Wong Chun Lung v. The Queen
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CACC000929/1979
Coram: Li, J. in Court Date of Judgment: 12 November 1979 ----------------- JUDGMENT ----------------- 1. The appellant was convicted on the 4th September, 1979 of the offence that he had in his possession on the 10th August, 1979 one piece of saw-blade, an instrument fit for an unlawful purpose and was unable to give a satisfactory account of his possession thereof. He was sentenced to be detained in a drug addiction treatment centre. He now appeals against conviction only on the ground that there was no evidence or no sufficient evidence thereon to found the said conviction. The facts of this case are comparatively simple. 2. On the 10th August at about 4 p.m. police constable 14475 with Sergeant 5254 and another colleague were on duty in plain clothes in the Kwai Chung Estate. He observed that the appellant was standing in the car park outside Block 17 of the said estate. He watched the appellant for three minutes. Seeing that the appellant was still standing there he approached the appellant, revealed his identity and proceeded to search the appellant. He was in suspicion that the appellant was in possession of dangerous drugs or some instruments. Upon search, he found on the appellant's person a saw-blade put inside a cigarette packet. The teeth of the blade had been filed off. He suspected that the blade could be used for stealing cars because it looked like a key that could open car doors or could be used to pry open car doors. He asked the appellant what the blade was used for and he received the answer that the blade was used for hooking yarns. He asked where the appellant worked and the appellant answered that he was out of a job. He asked the appellant what was he doing in the car park and the appellant answered that he was on his way to Kwai Chung Estate Block 18 to look up a friend. To these evidence there was no cross-examination. 3. Another prosecution witness by the name of Kong Yue-kin was called. Mr. Kong is the supervisor of the East Asia Textile Factory who had been in the job for ten years and more. He produced a hook as a specimen which textile workers would use to hook yarns. He looked at the blade that was found on the appellant and said it could be used for the same purpose. Stopping at this stage, I would observe that there is some material difference between the instrument that was produced by Mr. Kong and the blade that was found in the appellant's possession. Mr. Kong's hook has some saw teeth on the blade and has a hook at the end. The blade that was found in the possession of the appellant had the saw filed off and there is no hook on the blade at all. However, for the purpose of this appeal, and in the absence of any contradicting evidence, I am prepared to accept Mr. Kong's evidence that what was found on the appellant could be used for hooking yarns. The witness, Mr. Kong, went on to say that the appellant was at one time employed in his factory. However, he said that the appellant is no longer now with the textile factory and he did not recall when the appellant left his employment. Such is the evidence for the prosecution. At the end of the prosecution the rights of the appellant to give evidence was explained to him. The appellant elected to remain silent. 4. Section 17 of the Summary Offences Ordinance provides that
5. The grounds of appeal had been very ably advanced by Mr. Kotewall, who in his usual persuasive way, contends that there is no evidence as to the circumstances to show the intent or rather the appellant's intention to use the instrument for an unlawful purpose. The second ground of his contention is that the appellant was never asked why he was in possession of the blade. For that reason there was no necessity for the appellant to give any explanation. No less than three authorities, two of which are from the Court of Appeal, have been cited to me in support of his contentions. I have considered, read and re-read these authorities and come to the conclusion that there is no doubt that when the appellant is found to be in possession of an instrument which could be used for a lawful as well as unlawful purpose it is incumbent upon the Crown to show, by some other evidence, that such circumstances existed that the appellant was with intent to use it for an unlawful purpose. I think this point has been firmly settled now and I only cite one short passage from the judgment of Sir Irvo Rigby, Senior Puisne Judge as he then was in the case of Tang Chi-ming v. The Queen 1968 H.K.L.R. 716 at p.725 in which His Lordship said as follows:-
With respect I adopt this ratio as the guiding principle and as of assistance for the purpose of this case. In the present case the appellant was found to be in possession of a blade with the saw filed off. That took it away the usefulness or diminished the usefulness of the blade as a hook for yarns. But that is not all because there is a witness for the prosecution who said that it could be used for the purpose of hooking yarns. What made the circumstances suspicious was that despite his protestations that he was going to visit a friend at Block 18 in Kwai Chung Estate he was seen to be standing near Block 17, for a full three minutes and he was still standing there when he was approached. Furthermore, the appellant was out of work as a textile worker. He was still in possession of this blade. Another innocent explanation would be that he might be keeping that blade as a souvenir or for future use. But he kept it inside a packet containing a few cigarettes (which is more liable to be thrown away when the cigarettes had been consumed) instead of keeping the blade in his pocket. All these give rise to the very suspicious circumstances which are sufficient to shift the burden upon the appellant to explain why he was still in possession of that blade. The appellant never explained. In the circumstances there are sufficient prima facie evidence to show an intent to use it for an unlawful purpose. I shall make no comment as to whether an explanation given before the trial magistrate but not before the police constable would be sufficient for the appellant to obtain an acquittal having regard to the wordings in Section 17. However, it is my belief that had there been a satisfactory explanation before the trial magistrate I would have thought the magistrate might accept the explanation from the appellant. He elected to give no evidence. It is all very well to say that the appellant was never asked why he was in possession having regard to the circumstances at the time. However, I find it very strange that the appellant, even without prompting, would not tell the police constable why he was still in possession of the blade. Furthermore, before the trial magistrate he elected to remain silent and never gave any explanation whatsoever. Indeed, in the court of trial it is within the appellant's right to remain silent. But in the face of such prima facie evidence it would be incumbent upon the appellant to offer some explanation in view the prima facie suspicious circumstances. 6. In his Statement of Findings the magistrate had this to say:-
"Had the appellant given any creditable explanation at the hearing, I might well have accepted it ex abundante cautela I say that I am well aware of the onus of proof required in criminal proceedings. In the complete absence of any such explanation it is one thing to say what he used it for and quite another to explain why he had it in his possession at that time and place, I was satisfied, beyond reasonable doubt, that the appellant was guilty of the offence as charged." 7. In the aforesaid circumstances, I find that there is no merit in this appeal and accordingly the appeal against conviction is dismissed.
Representation: Mr. Robert G. Kotewall (D.L.A.) for appellant Mr. Richard Hawkes (Crown Counsel) for respondent |