Attorney General v. Hui Kwok Keung
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CACC000863/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 863 OF 1973 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 11th December 1973 ----------------- JUDGMENT ----------------- 1. On the evidence of the Crown, shortly after noon on 7th March 1973 a plain-clothed policeman saw two men running very quickly in Junction Road near Carpenter Road. He chased the two and, having approached very close to them, should that he was a policeman and asked them to stop running. The reaction of the two men was to look over their shoulders at him and run faster. The policeman caught the respondent and searched him finding a knife, which was exhibited in the court below, in his back trouser pocket. 2. On the evidence of this single witness the learned magistrate held that there was a case to answer in respect of the charge under s.33(1) of the Public Order Ordinance (Cap. 245) charging the respondent with having an offensive weapon, namely a knife, in a public place without lawful authority or reasonable excuse. 3. The case was then adjourned for some three days after which interval the respondent gave evidence to the effect that he was waiting for a public light bus when the prosecution witness stopped him and searched him and found a girl's watch on him. He denied that any knife was found upon him or that he saw any knife at that stage. 4. At this point the learned magistrate referred himself to the definition of an offensive weapon in s.2 of the Public Order Ordinance (Cap. 245) and, holding that there was no evidence to show any intent and also that the knife was not suitable for causing injury by reason of its bluntness, reversed his previous decision and held that there was no case to answer. It is in the light of that finding that the Crown has asked the learned magistrate to state a case for the consideration of this Court. 5. The exercise is, however, stultified by the disclosure before this Court that the knife has in the meantime, been destroyed; with that disclosure there is also destroyed any hope of the Crown's success upon this case stated. A drawing of the knife was produced to me which drawing, Crown counsel said, conformed to the best of his recollection, with the knife produced in the court below and it was submitted on behalf of the Crown that the knife must per se have been an offensive weapon. That may very well be the case but for me to hold that it is so would be to take a leap in the dark and, in the absence of the advantage enjoyed by the learned magistrate and by Crown counsel in the court below of seeing and handling the knife, I am not prepared to hold that the learned magistrate was wrong in his view that the knife was not suitable for causing injury. 6. This, however, is not the primary concern of the Crown in this case, which invites me to state some opinion upon the words "suitable for causing injury" occuring in the definition of an offensive weapon in s.2 of the Public Order Ordinance. Any such exercise, unrelated to a specific alleged offensive weapon is necessarily somewhat academic and I approach the subject with caution, being acutely aware of the dangers of obiter dicta which quite frequently leave their author, in a subsequent case, with the wish that they had not been uttered and the realization that, being obiter, they need not have been uttered. 7. The section with which we are concerned is s.33(1) of the Public Order Ordinance (Cap. 245) which reads:
The subsection is based upon s.1(1) of the Prevention of Crime Act 1953 which reads:
8. It is immediately apparent that the English Act, unlike the local Ordinance, specifically provides that the proof of lawful authority or reasonable excuse shall lie upon an accused person. The apparent omission in the Hong Kong Ordinance is, however, academic since by virtue of s.94A(1) of the Criminal Procedure Ordinance the onus of showing lawful excuse is upon a defendant. 9. A more real distinction between the statutory law of England and that in Hong Kong lies in the respective definitions of "an offensive weapon" in the two jurisdictions. In the Prevention of Crime Act 1953 "an offensive weapon" is defined in s.1(4) as:
Whereas in Hong Kong "an offensive weapon" is defined in s.2 of the Public Order Ordinance (Cap. 245) as meaning:
10. It was submitted by Mr. Harte, for the Crown - and I regret that I did not have the advantage of argument on behalf of the respondent who neither appeared nor was represented - that any knife which could be held by the handle and which had a blade two or three inches long must be suitable for causing injury. In the present case the learned magistrate considered that the knife, which he described as a stainless steel vegetable knife, was unsuitable for causing injury since it was blunt and no attempt has been made to sharpen it. As I have said, lacking any view or feel of the knife, I am not prepared to say that the learned magistrate was wrong. The knife was however, described in the preliminary police report and also appeared, from the drawing produced to me, to have a blade of approximately six inches long, one side of which consisted of a straight line but the other side of which curved near the tip to meet the straight side in a point. Whilst being unable to disagree with the learned magistrate for the reason which I have stated, I would observe that in general it must be a very unusual knife indeed which has a six-inch blade culminating in a point which can fairly be described as unsuitable for causing injury to a person. 11. Beyond that it seems to me that the less I say the better, for every case must depend upon the nature of the alleged offensive weapon. It is, however, perhaps not inappropriate to remark that the distinction obtaining in England between weapons which are offensive per se, example: a knuckle-duster or a dagger, and offensive weapons not made or a adapted for the specific purpose of offence, example: a knife or a spanner, does not obtain in Hong Kong by virtue of the inclusion in the definition of the offensive weapon as an article "suitable for causing injury to the person". The definition bristles with difficulties and, as I have said on the facts of the present case any discussion of that definition is somewhat academic. In the court below it was argued that "suitable for" could be equated with "capable of" but, as it seems to me, this equation is too facile. A volume of the Ordinances of Hong Kong is capable of causing injury to the person but is not basically suitable for that purpose and anybody carrying such a volume in a public place could not presumably be found guilty of this offence unless and until, in the words of the definition, he intended to use it for the purpose of causing injury to the person. Too many illustrations could befog the issue but a heavy ash-tray or paper-weight may both be said to be capable of causing injury to the person and in one sense suitable for that purpose but as I see it this is not the form of suitability contemplated by the Ordinance and possession of such objects in a public place would not constitute an offence unless and until the intention was formed to use them for the purpose of causing injury. 12. Each case must depend upon its facts and in the case of otherwise innocuous objects "capable of" and in a limited sense "suitable for" causing injury the courts will no doubt usually be driven back upon proof of intent. 13. I have gone as far, or perhaps further, upon the discussion of this topic in vacuo as is wise. The specific comment in relation to the question of law posed in this case, which was "Whether the learned magistrate was correct in law in holding that the knife was not suitable for causing injury to the person within the meaning of those words in the definition of "offensive weapon" in s.2 of the Public Order Ordinance and accordingly ruling that there was no case for the respondent to answer", is that the question is incapable of answer in view of the destruction of the exhibit. In view of that destruction I am not prepared to say that the learned magistrate was wrong. 14. The destruction of the knife appears to have been a result of the lengthy delay which occurred in the signing of the Case Stated in this matter and that delay in turn appears to have been associated with various inter-magisterial transfers of the learned magistrate. I will say no more than that I trust that those whose responsibility it is to ensure the preservation of exhibits for production in a Court of Appeal will ensure that procedures are so tightened up that no recurrence of the premature destruction of such an exhibit can occur. In the present case no undue harm has resulted but it does not require a great deal of imagination to envisage a case in which serious embarrassment could result to an appellant or to the Crown. Representation: Harte, C.C. for appellant. |
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