HKSAR v. Wong Wun Mo

[English Translation – 英譯本]

HCMA 306/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 306 OF 2000

(ON APPEAL FROM WSCC NO. 1084 OF 2000)

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Before: Hon Chan CJHC in Court

Date of Hearing: 12 May 2000

Date of Judgment: 15 May 2000

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JUDGMENT

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1. The Appellant was convicted after trial at the Western Magistracy on one count of possessing an offensive weapon in a public place, contrary to section 33(1) of [the Public Order Ordinance,] Cap. 245, Laws of Hong Kong.  He was sentenced to imprisonment for 4 months. He now appeals against conviction.

2. There was little dispute on the facts presented by the prosecution. At about 8.15 p.m. on 15 November 1999, the Appellant was stopped and searched by two police officers near the junction of Hillier Street and Wing Lok Street, Sheung Wan. At that time, the Appellant was carrying a paper bag which contained sundry items and a black nylon bag. The sundry items included a few coins, the newspaper of that day, a publication, some supermarket gift vouchers, one “Mopiko” medicinal cream and a pen. The black nylon bag contained a knife normally used for camping purposes. It was approximately 12 inches long and was placed inside an 11-inch knife-holder. The police officer who stopped the Appellant said that when he was questioning the Appellant, the Appellant said that the knife was used for self-defence, and the police officer then arrested the Appellant.

3. The Appellant is aged 31 and has a clear record. He works as a petrol-filling assistant at a petrol-filling station in Admiralty. He used to reside with his parents at Fu Hong Court, Lok Fu, and moved to Kam Ping Street, North Point on or about 8 November 1999. He purchased the knife involved in the present case from a camping equipment store 10 odd days before the day of the offence, and the knife had all along been kept at his parents’ residence. He had used the knife at his residence for many times. On the day of the offence, he left his workplace at 7 p.m. and wandered aimlessly to Causeway Bay, and then took the MTR to Sheung Wan. He intended to walk around in Sheung Wan and then return to his residence in North Point. He purchased the sundry items in his paper bag one to two days ago, and the knife he had purchased from the camping equipment store was also put inside that bag. He said he was carrying the knife with him as he intended to take it back to his home in North Point. He also said that he had purchased the knife for about $600, that the knife could be used for self-defence or as a tool, and that he mainly used it at home but would also use it for camping purposes if such a need arose. When asked why the knife was placed in the bag, the Appellant said he took it from his parents’ residence and “took it to my workplace, and after work [I plan to] take it to the room that I recently rented”.

4. In his Statement of Findings of Fact, the magistrate stated the prosecution’s case and the explanation given by the Appellant in court, and then stated that “I do not accept the Appellant’s explanation. On 3 March I passed my verdict and gave reasons therefor (see pages 6 and 7 of the transcript of the recording of trial).”

5. According to the transcript, the giving of testimony and making of submissions were completed on 25 February, whereupon the magistrate adjourned the case to 3 March for verdict. On 3 March, the magistrate verbally convicted the Appellant and explained why he did not believe the Appellant’s explanation.

6. The first ground of appeal put forward by Mr Kwok, Counsel for the Appellant, is that the magistrate misunderstood the burden of proof upon the Appellant. In the present case, the facts were by and large undisputed, and the key issue was whether the Appellant had a reasonable excuse for possessing the knife in question. In this connection, the Appellant certainly bore the burden of proof, and the standard of proof was a balance of probabilities. Neither in the Statement of Findings of Fact nor in the verbal reasons for verdict had the magistrate made mention of the standard of proof. However, when Counsel for both parties were making closing submissions, the magistrate pointed out to them:

According to what is said, if his explanation is felt to be unlikely, that is not probable, and not acceptable, then he is to be convicted. Is that correct?

7. Counsel for the Appellant submits that, according to the decided cases, which include R v. Ho Ping Shung [1987] 1 HKC 93, R v. Chan Siu Man Cr App 154 of 1983 and R v. Law Chi Keung Cr App 90 and 290 of 1983, the judge should adopt the long-standing terms such as “on a balance of probabilities” or “more likely than not” and should not merely use “likely or probable”. Accordingly, Counsel submits that the magistrate in the present case had misunderstood the standard of proof. In reply, Ms Lai for the prosecution submits that, as the magistrate possessed professional knowledge and the present case did not involve a trial by jury, the appellate court should assume that the magistrate knew and understood that the standard of proof of a defendant in criminal proceedings was merely “a balance of probabilities”, and therefore he cannot be said to have erred even though he made no mention of that point in his judgment.

8. I agree that the magistrate cannot be said to have erred by failing to mention in the Statement of Findings of Fact or reasons for verdict the standard of proof required of the Appellant, because the court assumes that the magistrate, being a professional, would possess the requisite legal knowledge and apply the appropriate standard of proof in normal circumstances. In the present case, however, although the magistrate made no mention of the standard of proof in the Statement of Findings of Fact or reasons for verdict, he did say “… felt to be unlikely, that is not probable” when Counsel were making submissions. Such a statement does not seem to be entirely correct and makes one wonder what standard of proof he used in arriving at his verdict.

9. The Appellant’s second ground of appeal is that the magistrate failed to thoroughly direct himself on the Appellant’s clear record. On the judicial authorities, the fact that the Appellant had a clear record should have worked in his favour when it came to his credibility and propensity to commit the offence in question. However, neither in the Statement of Findings of Fact nor in the reasons for verdict had the magistrate mentioned that the Appellant was of good character and clear record. It was only after he convicted the Appellant and the prosecutor pointed out, in line with the usual practice, that the Appellant was a first offender that the magistrate said that he was aware of and had taken into account the Appellant’s clear record in considering the case and that he had asked questions at trial in respect of Counsel’s submission on the Appellant’s clear record. This indicates, Counsel for the prosecution argues, that the magistrate had not neglected the Appellant’s clear record. On the other hand, Counsel for the Appellant says that the magistrate might have reacted in the way he did because he had not considered the Appellant’s clear record in arriving at the verdict.

10. In HKSAR v. Wong Wai Yee Mag App 840 of 1997, Deputy Judge Lugar-Mawson stated the following: if a magistrate made no mention in his verdict of a defendant’s good character, then unless the transcript shows that he has misdirected himself, an appellate court will assume that he did properly direct himself on the defendant’s clear record. In ordinary circumstances, it can be assumed that the magistrate, as a legal professional, would have reminded himself that the defendant’s clear record worked in his favour. However, in cases where a defendant’s evidence and his integrity are central issues, then his good character can have a significant effect on whether the court should accept his evidence. Generally speaking, therefore, the magistrate should make mention of the defendant’s good character in the Statement of Findings or Reasons for Verdict, otherwise doubts will arise as to whether he has neglected this point. This is particularly so in the present case, where the verdict was passed after an adjournment and therefore would have not been arrived at hastily. In my view, what the magistrate said following his verdict of guilty against the Appellant was indeed problematic.

11. The third ground of appeal raised on behalf of the Appellant is that the magistrate should not in his verdict have made the conjectural statement that the Appellant “went from his new home in North Point to Lok Fu before work in order to take the knife back”. Counsel contends that there must be some factual basis for casting doubts about the credibility of the Appellant’s evidence, and throughout the trial the Appellant had never said that on the morning of the day of the offence he went from his home in North Point to his parents’ residence in Lok Fu to take the knife and then went to Admiralty to work with the intention of taking the knife back to his home in North Point after work.

12. During cross-examination, the prosecutor asked the Appellant the following:

“Q: That means you say [the knife] can be used both for self-defence and as a tool, and then on that day you could take the knife from your home in Lok Fu to your workplace and then return to your residence in North Point after work, although during this period you had also been to Admiralty, Causeway Bay and Sheung Wan, is that correct?

A: (no audible answer)

Q: Answer my question, don’t just nod your head. A nod can’t be recorded. Right?

Court: No, Miss Tang, as I understand it, his evidence is that he took the knife from where he now lives – Lok Fu to his workplace, and after work he intended to take the knife to the place he has rented in North Point.

Miss Tang: Yes.”

13. On page 22 of the transcript, the magistrate is recorded to have said the following:

Last time I also mentioned certain matters with which I am a bit concerned. For example, it sounds interesting that Mr Wong works in Wanchai and lives in North Point, but the knife was in Lok Fu. And according to what you now say, you had to work on that day, and it is not known why you went to Lok Fu and took the knife before going to work, and then you went to Wanchai to work, and then you intended to take the knife back to North Point. As I said, this appeared to be a bit strange, and you have not explained why you had to do this, namely to go from your new home in North Point to Lok Fu, and then from Lok Fu to Wanchai to work, with the intention of taking the knife back to North Point. I have also mentioned that, according to Mr Wong, the following day would be a holiday, and on the day of the offence Mr Wong seemed to have nothing to do after work because you said you wandered aimlessly in Causeway Bay and, seeing too many people, took the MTR to the terminal, and then intended to eat something etc. This does not sound readily acceptable. Why did you go to Lok Fu early in the morning to take the knife back before you went to work?”

14. It appears from the above passage that it was upon the following “facts” that the magistrate considered the Appellant’s evidence not readily acceptable:

1     The Appellant worked in Wanchai and lived in North Point, but the knife was in Lok Fu.

2     On the day in question, the Appellant went from North Point to his parents’ residence in Lok Fu to take the knife, and then went to Wanchai to work, and finally intended to take the knife back to his own residence in North Point.

15. There is in my view nothing unusual about the first fact. As for the second fact, the Appellant’s acts at the material time of aimlessly walking to Causeway Bay and then taking the MTR to Sheung Wan were in the magistrate’s judgment not easily acceptable. The magistrate also doubted why the Appellant went to his parents’ residence in Lok Fu to take the knife early in the morning before he went to work. However, the magistrate then immediately pointed out that the Appellant did not expressly say that he went to take the knife that morning before he went to work. But then the magistrate said that, if it was the Appellant’s case that he had taken the knife one or two days or a few days before the day of the offence, then this was even more difficult to accept. The reason was that, having taken the knife in Lok Fu, why did the Appellant not take it back to his home in North Point but instead kept it at the petrol-filling station where he worked? The magistrate said that the case most favourable to the Appellant would be that on the day of the offence he went from North Point to Lok Fu to take the knife before he went to work, but even this would be difficult to accept. The magistrate further raised the question that, given the sundry items in the Appellant’s paper bag were not purchased on the day of the offence, why did the Appellant leave them at his workplace and then “walk about the streets” with them instead of taking them back to his place in North Point at an earlier time? For these reasons, the magistrate said he was unable to accept the Appellant’s explanation and concluded that the Appellant did not have lawful authority or reasonable excuse for possessing the knife, and in the end convicted him of the offence.

16. It can be seen from the Appellant’s evidence that he had never said that on the day of the offence he went from his residence in North Point to his parents’ residence in Lok Fu to take the knife before he went to work. On his evidence, all that can be said is: the knife had originally been kept in his parents’ residence in Lok Fu; he had taken it to his workplace, although it is not clear when he did that; on the day of the offence, he intended to take the knife back to his place in North Point after work, but as the following day was a holiday, he wandered aimlessly to Causeway Bay after work and then went to Sheung Wan, and finally he intended to return to his place in North Point, and on the way he was stopped and arrested by the police. Accordingly, there was neither evidence nor factual basis to support the magistrate’s inferences. He said in his verdict that such inferences were the most favourable to the Appellant, but in my view this may not be true.

17. It may well be that the Appellant had previously taken the knife from his parents’ residence in Lok Fu to his workplace, and that he was looking for a suitable opportunity to take it back to his home in North Point. The magistrate doubted why the Appellant did not take it back to his home in North Point as early as possible. However, I see nothing unusual for someone to put sundry items at his workplace and take them back home at a later time. Furthermore, given the day following the day of the offence was a holiday, it was perfectly normal for the Appellant to wander along the streets aimlessly after work and then take home the knife and the sundry items that he purchased one or two days ago. I am not saying that the magistrate was bound to consider the Appellant’s evidence from this perspective, but had he considered this point, he might not have raised the doubt that he had. With respect, I am unable to agree with the reasons that the magistrate gave in his judgment for doubting the Appellant’s evidence and saying that his evidence was not readily acceptable. I cannot rule out the possibility that the magistrate did not have a thorough understanding of the Appellant’s evidence at trial.

18. For the reasons put forward by Counsel for the Appellant, and viewing the case as a whole, it is doubtful whether the magistrate had a complete grasp of the circumstances of the case, the standard of proof and the Appellant’s clear record, and the Appellant’s guilt was therefore open to question. As doubts are to be resolved in the Appellant’s favour, I consider his conviction unsafe and unsatisfactory. I therefore allow the appeal, quash the conviction and order that the Appellant be acquitted.

Mr Eric Kwok, instructed by Leo Lok & Co, for the Applicant.

Ms Anna Lai, Senior Government Counsel, for the Respondent.

Translated by Mr. Edmund Cham, Solicitor