Noman Ahmad v. HKSAR

HCMA 160/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 160 OF 2011

(ON APPEAL FROM TWC 3437/2010)

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BETWEEN

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Before: Hon. Wright J

Date of Hearing: 4 May 2011

Date of Judgment: 11 May 2011

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JUDGMENT

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1.The appellant was convicted, after trial, by John Glass, Esq., on 9 February 2011 of a charge of possession of an offensive wepon in a public place contrary to s. 33(1) of the Public Order Ordinance, Cap. 245, and sentenced to undergo imprisonment for a period of nine months. He appeals the conviction.

2.The charge read:

NOMAN AHMAD you are charged  that on 18 June 2010, in a public place, near lamppost CCSWK/D/004, outside Shek Wai Kok Estate Market, Shek Wai Kok Estate, Tsuen Wan, New Territories, in Hong Kong, you, without lawful authority or reasonable excuse, had with you offensive weapons, namely two knives.

3.The appellant was represented at trial by counsel. He was represented in this appeal, but not below, by Mr Niall Stirling of counsel.

The Trial

4.The prosecution called a total of seven witnesses, the evidence of four of whom related to events at the scene, the remainder relating to the circumstances of an interview with the appellant. The magistrate ruled the record of that interview to be inadmissible.

5.The case advanced at trial on behalf of the appellant, who elected not to give evidence, was a denial that he had been in possession of the knives at any stage or that it had been he whom PW1, a police officer, had seen alighting the driver’s seat of the car carrying a black bag which was placed into a rubbish bin before returning to the driver’s seat. The whole focus of the defence was confined to whether the prosecution had proven, in the words of his then counsel during his closing submission to the magistrate:

...I’ll just make one major point is that the defendant in this case was never identified in court... I will submit that the prosecution has not proved beyond reasonable doubt that the 1st defendant was the person actually seen by PW1, came out from the driver’s seat that the vehicle carrying the bags with the knives and dropped the knives in the rubbish bin.

6.The magistrate found as a fact that it was the appellant.  No complaint is now made of that finding.

7.There was an admitted fact which was in the following terms:

The [appellant] was in the vehicle number PF 4423 at the scene in this case near to the lamppost numbered ESWK/D/4057 at Shek Wai Kok estate from about 09.05 hours to about 09.25 hours on 18 June 2010.

8.None of the magistrate’s other findings of facts is now criticised. They may be summarised as follows:

on 18 June 2010 a police officer, PW1, was keeping observation for gambling activities in Shek Wai Kok Estate, Tsuen Wan, when he saw the car, PF4423, being driven into the cul-de-sac where he was located. This must have been, to accord with the agreed facts, at about 09:05 hours. The car stopped. After about three minutes the driver, the appellant, alighted. He was carrying a black bag which PW1 noticed had something with a white handle sticking out of it. He suspected this to be a weapon. The appellant walked to a rubbish bin which was close behind the car and put that black bag into the rubbish bin. He then returned to the driver's seat of the car.  PW1 immediately notified colleagues. A police van arrived after a short while. The occupants of the car were apprehended. To accord with the agreed facts this would have been at about 09.25. The appellant was escorted to the rubbish bin by PW1 and PW2: a black bag was retrieved which was found to contain two weapons.

One was a “chopper” of the kind commonly encountered domestically in Hong Kong: the magistrate, correctly, found that this was not an offensive weapon per se. The other, the handle of which was wrapped with white cloth, was a large, curved-bladed Kukri-like knife (the knife): the magistrate found this to be an offensive weapon per se and it was on the strength of the possession of this weapon only that he convicted the appellant. The appellant was arrested for “possession of offensive weapons” by PW2. The magistrate found that appellant had had the bag containing the weapons in a “public place”, namely, in the area where where the car was parked: he had the knives “with him” and had knowledge of them.

9.Further, it is clear from the sketch plan which was tendered in evidence (Exh. P1) that the lamppost referred to in the charge and that referred to in the agreed fact were in close proximity to one another at the dead-end of the cul-de-sac where PF4423 was parked and that the rubbish bin into which the appellant placed the black bag was located between the two lampposts.

The grounds of appeal

10.The second ground of appeal related to a decision of the magistrate made in the alternative, predicated on the basis that the knife was not an offensive weapon per se. At the time when Mr. Stirling drew the original, three, grounds of appeal he had not had been shown the knife. Whilst Mr. Stirling felt himself unable to make the concession that the knife was an offensive weapon per se, he responsibly did not seek to advance any argument in support of the second ground of appeal nor, realistically, to submit that the knife is not an offensive weapon per se. It plainly is. The third ground of appeal was the catchall that the conviction was unsafe and unsatisfactory.

11.Thus it was that it was only the first ground of appeal that was pursued during argument. That ground read:

The learned magistrate erred in law in that, having found the knife... was an offensive weapon per se... he failed or failed adequately to direct himself that if the appellant possessed [the knife] solely for the purpose of "dumping" or "disposing" of it, that in law amounted to or was capable of amounting to a "reasonable excuse" for his possession of it in a public place. The learned magistrate did find as a fact that prior to the police officers making their presence known the appellant did in fact dispose of the bag containing [the knife] in a bin in a rubbish dump area. In the circumstances the learned magistrate should have considered whether the act of dumping the knife constituted a "reasonable excuse" and directed himself accordingly. This he failed to do.

12.Mr. Stirling accepted that the sole basis upon which the witnesses for the prosecution had been cross-examined was that the appellant was neither the driver of the vehicle nor the person who had alighted the vehicle and placed the bag containing the knife in the rubbish bin and that the issue of the existence of a reasonable excuse for the possession of the knife had not been raised - whether substantially or even in passing - on behalf of the appellant at any stage during the trial or in closing submissions. Indeed, the magistrate noted that the case suggested on behalf of the appellant at trial was even more specific than this may suggest, recording that:

It was further denied that the police ever found a black bag with knives in it, and it was also the defence case that no one had been arrested at the scene for possession of offensive weapons.

13.It was emphasised that the facts found by the magistrate demonstrated that the only conduct of the appellant of which there was evidence was that he had alighted the vehicle, placed the bag containing the knives in a rubbish bin and then returned to the vehicle whereafter he had no further contact with the bag: all this occurred in broad daylight. It was clear, the submission ran, that the facts as found by the magistrate themselves raised the possibility that the appellant was simply disposing of the bag and the knife and, had that been his intention, those facts would or could have given rise to the defence of reasonable excuse for possession of the knife in the first place.  It was further pointed out that the fact that the magistrate had himself had described the appellant as having "... disposed of two very large knives..." in his reasons for conviction and "He was disposing of the knives..." in his reasons for sentence was indicative of the fact that the appellant had possessed the knife in order to dispose of it.

14.Once this possibility arose, the argument ran, the magistrate was duty bound to consider the existence of reasonable excuse. It was then submitted that the magistrate had failed or failed adequately to consider the defence of reasonable excuse.

15.What this argument appears to overlook, with respect, is paragraph 7 of the magistrate’s Statement of Findings in which the magistrate deals with the question of reasonable excuse, in terms, thus:

There was no issue that the incident took place in a public place, which I found it was, and I found that there was no evidence of lawful authority or reasonable excuse or other excuse for possession (sic) these knives (I found the prosecution proved beyond reasonable doubt there was none.). There was also no issue that if the prosecution proved that the defendant had the knives with him, then he also had knowledge of them... [Underlined emphasis supplied]

16.The magistrate did not set out the issue relating to reasonable excuse in the form or detail provided by Mr. Stirling but this is hardly surprising given the fact that he had not been addressed on this particular aspect. He, however, was fully alive to the circumstances in which the offence occurred: that is demonstrated by his comprehensive summary of the evidence. He says, unequivocally, that he made a finding that there was no reasonable excuse and cautiously demonstrated that he was aware that the onus to prove the absence of reasonable excuse lay on the prosecution: it is abundantly obvious that he addressed his mind specifically to the issue before reaching his conclusion.

17.In support of his contention that the possession of an offensive weapon solely for the purpose of disposing of it might constitute reasonable excuse Mr. Stirling relied upon the decision of McMahon J in HKSAR v IP Chi-wang HCMA377/2003, (unreported, 8 July 2003). That was a matter in which that appellant was seen with an offensive weapon about his person, in an alley, also in broad daylight. The facts in that matter of course were different to the instant matter.

18.That magistrate in that matter had not dealt at all with the issue of reasonable excuse in the reasons which he gave at the time of convicting that appellant. He did so, however, in his Statement of Findings about which McMahon J said the following:

23....

And later, he said this [in his statement of findings]:

"There is no express reference to the question of lawful authority or reasonable excuse in my contemporaneous reasons for verdict. Nevertheless it formed part of my consideration of the case and there plainly was no such lawful authority or reasonable excuse: none was suggested and it would be absurd to think that either of those elements could exist in the case of possession of a lethal weapon concealed in clothing"

24. In my judgment, any criticism that the magistrate failed to give proper consideration to the possibility that the appellant was simply taking the knife to the laneway to abandon it is without merit. The magistrate had considered the possibility of any reasonable excuse existing for the appellant’s possession of the knife and rejected it.

19.In contrast, the magistrate in the present matter had indicated at the time of convicting the appellant that he had considered and rejected the existence of such a defence. The only addition he made in his Statement of Findings was the italicized observation in parentheses which concerned the question of onus.

20.Should the magistrate have said more than he did? Whilst there is a duty upon a tribunal to give reasons for its decision, the nature and extent of those reasons will depend upon the facts and circumstances of the case concerned. The emphasis here at trial was upon a total denial of any involvement by the appellant with the bag containing the knife. In my judgment, given the way the case was run before him, it was not necessary for the magistrate to have said any more on this topic than he did.

21.I have not lost sight of the fact that this is a magistracy appeal and thus is a re-hearing before me on the material before the magistrate. I agree with Mr Stirling that the facts make it necessary to consider the defence of reasonable excuse.

22.It is necessary for me to come to my own conclusion, independent of the conclusion reached by the magistrate. I have done so. The vehicle driven by the appellant arrived at the scene. It parked there. Some three minutes later the appellant alighted and went to place the bag containing the knives in the bin. He returned to the car. He remained in the car, parked in the same place in the immediate vicinity of where he had placed the knife, for about a further 15 minutes before he was apprehended. My decision accords with that of the magistrate: on those facts the prosecution has negated any suggestion of the appellant having a reasonable excuse for the possession of the knife, which he had with him in a public place and which was an offensive weapon per se.

23.The appellant was correctly convicted. The appeal is dismissed.

Ms. Noelle A Chit, Public Prosecutor, Department of Justice, for the Respondent.

Mr. Niall Stirling, instructed by Department of Legal Aid, for the appellant.