THE QUEEN v. SIU CHI HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO.389 OF 1991

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BETWEEN

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JUDGMENT

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1. The appellant pleaded not guilty to a charge of possession of an offensive weapon contrary to s.17 of the Summary Offences Ordinance. The particulars alleged that he had a chopper in his possession on the 13th February 1991 at Kowloon with intent to use it for unlawful purposes.

2. The evidence for the prosecution was that he was Found in possession of the weapon at around 2:30 in the morning of the 13th February at Kilung Street or rather in poplar Street as he was walking in the direction of Lai Chi Kwok Road. After his arrest he was taken to a police station where he was interviewed about tae matter. And under caution he then said that he had the knife in his possession for self-defence, and explained that he wanted it to defend himself in the course of robberies. The defendant did not give evidence, an was convicted and sentences to imprisonment for 2 years. He now appeals against that sentence.

3. S.17 of the Summary Offences Ordinance provide that a person guilty of an offence under that section is liable to "a fine of $5000 or to imprisonment for 2 years." The learned magistrate in his reasons for sentence said that, in his opinion the case should have been dealt with is a District Court, where a penalty greater than his jurisdiction could have been imposed.

4. Mr. Forlin, who appears for the respondent today tells me that he does not know why it was that the appellant was charged under s.17 of the Summary Offences Ordinance, anti not under the relevant provision of the public Order Ordinance. The fact of the matter is however, that the appellant has been sentenced to the maximum period of imprisonment possible for this offence under the Summary Offences Ordinance. It could hardly be said that this represents the worst possible case of an offence under that particular section.

5. I do not think that tae appellant's conduct in committing this offence warranted the maximum penalty of imprisonment under s.17. Accordingly I allow his appeal, quash the sentence and substitute, therefore, a sentence of imprisonment for 18 months.