HKSAR v. LAU MING WAH

HCMA398/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 398 OF 2003

(ON APPEAL FROM STCC 99 OF 2003)

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J U D G M E N T

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1. On 8 April of this year, the appellant was convicted after trial of an offence (committed on 26 January) of possessing an offensive weapon, contrary to section 17 of the Summary Offences Ordinance, Cap.228. He was sentenced to a term of 14 days' imprisonment.

2. He appealed against his conviction, saying this :

"This was a one against one case. There was doubt in the prosecution charge. The defence want to call defence witness. Therefore I appeal against my conviction."

3. On 28 May, I dismissed the appeal and here follow my reasons for so doing.

The prosecution case at trial

4. PW1 was the appellant's neighbour, and his relationship with the appellant and appellant's father had never been good. There had been a number of previous disputes between the two households resulting in the police being called. During the evening of 26 January 2003, PW1 heard someone tampering with the bell of his bicycle which was parked outside his unit and he went outside intending to take the bicycle back into his unit. In the corridor, he saw the appellant's father who said "if your bicycle had been tampered with, count it on me since I may have accidentally touched it when I picked up the newspaper.". PW1 said nothing in reply.

5. At this point, the appellant rushed out from his unit holding a chopper in his right hand. PW1 said that the appellant was standing outside his own unit with his face towards PW1's unit's door and he raised the chopper to head level as if to strike PW1. Whilst that was being done, PW1 said that he heard the appellant uttering some words but he did not know what he was saying. The appellant's father then grabbed hold of the appellant's hand and pressed the appellant against the wall. PW1 went back into his unit and called the police.

6. PW2 was the police officer who responded to the call from PW1 and who, after investigation, arrested and cautioned the appellant. Under caution, the appellant said "Ah Sir, I heard my father having an oral dispute with another person. I was just taking the chopper in order to threaten them only."

The defence case at trial as per the Magistrate's Reasons

7. The appellant said that his relationship with PW1 was 'not too bad' but PW1's wife always complained against his (the appellant's) father for making noises which disturbed their baby. He said that on 26 January, he was angry with his father for 'messing up his things'. He (the appellant) then threw away all the newspapers onto the corridor outside their unit and whilst his father was picking them up in the corridor, he (the appellant) pressed the bell of PW1's bicycle a few times and went back into his unit.

8. He said that after a while he heard an argument between PW1 and his (the appellant's) father and he heard PW1 say that he would beat up the appellant's father. Upon hearing this, he said that he became very angry and he picked up a chopper from the kitchen intending to protect his father. He ran towards the doorway and was stopped by his father so he had never actually stepped outside his unit. He showed PW1 the chopper and just said "do you really want to fight?" in order to scare PW1. He said that, upon seeing this, PW1 (and his wife) retreated into their unit. The appellant denied ever raising the chopper or trying to strike PW1 with it. He did, however, admit saying the words under caution.

9. When he was cross-examined, the appellant explained that his intention in holding the chopper was to threaten PW1 and to stop him bothering his father any more. He said that he never intended to hurt PW1 with the chopper. The appellant also said that he had not raised the chopper and was only holding it up to waist level and when his father saw what he was doing, he stopped him immediately.

10. The appellant's father gave evidence saying that his relationship with PW1 had never been good : that PW1 used to tell him that he would beat him up; and that on that evening PW1 was just finding an excuse to do so. He said PW1 was standing at the doorway inside his own unit with the iron grille drawn up and that he scolded him (the appellant's father) with foul language. He said that he apologized to PW1 but PW1 did not accept that apology and he became very aggressive as if he was trying to hit him. He said that the appellant then appeared at the doorway inside the unit with a chopper in his hand; the appellant asked PW1, "are you going to hit my father?" According to the appellant's father, he then told the appellant not to come out and the appellant then turned and walked inside. He (the father) also returned to his unit and later the police came. Under cross-examination, the father agreed that PW1 had not struck him but had just raised his hand and that when the appellant appeared at the doorway he just stood there, with both of his hands down to his side until satisfied that PW1 had not struck his father at which stage he walked back into the unit.

The Magistrate's Reasons

11. The Magistrate accepted the evidence of the prosecution witnesses and rejected that of the defence witnesses giving full reasons why he did so.

Conclusion

12. Before me, the appellant sought to repeat what he said at trial saying that he did not intend to hit anybody with the chopper, and that he was only holding it in self-defence. In my judgment, the Magistrate was perfectly entitled to reach the conclusion that he did reach which was this :

"The act of the defendant by raising a chopper in his hand in a striking action was clearly posing a threat to PW1. Even though the defendant said that he was trying to protect his father in fact nothing happened to his father to justify the defendant in getting a chopper out to threaten PW1. Without such justification what the defendant did was clearly an unlawful purpose."

13. It was for that reason that I dismissed this appeal.