HKSAR v. LAU WA KUEN

HCMA 523/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 523 OF 2001

(On appeal from NKCC 984/2001)

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J U D G M E N T

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1. On 7 May 2001 the appellant, Lau Wa-kuen, was convicted after trial by Mr Kevin Browne, permanent magistrate sitting at North Kowloon Magistracy for an offence of possession of an offensive weapon in a public place contrary to section 33(1) of the Public Ordinance. He was sentenced to serve 6 months' imprisonment.

2. The appellant now appeals both conviction and sentence. Mr Paul Wu of counsel represents him.

3. The facts were that a police constable, at around 10.24 pm on 17 October 2000, was on duty in Sham Shui Po along with a colleague. They heard some noises coming from the 3rd floor of 142 Ki Leung Street and went to investigate. When they arrived at the 3rd floor they saw a man knocking at the iron gates of Room 140 and he was shouting. The first prosecution witness, one of the police officers, noticed that there was blood near to his right eye. This man turned out to be the younger brother of the appellant.

4. During the course of their inquiry with this man, the first prosecution witness noticed a person standing on the staircase between the 3rd and 4th floor of the building. He saw that person glancing in his direction, he noticed that this person appeared to be trying to conceal himself. The officer was suspicious and went to make inquiries. At the end of the corridor, when he looked up towards the 4th floor of the building, he saw the appellant walking hurriedly up towards the 4th floor. The officer shouted for him to stop. After the appellant stopped, the officer asked him why he was looking in his direction? The appellant answered that the person who had been attacked downstairs was his younger brother.

5. The officer requested the appellant to follow him back down to the 3rd floor. When they arrived at the 3rd floor, the officer noticed that the appellant was not speaking and appeared to be nervous. He also noticed that the appellant's right hand was on the top of his left hand and both hands were resting in the area of his abdomen. The officer suspected the appellant might have an offensive weapon on him and he therefore searched him. He found in the left side of the waist-band of his trousers, tucked inside his T-shirt, a piece of copper water pipe. This was about 18 inches long and it had been beaten to a point at one end. It was stuck down the trousers vertically with the crimped, pointed end pointing upwards. The officer took hold of the pipe and asked the appellant why he had it with him? The appellant said that he used it in "self-defence".

6. He was arrested and cautioned. After caution, the appellant said, "Ah Sir, sometime earlier my younger brother was assaulted by someone and I went there to have a talk with that person and I took the water pipe for my own self-defence." It was confirmed in cross-examination that the appellant's younger brother had in fact been assaulted prior to the officers arriving at the premises.

7. There was an issue at trial over whether or not the oral admission had been made by the appellant. The magistrate resolved that in favour of the prosecution.

8. The appellant gave evidence. He said that on that evening he had been working in premises a short way away from his home. He worked for a man called Mr Wong. He had finished work at around 10 o'clock, and wanted to take a piece of water pipe back with him in order to do repair work on the water heater at home. He said that the piece of water pipe he was found with was part of a longer pipe which he had bought earlier that evening. When he was asked why he had put the pipe inside his trousers, he said he had done that so that nobody could be accidentally injured by it. He said that while he was on his way home and when he had nearly reached his home he received a call from his younger brother, who said that he had been assaulted and was feeling dizzy. He went downstairs to search for his younger brother, and when he arrived he saw one of the police officers holding his younger brother. He denied that he said anything to the police officers on being questioned by them.

9. In cross-examination, he agreed that he had the water pipe inside his trousers and that he had concealed it with his T-shirt. He also agreed that when he went downstairs he knew that the assault on his younger brother had ended, and that he was aware that his younger brother was in no immediate danger. The tenor of the evidence, as I understand it, was that the younger brother was seeking out his assailant.

10. The magistrate disbelieved the defendant's evidence and that of his witness, Mr Wong, his employer. In accepting the prosecution's evidence, the magistrate took the view that at the time when the two police officers arrived at the scene the earlier assault on the younger brother had ended and that the younger brother was committing an act of aggression in seeking out his assailant rather than acting in self-defence. The magistrate also found that the appellant was aware that the incident had ended and that he was going to assist his younger brother. The magistrate also found that the appellant intended to use the water pipe as an offensive weapon.

11. Mr Wu, in his argument before me this morning, says that the magistrate was wrong to do so. He says, rightly, that a person in immediate fear of attack might have a reasonable excuse for carrying an offensive weapon if he does so in self-defence. He relies upon the judgment of Barnes J in the case of R v Poon Sin Bik [1983] 2 HKC 207.

12. He also says that the relevant time at which the reasonable excuse was relevant was the time when the appellant was setting out to render assistance to his younger brother. For this he relies upon the judgment of Pickering J in R v Yu Kiu Kwan [1973-1976] HKC 478.

13. He says that the magistrate erred in failing to take account of the appellant's verbal admission, which he admitted in evidence, and thus failed to consider that on the prosecution's evidence the real, or likely, possibility was that the appellant had just arrived at the scene. And/or that the appellant, upon receiving the call from his younger brother, reasonably felt that in proceeding to help him he was himself also at risk of imminent attack.

14. Able though these submissions are, I disagree with them. The magistrate considered the issue of self-defence in his statement of findings. He said this:

"Counsel for the defendant submitted that if I were to reject the evidence of the defendant as regards his reason for possessing the water pipe I should consider the issue of his carrying the water pipe for the purpose of self-defence or rather the defence of his brother.

There was no doubt that on the evening in question his younger brother had been involved in an altercation and had been injured during the course of that altercation. I also had no doubt that the defendant was on his way to render assistance to his brother. I have no doubt at the relevant time the defendant was carrying the piece of water pipe in order to give assistance to his brother.

When the police arrived at the premises the younger brother was banging on the door of another resident in the building who was a party to the earlier altercation. I was sure that the earlier incident had finished and that the brother was intent on acts of aggression rather than of self-defence. I was also sure that the defendant was aware the incident had finished and was going to assist the younger brother."

15. The magistrate clearly was aware that the appellant's claim was that he had the water pipe with him for self-defence.

16. Regrettably for the appellant his concept of what self-defence is is not what the law recognises it to be. In Poon Sin Bik, Barnes J, at page 210 said:

"It is not a reasonable excuse to carry a weapon for use in self-defence to resist an attack which is no more than a contingency."

This, it appears, is what the appellant was doing.

17. The appellant's appeal against conviction is dismissed.

18. I turn to the appeal against sentence. The appellant had a clear record and has no prior history of physical violence or propensity to violence. It was submitted, and I believe accepted by the magistrate, that the appellant was the sole breadwinner of the family. Mr Wu says that in all the circumstances the appellant does not deserve a deterrent sentence of 6 months' imprisonment.

19. The magistrate considered the water pipe to be a weapon that could have been used to cause someone serious injuries. I have looked at the pipe this morning and I agree with his observation. The magistrate also had no doubt that had the police not arrived on the scene, a serious incident could have developed in which the pipe would have been used.

20. The maximum penalty for this offence for an adult offender of 25 or more is 3 years' imprisonment, which indicates how seriously the legislature views the offence, the appellant is 31. In the circumstances of this case, I cannot say that a sentence of 6 months' imprisonment is manifestly excessive or contrary to principle. The appeal against sentence is dismissed.