HKSAR v. Lai Yiu Kuen Dominic

HCMA 918/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 918 OF 2008

(ON APPEAL FROM ESCC 4689/2007)

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  20 January 2009

Date of Judgment:  20 January 2009

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J U D G M E N T

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1.This is an appeal against conviction.  The appellant was convicted of one charge of possession of a prohibited weapon contrary to section 4 of the Weapons Ordinance Cap.217. 

2.The prosecution's case was admitted under section 65C of the Criminal Procedure Ordinance.  Briefly, it was that police were summoned to the Craigengower Cricket Club and in the appellant's vest pocket was found a knuckle duster.  Under caution, the appellant said it was a paperweight.  It was not disputed that the knuckle duster is a prohibited weapon under the ordinance.

3.The appellant gave evidence and he said that he bought the knuckle duster from a shop selling exquisite objects.  He produced a sales memo for that purchase.  It was Exhibit D2.  In that invoice were mentioned two items, a table display and a paperweight.  The appellant maintained that the paperweight referred to was the knuckleduster that the police had found in his vest pocket.  The appellant said that the shop proprietor had told him that it was a heavy duty paperweight.  He said that he felt the paperweight was a good match for the penholder he had bought at the same time which was referred to in Exhibit D2 as "table display", and the paperweight was suitable for use on the books he had at the time which were made from yoo coo paper. 

4.The appellant said he had never heard of knuckledusters or iron lotus.  The appellant said that on the night before his arrest he had worn the vest whilst studying and fell asleep on the desk, and somehow during the night the paperweight had fallen into his vest pocket without him knowing.  In fact, the vest was a bullet-proof vest which he wore to the club the following morning as he had intended to shoot trees with his air pistol and the vest would protect him from rebounding bullets. 

5.The air pistol was in his possession at the time and the reason the police had been summoned was that it had fallen from his bullet-proof vest and a fellow club member had seen that and thought it wise to call the police.

6.This all happened back in 2005.  The case has been twice in the Magistrates' Court.  It has been here once on appeal.  There has been debate about the law, who has burdens where, and whether there is a common law defence to this charge and the like.  I will come to that later. 

7.The magistrate in this instant appeal said that whatever the state of the law was, and even if the prosecution had the burden of proving full mens rea he would have found that the prosecution had proved beyond reasonable doubt that the defendant knew the nature of the object was a weapon and a knuckleduster.  That finding of fact on the evidence, in my judgment, was inevitable. 

8.The appellant is a solicitor of some 26 years' practice.  He has practised in crime even though he says that he has not dealt with a knuckleduster case and that he had been engaged with white collar crime.  But the fact that he is a lawyer is irrelevant.  The relevance of this evidence is that he is an educated, grown-up man of sound mind, and the idea that someone like that can say, "I've never heard of a knuckleduster and when I picked up this object I hadn't appreciated that it was a knuckleduster.", I find to be wholly incredible, as did the magistrate.  This is, in fact, a re-hearing - I am not bound by the magistrate's view of the facts - but my view is identical to his. 

9.Not only that:  look at the circumstances where the appellant was found in possession.  He had an air pistol with him and he was wearing an object which is before me now on my bench which is, in effect, like a flak jacket or bullet-proof vest.  The idea that with those other kindred objects he then thought of the knuckleduster as a paperweight is an assertion that I find to be wholly unrealistic and untrue.  I proceed on the same basis that the magistrate did, that the explanation put forward was an untruthful one. 

10.On the facts the evidence is overwhelming and the conviction is a good one.

11.Let me just turn briefly to the law.  When the case was up here on appeal last time the learned judge on that occasion held it to be an offence of strict liability but found that there would be a defence which was characterised as being one of a reasonable belief in, one supposes, the facts being as the appellant asserted.  It is with great respect that I take a different view.  All one ever had to do in this case was look at the words of the ordinance.  The legislature made it a crime to possess a weapon of this nature.  Possession is a well-known criminal concept and in order to prove that someone is in possession of an object the prosecution have to demonstrate for sure that the defendant appreciated the general nature of the object.  It is the standard direction that is heard in these courts day after day in drug cases.  Thus, if it was the case that the defendant genuinely believed or may have genuinely believed that he only ever possessed a paperweight, he would not be guilty of possessing this prohibited weapon - my view of the law is as simple as that - and the burden would be on the prosecution to satisfy the court that that was the case.  That is my view of the law though I put it forward with some diffidence because so much time and effort has been spent perhaps seeking to say otherwise. 

12.The result though is that this was an overwhelming case and the appeal has absolutely no merit and is dismissed.

(Submissions on costs)

13.The defence and the appeal were wholly without merit.  I shall order the appellant to pay the costs here and below to be taxed if not agreed.  I make it clear when I say "here and below" that is this appeal and the second trial in the Magistrates' Court.  I make no orders in relation to the first trial and the appeal that followed from that. 

Ms Agnes Chan, Senior Public Prosecutor of the Department of Justice, for the Respondent

Mr Paul K N Wu, instructed by T.C. Lau & Co., for the Appellant