R. v. Ho Ka on
Read the full judgment text of CACC 550/1995 on BabelCite. This Court of Appeal judgment was delivered on 10 October 1995.
1. The applicant seeks leave to appeal against his conviction for being in possession of an instrument with intent for unlawful purpose contrary to section 17 of the Summary Offences Ordinance, Cap 228.
Cited by 4 cases
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CACC000550/1995 IN THE COURT OF APPEAL 1995, No. 550 ___________
___________ Coram: Hon Power, V.-P., Mayo, J.A. and P. Chan, J. Date of hearing: 10 October 1995 Date of judgment: 10 October 1995 ________________ J U D G M E N T ________________ Mayo, J.A. (giving the judgment of the Court): 1. The applicant seeks leave to appeal against his conviction for being in possession of an instrument with intent for unlawful purpose contrary to section 17 of the Summary Offences Ordinance, Cap 228. 2. The applicant was seen with the first defendant (D1) in the court below on the evening of 19 May 1994 at the Wanchai Reclamation acting suspiciously. The police officers who saw them approached them and searched them. They found a fruit knife concealed in a boot worn by D1 and a roll of adhesive tape in the applicant's possession. They admitted that these objects were intended to be used for a robbery they proposed committing. 3. The men were arrested and taken to the police station where they both made cautioned statements which included admissions. D1 admitted committing robbery but the applicant denied having previously done so. 4. The main issue at the trial before District Judge Whaley was whether the statements which had been made were voluntary statements. Both men claimed to have been assaulted by the police and said that the only reason they had signed their statements was on account of this. 5. Judge Whaley gave the reasons why he accepted the evidence of the police officers and rejected the evidence of the defendants. 6. The first ground of appeal was that Judge Whaley erred in law in ruling that a roll of adhesive/cellulose tape could be an instrument fit for an unlawful purpose. 7. Section 17 of Cap 228 reads:
8. It must be said immediately that the said tape is the normal small domestic variety of tape which is customarily used as either an item of stationery or to effect minor repairs in a domestic context. 9. It would be difficult to contend that it was an "instrument or article manufactured for the purpose of restraining a person" or equally that it was "an instrument fit for unlawful purposes". 10. Indeed it would be surprising if it was thought that the tape could be effective in restraining a person's hands or arms if they were secured with the tape. It would not require much force to break the tape if one's hands were bound by it. 11. It is however only realistic to consider the charge in the circumstances of the present case. 12. According to the evidence of the police officers the applicant stated at the time of his arrest that his purpose for having the tape was to use it in a prospective robbery. It was contemplated that it would be used to "stick the hands" of victims of the robbery. 13. Mr Alan Ng for the applicant cited the case of Tang Chi-ming v. R. (1968) HKLR 716 in support of his contention that adhesive tape could not be an instrument or article falling within the section. 14. In that case the allegedly offending instrument or article was ½ a razor blade which was secured to the hand of the defendant by adhesive tape. 15. We do not consider that the case offers much assistance. When the case was decided the section was framed slightly differently. What the Full Court was mainly concerned with was whether the razor blade could be considered ejusdem generis with the instruments or articles specifically referred to in the section. 16. In our view the roll of cellulose tape the subject matter of the 14th charge cannot come within the scope of s17 even when there is evidence to the effect that the applicant said that his purpose for having the tape was to "stick peoples hands", the main point being that the article was not manufactured for the purpose of restraining people. The result of our coming to this conclusion is to render otiose the other grounds of appeal which have been advanced. 17. The applicant's conviction cannot therefore be regarded as safe or satisfactory. We allow the application and treating it as the appeal, allow the appeal and quash the sentence which was imposed. 18. Before leaving this appeal we would observe that it is clear from the facts of this case that the applicant may well have been a party to a conspiracy to rob. We do not consider that the applicant should be able to escape the consequences of his actions simply because an error has been made in framing an appropriate charge against him. Although it is a matter for the Crown Prosecutor we suggest that he may wish to consider laying against the applicant a charge which is suitably drafted to meet the situation.
Representation: Mr Frank Veltro, SCC for Crown Prosecutor Mr Ng Man Sang, Alan instructed by Paul Kwong & Co. for Applicant |