Attorney General v. Chan Fuk-hing
Read the full judgment text of CACC 819/1979 on BabelCite. This Court of Appeal judgment was delivered on 20 September 1979.
1. This is a case stated by Mr. Lau, the magistrate at Tsuen Wan, under section 105 of the Magistrates Ordinance, Cap. 227.
Cited by 1 case
|
CACC000819/1979
----------------- Coram: Roberts, C.J. Date of Judgment: 20 September 1979 ----------------- JUDGMENT ----------------- 1. This is a case stated by Mr. Lau, the magistrate at Tsuen Wan, under section 105 of the Magistrates Ordinance, Cap. 227. 2. The respondent CHAN Fuk-hing was charged in the magistrate's court at Tsuen Wan on 16th March of this year with possession of an offensive weapon in a public place, contrary to section 33(1) of the Public Order Ordinance, Cap. 245. Facts. 3. The facts found by the magistrate were as follows. That at about 10 o'clock in the evening of 17th February, in a public place outside the Tsuen Hing Restaurant in Tsuen Wan, the respondent was found by police officers to be in possession of a melon knife, about fourteen inches long, wrapped in newspaper and tucked into his waist band. When the respondent was approached by police officers, he told the first prosecution witness that he had the knife because he was afraid of being beaten up. 4. The magistrate ruled that there was a case to answer and the respondent gave evidence, denied that he had told the police officer what the police officer alleged had been said to him, and asserted that he had been asked by a fruit hawker named TO Kwai-ling to bring the knife to him. TO Kwai-ling was not available so the respondent started to go home carrying the knife with him. 5. The magistrate at the conclusion of the evidence for the defence ruled that the prosecution had failed to establish its case beyond reasonable doubt and acquitted the respondent. Burden of proof under section 33. 6. Before turning to the various questions posed by the magistrate with regard to offensive weapons, I will deal with that part of the case stated which refers to the burden of proof. 7. At para. 6 of the case stated the magistrate says that, in order to succeed, the prosecution must prove three essential ingredients:
The magistrate adds that each ingredient must be proved and that failing proof of any one of them he would have to acquit. 8. Section 33(1) of the Public Order Ordinance reads as follows:
9. Neither that section, nor the Public Order Ordinance, has any provision as to where the burden of proof in the establishment of lawful authority or reasonable excuse lies. 10. There is, however, a general provision in section 94A of the Criminal Procedure Ordinance (Cap. 221) dealing with negative averments. This section (which, by subsection (3) thereof, is specifically made applicable to proceedings in the District Court and the Magistrate's Court as well as to proceedings in the High Court) places the burden of establishing a negative averment on the person seeking to avail himself of it. By section 94A(4), it is for the defendant to establish lawful authority or reasonable excuse under any provision of the law, including, of course, section 33 of the Public Order Ordinance. 11. To that extent, therefore, the magistrate has misdirected himself as to where the burden of proof lies in a prosecution under section 33. Definition of "offensive weapon". 12. The magistrate found that the melon knife was not an offensive weapon within the meaning of the Public Order Ordinance. He based his finding upon a passage in Archbold, dealing with the definition of an offensive weapon for the purposes of the English Prevention of Crimes Act, 1953. Section 1 of that Act makes it an offence for a person to have with him in a public place any offensive weapon. "Offensive weapon" is defined by section 1(4) of that Act as "any article made or adapted for use for causing injury to the person or intended by the person having it with him for such use by him". 13. The English cases draw a distinction between what are called "offensive weapons per se", i.e. those are made or adapted for causing injury, and other articles. In the case of an offensive weapon per se, the prosecution is not required to prove that the defendant had it with him with the intention of using it to cause injury. But if the article is not made or adapted for such use, the prosecution must show that the defendant carried it with him with the intention of using it to injure. 14. In the unreported Hong Kong case of Attorney General v. HUI Kwok-keung(1) Pickering, J. expressed the view, with which I agree, that the distinction in England between weapons offensive per so, like knuckle-dusters or daggers, and offensive weapons not made or adapted for the specific purpose of offence, e.g. a knife or spanner, does not obtain in Hong Kong by virtue of the inclusion in the Hong Kong definition of offensive weapon of an article which is suitable for causing injury to the person. 15. The burden of showing that an article is being carried by a defendant with the intention of using it to injure only arises in Hong Kong if the prosecution has not established that the article was made, or adapted for use, or suitable, for causing injury to the person. Meaning of "suitable". 16. What then does the phrase "or suitable" mean? I think it is clear that it must be interpreted more narrowly than "capable of". I have been referred by counsel for the Crown to the Hong Kong case of LOK Chi-wai v. Reg.(2). I quote from a passage in Huggins, J.'s judgment:
It seems to me that the definition suggested in that case, and given approval by Huggins, J. is a useful guide to magistrates. It is, of course, for the magistrate, as a matter of fact, in each case, to look at the particular article concerned, and decide whether or not it "can readily and effectively be used to cause injury" and so fall within the definition of an "offensive weapon". 17. In the case from which I have just quoted, the judge was of the opinion that an ordinary fruit or vegetable knife, with a blade three and a half inches long, was an article suitable for causing injury to the person. 18. I have no doubt that, had the magistrate directed himself correctly, he must have come to the conclusion that a melon knife of the kind exhibited here, with a blade eleven and a half inches long, is an article which is suitable for causing injury to the person. Answer to questions. 19. I turn to the four questions which are posed by the magistrate in his case stated:
to which the answer is "No".
the answer is "No".
the answer is "No".
the answer is "No". Conclusion. 20. It remains for me to consider what course should be taken under section 119(d) of the Magistrates Ordinance. 21. The respondent first appeared in court in Tsuen Wan on 20th February. He was remanded in custody on two occasions, from 20th to 28th February. He was then released on bail until the trial on 16th March. At the end of his trial on that day he was acquitted. On the application of the Crown the magistrate reviewed his decision on 3rd May, and delivered his reasons for refusing to reverse his former verdict on 10th May. This matter has come before me by way of case stated four months later. 22. It appears from what the respondent says, and from the certificates that he has produced today, that he has been in steady employment throughout this period. The matter has been hanging over him for seven months. He has had a short taste of prison. I have, therefore, decided that, I will only remit the matter with my opinion thereon to the magistrate, and will not send it back for re-trial. Representation: Plowman and P. Chan for crown/appellant Respondent in person (1) Crim. App. 1973 No. 863 (2) 1973 H.K.L.R. 577 |
Other judgments that cite this case