HKSAR v. Gurung Puran-bahadur

HCMA 737/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 737 OF 2005

(ON APPEAL FROM TWCC 1062 OF 2005)

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BETWEEN

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Before: Deputy High Court Judge Leong in Court

Date of Hearing: 7 February 2006

Date of Judgment: 7 February 2006

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J U D G M E N T

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1.The Appellant was convicted after trial in the Tsuen Wan Magistracy of the offence of Possession of an Offensive Weapon in a Public Place contrary to Section 33 of the Public Order Ordinance, Cap. 245, and was sentenced to 4 months’ imprisonment.  He now appeals against conviction.

2.There are primarily two grounds of appeal.  Firstly, the Magistrate was wrong to make an adverse inference as to the Appellant’s credibility when the Appellant had remained silent under caution.  Secondly, the learned Magistrate had not stated in details in his oral verdict as to why he disbelieved the Appellant.  Yet in his written statement of findings, he put forward new reasons for disbelieving the Appellant.

3.The prosecution evidence is based on the evidence of PC1083 (PW1) and the alleged victim (PW2).  The evidence of PW1 is that he was patrolling in Wanchai when he saw the Appellant swinging a nanchaku in the street from side to side advancing towards PW2, attempting to hit him.  PW2 and other onlookers were backing away.  When the Appellant saw PW1, he stopped and dropped the weapon on the ground.  According to PW1, the Appellant remained silent when he was arrested and cautioned by PW1.

4.The Appellant’s evidence is that he had been to a café and when he was in the street, he saw his friend Rana being chased and attacked by a group of persons, one of whom had the weapon in his hand.  To protect Rana, he grabbed the weapon from the hand of the attacker and swang it from side to side to protect Rana.  The attackers then ran away.  When the police came, he still had the weapon in his hand.

5.From the Appellant’s evidence, he does not dispute he had the weapon in his hand, but his case is that he had a reasonable excuse for possessing that weapon.

6.Under Section 94A(4) of the Criminal Procedure Ordinance of Cap. 221, it is for the Appellant to establish that he had lawful authority or reasonable excuse for possessing the weapon.  The learned Magistrate at the end of the trial delivered his verdict and reasons therefor orally.  He said he found PW1 an honest witness and he believed his evidence, and accepted that PW1 saw the Appellant advancing towards PW2 with the weapon in his hand swinging it from side to side.  He also accepted that PW2 was retreating, backing away with his hands over his head to protect himself.  He found the Appellant had the intention to cause injury to PW2 with the weapon.

7.As regards the Appellant’s evidence, the learned Magistrate said this:

“I listened carefully to the evidence given by the defendant but I found I did not believe his evidence and I rejected it.  I disbelieved the reason he told the court he came into possession of the nanchaku and I disbelieved the reason he said he was using it when the police arrived.”

Pausing here, if I may mention, if the Magistrate had stopped there regarding the Appellant’s evidence, it would be sufficiently clear that what the Appellant was trying to establish by his evidence had not been accepted by the learned Magistrate and he had failed to show that he had reasonable excuse for possessing the nanchaku.  However, the learned Magistrate went on to say this:

“Whilst I noted he had a right to remain silent when arrested and cautioned by the police, I noted there was no effort at any stage to explain to the police what he was doing with a nanchaku at the time, which I would have expected to have occurred with the circumstances put forward by the defendant.”

8.It should be noted that this paragraph does not appear or had not been included in the Magistrate’s written statement of findings, giving an impression that the Magistrate gave a different reason for the conviction.  It is this paragraph of the Magistrate’s oral reasons for verdict that has given rise to the first ground of appeal of the Appellant.

9.Mr Ross for the Appellant submitted the learned Magistrate by specifically noting that no effort had been made to explain his position to the police had wrongly made an adverse inference as to the Appellant’s credibility.  He referred to the Court of Final Appeal’s case of Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600, and submitted that the Court of Final Appeal had expressly disapproved of this practice.  He referred to the following paragraph in the judgment at 622:

“A person’s right against self-incrimination (his right of silence) would otherwise become a possible source of entrapment.  It is unfair for a person to have the right to remain silent, and usually to have been reminded of this right through the caution, and then for his silence to be put against him at trial.  There are comments in some of the authorities to which we have referred which suggest that in some circumstances a trial judge may fairly inform the jury that an explanation has been made for the first time at trial provided that the judge also makes it clear that an accused has the right to remain silent and make no explanation in answer to police questions.  With respect such a direction is also objectionable.  It gives rise to an adverse inference against the accused.”

In the same paragraph of the judgment cited by Mr Ross, the Court of Final Appeal also said this on the same page (p. 622):

“We recognize that it is a matter of ordinary experience that a failure to put forward an innocent explanation when given an opportunity to do so may support an inference that any later explanation is false but … There is a right to silence.  And in consequence of this right, suspected persons in Hong Kong should be – and routinely are – given a caution informing them in unqualified terms that they need not speak .  In the whole of these circumstances, it is inappropriate in Hong Kong to use a person’s silence against him in any way.”

10.It is quite clear from the passages quoted above that the law in Hong Kong is that the defendant’s right to silence on being arrested and cautioned must be preserved and should not be used against him in any way.  Any breach of this right is deplored and the court would not view a conviction reached in breach of this right as safe and satisfactory.

11.The comments by the learned Magistrate on the Appellant’s silence when cautioned had this effect: if the story put forward by the Appellant were true, he would have explained it to the police officer at the very first instance when he was arrested and cautioned.  In other words, the fact that he remained silent is at least inconsistent with the defence he later attempted to establish.

12.That being the case, the Magistrate’s comment is inappropriate and his conclusion that the story of the Appellant is not to be believed cannot be on safe ground.

13.If I may add, Mr Ross submits before me that we have to look at the real reason for convicting the Appellant and that should be what the Magistrate delivered in his oral verdict in court.  He refers to the case of The Queen v Wong Shing-fai [1991] 1 HKLR 372, and to this I fully agree.

14.Mr Ho submits that disregarding the Appellant’s evidence, there is still sufficient evidence to convict the Appellant based on the evidence of PW1.  But Mr Ross said that we cannot disregard the Appellant’s evidence and consider PW1’s evidence in isolation, since we do not know how much of the Appellant’s evidence would undermine PW1’s evidence.  And I have to say I agree with Mr Ross that the case as a whole must be considered.

15.That being the case, on the reasons given above, it is sufficient to allow the appeal.  Accordingly, the appeal is allowed and the conviction is quashed and the sentence set aside.

Mr Paul Ho, SGC of the Department of Justice, for the Respondent

Mr Philip Ross, instructed by Messrs Jal N. Karbhari & Co., for the Appellant