Lam Ka Wa and Others v. The Queen
Read the full judgment text of CACC 559/1974 on BabelCite. This Court of Appeal judgment.
1. The three appellants were each convicted of the offence of possession of an offensive weapon in a public place contrary to s.33(1) of the Public Order Ordinance (Cap. 245)
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CACC000559/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 559 OF 1974 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 10th September, 1974. ----------------- JUDGMENT ----------------- 1. The three appellants were each convicted of the offence of possession of an offensive weapon in a public place contrary to s.33(1) of the Public Order Ordinance (Cap. 245) 2. At the trial three police officers gave evidence of raiding a cafe at Block 14 of the Chai Wan Estate. According to the police evidence the three appellants together with a fourth man, were seated at a table in the cafe whilst five other men were at a different table. The five were searched and nothing incriminating was found upon any of them. When the first appellant came to be searched a length of stout iron chain measuring 21 inches, with a cloth wrapping around one end, was found tucked into his waist band. In the hip pocket of the second appellant's trousers there was found a knife described as six to seven inches long but which in fact, by measurement, was 8 ½ inches long of which length the blade comprised 4 5/8 inches. The third appellant was found in possession of a knife some 13 inches long of which length the greater portion consisted of the blade. This was said to have been found tucked into his waist band and to have been covered by his jacket. On being asked the purpose of their possession of these instruments the first appellant made no reply whilst the second and third both said that they were preparing to fight with members of the 14K. No weapon was found upon the fourth member of the group. 3. Such was the prosecution evidence. At their trial however, the three appellants claimed that when the police entered the cafe they were not sitting together but at separate tables, that no weapons were found upon them in the cafe, that they were taken to Chai Wan Police Post where they were severely assaulted by the police, and subsequently transferred to Shaukiwan Police Station where a plastic bag was produced containing various items of ironmongery including the chain and the two knives. Each of the appellants was then ordered to admit to possession of the instrument possession of which was subsequently charged against him. 4. Originally the three appellants, together with the fourth man, were charged also with unlawful assembly and with professing to be members of a triad society. The fourth man pleaded guilty to these two offences whereas, in respect of the three appellants, the Crown offered no evidence on the triad society charge and the magistrate found them not guilty of the charge of unlawful assembly upon the ground that there was no evidence of the "open force" which is an ingredient of that offence. 5. Turning to the Grounds of Appeal, one contention which, were it successful, would necessarily result in the quashing of the conviction, was that had it not been shown that the cafe was a "public place" within the definition of that phrase contained in s.2 of the Public Order Ordinance (Cap. 245). That definition reads:
6. The argument was that it was for the prosecution to show that the public, or some section thereof, was entitled or permitted, for the time being, to have access to the cafe and it had not been shown that the cafe was in fact open at the time of the arrest of the three appellants. There is no substance in this ground of appeal. Nine customers were in the cafe at 9:15 p.m., enjoying its facilities; and whilst it is true that the police witnesses were not asked whether they gained access to the place without any let or hindrance, the mere presence of the nine is sufficient and would have been sufficient even had there been a notice on the door saying "Closed". The nine were permitted to have access and were there enjoying that access and it matters not that it might have been the case that further members of the public would not have been permitted access until the next morning. The access of the nine did not come to an end as they crossed the threshold. 7. There is another ground of appeal which, if it be valid, would dispose of the matter in favour at any rate of the first and second appellants. That is the submission that there is no sufficient evidence to establish that the chain said to have been found on the first appellant or the 8 ½-inch knife said to have been found on the second were, at the material time, offensive weapons. The argument upon this ground was to the effect that these weapons are not offensive per se so that the onus lay on the prosecution throughout to show that these two appellants carried the implements with the intention of using them to injure, and various English authorities to this effect were cited. These authorities are largely irrelevant for the reason that they are dealing with the definition of an offensive weapon as contained in the English Prevention of Crime Act 1953 which definition does not include objects "suitable for" inflicting injury to the person as does the definition in our Public Order Ordinance. 8. One has only to look at these implements, and I have examined them both on the bench and in my chambers, to appreciate that all three are suitable for inflicting injury to the person. As such they fall within the definition of offensive weapons and no question of mens rea arises. The weapons being offensive and the cafe a public place it was for the appellants to show, on the balance of probabilities, that they had lawful authority or reasonable excuse for their possession and this they made no attempt to prove - understandably since their defence was that they were never in possession but had the weapons planted upon them. 9. The foregoing is sufficient to dispose of the further ground of appeal that the learned magistrate misdirected himself in not considering whether the appellants had lawful or reasonable excuse, whatever their substantive defence was. It was not for the magistrate to invent lawful authority or reasonable excuse but for the appellants to show it upon a balance of probabilities, which they made no attempt to do. 10. It was contended on behalf of the third appellant that whereas the longer knife was said to have been found tucked in his waist band, there is no evidence that he was in fact wearing a belt to his trousers at the material time. The third appellant himself said that he was not wearing a belt and the first appellant said the same thing although, since the knife was said to have been covered by the jacket which the third appellant was wearing, it is difficult to appreciate just how the first appellant could have known of the existence or otherwise of a belt. The policeman who searched the third appellant described the knife as being in the left waist trouser band and inside the third appellant's clothes. When he was asked to demonstrate this witness apparently placed the knife inside his own belt for the magistrate's note read:
11. The learned magistrate dealt carefully with the evidence regarding the place where this long knife was said to have been found. He commented that although no leather belt was shown to be included in the prisoner's property of the third appellant, the trousers had not been produced, and added that a belt may be attached to trousers as, for example, a cloth belt sewn on to them. The magistrate did not consider that the evidence in regard to the lack of any separate belt was sufficient to give rise to reasonable doubt that the third appellant carried the knife; what the court had to consider, the magistrate commented, was whether the third appellant was searched and the knife found on his person and the presence or absence of any belt was insufficient to give rise to reasonable doubt upon that point. I see no reason to differ from that conclusion. 12. A further point taken upon the appeal was that the learned magistrate had misdirected himself in taking into consideration the verbal statements of the second and third appellants to the effect that they were preparing to fight with members of the 14K, since there was no evidence that these statements had been made in the presence of the first appellant. The statements, however, are completely irrelevant to the charges upon which the appellants were convicted. If the prosecution evidence was believed, they had been found with offensive weapons in a public place and, offering no lawful authority or reasonable excuse, that was the end of the matter. The purpose for which the weapons were carried was, in the absence of lawful authority or reasonable excuse, irrelevant, and there is no merit in this ground of appeal. The same remark applies to the complaint that the magistrate misdirected himself in letting into evidence the fact that a package containing offensive weapons was found under a different table in the cafe there being no evidence to connect the appellants with either possession or ownership of that package. Again this is an irrelevancy since it cannot affect the fact that if the prosecution evidence was thought to be true, the appellants had been found with offensive weapons in a public place and had failed to show lawful authority or reasonable excuse. 13. The remaining grounds of appeal consist of seven circumstances which, it is said, result in the conviction being unsatisfactory. I do not propose to set out the seven but I have considered them individually and collectively and can find no substance in the contention that by reason of those matters the conviction is unsatisfactory. 14. The police officers gave clear evidence as to the circumstances in which these weapons were found upon the three appellants. The defence was that the weapons were not so found but were planted upon the appellants at Shaukiwan Police. Station after the appellants had been beaten up at Chai Wan Police Post. The learned magistrate found that story unbelievable and was satisfied beyond reasonable doubt that the Crown had proved all the ingredients of the offences in each case. I can find no reason for interfering with the convictions and the appeals are dismissed. 15. There is an application to appeal against sentence out of time and it was urged upon me that the appellants might be caned instead of undergoing the sentence of detention in a training centre imposed upon the first two appellants and that of six months imprisonment imposed upon the third appellant. The reason for the difference in sentences was no doubt that the third appellant is the eldest and the weapon which he carried the most potentially lethal. No reason for the late application was advanced to me and it was not until, at the end of the submission, about caning, I asked that reason, that defence counsel said that the legal advisers "had not really appreciated" that offences against s.33 of the Public Order Ordinance were included in the schedule to the Corporal Punishment Ordinance so that caning could be awarded in respect of such offences. That explanation bears the imprint of the impromptu for it was unnecessary to resort to the contents of the schedule to the Corporal Punishment Ordinance. Caning is one of the alternative punishments laid down under s.33 of the Public Order Ordinance, the very section under which the appellants were charged and was staring the legal advisers in the face from the beginning. 16. No doubt the appellants would prefer to be caned, regarding that as the lesser punishment. So, similarly, a man sentenced to two years imprisonment would prefer to have been sentenced to twelve months but that would not be a good reason for interfering with a proper sentence. Likewise, in the present case, the appellants' preference for caning would not, if I were to grant leave to appeal against sentence out of time, be any reason for interfering with the perfectly proper sentences imposed by the learned magistrate. The application for leave to appeal against sentence out of time must be refused. Representation: B. Bernacchi, Q.C. and John Chau (K.C. Yung & Co.) for all appellants. R.V. Hanson, C.C. for respondent. |