Chau Kin Kei v. The Queen
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CACC000009/1977
Coram: Morley-John, J. Date of Judgment: 28th January, 1977. ----------------- JUDGMENT ----------------- 1. The appellant was found guilty of possession of an offensive weapon to wit a beef knife in a public place contrary to Section 33 of the Public Order Ordinance Cap. 245. 2. The appellant has appealed against the conviction and the main ground of the appeal is that there was no admissible evidence before the learned magistrate to show that the knife produced at the trial was the same knife that the Crown alleged was the offensive weapon possessed by the appellant. 3. Evidence was given at the trial by a police officer that he saw the appellant drop something and run away that he chased after the appellant who managed to escape (he was arrested sometime later). The police officer then stated that after the appellant had escaped a second police officer came running up holding a knife and he went on to say I asked my colleague whether he had picked this knife up at Chu Koo Chai outside the bottle cleaning shop. This was the place I first saw the knife. My colleague confirmed he had picked it up. This is the knife." And a beef knife was then produced to the court. The second police officer did not give evidence. 4. Counsel for the Crown went so far as to say that in his opinion the case had been very badly prosecuted before the learned magistrate. He conceded that the police officer's evidence was hearsay evidence and was inadmissible and that the knife allegedly possessed by the appellant was not properly before the court and also that there was no evidence that the knife produced was the knife dropped by the appellant. However, Counsel for the Crown contended that it was not necessary for the actual knife allegedly thrown down by the appellant to be produced in court. He argued that the police officer had identified the appellant and had said that he saw the appellant throw a knife onto the ground and therefore there was evidence on the record on which the learned magistrate was entitled to convict. 5. In fact the evidence on the record was that the police officer saw the appellant throw a packet wrapped in white paper to the ground. That he chased the appellant and as he passed the place where the appellant had thrown the packet he noted that it was a knife as the handle was visible. In other words from the sight of a handle sticking out of a paper packet the police officer assumed that the packet contained a knife. There is no evidence on the record that the handle was attached to a blade no evidence as to the size of the handle no evidence that what was in the packet could be said to constitute an offensive weapon. The learned magistrate in his Statement of Findings found that the knife in the possession of the appellant was a large beef knife with a long curved blade. It is conceded by the Crown that there is no admissible evidence to support this finding and I am satisfied that there is not sufficient admissible evidence on the record upon which the learned magistrate could find the appellant was guilty of possession of an offensive weapon in the form of a beef knife as charged. 6. The appeal must be allowed the conviction is quashed and the sentence set aside.
Representation: Paul Fok, instructed by (H.M. So & Co.) for the appellant I.A. Evans, for the Crown/respondent. |