Wong Christopher Milton v. HKSAR

FAMC No. 105 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 105 OF 2005 (Criminal)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA No. 729 of 2005)

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Between:

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Appeal Committee : Chief Justice Li, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing : 24 April 2006

Date of Determination : 24 April 2006

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D E T E R M I N A T I O N

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Mr Justice Ribeiro PJ:

1.After trial before the magistrate, the applicant was convicted of possession of an offensive weapon, namely, a butterfly knife, in a public place, contrary to s 33(1) of the Public Order Ordinance, Cap 245.  He was sentenced to two weeks’ imprisonment.

2.He admitted possessing the knife but alleged that he had a reasonable excuse.  He said that he had previously been attacked in Canada and also in Tsimshatsui, and moreover, that three days before his arrest, he had been threatened by youths whom he encountered in the street.

3.Self-protection can amount to a reasonable excuse for carrying an offensive weapon only if there is an imminent particular threat affecting the circumstances in which the weapon was carried: Evans v Hughes [1972] 3 All ER 412 at 415.

4.The magistrate found that the incident involving threats to the defendant had not occurred.  However, on appeal, the Judge (V Bokhary J, HCMA 729/2005, 23 November 2005) did not think that the magistrate’s rejection of the incident justified.  Nevertheless, having set out the background facts, she found that there was no reasonable excuse for carrying the knife.  She stated:

“

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.” (§4)

Later, she described the applicant’s decision to carry the weapon as:

“	:… based on his excessive reaction to a fear generated by the aggressive behaviour of others.” (§5)

5.The applicant seeks leave to appeal on the substantial and grave injustice ground.  It is alleged in the written application that the Judge wrongly held that such threats are incapable of amounting to a reasonable excuse.  Mr Richard Wong, appearing for the applicant, also argues that the Judge failed to take into account the personal characteristics and experiences of the applicant.

6.We do not think it reasonably arguable that the Judge fell into error.  She was not saying that such threats can never provide a reasonable excuse.  Nor was she saying that the fears of the defendant based on his individual circumstances and experiences should be ignored.  She rightly held that “it is a question of degree whether [a defendant] has a reasonable excuse”.  The defendant must genuinely anticipate an imminent attack.  Furthermore, his carrying of a weapon must be objectively reasonable: AG v Yung Yuk [1985] 1 HKC 521; and Bryan v Mott (1976) 62 Cr App R 71 at 73.  There must be a well-founded fear of attack: Taikato v R (1996) 186 CLR 454 at 466.

7.While the Judge accepted that the applicant may genuinely have harboured a fear of attack when he was arrested, she decided that his carrying of the knife was not objectively reasonable.  Accepting that he had been assaulted in Canada 10 years earlier and that he had been assaulted in Tsimshatsui some four years earlier, these were not matters held objectively to justify carrying the weapon.  And in relation to the incident three days earlier, he had not actually been attacked and had been able to walk away from the verbal abuse.  On such facts the Judge was entitled to take the view that there was no well-founded fear of imminent attack, and no arguable case of a substantial and grave injustice has been made out. The application must therefore be dismissed.

Mr Richard Wong (instructed by Messrs Robertsons) for the applicant

Mr Cheung Wai-sun and Ms Sally Yam (of the Department of Justice) for the respondent