Lok Chi Wai v. The Queen
|
CACC000845/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 845 of 1973 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 7th December 1973. ----------------- JUDGMENT ----------------- 1. This is an appeal against conviction. The Appellant was found Guilty, after a trial, of the offence of possession of an offensive weapon in a public place without lawful authority or excuse. 2. The Notice filed indicated three grounds of appeal in addition to a general ground that there was no evidence or no sufficient evidence whereon to found a conviction. The first of the additional grounds alleged a misdirection as to the burden of proof in deciding the issus of lawful authority or reasonable excuse, and the other two grounds related to an allegation that the learned magistrate had proceeded incorrectly in accepting the evidence of the prosecution witnesses. In the event the first of these additional grounds has not been proceeded with and, indeed, having regard to the terms of s.94A of the Criminal Procedure Ordinance, that is not surprising. That section, surprisingly found in an Ordinance dealing with procedure, clearly transferred the burden of proving lawful authority or excuse to the defendant, and if the judgment erred in any way in this matter it was that the learned magistrate approached the matter by saying that the prosecution had established that there was no lawful excuse on a balance of probabilities rather than saying that the defence had not discharged the burden which was upon it on a balance of probabilities. 3. What has in fact been argued, without objection by the Crown, is that there was no sufficient evidence to support the learned magistrate's finding that the knife found in the possession of the Appellant was an offensive weapon. The knife, which has been shown to me, was an ordinary fruit or vegetable knife with a blade about 3 ½ inches in length. It is conceded by the Crown that it was not made or adapted for causing injury. The definition of an offensive weapon in s.2 of the Public Order Ordinance is as follows:
That definition is considerably wider than the comparable provision applicable in England by reason of the addition of the words "suitable for use" and it is those words upon which Mr. Li relies in support of the conviction. It is, I think, conceded that there was no evidence here that the Appellant had any intent to use this knife as a weapon, although there were no doubt very strong grounds for suspicion. He was found loitering in a public convenience for upwards of five minutes and when he was searched he was, as the learned magistrate found, in possession of this knife bared in his pocket. The defence was that the knife was wrapped and had in fact just been purchased by the Appellant on the instructions of, and on behalf of, his mother. Evidence to this effect was given by the Appellant and by his mother, but the learned magistrate clearly found that the knife was unwrapped. It is really this finding which has caused the inclusion of Grounds 2 and 3 in the Additional Notice, for it is said that the learned magistrate ought not to have believed the police witnesses on this matter. I cannot agree. It has been suggested that the learned magistrate in effect said that he had to believe one or other of the two stories told to him and that as he disbelieved the defence story he had to believe the prosecution story. It was something along those lines that was said by the magistrate in LEU Leung v. Reg. Cr. App. No. 699 of 1968, and, as I said there, that approach is manifestly wrong. It was subsequently said by the Full Court in PAU Wing-shing v. Reg. 1970 H.K.L.R. 47 that "it is not the correct approach to a decision in a criminal case to approach the question of the guilt or innocence of the accused on the basis of deciding which of two stories the court should believe": a court must always bear in mind the possibility that neither story is true and the law requires in a criminal case that the court shall be satisfied that the prosecution story is true. In the present case it is true that the learned magistrate referred first to the evidence of the Appellant and his mother and said that he was not impressed by it. He then referred to the two prosecution witnesses and said that from their demeanour he accepted their evidence as truthful and correct with certain minor exceptions but he did not, as did the magistrate in LEU Leung v. Reg., say that he believed the prosecution because he disbelieved the defence. It also appeared to be suggested that the learned magistrate was not entitled to decide the case by reference to the demeanour of the prosecution witnesses. I think it is a fundamental part of the judicial function to resolve any conflict in the material evidence, it being always remembered that in a criminal case the conflict is not between the stories told by the witnesses for the prosecution and those told by the witnesses for the defence but between the truth and possible falsehood of the story told by the witnesses for the prosecution. There are usually two matters which enable a judge to resolve the conflict. One is the inherent likelihood or improbability of the story told by the witnesses for the prosecution and the other is his assessment of the credibility of those witnesses from their demeanour. In the present case the learned magistrate decided that the prosecution witnesses were telling the truth from their demeanour. It was not only open to him to do that but it was his bounden duty to decide the matter from their demeanour since their story was not inherently improbable. It was no light task which was laid before him but I have no reason to doubt the correctness of his conclusion upon it. In my view there was no misdirection of any kind in this part of the learned magistrate's judgment. 4. The question is, therefore, whether there was evidence upon which he could properly find that this knife was an offensive weapon. It is not necessary for me to enter upon an exhaustive discussion of the definition of that phrase. Miss Leong argued that nearly everything, animate or inanimate, could be used to cause injury and was to that extent "suitable" for causing injury. That could not have been intended. It is conceded by the Crown that there must be some limit placed on the words "suitable for", and Mr. Li has suggested that the intention was to include anything that can readily and effectively be used to cause injury. With ...(illegible) could find, but it is not necessary for me so to decide. All I need to say is that in my view a knife of the kind which was produced in this case was clearly within the definition and there was ample evidence to support the learned magistrate's finding that it was an offensive weapon. The being so it is not necessary for me to consider whether or not it would have been within the English definition and I find no assistance from the case of Petrie (1961) 45 Cr. App. R. 72. 5. The appeal is dismissed. 7th December 1973. Representation: |
Other judgments that cite this case