HKSAR v. Laxman Chadaro

HCMA 374/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 374 OF 2014

(On appeal from KCCC No 514 of 2014)

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J U D G M E N T

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1.The appellant was convicted after trial by Mr Chu Chung Keung, a Deputy Magistrate sitting at Kowloon City Magistrate’s Court, for the offence of possession of an offensive weapon, contrary to section 17 of the Summary Offences Ordinance, Cap 228, and sentenced to six months’ imprisonment. He now appeals against his conviction.

2.The particulars of the offence were that the appellant, on 5 February 2014, inside the report room of the Yau Ma Tei Police Station had in his possession an offensive weapon, being a chopper, with intent to use it for an unlawful purpose.

3.There was no dispute that the appellant attended the police station with a chopper in his hand.  The issue in this case was whether he intended to use it to harm someone.  He claimed that he was drunk at the time and that he went into the police station to take refuge from people outside.

4.The appellant was captured on CCTV footage at 4.24 pm entering the police station with the chopper in his hand and later in the report room walking towards the police sergeant at the report desk.  I have viewed the CCTV footage and it shows the appellant entering the police station walking normally and with a steady gait.  His counselat trial described him as being calm.  Later he was seen walking towards the police sergeant who drew his firearm pointing it towards him.  He raised his hands, still holding the chopper.  A woman police officer came to the report desk and also drew her firearm.  It was then that he put down the chopper on the ground and dropped to his knees with his hands in the air.  Other police officers with their firearms drawn then apprehended him.  I have also viewed the chopper.  It is a large meat cleaver, about 12 inches in length.   

5.The police sergeant and the woman police officer gave evidence which was summarised by the magistrate in his statement of findings. The police sergeant testified that he saw the appellant open the main door and entered the police station. The appellant walked towards him and he asked him both in Cantonese and English what he could do to assist him. The appellant did not reply and as he walked closer to him he saw that he was holding a chopper in his right hand. He observed some movement with his right hand when it was down. He stood up and shouted to the appellant in English not to move and to drop the knife. The appellant ignored him. He drew his firearm and pointed it at the appellant. He shouted three times to him in English not to move and to drop the knife otherwise he would fire. The appellant did not stop and continued walking towards him. The woman police officer by then was also present and had drawn her firearm, pointing it towards the appellant. The woman police officer testified that she shouted to the appellant to put down his weapon or she would fire. It was then that he stopped walking, put down the chopper and dropped to his knees. The police officers could smell alcohol on the appellant.

6.It appears that upon arrest the appellant vomited and, as a consequence, he was taken to hospital. He was examined by a doctor at about 6.11 pm who recorded that he was “fully alert with alcohol smell”. He was discharged, and, at about 11.19 pm, he participated in a video recorded interview under caution. The interview lasted for a little over one hour with the appellant responding to questions and recounting the events that took place that afternoon. He said that he was drunk and that he did not know what he was doing. He was asked why he took the knife from his home and went out onto the street. He said that “it was my bad day and I lost my mind”. The defence suggested that what he meant was that he had a bad day because of the events that took place. He was unable to account for why he left home with a knife in his hand. His home was only a short distance away from the police station. He said that now that he was fresh, he was confused as to why he went out with the knife. He said that people in the street were looking at him and he became confused, and that he went to the police station to save himself.

7.The defence took issue with some aspects of the accounts given by the two police officers but as far as I can ascertain, it did not impact on the fact that the appellant attended the police station with a chopper in his hand. The magistrate found, and I agree, that despite the fact that the appellant had consumed alcohol, he was not very drunk and not to the point that he did not know what he was doing as he was able to follow instructions of the police officers to put down the chopper. There was also the CCTV footage which showed that he was steady on his feet; the doctor’s observation that he was fully alert a little under two hours after the incident; and the recorded interview late that day when he was able to understand and answer questions and recall events that took place that afternoon. It was also part of the defence case that the appellant went into the police station because people in the street were looking at him and he sought refuge there. This was also rejected by the magistrate. The appellant had the opportunity to discard or put down the chopper. Inside the police station, he was warned repeatedly to put down the chopper but he did not do so until the second police officer drew her firearm. If he was seeking refuge in the police station as claimed, it would not have been necessary for the police officers to repeatedly warn him to put down the chopper.

8.The magistrate, in a careful and comprehensive analysis of the evidence and the defence submissions, found that the appellant was not so drunk that he did not know what he was doing and that the only reasonable inference was that he brought the chopper to the police station with the purpose of harming or threatening to harm people there.

9.The appellant complained that the CCTV footage was not very clear and that the magistrate did not appropriately allow for the poor quality of it and that he made findings of fact contrary to what was depicted on it.  I disagree. The footage was clear enough to show the appellant entered the police station holding the chopper and later with the chopper in his hand, walked towards the police officers when confronted by them.  There was also some movement with the chopper in his hand.  He also complained that the magistrate was wrong in finding that he was not very drunk.  In my view, the magistrate was correct to find that he was not so drunk that he was not aware of what he was doing.  He was seen on the CCTV footage walking steadily and later responding to commands from the police officers.  Soon after the incident, he was medically examined and determined to be fully alert and later participated in an interview where he was able to respond to questions and recount the events of that day.  He further complained that the magistrate erred in finding that the chopper was an offensive weapon and that there was insufficient evidence for the magistrate to infer that he intended to use the chopper to injure any person.  I should add that the appellant was very ably defended at trial by counsel who addressed the magistrate on these matters in great detail and it is clear that the magistrate had these legal issues firmly in mind when he gave his reasons for his verdict in his statement of findings.

10.Section 17 of the Summary Offences Ordinance reads:

“Any person who has in his possession any wrist restraint or other instrument or article manufactured for the purpose of physically restraining a person, any handcuffs or thumbcuffs, any offensive weapon, or any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes, with the intent to use the same for any unlawful purpose, shall be liable to a fine of $5000 or to imprisonment for 2 years.”

11.My reading of the provision is that it makes it an offence for any person to have in their possession any of the implements as specified, including an offensive weapon, with the intent to use such implement for an unlawful purpose. An offensive weapon is not defined under the Ordinance and the courts have in the past adopted the definition of an offensive weapon under the Public Order Ordinance, Cap 245. Under section 2(1) of the Public Order Ordinance, “offensive weapon” means any article made, or adapted to use, or suitable, for causing injury to the person, or intended by the person having it in his possession or under his control for such use by him or by some other person.

12.The gravamen of the offence under section 17 is that possession of an implement as specified is an offence if it is “with intent to use the same for any unlawful purpose.” I see no reason why “possession” in this context should not be given its ordinary meaning. A person has possession of an article if he knowingly has it in his physical and actual custody, or otherwise within his physical control, and intends to have custody of it or to exercise control over it as and when occasion requires. A person has physical control of an article, if he knowingly has the ability, as and when occasion requires, to use it to the exclusion of other people or to keep it safe and away from other people and intends so to use or keep it. See HKSAR v Ng Ning Fu, CACC 418/1998, 18 May 1999, unreported.

13.Section 17 came under judicial scrutiny when a reverse onus provision within it was removed by the Court of Appeal in R v Chong Ah-choi and Others [1994] 2 HKCLR 263. In delivering the judgment of the court, Bokhary JA (as he then was) noted that the courts had applied the definition of “offensive weapon” given in section 2(1) of the Public Order Ordinance when dealing with cases under section 17. By way of obiter dictum, he concluded that the inclusion of the formula “or suitable” cast the definition too widely and its removal would make it compliant with the Bill of Rights Ordinance, Cap 383. This brought the definition of offensive weapon in line with the English equivalent in section 1 of the Prevention of Crimes Act 1953.

14.According to the English Court of Appeal in R v Simpson [1983] 3 All ER 789, there are three possible categories of offensive weapon:

(a) an article made for use for causing injury to the person, commonly known as a weapon that is offensive per se;

(b) an article adapted for use for causing injury to the person; and

(c) an article which the person carrying it intends to use for the purpose of causing injury to the person.

Under the third category, the prosecution must prove that the accused had the specific intention to cause injury to the person and this might include an intention to use the article as a weapon if the occasion were to arise.  The use to which the weapon is or is to be put may assist in determining what the intention of the accused was at the time.

15.Bokhary JA in examining the third category noted that there may be instances where an article is not made for causing injury to the person but could do so if a person used it for that purpose.  He said that in such a situation “… everything turns upon the surrounding circumstances.  And the question whether the implement is an offensive weapon mergers with the question whether the person in possession of it had it in his possession for an unlawful purpose.”[1]  He went on to explain that when the prosecution seeks to prove that the accused had an implement in his possession for an unlawful purpose:

“Generally, it would do so by relying on what is the only reasonable inference to be drawn from all the facts duly proved. Those facts would include:

(i) the nature and condition of the implement itself;

(ii) all the circumstances surrounding the accused’s possession of it, such as the time, the place, what legitimate use it might have had at such a time and in such a place, whether it was carried or concealed, his observed behaviour in general and so on; and

(iii) his reaction to being approached by the police, which involves whether he attempted a hide the implement somewhere, whether he attempted to discard it, whether he attempted to flee and so on.

Of course, no inference of guilt would be drawn by the court unless it is the only reasonable one. At the same time, if guilt is indeed the only reasonable thing to infer, then the court would not be deterred from inferring it by fanciful notions to the contrary.”[2]

16.The question arises as to what category of implement did the knife in the present case fall within. Not all knives are offensive weapons, but in the context of Hong Kong, a chopper, generally a meat cleaver, is commonly used as a weapon to cause injury to a person. I would consider a chopper per se to be an offensive weapon. I have, however, treated the chopper in the possession of the appellant as falling within the third category. Whichever the category of implement, the nature and condition of the implement or the circumstances surrounding the accused’s possession of it may be such so as to draw the only reasonable inference that he intended to cause injury to a person or use it as a weapon if the occasion were to arise.

17.In the appellant’s recorded interview he said he had been drinking alcohol that day and was very drunk. He went home and took the knife to go out. His wife told him not to go and he pushed away his son who was following him. He went downstairs and crossed the road with the knife in his hand. He said everybody was looking at him and he thought he would go directly to the police station for his safety. When he entered the police station, he had pistols aimed at him. He did not know what to do. He put his hands up and knelt down immediately.

18.It seems that the appellant had been previously arrested by the police on allegations of working illegally. Reference to this matter was made during the interview of him. He said he came to Hong Kong illegally in 2010 and sought asylum here. He was receiving welfare benefits for housing and food but was not allowed to work. The magistrate in his reasons noted that the appellant had been previously arrested by the police for another incident.

19.In a magistracy appeal, the appellate court is required to reach its own independent decision on the record of the evidence given at trial supplemented by any further evidence it may admit.  See HKSAR v Ip Chin Kei [2012] 4 HKLRD 383; HKSAR v Shekhawat, Tushar, HCMA 9/2014, 21 May 2014, unreported.  On the papers before me and taking into account the submissions made by the parties, in particular the defence submissions made at trial and on appeal, I make the following findings:

(1) Prior to 5 February 2014, the appellant had been arrested by police on allegations of working illegally.

(2) On 5 February 2014, the appellant had been drinking.  He went home and grabbed a knife from the kitchen which was a 12 inches long meat cleaver.  His wife and son tried to persuade him not to leave home with the knife.

(3) The appellant who lives two blocks away from the Yau Ma Tei police station went directly there with the knife in his possession.

(4) Even though the appellant had been drinking, he was not so affected by alcohol that he did not know what he was doing.

(5) The appellant entered the police station with the knife in his hand, walking normally and with a steady gait. When the police sergeant at the report desk saw him carrying a knife, he warned him several times to put down the knife.  He did not respond, and the police sergeant drew his firearm and pointed it at him.  He warned him to stop and put down the knife but he continued to walk towards him.  He raised his hands but continued holding the knife.  A woman police officer also drew her firearm and warned him to put down the knife.  It was then that he put down the knife and went down on his knees.

(6) I reject the explanation given by the appellant in his recorded interview that he went to the police station for his safety.  Given that he only lived a few blocks away, he could have returned home, or discarded the knife before entering the police station or put it down immediately upon being instructed by the police officers to do so.  There was no legitimate use for the appellant to possess the knife at that time and inside the police station.

(7) The appellant armed himself with the knife to go to the police station with the intention to cause injury or to use the knife as a weapon to cause injury if the occasion were to arise.

(8) The appellant went to the police station armed with a knife for the unlawful purpose of threatening or using force against police officers present there.

20.In light of the foregoing, I am satisfied that the actions of the appellant by going home, grabbing a meat cleaver and going straight to the police station with it in his hand was with the intention to use the knife to cause injury and with the intent to use the knife for the unlawful purpose of threatening or harming police officers. I am satisfied beyond reasonable doubt that the appellant is guilty of the offence of possession of an offensive weapon. Accordingly, the conviction stands and the appellant’s appeal against conviction is dismissed.

Mr Prakash L Daryanani, SPP of Department of Justice, for HKSAR

The appellant in person, present