THE QUEEN v. TANG TAK KUN

1988, NO. 389

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H E A D N O T E

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Summary Offences Ordinance - possession of offensive weapon - Section 65(C) Criminal Procedure Ordinance - cautioned statement agreed - particulars should make clear what is admitted and against whom.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO 389 OF 1988

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J U D G M E N T

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1. The appellant was convicted by Mr Kong at Fanling Magistrates Court of possession of an offensive weapon, contrary to Section 17 of the Summary Offences Ordinance, Cap. 228.

2. The case arose out of a dawn raid on the appellant's house in a Yuen Long village, where he lives with his mother. In a wardrobe in the appellant's bedroom on the first floor of the house, the police found a knife 44 cm long, the handle of which was wrapped in red adhesive tape. The appellant admitted it was his, that he had made it and that he kept it for self-defence.

3. Later, at the police station, he made a statement under caution, in which he was asked inter alia, what he had meant by self-defence. His reply was: "As the security of Hang Mei Tsuen is very poor, many thieves break into the houses to rob, so I made a knife myself to protect me."

4. The appellant gave evidence and told the magistrate that he had used the knife six or seven times for cutting the grass at the family tomb during Ching Ming and Chung Yeung Festivals. He was also concerned about burglars who, he had heard, were active in the neighbourhood. His house was an old type of building and peculiarly at risk.

5. The magistrate concluded a very brief statement of findings thus:-

"I have observed the demeanour of the Defendant when giving evidence. I did not believe in the Defendant's reasons for possessing the knife and convicted the Defendant for failure to give a satisfactory account of having the knife for the purposes of Section 17 of the Summary offences ordinance,''

6. The magistrate's record states that the cautioned statement was "admitted and agreed" under Section 65(C) of the Criminal Procedure Ordinance. It would have been more appropriate if the statement had been put in under Section 65(B) as a voluntary statement by the defendant. Its weight would then have been a matter for the magistrate to assess.

7. As it is, it would seem that the prosecution was purporting to admit that the contents of the statement were true. If that were the intention, it could have been done more tidily and less ambiguously by a short statement that the prosecution admitted that the defendant had kept the knife for self-defence.

8. Instead, I dare say because the defence was admitting the "Brief facts of the case", as prepared by the police, the cautioned statement was also "admitted and agreed".

9. The word "agreed" does not. appear in Section 65(C). When documents are put in under this section, it should be made clear against whom the facts therein are admitted and the extent of such admission. On the record, as it stands in this case, the only reasonable conclusion is that the prosecution has admitted the whole of the statement to be true.

10. The magistrate does not make a finding whether or not keeping a knife for self-defence, in the circumstances described by the appellant, would amount to a "satisfactory account". He did not therefore address himself to the real issue.

11. Counsel for the Crown submits that, even if the magistrate had applied the correct test, he would inevitably, on the authority of R. v. Yung Yuk⁽¹⁾, have convicted the appellant.

12. Mr Macrae, for the appellant, submits that this was a question of fact for the magistrate and that each case turns on its own facts. That is so.

13. The magistrate does not say why he disbelieved the appellant, nor indeed whether it was the self-defence reason or the grass cutting reason that he rejected. If he accepted the latter and if the Crown is bound by its admission as to self-defence, then it seems to me, on the facts of the case, that the magistrate might reasonably have come to a different conclusion.

14. The appeal is allowed and the conviction quashed. The case is remitted for retrial by another magistrate.

(1) Mag. App. 662/85