HKSAR v. LEE SZE WANG AND ANOTHER

HCMA 903/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 903 OF 2000

(ON APPEAL FROM EASTERN MAGISTRACY NO. 1575 OF 2000)

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J U D G M E N T

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1. These appeals were listed to be heard before me on 19 December 2000.

2. The 1st appellant (who was the 3rd defendant at trial) appeals against his conviction at Eastern Magistracy on 22 August 2000 of an offence of handling stolen goods, and the 2nd appellant (who was the 4th defendant at trial) appeals against his conviction (by the same court and on the same day) of an offence of possessing an offensive weapon in a public place, and an offence of going equipped for stealing.

3. Before I started to hear these appeals the 1st appellant, who was unrepresented, sought an adjournment saying that he had received no notice of the date of hearing and that he was only in court, coincidentally, to follow the appeal of the 2nd appellant who had received notice.

4. Counsel for the 2nd appellant Mr Cheng told me that he did not wish the hearing of his client's appeal to be adjourned and that, so far as he was aware, the 2nd appellant's grounds of appeal had no bearing whatsoever on the appeal of the 1st appellant. Accordingly I adjourned the hearing of the appeal of the 1st appellant to a date to be fixed and for that hearing to listed before me. After hearing the appeal of the 2nd appellant I allowed it and said that I would give my reasons later. These are my reasons.

The case against the 2nd appellant

5. At about 4 am on the 23 November 1999 the police stopped a private car belonging to, and being driven by, the 2nd appellant in Happy Valley. A search of that vehicle revealed, inter alia, 2 knives inside a plastic box in the boot; 2 screwdrivers in the glove compartment; 2 screw drivers in a pouch behind the front passenger seat; 21 white gloves in the boot and a 38 foot length of rope, also in the boot.

6. The 2 knives were the subject of the 'offensive weapon' charge and the other items were the subject of the 'going equipped' charge.

7. In his comprehensive and very helpful statement of findings the learned deputy magistrate set out the evidence which was presented to him in the course of the trial, and his evaluation of that evidence.

8. The 2nd appellant, who was at that time a serving police officer, gave evidence at his trial during which he gave explanations for his possessing the various items found in his car and during which he also confirmed that he had given explanations to the police at the time of the search. The 2nd appellant also called 2 witnesses; one his brother who was a Government servant of good character who gave evidence about the family's recreational use of the knives; and the other, a serving police officer who told the court about his knowledge of the gloves and the rope. As to the gloves he said that they had been used in a previous police operation. He was not cross-examined.

The knives

9. In his statement of findings the learned deputy magistrate stated, inter alia, that in his view the 2 knives were not offensive weapons 'per se' and that before the 2nd appellant could be convicted of an offence contrary to section 33 of Cap 245 the prosecution would have to prove that he was in possession of them intending to use them to cause injury to the person.

10. The learned magistrate then proceeded to consider the evidence in that regard which, in reality, consisted only of what the 2nd appellant had told the police and what he had told the court. The magistrate concluded, inter alia, that he was sure that the 2nd appellant "had not told the whole truth to (either) the interviewing officers or to (the Court)".

11. He went on to say that whilst the 2nd appellant's explanation given to the court in relation to one of the knives (Exhibit P13) "had a sense of reality and may well (provide) a good reason for it being in the boot of the car at the material time and place", his explanation (which had found support from his brother) for having the other knife (Exhibit P 12) was "implausible".

12. The learned magistrate concluded by saying this:-

"I was satisfied so that I was sure that (the 2nd appellant) and (his brother) were deliberate in providing me with such an implausible explanation and that there was no innocent reason for (doing so). Since this explanation went towards a material issue ... namely the intention of the possessor ..., a Broadhurst direction as elaborated in HKSAR v. Mo Shiu Shing [1999] 1 HKC 43 was applicable. Having directed myself with the Broadhurst direction I was satisfied that this implausible explanation did go towards strengthening the inference that (the 2nd appellant) had the guilty intention in relation to his possession of Exhibit P 12 at the material time and place ... to the extent that I was satisfied that the requisite intention was proved beyond a reasonable doubt."

13. The learned magistrate went on:-

"Having considered the explanation given by (the 2nd appellant) and ruled on its plausibility I held that (the 2nd appellant) had not satisfied me on a balance of probability that he had a reasonable excuse for possessing Exhibit P 12 ... accordingly I convicted him."

14. Clearly then what the learned magistrate did was to equate an 'implausible explanation' with a 'lie' and, having done that, to use that 'implausible explanation' (which he decided had not been put forward for an innocent reason) as evidence strengthening an inference of intent and thus an inference that the knife in question was indeed an offensive weapon.

15. He went on from there to use that 'implausible explanation' against the 2nd appellant again, when he concluded that it did not amount to a reasonable excuse for his possession of the knife.

The gloves, the screwdrivers and the rope

16. In considering whether or not it was open to him to infer that the 2nd appellant's intention in possessing these items was to commit theft or burglary, the learned magistrate set out and considered a number of possible uses to which these items (used either collectively or individually) could be put. He concluded that he could draw an inference adverse to the 2nd appellant from those possible uses i.e. that he was in possession of the items intending to use them in a connection with a burglary or theft. He added that the appellant's intention did not relate to "any specific burglary or theft but an opportunistic burglary or theft".

17. In considering the explanations given by the 2nd appellant to the police and to the court for his possession of these items the learned magistrate said (as he had done in relation to the 'offensive weapon' charge) that they were "implausible and incomplete" and that as they were central to a material issue - namely the intent of the 2nd appellant - a Broadhurst direction was applicable, and that having given himself such a direction he concluded that the implausibility of the 2nd appellant's explanations could and would be used to strengthen the inference adverse to him. Thus once again the learned magistrate used what he perceived to be lies on the part of the 2nd appellant as positive evidence to convict him - this time of the offence of 'going equipped to steal'.

The grounds of appeal

18. Putting them succinctly Mr Cheng's grounds of appeal amount to this:-

19. That the learned magistrate was wrong to draw the inferences adverse to the 2nd appellant which he did draw and, in particular, to conclude that the 2nd appellant had lied when giving evidence which lies strengthened such inferences.

20. In support of his able submissions before me, Mr Cheng relied upon the following authorities:-

Simpson [1983] 78 Cr App R 115

R v. Lucas [1981] 3 WLR 120

HKSAR v. Mo Shiu Shing [1999] HKLRD 155

HKSAR v. Chan Chi Sang HCMA 1003 of 1998 (unreported)

21. In essence Mr Cheng submits that whether or not the learned magistrate considered the 2nd appellant's evidence in court and his explanations to the police to be implausible, there was no justifiable basis upon which to conclude that he was telling lies. Putting it another way, there was no admission or independent evidence to show that he had lied, and that being so, the learned magistrate fell into error not by disbelieving what he regarded as implausible evidence, but by going further than that and finding that such evidence was not 'innocently based' and thus evidence available to be used to strengthen adverse inferences.

22. In relation to the 'going equipped' charge Mr Cheng submits that the learned magistrate fell into error by allowing himself to speculate as to the possible uses of the articles in question and, having done that, inferring guilt by virtue of those uses consistent with dishonest conduct, whilst apparently failing to deal with the evidence provided by the police officer called by the 2nd appellant which evidence was consistent with the 2nd appellant's explanation concerning the gloves.

23. In my view the learned magistrate did fall into error when he equated an implausible account with a lie; when he inferred that such account was not made for an innocent purpose, and when he then found (in relation to both charges) that such account strengthened the inferences adverse to the 2nd appellant and did so to the extent of determining the intent necessary to find him guilty of both offences.

24. It was for these reasons that I allowed the appeals of the 2nd appellant against his convictions which convictions I set aside.