THE QUEEN v. CHOW CHEUK KIN

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JUDGMENT

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Silke, J. A.:

1. The Applicant, Chow Cheuk Kin, was convicted after trial before C.Y. Lee, Esq., sitting as a Deputy Judge of the District Court, for the offence of possession of an offensive weapon contrary to s.17 of the Summary Offences Ordinance. He was sentenced to a period of 3 months' imprisonment suspended for 12 months.

2. He sought leave to appeal against both his conviction and his sentence.

3. In the event, we granted the application for leave, treated the hearing as the hearing of the appeal, allowed the appeal and quashed the conviction and sentence and stated we would give our reasons later. This we now do.

4. The Particulars of Offence - and the charge was the 6th count - alleged that he did on the 1st April 1986 on Block A, 2nd floor, No. 9 Lung Chun, 3rd Lane, in the Walled City, have in his possession an offensive weapon, namely a sword and was unable to give a satisfactory account of his possession thereof.

5. The Applicant was the 2nd named Defendant on the Charge Sheet. The other named defendant was the 1st, a brother of the Applicant, who was accused of four counts of burglary and one of going equipped for stealing - indictable offences. He pleaded guilty to three of the burglary offences and no evidence was offered in relation to the other counts. The trial proper went on with the Applicant as the only person before the Court.

6. The brother, Chow Cheuk Keung, had been arrested on the afternoon of the 1st of April in the course of committing a burglary. Upon arrest, he was taken back to his home. The Applicant was there. The premises were searched and the sword, the subject of the charge, was found. While on the premises, the Applicant stated to the police that he was the owner of the sword, he was then arrested and cautioned. Under caution, he stated that he possessed the sword for decoration purposes and "I have not taken it out to the street for use".

7. In evidence at trial, he did not seek to resile from that statement and went on to say that he could be said to be the owner of the sword as it was kept at the premises which he owned.

8. The trial judge considered the explanation offered. He averted to the fact that when, in examination-in-chief, the Applicant was asked whose sword it was, he gave the answer: "It was left behind by my second elder brother when he moved out". In his statement he had said that the sword was bought by his second elder brother in 1980. In evidence, when questioned about this, he, said that after he had been bailed for this offence, he spoke to his second elder brother and asked him if in fact it had been bought by him. His brother answered that it had either been left behind by their father or was bought by their father before his death.

9. The second elder brother gave evidence as the third defence witness at trial. It was his evidence, and the trial judge thought him to be a truthful witness; that he bought it in about 1972 because he liked it. He said he left it behind when he moved out of the premises in 1980 or 1981.

10. There was some controversy as to who had attempted to sharpen the edge of the blade of the sword. The Applicant had said in his evidence that it had been ground by the 1st. Defendant, and this two to three years ago after second elder brother had left the premises. He expressed himself as being angry and that he had scolded the 1st Defendant for making bad a fine article.

11. The 1st Defendant, who also gave evidence on behalf of the Applicant at trial,: said that he did not know whether the Applicant was or was not aware that the blade of the sword had been ground and that the Applicant had not spoken to him of this. He said he had in fact ground the blade but this when he was eight or ten years old. The 1st Defendant is now about twenty years of age and the Applicant is aged twenty-two.

12. The Applicant, who had not referred to the grinding of the sword by the 1st Defendant in his statement, explained this by saying that, to quote the judge: "because at that time, the things done wrong by the 1st Defendant were too many, so for the sake of his good heart he did not disclose this fact but rather gave a statement."

13. The weapon is three feet in length. The blade is contained in a scabbard made of black material with heavy silver coloured metal ornamentation at intervals down its length. It is taped at its point. The blade has a heavy cruciform, almost crusader like, silvered metal hilt. The handle portion of which is very carefully taped. The edge is blunt but there has been, towards the tip, some attempt made to sharpen it. The effect is to make that part only somewhat less blunt than the rest of the blade. The tip of the blade tapers to a point.

14. The trial judge disbelieved the Applicant's explanation, finding direct contradictions between his evidence and that of the 1st Defendant. He considered that, if the Applicant could tell a deliberate lie to the police about the sharpening of the blade then:

 

"the suspicion arises as to whether he would lie again in order to protect his own position, ......"

15. The sword was found at the entrance to the premises at a spot between the room side of the front door and a wall. The judge took the view that if the sword were for decoration purposes, these purposes would not be served by it being placed in this position. He went on:

 

"Nevertheless, no evidence has been led by the Defence as to anything special, anything peculiar about this sword, nor as to the interest of the Applicant in articles of this kind."

16. He found that no explanation had been given as to why the sword was kept in the premises after second elder brother's departure. He attached significance to the attempted sharpening of the blade and to the tape wrapping the handle.

17. This application has raised some interesting points of law to which I shall make brief reference in a moment. But, in the light of the view which we take of the factual findings, it is unnecessary to consider them in detail. With respect to the trial judge, the discrepancies to which he referred as between the evidence of the 1st Defendant and the Applicant are more apparent than real. The constant theme, as Mr. King who appears for the Applicant in this Court, has submitted is that the sword was for decoration purposes. We have seen the sword. It is clearly capable of being considered decorative although it does not appear to have any great commercial value. That the second elder brother had simply left it behind when he vacated the premises some six years ago would have been a sufficient explanation for its presence in April of this year. As the "discrepancies" were the basis for the disbelief in the evidence of the Applicant, I am of the view that the trial judge has misdirected himself. He did not give proper consideration to the reasonableness of the thoughts of a reasonable man in the Applicant's position nor, with respect to him, to the views of the Court of clearly decorative weapon of this nature.

18. That is sufficient to dispose of the appeal. But the clear contravention of Rule 7 of the Indictment Rules, which contravention is accepted by Mr. Hartmann who appeared in this Court for the Crown, by the joinder of the offensive weapon offence with other offences relating to another defendant and between which there was no nexus at all is a matter for comment. Mr. Hartmann has suggested to us that, as the Applicant was eventually tried alone, the judge having assumed jurisdiction under s.66(1) of the Criminal Procedure Ordinance, there was no injustice and further that the misjoinder is not sufficient to render the trial a nullity. There was no application for severance made at trial.

19. Section 66(1) was, in its guise as s69(1) of the same Ordinance- the wordings is identical - considered in The Attorney General v. Li Keung Pong⁽¹⁾. The section reads:

"If, either before or during the trial of an accused person, it appears to the court that such person has been guilty of an offence punishable only on summary conviction -

 

- and it is common case that this offence is a summary offence -

"the court may either order that the case shall be remitted to a magistrate with such directions as it may think proper or allow the case to proceed, and, in case of conviction, impose such punishment upon the person so convicted as might have been imposed by a magistrate and as the court may deem proper."

20. For myself, I would have thought that so great a contravention of Rule 7, in particular in conjunction with the charging of the Applicant's brother with indictable offences such as burglary and going equipped for stealing, would make it difficult for the proviso to be applied, the risk of injustice being present.

21. The matter does not, however, rest there for there was a submission upon jurisdiction made to the trial judge which was overruled. On that aspect, the Crown has placed reliance upon Li Keung Pong⁽¹⁾. That decision appears to hold that, even if a summary offence were wrongly transferred to the District Court, s.66 permitted that error to be rectified by the exercise by the judge of the discretion given to him under it. Neither counsel was in a position to explain the oddity of the opening words of s. 66(1). Both counsel accepted that section 66(1) did apply here.

22. In the District Court Ordinance, Cap.336, the present ss.74 and 75 correspond, to an extent, with the 1962 version, ss.24 and 25. It is noteworthy that both s. 74 and the old s.24 make reference to "such charges as the Attorney General may lawfully prefer".

23. In the light of the now existing s. 88(1)(a) and (b) of the Magistrates Ordinance in Part IV of that Ordinance - which did not exist in that form in 1962 -(a) making the transfer of indictable offences mandatory and (b) permitting the exercise of a discretion by a magistrate in ordering transfer of summary offences when the accused charged with indictable offences is also charged with these summary offences - and of the provisions of s.34 of the Summary Offences Ordinance, which could be considered a saving section relating back to s.88(1)(b), we would prefer to reserve any decision as to the propriety of the transfer of a single summary offence for trial in the District Court to another occasion.

(1) [1962] H.K.L.R. at p.615 (F.C.)