Au Wing-wai and Others v. The Queen
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CACC000724/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 724 OF 1973 -----------------
----------------- Coram: Pickering J. Date of Judgment: 26 October 1973 ----------------- JUDGMENT ----------------- 1. The four appellants, who, at the date of their convictions were respectively 17, 16, 15 and 14 years old, were charged with unlawful assembly and possession of offensive weapons in a public place and were convicted of these offences. In addition, the first, second and third appellants were charged with being members of a triad society but were acquitted upon that charge. With the exception of the first appellant who was in breach of bond, all appellants had a clear record. The first, second and third appellants were sentenced to detention in a detention centre whilst the fourth and youngest appellant was sentenced on each of the two charges, upon which he was convicted, to six months imprisonment, those terms to be served concurrently. All appellants appeal against both conviction and sentence. 2. The facts as elicited in the prosecution evidence were that the police had received information that a gang fight was to take place outside the Fuk Tak Chi Temple, Aldrich Village; that at about 9:10 p.m. on the 7th of February this year five police constables under the charge of a sergeant went to that site and approached the temple in two equal groups by means of two flights of steps leading up to the temple. Whilst the detective sergeant did not give evidence, each of the five police constables referred to having seen, on the curved slope in front of the temple at the top of the steps, a group of a minimum of ten odd persons, the description going through "ten odd to twenty odd" to "about twenty odd". According to the police evidence some of these persons were holding weapons and when one of the police constables shouted out that they were policemen the group dispersed in all directions, some going down the hill and some up it. Each of the police constables testified to arresting one or other of the appellants with a weapon in his hand and each appellant subsequently made a statement admitting that he was there for the purpose of joining in a pitched fight and that he was armed for that purpose. Of the five original accused only the third has not appealed. 3. There was a conflict of evidence as between the five police officers who took statements from the five accused, and the accused themselves. That conflict concerned the date and time and the circumstances under which the statements had been taken. In addition two of the appellants testified to having been assaulted, not by the detectives who took the statements but by uniformed police officers in whose custody they were for a time. These assaults are said to have taken place in the presence of the two appellants who make no complaint of assault but it is urged that even these two, having witnessed the assaults upon the two others, would have been, at the time they made their statements, apprehensive of similar treatment if they did not confess. The numbers of two of the uniformed officers said to have been concerned, were given in evidence but they were not called as witnesses nor was any evidence adduced to the effect that they were not on duty at the place alleged at that time. In the face of specific allegations of assault prior to the taking of the statements these officers undoubtedly should have been called. 4. However this whole ground of appeal which complains of the admission of the statements and the alleged failure of the magistrate properly to evaluate all the evidence concerning the taking of the statements, is sterile for the reason that the Crown did not have to rely upon the statements. There was ample eye-witness evidence from the arresting officers which, if believed, must inevitably, of itself, have led to conviction. 5. Mr. Downey contended that if there was some suspicion that the statements had not been taken on the date and in the circumstances alleged by the police, and that each of the officers taking a statement had assured the appellant concerned that if he made a statement there would be no trouble for him, thereby possibly inducing the belief that the converse was true, the eye-witness evidence of these same officers should also have been regarded with grave suspicion so that the convictions were unsafe and unsatisfactory and should not be allowed to stand. This was a painstaking argument plausibly presented, but it asks this Court to go very far on a question of fact and to ignore or minimise the very real advantage a court of trial has over an appellate court in seeing and hearing the witnesses. In this case the learned magistrate had the evidence of ten eye-witnesses. The suggestion put forward is that the police seized the appellants and the third accused in the court below, then found weapons nearby, and then charged the accused with possession of these weapons and perjured themselves in regard to that possession. That all five police officers should be so venal or have so deep an interest in charging five innocent youngsters is unlikely in the extreme. On the other hand that the appellants should deny the presence of a fairly large group and deny possession of the weapons was predictable, even inevitable, once they had pleaded, despite statements which they had made, whether admissible or inadmissible, "not guilty". The learned magistrate had ample eye-witness evidence upon which he was entitled to convict and this Court would not be justified in interfering with the convictions the appeals against which are dismissed. 6. On the question of sentence Mr. Downey invited me to set aside the sentences imposed and to bind the appellants over, arguing that whilst the statutory power to bind over could not, by virtue of the provisions of s.33 of the Public Order Ordinance, (Cap. 245) be employed, the common law power to bind over and that conferred by the Justices of the Peace Act 1361, a statute of Edward III, could be so utilised. The case of CHUNG Kam-hung(1) was authority for the proposition that the magistrates in Hong Kong have power to bind over both under the common law of England and under the Statute of Edward III. The prohibition, counsel contended, against binding over or placing on probation, contained in s.33(3) of the Public Order Ordinance (Cap. 245) refers to Hong Kong statutory powers in that regard and not powers under the common law or under the Statute of Edward III. It had thus been open to the learned magistrate to bind the appellants over. 7. Attractive as this argument is, I do not think that it can succeed. The statutory power to bind over contained in s.36 of the Magistrates Ordinance (Cap. 227) has been specifically excluded by s.33(3) of the Public Order Ordinance (Cap. 245). It is this power which is commonly used in Magistrates' Courts for the purpose of binding over and not the common law power or the power under the Statute of Edward III. The purpose and intent of s.33 of the Public Order Ordinance is clear, namely that persons who, without lawful authority or reasonable excuse, are in possession of offensive weapons in public places, shall suffer either custodial sentences or corporal punishment. That purpose and intent was underlined when the loopholes existing in s.36 of the Magistrates Ordinance, s.11(2) of the Juvenile Offenders' Ordinance and s.3 of the Probation of Offenders Ordinance were closed. To hold that the old English powers of binding over remain available on the ground that these powers, not customarily used in Hong Kong, have not been specifically abrogated and that expressio unius est exclusio alterius would, I consider, be to fly in the face of the intention of the Legislature - the more so since s.19 of the Interpretation & General Clauses Ordinance (Cap. 1) reads:
8. This ingenious argument, aimed at finding a further loophole in the mandatory provisions of s.33, therefore fails. 9. Before concluding, I must refer to a tragic feature of this case which harshly spotlights what I can only describe as an unjust consequence of the law relating to mandatory minimum sentences for possession of offensive weapons in a public place, as that law now stands. I do so in the hope that a small amendment to the law will be made which will alleviate the situation of any youngster who may, in the future, find himself in the position in which the 4th appellant now stands. 10. That this boy of 14 should be serving a sentence of six months imprisonment is shocking enough. That the proximate cause of his imprisonment is not his offence, but that the magistrate fell ill during the course of his trial, revolts the civilised mind. 11. At the date of his offence this boy was 13. But for the sudden illness of the magistrate, his trial would have concluded on April 24th of this year. As a result of the magistrate's illness and hospitalisation, the case had to be adjourned. In the result, by the time the case was in fact concluded and the boy convicted, he was 14. Had the trial finished on April 24th, as it would have done but for the magistrate's illness, the boy could not have been sent to prison. He would have been dealt with under the Juvenile Offenders Ordinance or the magistrate could have put him on probation or given him an absolute or conditional discharge. These courses are provided for by s.33 of the Public Order Ordinance but only where the youngster is under the age of 14 at the date of conviction. If he is 14 and under the age of 17 at the date of conviction, the only courses available to the court are:-
12. The other four boys tried with the fourth appellant were sentenced to detention in a detention centre. The fourth appellant was said to be medically unfit for a detention centre; that fact ruled him out for detention in a training centre by reason of s.33(b)(iv); being medically unsuitable for a detention centre, he was medically unsuitable for corporal punishment. That left a sentence of six months imprisonment as the only avenue open to the learned magistrate, a sentence which he reluctantly imposed. 13. Thus the proximate cause of this 14-year-old boy's imprisonment was the illness of the magistrate. It is a situation which, I suggest, should not be allowed to recur. It could be avoided by a simple amendment to the legislation. Section 33 of the Public Order Ordinance (Cap. 245) reads, in part:-
14. It is to be observed that the age-limit specified in each sub-subsection of subsection (2) is related, by virtue of the opening words of the subsection, to the date of conviction. Were it related to the date of the commission of the offence, which would, quite apart from the circumstances of this case appear to be more logical, the pit which opened beneath this very young appellant's feet, through no fault of his own, would have remained closed. Representation: Downey (Gordon Hampton & Winter) assigned for all appellants. Hanson, C.C., for respondent. (1) 1961 H.K.L.R. 290. |