ATTORNEY GENERAL v. IP PUI LEUNG

M.A. No. 1551/88

HEADNOTE

Case stated - Section 17 Summary Offences Ordinance Cap. 228 - Offensive weapon - Baseball bats not offensive weapons per se - Whether they are instruments fit for unlawful purpose in the particular circumstances of the case - Appeal allowed - Case remitted to magistrate to amend the charge in accordance with Section 27 of the Magistrates Ordinance Cap. 227 and to continue to hear the case.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1551 of 1988

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J U D G M E N T

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1. This is an appeal by the Attorney general by way of case stated in respect of a decision of a magistrate dismissing a charge against the respondent under Section 17 of the Summary Offences Ordinance, Cap. 228 holding that there was no case to answer. Section 17reads:

"Any person who has in his possession any wrist restraint or other instrument or article manufactured for the purpose of physically restraining a person, any handcuffs or thumbcuffs, any offensive weapon, or any crowbar, picklock, skeleton-key or other instrument, fit for unlawful purposes, with intent to use the same for any unlawful purpose, or being unable to give satisfactory account of his possession thereof, shall be liable to a fine of $5,000.00 or to imprisonment for 2 years.''

2. The respondent was charged that on 10th March, 1988 at the rear lane of 10-12 Chatham Court, Tsimshatsui, Kowloon he had in his possession offensive weaspons, namely two baseball bats and was unable to give a satisfactory account. The facts were set out in the case stated.

3. At about 18 minutes past midnight the respondent was holding two baseball bats at the rear lane of 10-12 Chatham Court. He was immediately intercepted by two police officers. Upon enquiry, the respondent explained that as some customers had not paid their bills and caused trouble outside the doorway of the bar for which he worked, he went out to have a look and took with him the two baseball bats in case there was a fight. He later found that there was no fight. The two police officers made enquiries in the vicinity and confirmed that there had been no quarrel or fight outside the bar at the material time but confirmed a group of people who did not pay their bill had caused trouble inside the bar.

4. At the conclusion of the prosecution case, the magistrate acquitted the respondent being of the opinion that baseball bats were sporting equipment and not offensive weapons per se and the prosecution had failed to prove that the two baseball bats were offensive weapons. He cited the decision in Tang Chi-ming v. The Queen (1968) HKLR 718 as authority.

5. The questions of law for determination are:

(1)    Whether the magistrate was correct in holding that baseball bat per se is not, in the particular circumstances, an offensive weapon within the meaning of Section 17 of the Summary Offences Ordinance, Cap. 228 and

(2)     Whether he was correct in holding that there was no case to answer.

6. In Tang Chi-ming, the Full Court was called upon to interpret the old Section 17 of the Summary Offences Ordinance which enacted:

"Any person who has in his possession any spear, bludgeon or other offensive weapon, or any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes, with intent to use the same for any such unlawful purpose, or is unable to give satisfactory account of his possession thereof, shall be liable to a fine of one thousand dollars or to imprisonment for three months."

7. The issue there was whether half a razor blade found in the possession of the appellant constituted an offence under the section of possession of an instrument fit for unlawful purpose and the appellant was unable to give a satisfactory account of his possession thereof. The piece of razor blade was fixed between the fingers of the appellant to enable him, if necessary, to cut the pockets of unsuspecting passengers about to board a bus, and thus more easily to facilitate his intention to steal from their person. The Full Court answered the question in the affirmative.

8. The same question was considered in an earlier decision in The Queen v. Li Chu (1968) HKLR 242 by Mills-Owens J who held:

(1)    That the section envisaged two, and not three, categories of weapons or instruments, namely,

(a)    any spear, bludgeon or other offensive weapon; and

(b)   any crowbar picklock, skeleton-key or other instrument fit for unlawful purposes,

(2)    That for the purposes of the charge, whether it fell within the first category of an offensive weapon or the second category of an instrument fit for an unlawful purpose, it was open to the Crown to aver in the charge either that the accused was in possession of such weapon or instrument "with intent to use the same for an unlawful purpose" or that he was "unable to give a satisfactory account of his possession thereof."

9. This construction was accepted by the Full Court. In delivering the leading judgment of that court, Rigby S.P.J. (as he then was) had this to say at pages 725 and 726. After referring to R. v. Patterson (1962) 1 All E.R. 340, he said:

"Applying the reasoning stated in that case to a charge under Section 17 of the Summary Offences Ordinance, the prosecution must first prove that the accused was found in possession of an implement which can properly be described as one of those specifically named in the section, or an implement capable in fact of being used either as an offensive weapon or "fit for unlawful purposes" from its common though not exclusive use for that purpose for from the particular circumstances of the case in question. Once possession of such an implement has been shown the burden shifts to the accused to give a satisfactory account of his possession thereof. Quite clearly, the more sinister and suspicious the circumstances in which the accused is found in possession of the implement the greater will be the burden placed upon him to give a satisfactory explanation of his possession of that implement. Each case - and the conclusion reached in each case - must necessarily depend upon its own particular facts."

10. Notwithstanding the amendment and the deletion of spear and bludgeon and the addition of wrist restraint and the like, the new Section 17 remains substantially unchanged. Offensive weapon is not defined in this Ordinance but this term is defined in the Public Order Ordinance, Cap. 245 as to mean any article made, or adapted for use, or suitable for causing injury to the person, or intended by the person having it in his possession or under his control for such use by him or by some other person. The same definition is to be found in Section 1(4) of the Prevention of Crime Act 1953. In R. v. Petrie (1961) 1 All E.R. at page 468, Salmon J made this observation:

"It is clear that the definition section of the Act contemplates offensive weapons of, at any rate, two classes, namely, (a) an article which per se is an offensive weapon, that is to say, an article made or adapted for use for causing injury to the person; and (b) an article which, though it is not made or adapted for such use, is carried with the intent so to use it. A cosh, a knuckleduster, and a revolver are examples of articles in the first class. A sandbag and a razor are examples of articles in the second class. No jury could find that a sandbag was in the first class because there would be no evidence to support such a finding. It seems to this court that the same is true about an ordinary razor. There are some articles which are equivocal, for example, knives. It would always be for a jury to say whether a knife was made or adapted for use for causing injury to the person. It would depend on the view the jury took of the knife. "

11. The evidence adduced befog the magistrate clearly shows that the appellant intended to use the baseball bats for an unlawful purpose, a fight. The fact that there had been no fight is immaterial. An inference can be drawn from the evidence that the appellant was waiting outside the bar with the baseball bats for those customers who did not pay their bill and were causing trouble inside and if necessary to use the baseball bats

12. In my judgment, the magistrate was correct that a baseball bat per se is not an offensive weapon and having regard to the authorities and the particular circumstances of this case, I am doubtful that it even falls within the second type of offensive weapons classified by Salmon J. I would therefore answer the first question in the affirmative.

13. I am, however, of the opinion that in the particular circumstances of this case, the baseball bats come within the category of instruments fit for unlawful purposes and the appellant clearly intended to use them for an unlawful purpose, i.e. a fight. The magistrate was therefore incorrect to hold that there was no case for the appellant to answer. He should have amended the charge in accordance with Section 27 of the Magistrates Ordinance Cap. 227 and proceeded with the trial. The answer to the second question is No. The appeal is allowed and the case remitted back to the magistrate with a direction that the charge be amended to possession of instruments fit for unlawful purposes, namely two baseball bats with intent to use the same for unlawful purpose OR the appellant was unable to give satisfactory account of the possession thereof and that the magistrate continues to hear the case to conclusion.