Ku Hak Ming v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 881 OF 1972

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Coram: Pickering, J.

Date: 19^th February, 1973

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JUDGMENT

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1.  In this case I dismissed the appeal against conviction and sentence, undertaking to furnish my reasons at a later stage, which I now do. The appellant was convicted by a magistrate of having with him in a public place an offensive weapon, namely a scout knife, without lawful authority or reasonable excuse, contrary to s.33(1) of the Public Order Ordinance (Cap.245).

2.  The facts were that on 17^th October 1972 at about 11:20 at night, members of an Emergency Unit Police Mobile Patrol saw 13 or 14 males in Shanghai Street near Soy Street, Kowloon. When the police vehicle stopped the men ran away and the appellant, who was one of the group, was chased and caught. In his waist band there was found a scout knife which the magistrate described, not without reason, as being of a dagger variety. The learned magistrate was in no doubt and I am in no doubt, having seen the knife – euphemistically termed a scout knife – that it is an offensive weapon. The appellant was at once cautioned and made no reply. His defence consisted of a denial that the knife had been found upon him. The learned magistrate was convinced of the truth of the prosecution witnesses and did not believe the appellant’s version of the incident.

3.  The appellant appealed against conviction and subsequently was granted leave to appeal out of time against sentence. The grounds of his appeal against conviction being that there was no evidence, or no sufficient evidence whereon to found the conviction. Additional grounds of appeal were filed by his solicitor as follows:

“1. The learned Magistrate was wrong in finding that the Appellant was carrying the scout knife without lawful authority or reasonable excuse when the prosecution produced no evidence as to whether the Appellant had lawful authority or reasonable excuse for possessing the said scout knife.

2. As no evidence was adduced by the Crown to show that the Appellant did not have lawful authority or reasonable excuse for possession of the scout knife but on the contrary the evidence showed that as soon as the scout knife was found the Appellant was cautioned the learned Magistrate erred in finding the case proved within the provisions of Section 33 subsection 1 of the Public Order Ordinance.”

4.  Section 94A of the Criminal Procedure Ordinance contains a provision added by Ordinance No.5 of 1971 and reads as follows:

“94A. (1) It shall not be necessary in an indictment, charge, complaint or information alleging an offence to negative any exception or exemption from or qualification to the operation of the law creating the offence.

(2) For the avoidance of doubt it is hereby declared that in criminal proceedings –

(a) it is not necessary for the prosecution to negative by evidence any matter to which this subsection applies; and

(b) the burden of proving the same lies on the person seeking to avail himself thereof.

(3) This section applies to criminal proceedings in the District Court or a magistrate’s court.

(4) The matters to which subsection (2) applies are any licence, permit, certificate, authorization, permission, lawful or reasonable authority, purpose, cause or excuse, exception, exemption, qualification or other similar matter.”

5.  I need hardly say more. Various peripheral matters were put forward by the appellant’s solicitor, but it was quite apparent that until Mr. Duckett, for the Crown, made reference to s.94A of Cap.221, the appellant’s solicitor had been unaware of the 1971 amendment. Had he been so aware, I am confident that the appeal would never have been brought.

6.  It is apparent that it was not necessary for the prosecution to show by evidence that the appellant had no lawful authority or reasonable excuse for his possession of this particular offensive weapon and the appeal against conviction must be dismissed.

7.  The appellant was sentenced to twelve months imprisonment and, having regard to his record which includes offences of robbery with aggravation, larceny from the person and snatching, I am unable to say that the sentence was in any way inappropriate. The appeal against sentence is also dismissed.

Gunston of Gunston &Chow for Appellant.

Duckett, S.C.C. for Respondent.