R. v. LAW CHI WAI

IN THE COURT OF APPEAL

1995, No. 260

(Criminal)

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J U D G M E N T

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Ching JA (delivering the judgment of the Court):

1. In the course of investigating another matter the police searched the house of the applicant. In his room there was a bunk on the upper level of which there were various articles including a waist bag which the applicant admitted was his. Inside it was the applicant's wallet containing his identity card and some papers. In another compartment of the waist bag there were four detonators, two of which were an electrical type and the other two of which were a paper or cardboard type. They were wrapped in two separate pieces of tin-foil or, as the applicant alleges, paper tissues. The police officer who found them told him that they were explosives and asked him where he had obtained them. He said that he had picked them up two years before and that if he had known that they were dangerous he would not have kept them.

2. He was taken to the Tsuen Wan police station where his oral statement was post-recorded and to the correctness of which he agreed. He was asked further questions under caution. He gave the location of the spot where he picked up the detonators as being the roundabout leading from San Po Kong to Chuk Yuen Road. He said that he put them into his pouch and forgot about them. He said that he did not know what they were and would not have placed them there if he had known that they were dangerous. The admissibility of this evidence was not contested at trial.

3. The applicant was charged with the possession of explosive substances contrary to s.55(1) of the Crimes Ordinance, Cap. 200. The particulars of the charge were that he "knowingly had in his possession explosive substances, namely four detonators". So far as is relevant, s.55(1) provides that:

"Any person ......, whether or not he knows it to be an explosive substance, knowingly has in his possession or custody or under his control anything which is an explosive substance shall, unless he can show that he ...... has it in his possession or custody or under his control for a lawful object, be guilty of an offence ......"

When the trial commenced the solicitor for the applicant took the point that the subsection contravened Article 11 of the Bill of Rights in that it raised a presumption that a person charged under it knew that the particular substance was an explosive one. His objection continued that even if the person charged could prove that he did not know that it was an explosive substance he would still be guilty of an offence.

4. With due respect, the objection was misconceived and confused. To whatever extent the Bill of Rights may invalidate presumptions laid down by legislation, s.55(1) contains no presumption. The words "whether or not he knows it to be an explosive substance" do not appear in the equivalent English section which is s.4(1) of the Explosive Substances Act 1883 and under which mens rea is a necessary ingredient of the offence. These words clearly make the offence an absolute one. That that was the intention of the legislature is shown by the report of the proceedings of the Legislative Council when the Bill was read. The provision for an absolute offence does not create any presumption. The Bill of Rights does not invalidate any legislation providing for an absolute offence.

5. In the course of argument in this Court, Mr Dykes who did not appear in the Court below, referred to that part of s.55(1) which provides that a person shall not be guilty of the offence if he had the substance in his possession or custody or under his control if he had it for a "lawful object". Mr Dykes conceded that the lawful object must be one in relation to the use of the substance as an explosive. Having regard to the evil at which the section is aimed, it must be right that the defence of "lawful object" should not be available where, for instance, a person has the explosive substance as a plaything or because he thinks it would make a pretty ornament. If such a defence were available the section would be deprived of much of its force. In the circumstances of this case we are not called upon to come to a decision as to the exact scope of the words "lawful object" and we do not do so. The section as a whole is unhappily worded and would benefit from legislative clarification.

6. When the objection was made at the beginning of the trial the judge below made no ruling upon it other than to say that he would give his ruling at the end of the case for the prosecution. When the prosecution closed its case he did indeed make a ruling but it was a ruling on s.55(2) of the same Ordinance, not on s.55(1) under which the applicant was charged. Section 55(2) provides that:

"Where in any prosecution for an offence under subsection (1) it is proved that the accused knowingly had in his possession or custody or under his control anything whatsoever, other than premises, containing any explosive substance, then, unless the accused can show that he had reasonable grounds for believing that the thing did not contain anything or contained only something other than an explosive substance, he shall be presumed knowingly to have had in his possession or custody or under his control the explosive substance contained in that thing."

Whether or not this presumption is invalidated under the Bill of Rights it was irrelevant to any question of the invalidity of s.55(1) under the Bill of Rights. Nor was it relevant in any way to the charge. Section 55(2) relates to a charge where the explosive substance is in a container in the possession or custody or under the control of the defendant. Mr Dykes could not and did not argue that the detonators were themselves containers. Indeed they are squarely caught by the definition of "explosive substance" in s.51 of the Ordinance.

7. Having ruled that s.55(2) was not invalidated by the Bill of Rights it is not apparent how, if at all, the judge below took it into account. The prosecution laid its care squarely upon the basis that the applicant knew that the objects in question were explosive substances. That is apparent from the inclusion of the word "knowingly" in the particulars to the charge. Indeed, Ms Leung, appearing for the prosecution, expressly said this in answering the objection and, when stating that he would reserve his ruling to the end of the prosecution case, the judge said that if the applicant were to be found not to have known the nature of the substance he should be acquitted. Finally, the applicant's solicitor in his final submission to the judge said that the question was whether the applicant knew that they were explosives and whether he had them for any unlawful purpose.

8. Mr Dykes drew attention to the fact that in the Reasons for Verdict the judge made no findings of fact. The judge disbelieved the evidence of the applicant and then went on to say:

"Inside the same bag his important personal documents were also found. I have no doubt that the defendant had all the time regarded these two (sic.) detonators important and important for him to carry around in his waist bag. I have no doubt that he knew all along that the two (sic.) were detonators ......"

It is a matter of regret that it appears necessary to say, as has been said many times, that the Reasons for Verdict should be complete within themselves and that it is the duty of the judge to make and to record findings of fact. The judge did not do that in this case.

9. While the trial proceeded on the basis that knowledge of the explosive nature of the substance was necessary, this error did not prejudice the applicant. The offence under s.55(1) is an absolute one. The applicant was admittedly in possession of the detonators which are explosive substances. He did not bring himself within the words "lawful purpose". The applicant for leave is dismissed.