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Yu Kiu-kwan v. The Queen

Case No.CACC 673/1976
Court
Court of Appeal
Date31 Jul 1976
Judge—
Case Document
100%

CACC000673/1976

IN THE SUPREME COURT  
   
  Criminal Appeal
  1976 No. 673

BETWEEN    
  YU Kiu-kwan Appellant
  and  
  THE QUEEN Respondent

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Coram: Pickering, Acting C. J.

Date of Judgment: 31st July, 1976.

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JUDGMENT

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1. The appellant was convicted of possession of an offensive weapon in a public place and sentenced to six months' imprisonment. Since this conviction resulted in breach of a probation order he was further sentenced to two terms of three months' concurrent imprisonment in respect of offences of taking a conveyance without authority and driving without third party insurance.

2. The weapon found in the possession of the appellant consisted of two lengths of metal rods each about eight inches in length and half an inch in diameter joined together by a piece of steel chain of approximately eight inches in length. It was conceded upon the appeal that the weapon was offensive per se.

3. The appellant's evidence was to the effect that he was a student of martial arts and that on the day of the alleged offence he had gone to his martial arts master's home with this weapon. He had showed the weapon to his master but his master had told him not to use it and to take it home; he was on the way home when he was intercepted by police officers. The appellant said that he himself made the instrument about four years ago at a time when such devices were very popular and "a lot of people played with this type of instrument". The appellant added that his master had told him on that day that a practitioner of Chinese Martial Arts used limbs and not implements.

4. The martial arts master gave evidence and confirmed that on that day the appellant had come to him for a lesson and had on that occasion produced the weapon. He said that he had told the appellant to throw it away as it was illegal and instructed him to take it home and not to play with it in the street. The appellant had left the master's home after his lesson, taking the weapon with him.

5. Possession being undisputed, the issue for the learned magistrate was whether or not there existed a reasonable excuse for possession in a public place. In his Statement of Findings the learned magistrate said that he was satisfied that the appellant must have been aware that the weapon was not a weapon used in the type of martial arts of which he was a student and that there was no justification for him to have taken the weapon to show to his master. Mr. Hindle, for the Crown, conceded that the learned magistrate had gone too far in referring to "justification".

6. A very relevant issue is whether the learned magistrate, in applying his mind to the carriage of the weapon from the appellant's home to that of his martial arts master, was considering the right moment of time. The charge was:

"YU Yiu-kwan, on the 25th day of April, 1976, in a public place outside Block 14, Pak Tin Estate, Kowloon, in this Colony, without lawful authority or reasonable excuse, had with him offensive weapons, namely, 2 metal rods joined by a chain."

7. The appellant lives at Pak Tin Estate and the at time of his apprehension had almost arrived home after having had his lesson in martial arts. It follows that the moment of time in respect of which he was charged related to his return journey and not to the outward journey.

8. In Allamby & Medford(1) the appellants travelled by car from Reading to Cornwall. The purpose of the journey was to visit Medford's girlfriend, to persuade her to return to him and a further purpose was to frighten her then boyfriend. On the return journey their car was stopped by a police officer and three knives were found in it, two of them domestic carving knives and the third a vegetable knife. The two were charged on indictment with being in possession of offensive weapons contrary to s.1(1) of the Prevention of Crime Act 1953 the terms of which are substantially the same as those of s.33(1) of the Public Order Ordinance under which the present appellant was charged. In that case the particulars alleged possession upon the return journey. It was held that in order to prove the appellants were guilty of the offence charged it was necessary to prove that at the time and place mentioned in the particulars, that is on the return journey, it was their intention to use the knives offensively at some time in the future; it was not sufficient to prove that they had had that intention at some time previously during the course of their double journey. The Recorder having misdirected the jury as to this, the appeals were allowed.

9. In the course of his judgment in that case James, L.J. said:

  "The Crown sought to support the conviction on the basis that the direction of the recorder was correct. Counsel argued that the Crown were not restricted by the particulars in the indictment in relation to 'time' and 'place' and could establish guilt by evidence relating to a different time and a different place, subject only to the limitation that such time and place were sufficiently proximate to the particulars of the offence charged. It was conceded, and the recorder directed the jury, that an article in relation to which there existed, at a particular time, the intention to use it for the purpose of causing personal injury would not necessarily retain for all time thereafter the character of an offensive weapon within the meaning of the statute.  
            The question whether an accused had at the relevant time and place the intention necessary to bring the article in his possession within the definition of an offensive weapon is a question of fact for the jury. The recorder rightly left that question to the jury in the present case. But proof of that intention must be related to the time and place of the offence charged. The intention in relation to such an article may change from time to time. The place in which the accused has the article with him may be a 'public place' at one time but not at another. 'Reasonable excuse' for having the article may exist at one time but be absent at another. 'Time' and 'place' are material elements in the particulars of this offence, and the issue of guilt has to be decided by the jury in respect of the offence as charged. In the present case it was open to the prosecution to frame the charge in such a way as to cover a period of time when the defendants were in Cornwall. They did not do so. They proceeded on the narrow basis of the particulars in the indictment. This being so it was open to counsel for the defendants to invite the jury to find that the domestic knives were not offensive weapons at the time charged because any intent to use them for causing personal injury which may have existed at an earlier point of time had been abandoned."  

10. There is contained in that passage considerable emphasis upon time and place and it is also there stated that reasonable excuse for having the article may exist at one time but be absent at another. It is also observed that proof of intention must be related to the time and place of the offence charged. There can be no question that a similar observation applies to reasonable excuse. In that case, the knives being ordinary domestic knives, it was necessary to prove the intention to use them for causing injury to the person. In the present case the weapon is an offensive weapon per se and the onus was upon the appellant to show a reasonable excuse for his possession of it but that reasonable excuse must have related, just as in the Allamby and Medford Case(1) to the time of his return journey for that is the time which was charged.

11. I would mention in parenthesis that in Allamby and Medford James, L.J., speaking of a flick knife which had also been found in the car, said that since that knife was an offensive weapon per se, if the jury found the fact to be that the defendants were jointly in possession of it, there was no defence to the charge. On the facts of that case that must have been so but it is important to realize that James, L.J. was not there saying that there can be no defence to possession in a public place of a weapon which is offensive per se. If, upon leaving my court, I find, on the desk in my chambers, a loaded pistol, that is an offensive weapon per se. If then I decide that I must hand it into the police and go down into Statue Square for the purpose of surrendering it at the police post there situated, I am, whilst in Statue Square, in possession of a per se offensive weapon in a public place but it could not be said that I had no reasonable excuse for my possession.

12. Applying the principles derived from Allamby and Medford to the facts of the present case the point of time with which we are concerned as to reasonable excuse, is the appellant's return journey and the learned magistrate was applying his mind to the wrong journey when saying that the appellant had no justification for taking the weapon to the home of his martial arts master. What was the appellant's situation in regard to his return journey? He had been instructed by his master to take the weapon home and throw it away and not to play with it in the street. He could hardly have left the implement where it was and at the time of his apprehension he was obeying the instruction of his master in that he was taking the weapon home out of harm's way. All intention of doing anything else at all with it, was spent. As in the Allamby and Medford Case it would have been open to the prosecution to frame the charge to cover the appellant's outward journey when it might well be that he could not successfully have pleaded reasonable excuse. What is charged, however, is the return journey and in all the circumstances it appears to me that in respect of that journey he had reasonable excuse for his possession. Accordingly the appeal against conviction is allowed, the conviction quashed and the sentences set aside.

Representation:

A. Liao (Hastings & Co.) for appellant.

Hindle, C.C., for respondent.

(1) 1974 3 A.E.R. 126.