Leung Man Wai v. The Queen
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CACC000842/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 842 OF 1973 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 30th November 1973 ----------------- JUDGMENT ----------------- 1. The appellant was charged with possession of an offensive weapon in a public place contrary to s.33 of the Public Order Ordinance. 2. It was the case for the Crown that he was seen in Nam On Street trying to sell a jade bangle to the proprietor of a jade store. This aroused the suspicion of the only witness for the prosecution who was an off-duty policeman. He intercepted the defendant, inquired about the origin of the bangle and received inconsistent answers. According to the Crown's case he thereupon searched the defendant and a fruit knife with a blade of about 8 inches in length was found in the appellant's left trouser pocket wrapped in a small towel. On being asked why he had such a knife, the appellant claimed that it was not his. He attempted to run away but was subdued and, after half an hour police transportation arrived and he was taken to the police station. Inquiries at a jade and precious stone stall in Central, at which the appellant claimed to have bought the bangle, failed to elicit its origin. 3. The appellant's case was that after failing to sell the bangle at the Nam On Street stall he walked across that street and, that whilst he was looking at the stills displayed outside a picture theatre, a man, who was not the Crown witness, came up to him with the Crown witness and the two pushed him into a side lane where they searched him but found no knife upon him. The appellant claims that he was then questioned for two hours in that side lane and that after that the two men beat him up as a result of which he received an injury to his eye. The Crown witness, he says, then telephoned the police station for a police vehicle whilst the other man kept watch on him, and he was taken to the police station where the knife and towel were planted upon him. It was the appellant's case that he had never had the knife at any previous time. 4. Mr. Winter, for the appellant, raised several grounds of appeal the first of which related to discrepancies in the evidence of the Crown witness. He referred to discrepancies in such evidence as to the explanations given by the appellant as to how he came by the jade bangle; to discrepancies as to the stage at which the conversation with the appellant about the origin of the jade bangle took place; and as to the place, that is to say on which side of Nam On Street that conversation took place; and as to whether the appellant walked or ran across Nam On Street after having failed to sell the jade bangle. 5. It was Mr. Winter's contention that these discrepancies should have alerted the learned magistrate to be much more suspicious of the Crown's story and in particular to have treated with suspicion the suggestion that the Crown witness and the appellant had waited half an hour in the street for police transport rather than getting a taxi back to the police station. Also suspicious, it was suggested, was the evidence of the Crown witness that, following his return to the police station with the appellant, he visited a stall in Central District, accompanied by the appellant, in an effort to see whether or not the jade bangle had been purchased at that stall. 6. These, however, are all peripheral matters to the question of whether or not a knife was found on the appellant in the street. The examination-in-chief was brief, possibly, as Mr. Niamatullah for the Crown has suggested, too brief and the discrepancies emerged in a much more lengthy cross-examination. It is to be borne in mind also that the witness was talking of events which had taken place three months previously and in my view these peripheral matters are just that - peripheral - and do not go to the substance of the charge. 7. It was Mr. Winter's further contention that the learned magistrate erred in finding that the defendant received the injury to his eye before he met the Crown witness and Mr. Winter contended that this finding was contrary to the agreed medical evidence that the bruising was around three to four days old. The medical evidence as to the age of the bruising was, of course, opinion evidence only and was unlikely in the nature of things, to be precisely accurate except with some assistance from chance. On the other hand, the Crown witness said that when he was talking to the appellant he observed that he had bruising at the corner of his eye and there is nothing illogical, in my view, in the finding which the magistrate made. 8. The next matter of substance raised by Mr. Winter was that the knife should not have been admitted in evidence since it was produced by the only Crown witness who said that he took it from the appellant in the street and there was no evidence as to the custody of that knife between arrival at the police station and its production in the magistrates' court. I do not think that the admission of the knife is in any way fatal to the Crown's case. A knife is a knife. It is recognisable as such by a lay-person, unlike heroin which cannot be positively identified by a lay-person and must be identified by a chemist. What is of substance is that the learned magistrate was fully satisfied that a knife of the type produced in court had been found by the Crown witness upon the appellant's person in the street. 9. The remaining contention upon appeal was that the learned magistrate's reason for accepting the evidence of the Crown had been that it was most unlikely that an off-duty policeman would interfere with his own leisure time to the extent suggested by the appellant, that is by indulging in a two-hour cross-examination in a side lane followed by a beating up. This, however, was only one factor which influenced the learned magistrate. He said that he accepted the evidence of the Crown witness and rejected that of the appellant. In referring to the unlikelihood of an off-duty policeman spending so much time harassing an innocent individual, he was merely pointing to one of the factors which influenced him in the decision to accept the evidence of the Crown and reject that of the appellant. 10. I can see no good reason for this court to interfere with the conviction recorded and the appeal is dismissed. Representation: Winter of Gordon Hampton & Winter assigned for appellant. Niamatullah, C.C., for respondent. |