant and signed by him as an accurate record of that conversation. The explanation as so recorded was, in part, as follows:-

"Because [about half an hour earlier], whilst I was alone by myself, I was bullied by a party of people at the playground ..... I was also told not to play ball at the playground because they were playing ball. Thus I left. As I know that their party of people are living at Block I, Lok Man Estate, I located [three others] to go together to [that address] to try to look for them to see why I was not allowed to play ball at the playground. Nevertheless we were afraid that they might assault us. So we picked up one metal waterpipe and two wooden poles from a nearby construction site. I held a wooden pole. However...... we were spotted by you policemen .........."

5. The Appellant did not give evidence nor did he call any witnesses at the trial. His statement, however, once admitted in evidence, as it was, was "there for all purposes" and it was for the magistrate to attach to it such weight as he thought  fit, as part of the general evidence which was put before him. (R. v. Cheng Chu, 1980 H.K.L.R. 50, 57).

6. The magistrate's Statement of Findings -- the most impressive document of its kind which I have so far seen -- indicated, as Mr. Hampton conceded at the opening of his Appeal, that he had "taken the utmost care" in hearing and determining the case. The only flaw which Mr. Hampton could find was in that part of his Statement where he said:-

"As the defence was a denial of possession, once I had found [the wooden pole] had been in the Appellant's possession, there was nothing before me to give the Appellant any lawful authority or reasonable excuse for such possession."

7. Consequently the only ground of appeal argued was that

"the Magistrate erred in failing to consider whether the explanation given at the time of his arrest by the Appellant could amount in law to a reasonable excuse for his possession of the alleged offensive weapon."

8. It was Mr. Hampton's argument that the Appellant's explanation was capable of amounting to a reasonable excuse and that the magistrate therefore misdirected himself when he stated in the passage just quoted that

"there was nothing before [him] to give the Appellant any lawful authority or reasonable excuse for such possession".

9. It was Mr. Hampton's submission that the Appellant had been excluded from a place where he had every right to go; that it was lawful for him to seek the reason for his exclusion; and that it was lawful for him if he feared assault in such circumstances to carry a weapon for use in self-defence. In short, the Appellant's explanation, if accepted, could amount to "a reasonable excuse based on self-defence".

[1972] Crim. L.R. 558), Bradley v. Moss, [1974] Crim. L.R. 430, and R. v. Field, [1972] Crim. L.R. 435.

10. In Evans v. Hughes the defendant was arrested with a metal bar in his hand which he was carrying for the sole purpose of using in self-defence should he again be attacked by three men who had set on him about a week before. It was held that a person in immediate fear of attack might have a reasonable excuse for carrying an offensive weapon if he did so in self-defence but it was stressed that there had to be an immediate and particular threat in the circumstances in which the weapon was carried.

11. In Bradley v. Moss the principle of Evans v. Hughes was applied but the Divisional Court again stressed "that the carrying of weapons by a person for defence must be related to an imminent and immediate threat of danger at the time when he carried them".

12. In R. v. Field the defendant had an argument with W which culminated in a fight. The following day the defendant was warned by A that W and three others were looking for him intending to attack him, but despite the warning he remained out of doors. A little later he was warned by B that W and the others were approaching but he remained where he was. When W and the others arrived the defendant said he did not want to fight. At that stage the defendant could not have run away without being caught and injured. W and another attacked the defendant who then wounded W with a knife which he, the defendant, was carrying. It was held by the Court of Appeal that it was not the law that a man could be driven off the streets and compelled not to go to a place where he might lawfully be because he had reason to believe that he would be confronted by people intending to attack him, and that no duty to retreat could arise until the parties were at any rate within sight of each other and the threat to the person relying on self-defence so imminent that he was able to demonstrate that he did not want to fight.

13. Whilst those cases do support the proposition that it may be reasonable in some circumstances to carry offensive weapons for protection, the carrying of such weapons affords a reasonable excuse only when done to meet an immediate and particular threat. In Grieve v. MecLeod, 1967 SC (J) 32, (cited with approval in Evans v. Hughes) it was held not to be a reasonable excuse for an Edinburgh taxi driver to carry two feet of rubber hose with a piece of metal inserted at one end as a means of self-defence against violent passengers whom taxi-drivers sometimes encounter at night. Thus, it is not a reasonable excuse to carry a weapon for use in self-defence to resist an attack which is no more than a contingency: there must be circumstances revealing a near certainty of an attack.

14. Here, accepting that the Appellant would have been "bullied" had he returned to the playground alone could it be said that he would almost certainly have been attacked if he returned with unarmed supporters? He said that he and his group "feared an assault" but he gave no details to suggest that such an assault was likely to occur: On his account an assault was no more than a contingent event: it might or might not occur. There was, therefore, no immediate and particular threat to him which justified returning to the playground with a weapon. The Appellant's case was, of course, weaker than that because he was not even attempting to return there: he had gathered forces and weapons to seek out the opposing group in the block of the estate where that group lived. They were proceeding there in an aggressive manner advertising the fact that they were prepared to fight. Their conduct was, if anything, likely  to set the scene for a fight rather than create a peaceful atmosphere for the hearing of the Appellant's submissions regarding his lawful right to use the playground. A reasonable excuse based on the need for self-defence -- an essential ingredient of which is the necessary use of force to resist attack --could hardly arise in those circumstances.

15. It is my view that the Appellant's explanation could not constitute a reasonable excuse for his possession of the offensive weapon. Accordingly, the magistrate accurately stated the law when he said there was nothing before him to show that the Appellant had any reasonable excuse for possession of that offensive weapon.

16. The Appeal therefore fails.

Representation:

Mr. Mason-Parker, Crown Counsel, for the Crown.

Mr. G. Hampton of Messrs. Hampton, Winter & Glynn for the Appellant.