HKSAR v. ANIEKWENA, ONYEBUCHI FRANCIS

HCMA 390/2023

[2025] HKCFI 442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 390 OF 2023

(ON APPEAL FROM TMCC 11/2023)

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J U D G M E N T

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Appeal against Conviction

1.  The appellant was convicted after trial of a single count of possession of an offensive weapon, contrary to section 17 of the Summary Offences Ordinance, Cap 228.  He was sentenced to 3 months’ imprisonment and granted bail pending his appeal.  He now appeals against his conviction only.

The Prosecution Case

2.  The appellant was convicted after trial of being in possession of an offensive weapon, namely a chopper 30-cm in length, with intent to use the said weapon for unlawful purposes on 1 January 2023 at No. 33A, Ground Floor, Nam Hang Village, Nam Hang Village Road, Yuen Long, New Territories, Hong Kong.  He had also been charged with a second count of common assault on the same day but the alleged victim of the assault, his wife, failed to appear in court as summoned. He was subsequently acquitted of this count.

3.  The police were called to the premises by the appellant’s wife who reported that the appellant had assaulted her.  When the police arrived just after 9pm, they found the wife with injuries to the back of her head.  When the police arrived the wife was outside the home and the police establish that the appellant with their 3-year-old son were inside the premises.

4.  The police spoke to the appellant from outside the single storey village house and told him to come outside in both English and Chinese.  He refused.  The police gave evidence that he was agitated, was throwing things out of the premises and the child inside was crying in distress.  The police suspected he had been drinking alcohol.  The police called for back up to assist them.

5.  At 10:30pm, the appellant was asked for the second time in both English and Cantonese to calm down and come out of the premises.  Again, he refused.  One officer put a ladder up against the house to give him a better view of inside and to monitor the appellant.  Three other officers were assigned to put on protective vests and were armed with long shields.

6.  At 11:30pm, the officer up the ladder saw the appellant pick up a knife from the kitchen and wave it around whilst walking around.  That officer could see the 3-year-old child crying and shouting.  The police fearing the situation could escalate into violence or injury took action and removed the screws from the metal gate leading into an open space of the house.

7.  At this stage, the appellant opened the door with the chopper in his hand and pointed it at the police outside the door.  The police gave him a third warning.  The appellant was told to calm down and put the knife down.  Again, he refused, went back inside and shut the door.

8.  Not long after, the appellant opened the door again and appeared at the entrance with the knife in his hand.  The police took action and rushed at him, pushing him back inside.  He was warned for a fourth time to put the knife down but did not.  That officer who warned him discharged a burst of OC foam into the appellant’s face.  Another officer had to discharge a second burst before the appellant finally dropped the knife, was subdued and handcuffed.  The police were there for two and half hours before they could subdue the appellant.

9.  The magistrate ruled there to be no case to answer in respect of the assault charge because the victim, the appellant’s wife did not attend court to give evidence.  The magistrate ruled there to be a case to answer on the remaining charge.  The appellant elected not to give evidence nor call any witnesses in relation to that charge.

The Magistrate’s Findings

10.  The magistrate evaluated the evidence in full and identified three key issues.  He questioned whether he was sure of the reliability of the police officers and in particular, was it proved beyond reasonable doubt that the appellant had possession of the chopper.  He identified the second issue as follows, if he was sure the chopper was being used as an offensive weapon, did the appellant have any intent to use it for an unlawful purpose.  Lastly, he did address whether the police over reacted.

11.  It was suggested to the police witnesses during cross-examination that the appellant was minding his own business at home with his family.  He had no duty to cooperate with the police and his home was entered without a search warrant.  The appellant had done nothing wrong and the police should not have acted in that manner nor arrested him without a reasonable excuse.

12.  The magistrate dealt swiftly with this suggestion.  The police were responding to a report of an assault.  When they arrived, they saw evidence of an assault.  They saw evidence of threatening behaviour from the appellant before he even picked up the chopper.  They saw the distress of the young child kept inside the house by the appellant.  Only when the appellant did not respond to four clear warnings and then opened his door on the last occasion to brandish the chopper at the police did the police act.  The police have a duty to prevent crime.  They had more than enough reason to believe he was guilty of an assault and possession of an offensive weapon.  At no time did the police overreact nor was the arrest unlawful.

13.  The magistrate found the appellant was not holding the knife still and in one position.  He was in fact waving it around and had pointed it towards the police.  There were no material discrepancies between witnesses and their evidence of how he held the chopper, waved the chopper and for how long.  He had no difficulty in finding the appellant was in possession of the chopper as described.

14.  He agreed with defence counsel at trial that the chopper was not a weapon per se.  It is common for a kitchen to have such a chopper in Hong Kong.  However, the magistrate found that the evidence he accepted led him to the irresistible inference the appellant was using it for an unlawful purpose.

15.  The magistrate took into account the chopper was 30 cm long and the blade was sharp.  He was not brandishing it for the purposes of cooking or chopping food in a kitchen.  He brandished it at the police on more than one occasion and when they warned him to drop it.  He was well aware of the police presence and how long they were outside trying to defuse the situation.  This did not make him put it down, despite four clear warnings.  Moreover, even when the police rushed into his house he did not drop it.  It was dislodged from his hand in the melee.

16.  The magistrate considered all these facts and found that the only reasonable inference to draw was that the appellant had an intention to use it for an unlawful purpose.  He used it to ward off the police, he used it as a sign of aggression, he used it to, when he waved it at the police,  threaten to cause injury to the police and other persons present such as his wife and child.

17.  The magistrate found so that he was sure, the chopper was being used as an offensive weapon fit for an unlawful purpose and that the appellant had intended to use the chopper for an unlawful purpose.

Grounds of Appeal

18.  There were two grounds of appeal.  In the first ground it was stated the magistrate erred in law in finding from the evidence, the only reasonable inference to be drawn against the appellant was that he intended to use the chopper for an unlawful purpose.

19.  In the second ground, it was stated the magistrate erred in law and misdirected himself or failed to consider that although the appellant was in possession of a chopper, it was because of a family domestic dispute and he did not conceal it or hide it from the police.  The magistrate failed to consider the appellant was agitated but did not attempt to flee from the police.

Legal Principles – Appeals

20.  A magistracy appeal is conducted by way of a “rehearing” on the evidence heard before the magistrate.  Where findings of fact are based on the oral testimony of witnesses, the appellate court would be subject to limitations and must therefore exercise caution.  After all, the magistrate enjoyed the advantage of having seen and heard witnesses giving evidence.  The appellate court is not in that same position.

21.  Nevertheless, the appellate court must work with those limitations when undertaking its duty to rehear the trial to reach its own conclusion on disputed issues of fact or law.  Notwithstanding the absence of any error by the magistrate, the appellate court must still perform the statutory requirement of conducting a “rehearing”.  The court should examine closely whether on the evidence adduced the charge was proved beyond reasonable doubt, failing which the appeal should be allowed.

22.  If the appellate court is not satisfied on the evidence of the appellant’s guilt beyond reasonable doubt then the appeal must be allowed.  If the appellate court comes to a different view on that evidence, this would justify the decision to allow the appeal.

23.  What this means is that the appellate court is required to consider and weigh all the available evidence, relevant evidence and reach its own conclusion as to whether the elements of all charges are proved to the requisite standard, beyond reasonable doubt.

Discussion

24.  It would appear from Mr Allen’s submissions during the appeal that the defence do not challenge the appellant was  agitated, embroiled in a family domestic dispute, waved a chopper in an agitated state and caused the police to be concerned about the appellant’s safety as well as the safety of the 3-year-old child inside the premises with the appellant.

25.  During the appeal hearing, Mr Allen identified the only issue being one of whether the appellant had intent to use the chopper for unlawful purposes.  He suggested there were other inferences to draw other than this intent such as the appellant was suicidal at the time.  He suggests the appellant never threatened the police or anyone with the weapon, never lunged at the police with the chopper in hand outside the door nor were the police put in fear by the appellant.  Therefore, the magistrate erred in finding an irresistible inference of intent, an essential element of the offence.

26.  It was stressed his agitation and behaviour was not in itself unlawful.  Being out of control and emotional does not prove an intention to use the weapon for unlawful purposes.  Although, Mr Allen admits that one can draw an inference of intent to use the weapon for unlawful purposes on the unchallenged evidence of the prosecution, it was not the only inference that could have been drawn.  Therefore, the adverse inference should not have been drawn against the appellant.

27.  Mr Allen during the hearing reiterated that the other inference that could have been drawn was that the appellant was mentally unstable.  He suggests the appellant was later taken to hospital because he was mentally unstable.  There is no evidence as to why he was taken to hospital.  He was sprayed twice in the face with OC Foam, which may very well have needed medical attention.  However, I do not speculate on this.  There is no evidence on this after the event.

28.  The respondent, represented by Mr Daryanani in reply dealt very succinctly with the grounds of appeal.  He stressed the magistrate evaluation of the evidence and findings were full, more than reasonable and a correct assessment of the evidence.  He stressed that although there was evidence a police officer thought the appellant had been drinking alcohol, there was no evidence he was so affected by alcohol that he did not know what he was doing at the time.

29.  During the hearing, Mr Daryanani highlighted the fact that the appellant did not heed four clear police warnings is crucial to the drawing of inferences. He suggested that even if I were to look at the evidence afresh I would be able to draw the irresistible inference that the appellant’s actions of brandishing the knife for such a long period of time and pointing it at the police is enough to prove the element of intent required for this offence.  What other intention can be inferred?  From the facts of this case, there can be no other irresistible inference to draw.

Conclusion

30.  I agree with submissions made by the respondent.  I agree with the submission that I would if rehearing the trial draw the irresistible inference that the appellant had the intention required.  I find no merit in the grounds of appeal.

31.  I find no fault or flaw in the magistrate’s findings and his evaluation of the evidence.  I would have come to the same conclusion as the magistrate after evaluating the evidence.  The fact that the appellant ignored four clear warnings to drop the chopper and opened the door to confront the police outside brandishing a chopper leads me to draw the same irresistible inference as the magistrate.  I see no reason to disturb this safe and satisfactory conviction.

32.  Accordingly, I dismiss the appeal.  The appellant is required to serve the 3-month term of imprisonment imposed by the court below with immediate effect.