HKSAR v. GURUNG SUSHANT

HCMA 408/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 408 OF 2013

(ON APPEAL FROM TMCC NO 630 OF 2013)

______________________

________________________

________________________

1. The appellant was charged with one count of Possession of Offensive Weapon, contrary to section 33(1) of the Public Order Ordinance, Cap 245. He pleaded not guilty and his trial took place before Deputy Magistrate Tsoi Shun Cheong. The appellant was convicted after trial and sentenced to six months imprisonment. He appealed against his conviction.

The prosecution case

2. At about 2010 hours on the material day, PW2 (a police officer), together with three of his colleagues, were travelling in a car along Hop Yick Road, Yuen Long.  PW2 was sitting on the offside of the back passenger seat whereas PW1 was sitting to his left.  At the material time, PW2 saw to his right, a group of four to five Southeast Asian males chasing after another three to four Southeast Asian males along the pavement of Hop Yick Road.  One of the males (the appellant) in the pursuing group was holding a wooden pole which was about one metre long.  In view of the situation, PW2 alerted his colleagues. 

3. The two groups then turned right into Kin Tak Street.  PW2’s car also turned and stopped next to a safety island at the junction between Hop Yick Road and Kin Tak Street. When the appellant reached the safety island, he stopped and was seemingly looking for people.  PW2 and his colleagues then got off their car and ran after the appellant. The appellant dropped his wooden pole and attempted to flee.  He was finally caught and brought back outside 51B Kin Tak Street, a few metres from where he dropped the wooden pole.

4. After his arrest, a video interview was taken from the appellant in which he stated, inter alia, the followings:

(1) He was playing cricket with two Pakistani boys inside a basketball court that evening.

(2) The wooden pole in question was used as a bat.

(3) A group of Nepalese males was sitting inside the basketball court.

(4) Another group of Nepalese males entered the basketball court and the first group started to chase and throw glass bottles at the second group.

(5) He followed the two groups out of the basketball court with the wooden pole and was soon arrested.

The defence case

5. The appellant did not give evidence.

Grounds of appeal

6. Three grounds of appeal are put forward:

(1) There was insufficient evidence to support the charge that the wooden pole was an offensive weapon.

(2) There was no evidence to support the charge that the offence occurred outside 51B Kin Tak Street.

(3) Important evidence was improperly admitted or rejected without any or any reasonable explanations.

Discussion

7. In his Statement of Findings, the magistrate accepted that the wooden pole was not an offensive weapon per se and that the appellant’s intention to use it to cause injury had to be proven.

8. The magistrate then went on to consider the role played by the appellant and ultimately his intention.  After considering the contents of the appellant’s record of interview and the evidence of PW2, the magistrate rejected the use of the wooden pole as a cricket bat, citing that it was too long and heavy, and then concluded that the appellant was a member of the pursuing group and that the wooden pole had been used to attack the other group.

9. It was submitted in the first ground that there simply did not have enough evidence to allow the magistrate to come to that conclusion.  I disagreed. I had the opportunity in viewing the wooden pole in question during the appeal hearing, and agreed entirely with the magistrate’s conclusion that it simply could not be used as a bat.  Not only is it long and heavy, it also has a metal object attached.  No batsman would use that to play cricket.  As such, the record of interview, which was not challenged, was therefore clearly a mixed statement and that the magistrate was not bound to accept the contents in its entirety.  Given the fact that PW2’s observation had been expressly accepted by the magistrate, it was open for the magistrate to come to the conclusion that chaos between the two groups which started at the basketball court soon escalated into violence, and that in turn spilled onto the street. The appellant admitted that he picked up the wooden pole nearby, given he was originally inside the basketball court, I too have no doubt that he was using it with the intention to attack.

10. Even assuming the magistrate erred in coming to the conclusion that the appellant had used it to attack the other group in the basketball court, there was still sufficient circumstantial evidence to infer that the appellant armed with the wooden pole was actively searching for the other group at the street level.  In order words, the appellant was clearly using the wooden pole as a weapon along Hop Yick Road and Kin Tak Street.  It was simply implausible for the appellant to have taken along the wooden pole innocently. 

11. According to PW2’s evidence, he saw the appellant holding the wooden pole and going after another group.  Whether the appellant was walking or running, holding the wooden pole above or below his shoulder, they seemed making little difference to me.  Given the fact that the appellant did not testify, one cannot envisage the wooden pole being used in any way other than as an offensive weapon under those circumstances. 

12. It was also submitted that there was no evidence to prove that the two groups of males inside the basketball court were the two same groups on the street.  I disagreed too.  The record of interview stated that clearly.  What was stated was further supported by PW2’s observation that only two groups of Southeast Asian males were involved.  Although the area was frequented by Southeast Asian, in light of the proximity in time and the nature of the incident, the magistrate was perfectly entitled to come to the finding that the two groups, whether inside the basketball court or on the street, comprised the same people.  The first ground has therefore no merit.

13. 51B Kin Tak Street was the location where the appellant was arrested by the police.  It was just few metres opposite the safety island where the appellant dropped the wooden pole.  Up to that juncture, the appellant was still carrying the wooden pole and seemingly looking for people.  Only when he was made aware of the presence of police officers that he decided to abandon it.  There is, in my view, nothing wrong for the offence to be particularized as being taken place outside 51B Kin Tak Street.  The act of possession and the intention to use took place both on Hop Yick Road and Kin Tak Street.  This was, in fact, the prosecution’s case.  More importantly, the defence was never misled about the nature of the prosecution case.  There is also no merit in this ground.

14. It was submitted effectively in the third ground that the magistrate was wrong (i) to reject PW1’s evidence; and (ii) to admit PW2’s evidence without giving adequate reason.  Firstly, had PW1’s evidence been accepted, the case against the appellant would be much stronger.  The rejection of PW1’s evidence only added to the appellant’s benefit.  Secondly, the basis for the magistrate’s acceptance of PW2’s evidence was not simply because of PW2’s honest and credible demeanor, but rather his observation about the appellant’s action which was consistent with the account given by the appellant in his record of interview.  The magistrate stated that in his Statement of Findings.  There is also little merit in this ground. 

15. For these reasons, the appellant’s appeal against his conviction is dismissed.