Read the full judgment text of CACC 000724/1973 on BabelCite. This Court of Appeal judgment was delivered on 26 October 1973 before Pickering J..
Criminal law – unlawful assembly – possession of offensive weapons in a public place – four young appellants aged 14 to 17 at conviction – police received information of planned gang fight outside Fuk Tak Chi Temple, Aldrich Village – group of 10 to 20 persons, some armed, dispersed when police announced their presence – each appellant arrested with weapon in hand – whether convictions unsafe because allegedly tainted by irregularities in taking of statements and by failure to call uniformed officers alleged to have assaulted appellants before statements were taken – held, convictions safe: ample direct eye-witness identification evidence from arresting officers independent of the statements, and trial court had advantage over appellate court in assessing credibility – Sentencing – Public Order Ordinance (Cap. 245) s.33 – mandatory minimum sentence regime for possession of offensive weapons in a public place – whether magistrate retained common law or statutory power under Justices of the Peace Act 1361 to bind over rather than impose custodial sentence – held, no: purpose and intent of s.33 that offenders suffer custodial sentence or corporal punishment, with loopholes in s.36 of the Magistrates Ordinance (Cap. 227), s.11(2) of the Juvenile Offenders' Ordinance and s.3 of the Probation of Offenders Ordinance having been closed – expressio unius est exclusio alterius argument rejected in light of s.19 of the Interpretation & General Clauses Ordinance (Cap. 1) requiring liberal construction to ensure legislative object – CHUNG Kam-hung 1961 H.K.L.R. 290 distinguished – Consequences of mandatory minimum – 4th appellant aged 13 at date of offence but 14 at date of conviction because presiding magistrate fell ill and trial was adjourned – s.33(2)(a) regime for under-14s no longer available; 4th appellant medically unfit for detention centre, training centre and corporal punishment, leaving only six months' imprisonment under s.33(2)(b)(i) – court urged legislative amendment so that age threshold in s.33(2) refers to date of commission of offence rather than date of conviction – appeals against conviction and sentence dismissed – 1st to 3rd appellants sentenced to detention in a detention centre – 4th appellant sentenced to six months' imprisonment on each of two charges to be served concurrently.
Legal issues: Whether common law and Justices of the Peace Act 1361 powers to bind over remain available for s.33 Public Order Ordinance offences · Whether convictions were unsafe due to alleged improprieties in the taking of confessional statements
Outcome: Appeals against both conviction and sentence dismissed. 1st, 2nd and 3rd appellants' sentences of detention in a detention centre upheld. 4th appellant's sentence of six months' imprisonment on each of two charges, to be served concurrently, upheld.