HKSAR v. Lo Kai Wah

HCMA825/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.825 OF 2005

(ON APPEAL FROM ESCC 1057 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 13 December 2005

Date of Judgment : 13 December 2005

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J U D G M E N T

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1.The appellant was convicted after trial of one charge of “possession of an offensive weapon”, contrary to section 33(1) of the Public Order Ordinance, Cap.245.  He was sentenced to detention in a Rehabilitation Centre.  He now appeals against the conviction.

The trial below

2.The appellant was D4 in the trial.  He and the other three defendants were junior-form secondary school students.  When intercepted by the police in Tai Wong East Street, Wanchai, each was found to be carrying a rucksack holding the following — D1 : one knife with cloth-wrapped handle; D2 : two water pipes with gauze-wraps as handle; D3 : one water pipe of similar description; D4 : two water pipes of similar description.  Apart from the cautioned statements of D1 and D2 which did not concern the appellant, that was the prosecution’s case.

3.Turning to the defence, only D1 gave evidence.  The magistrate summarized what he said as follows :

“… On that day there was an interschool basketball matches to be held at Southorn Playground and their two schools participated.  Their schools were Confucius Hall Middle School and St. Mary’s Church College.  D1 and D2 were friends and classmates in Confucius Hall Middle School and D3 and D4 were students of St. Mary’s Church College.  After school, D1 and D2 went to view the matches and met D4 at MTR.  They watched the matches together and D3 arrived later to join them.

Liu Sze Yan and Yip Yuen Pang were F4 students of Confucius Hall Middle School.  D1 testifies that he and the other accused did not know them well.  However during the matches, Liu Sze Yan had called him twice by mobile phone to ask him if Yip Yuen Pang was present and he said ‘Yes’.  Towards the end of the games, he suddenly saw a group of 5 to 6 people, including Liu Sze Yan, arrive with the weapons and attack Yip Yuan Pang.  After the attack the man with the knife and the other attackers rushed towards them and ordered them loudly and fiercely to take away the weapons or they would attack them as well.  Then they put the weapons into their rucksacks which they were carrying as schoolbags.  D1 further testifies that he was very frightened and began to run away from the Southorn Playground and around the streets in the vicinity.  He noticed later that D2, D3 and D4 were running with him.  They had run for over 10 minutes, and when they ran along Tai Wong East Street towards Johnston Road, they were intercepted by police for search.”

D1’s version, I should add, was adopted by the other defendants, hence the talk of “duress” in relation to their defence in the Statement of Findings.

4.In the end, the magistrate rejected D1’s evidence and convicted all the defendants.  He questioned their need to run around for ten minutes just to find a place to discard the weapons.  He found it incredible that the knife and pipes should be so nicely distributed amongst the defendants in the alleged circumstances.  In respect of D4 (the appellant), he rejected the submission that the water pipes did not amount to “offensive weapons”.  He said :

“…. The knife is 16” long and the water pipes have the lengths between 1’8” and 1’9”.  They have one thing in common.  The handle of the knife and one end of each water pipe were wrapped by gauze in skilful and similar manner.  Mr. Kwong [the appellant’s lawyer] agrees that such wrapping with gauze would give a better grip.  This design would perhaps leave no fingerprint.  I take the view that the wrapping with gauze by itself on water pipes of such lengths is inconsistent with normal and innocent purposes.  I am satisfied beyond reasonable doubt that the water pipes were adapted and intended for causing injury to person and that they are offensive weapons within the definition of section 2, Cap.245.  I reject Mr. Kwong’s submission that the weapons must be shown to have been used for causing injury to person.” 

Over all, the magistrate was satisfied that the defendants had neither legal authority nor reasonable excuse to have the knife or water pipes in their possession.

The appeal

5.The complaint in this appeal is that the magistrate erred in his approach to whether the water pipes constituted “offensive weapons”.

6.Under section 2, Cap.245, “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.”

7.The Court of Appeal in R. v. Chong Ah Choi [1994] 2 HKCLR 265 excluded the “suitability” concept as Bill of Rights-inconsistent and construed this section to mean only three categories of offensive weapons : (a) articles made for causing injury; (b) articles adapted for causing injury; and (c) articles intended by those having them in their possession or control to cause injury.

8.It follows that once a jury is satisfied that an article is adapted, its only remaining question is whether it could be used for causing injury.  The intention of the person having possession or control of it is irrelevant.

9.In saying he was “satisfied beyond reasonable doubt that the water pipes were adapted and intended for causing injury” (see para.4 above) the magistrate had therefore confused category (b) with (c) and convicted the appellant on a duplicitous and/or contradictory basis.  Moreover, there was nothing in the case that would enable the magistrate to make any finding on the appellant’s intention.

10.That is the long and short of the appellant’s contention.

Judgment 

11.Having read the Statement of Findings in its entirety, I am satisfied that the magistrate was confused at nothing.  Judging from the care with which he described the “design” of the water pipes, he was clearly of the view that they were adapted for causing injury.  Any remark about intention was superfluous.  If unsupported by evidence (although D1 did say they were used as weapons) it should simply be disregarded.  This is the only just course : Ching Kwok Yin v. HKSAR, FACC 2/2000.

12.The appeal is dismissed.

Miss Sally Yam, GC of Department of Justice, for the Respondent

Mr David Boyton, instructed by Messrs Paul Kwong & Co.,  for the Appellant