HKSAR v. SIU CHI SHING

[English Translation – 英譯本]

HCMA 304/2021

[2023] HKCFI 913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL CASE NO. 304 OF 2021

(ON APPEAL FROM WKCC NO. 918 OF 2020)

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BETWEEN

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REASONS FOR JUDGMENT

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A. Foreword

1.  The appellant faced two counts: (1) “assaulting a police officer”, contrary to section 63 of the Police Force Ordinance, Cap 232 (Count (1)); and (2) “possession of an instrument fit for unlawful purpose and with intent to use for unlawful purpose”, contrary to section 17 of the Summary Offences Ordinance, Cap 228 (hereinafter “section 17”) (Count (2)). The appellant pleaded not guilty to both counts. After the trial, Ms Lau Suk-han, magistrate sitting at West Kowloon Magistrates’ Courts (the magistrate), found the appellant not guilty of Count (1) but guilty of Count (2) and sentenced him to imprisonment for 3 months. The appellant was aggrieved and lodged an appeal.

2.  After a hearing I allowed the appeal, and set aside the conviction and sentence. I also ordered that the costs of the appeal be to the appellant, to be taxed if not agreed.

3.  The following are the reasons for which I allowed the appeal.

B. The facts

4.  Mr Lee Wing Yin, Wayne, Senior Public Prosecutor for the respondent, has set out in his written submissions the facts of the present case and the magistrate’s verdict in gist, which are basically adopted by this court.

B.1. The prosecution case

5.  It was alleged by the prosecution in Count (2) that on 31 October 2019, the appellant was in possession of an instrument fit for unlawful purposes, i.e., a universal knife, on the ground floor of 146 to 148, Prince Edward Road West, Mongkok, Kowloon, Hong Kong, with intent to use the same for an unlawful purpose.

6.  Before the trial commenced both parties admitted certain facts, mainly on the location of the subdual and the chain of evidence[1]. The prosecution called 5 witnesses.

7.  According to PW5’s testimony and the news footage produced at trial, during the material time on 31 October 2019 from 21:05 to 22:48, it was captured on the live news broadcast that on Nathan Road near Soy Street, Dundas Street, Hamilton Street, Argyle Street near Fa Yuen Street there were people who placed bricks, traffic cones, and miscellaneous items on the roads, and there were arsons, obstructing vehicles including fire trucks from advancing[2].

8.  At about 22:50 on the same day, the first to the third prosecution witness and other team members were on plainclothes duty, and they went back to Mongkok Police Station on foot after finishing their duty. While PW1 was walking, he saw the appellant stick his head out from the doorway of a residential building, looking towards the direction of the police station. At the time the appellant’s outfit was all in black, masked, with a pair of swimming goggles hanging around his neck. After PW1 and the appellant had looked each other in the eye the former shouted, “Police! Freeze!” The appellant immediately ran away from the building[3].

9.  The appellant was subsequently subdued and escorted to Mongkok Police Station. PW3 conducted a body search on the appellant before lift No. 1 of Mongkok Police Station and found from his front right trouser pocket a universal knife (the item involved in Count (2)), and a pair of labour gloves from his front left trouser pocket. From the appellant’s backpack there were other items found, including goggles, a gas mask, a pair of sleeves, a T-shirt, shorts and six rolls of duct tape[4].

10.  According to PW5’s testimony, the location of the abovementioned unlawful acts in Mongkok was about 600 metres to 1.1 kilometres, or a walking distance of about 8 to 13 minutes[5] from Mongkok Police Station and the appellant’s place of arrest.

11.  PW4 is a doctor. His testimony was only related to Count (1).

12.  In the prosecution’s submissions on Count (2) at the trial, 香港特別行政區 訴 梁有勝[6] was cited and the prosecution made clear their stance on the universal knife in question, that it was suitable for the purposes of restraining a person, injuring a person or housebreaking[7].

B.2. The defence case

13.  The appellant did not testify at the trial, nor did he call any witness in defence.

14.  Looking at the defence’s closing submissions at the trial[8], the direction of the defence for Count (2) at trial seemed to be headed towards the existence of a doubt on the seizure of the universal knife in question, and that there was insufficient evidence for the court to draw the inference beyond reasonable doubt that the appellant possessed the universal knife in question with intent to restrain a person, injure a person or housebreak. The defence stressed in particular that:

(1) According to the footage produced, there was no evidence to show that on the day in question there was any incident of someone being restrained, injured, or any residence broken into;

(2) There was no evidence to prove that the appellant took part in the unlawful incidents in Mongkok that day or was related to them.

15.  Apart from that, one can also see from the defence’s closing submissions at trial that the defence seemed to understand “unlawful purposes” in Count (2) as those of restraining a person, injuring a person or housebreaking[9].

B.3. The magistrate’s verdict

16.  On Count (1), the magistrate found the appellant not guilty because the possibility that the bump the appellant had with the injured officer was only accidental could not be eliminated.

17.  On Count (2), the magistrate accepted PW3’s testimony, including that on the seizure of the universal knife, and found him to be an honest and reliable witness[10].

18.  The magistrate noticed that the universal knife in question consisted of various parts, including clippers, blades, a saw, a hook, a screwdriver, a file and a pointed hook[11].

19.  Taking into account the road blockades, arsons and police-civilian clashes and confrontations in various parts of Mongkok, the appellant’s outfit and his masked appearance, the universal knife and the labour gloves found from his trouser pockets and the items in the backpack, the magistrate found that the appellant possessed the universal knife in question with intent to use the same for unlawful purposes, i.e., to damage property or to injure a person[12].

C. Grounds of appeal

20.  Mr Steven M.W. Kwan and Ms Charlotte O.T. Chan, counsel for the appellant, first put forward two grounds against the magistrate’s verdict in the Perfected Grounds of Appeal and written submissions filed on 27 August 2021.

21.  However, after the Court of Final Appeal came to a decision in respect of the related issues in the present case in HKSAR v Chan Chun Kit[13], the appellant put forward two amended grounds of appeal.

Ground (1): The magistrate erroneously found that exhibit P14 (the universal knife in question) was “an instrument fit for an unlawful purpose” under section 17 of the Summary Offences Ordinance; and

Ground (2): The magistrate erroneously found that the appellant’s intent was the “unlawful purposes” referred to in section 17 of the Summary Offences Ordinance.

22.  The appellant stressed that the item in question was not a universal knife as a “Swiss knife” was, but a multipurpose tool the principal part of which functioned as a pair of pliers. Therefore, it should be described as a “multipurpose tool”. I appreciate the appellant’s stance, but since exhibit P14 was described as a universal knife at the trial, I will continue to describe exhibit P14 as a “universal knife”.

D. Ground of appeal (1)

23.  The appellant submitted that the magistrate’s analysis and finding of the suitable purpose of the universal knife in question (exhibit P14) was rather one-sided. In paragraphs 90 and 93 of her Statement of Findings it was put briefly as follows:

“90. I find that the accused possessed the universal knife in question. There were various parts to the universal knife in question and they were for different purposes, namely:

(1) Scissors-clippers: can be used to cut things up and hold things

(2) Blade(s): can be used to cut and slit things or to hurt people

(3) Saw: can be used to saw wood or metal

(4) Hook: can be used to sever a rope or plastic

(5) Screwdriver(s): can be used to screw a screw

(6) File: can be used to screw a screw

(7) Pointed hook: can be used to hook a rope or an object

…

93. I have taken into account that there were road blockades, arsons, police-civilian confrontations and clashes in various parts of Mongkok. I find that the appellant possessed the universal knife in question, which was fit for unlawful purposes and he had the intent to use the same for unlawful purposes as well, that is to say, holding the universal knife in question with gloves to damage property or to injure a person.”

24.  The appellant quoted the following decision of the Court of Final Appeal in Chan Chun Kit:

(1) The court cannot disregard the applicable rule of construction (the ejusdem generis rule) and give a blanket interpretation of the legislation.

(2) If the court was able to construct “instrument fit for unlawful purposes” with no restrictions, all the articles or instruments specified in section 17 would be rendered redundant. Moreover, the scope of application of the section would be extremely wide, covering many if not most items in daily use[14] (including the universal knife in question (exhibit P14)), rendering the crime under the provision a thought crime, and it does not conform to the legislative history of the provision.

(3) On the element of intent under the provision, “with intent to use the same for any unlawful purpose”, should correspondingly be restricted by the three types of instruments or articles set out in section 17: (1) if an instrument or article falls within the restraint category, the intent must be to use the same for restraining a person; (2) if the instrument or article is an offensive weapon, the intent must be to use the same to inflict injury or threaten physical harm to another; (3) if the instrument or article falls within the unlawful access category, the intent must be to use the same for obtaining unlawful access[15];

(4) Therefore, the ejusdem generis rule still applies to the construction of section 17; “instrument fit for unlawful purposes” should be interpreted as an instrument fit for unlawful access[16].

25.  The “instrument fit for unlawful purposes” in Count (2) of the present case should be construed as an instrument fit for unlawful access. The appellant submitted that exhibit P14 involved in the present case clearly did not fall into this category, nor did the prosecution put forward any evidence to prove or support such an assertion.

26.  The appellant submitted that the magistrate did set out briefly in her Statement of Findings the purposes of exhibit P14[17], but none of them related to unlawful access.

D.2. Ground of appeal (2)

27.  The appellant submitted that the magistrate defined the issue in Count (2) as:

“Whether the accused had the intent to commit offences of restraining a person, injuring a person or housebreaking at the time of possessing the universal knife in question[18].”

28.  In relation to intent, the magistrate took into consideration the background to the offence as submitted by the prosecution:

“There were road blockades and arsons in various locations of Mongkok that night[19].”

“On the night in question from 21:05 to 22:48, when live news was shooting Nathan Road near Soy Street, Dundas Street, Hamilton Street, Argyle Street in Mongkok near Fa Yuen Street, there were people who put bricks, traffic cones and miscellaneous items out on the roads, and there were arsons, obstructing vehicles including fire trucks from advancing…[20] ”

29.  The appellant submitted that the reasons for the magistrate’s conviction on Count (2), which the present appeal is against, were very flimsy and the account consisted of merely five paragraphs[21]. On the appellant’s intent, however, the magistrate did not perform any analysis but found that the appellant had the intent to use it for any unlawful purpose solely on the basis of what was happening in the area around Mongkok that night. Such analysis was on the one hand running contrary to the judgment by the Court of Final Appeal, and unreasonable on the other.

30.  In paragraph 16 of the Statement of Findings, the magistrate cited 香港特別行政區 訴 梁有勝, on which the prosecution relied, to expound the prosecution’s provision of section 17. In Chan Chun Kit the Court of Final Appeal has made it clear that no weight will be given to those judgments given by the lower courts (including 梁有勝)[22].

31.  It was alleged in the “Particulars of Offence” on the charge sheet that the appellant was in possession of an instrument fit for unlawful purposes, namely a universal knife, with intent to use the same for an unlawful purpose. When the magistrate was giving her oral verdict, she found that the purpose of the “universal knife” was that “it could include the use for damaging properties or during a police-civilian confrontation”[23]. In her Statement of Findings the magistrate found that the appellant had the intent to use the same for unlawful purposes, “that is, to hold the universal knife with gloves to damage properties or to injure a person”[24]. The appellant submitted that when the magistrate was delivering her oral verdict, the phrase “to injure a person” was not used. The magistrate did not make a ruling on which category exhibit P14 fell into under section 17. The appellant also submitted that:

(1) “Damaging properties” is not one of the three unlawful purposes set out by the Court of Final Appeal in Chan Chun Kit;

(2) The magistrate used “or” to show that in fact she could not be sure whether the appellant’s unlawful intent was to damage properties or to injure a person, and that meant she could not rule out the possibility that the appellant’s unlawful intent was to “damage properties”; and

(3) The Particulars of Offence of Count (2) are inconsistent with the unlawful purposes as alleged in the Statement of Findings.

32.   The appellant submitted that in the present case there is no evidence that on 31 December 2019, there was someone who injured another person (such as those with different political views or police officers) using any offensive weapon in the vicinity of Mongkok. The universal knife in question was not “an article made or adapted for use for causing injury to a person” (see R v Chong Ah-choi[25]), nor could the magistrate make a quantum jump to infer that the appellant was in possession of the universal knife with intent to use the same to injure a person on the basis of the unlawful acts of road blockades and arsons, which were commonplace during the social movement in 2019.

E The respondent’s reply

E.1. Ground of appeal (1)

33.  The respondent concurred with the Court of Final Appeal’s ruling in Chan Chun Kit that the ejusdem generis rule is applicable to section 17, and “an instrument fit for unlawful purposes” in the provision must be constructed as an instrument fit for unlawful access[26]. The respondent stressed that the trial in the present case came more than one year before the Court of Final Appeal came up with the decision in Chan Chun Kit.

34.  The particulars of Count (2) in the present case are the possession of “an instrument fit for unlawful purpose”, namely the universal knife in question. During the trial, the prosecution explicitly stated that they based their stance on 梁有勝, that the “unlawful purpose” in this offence of “an instrument fit for unlawful purpose” included physically restraining a person, injuring a person, or housebreaking. The closing submissions by the defence also seemed to show that they did not dispute what梁有勝had on the understanding of this offence. The magistrate also adopted this understanding and found that the universal knife in question was an instrument fit for unlawful purposes.

35.  The respondent submitted that after the Court of Final Appeal’s judgment on Chan Chun Kit, with the benefit of hindsight both parties misunderstood the “instrument fit for unlawful purposes” under the provision of section 17, and the decision in 梁有勝in this regard was also a misunderstanding of the provision. In fact, during the trial, there were no clear authorities from the upper court to deal with this legal issue, and the understanding in 梁有勝 was in conformity to that of both parties during the trial.

36.  In these circumstances, the respondent deemed it appropriate to invite the court to amend Count (2) to “possession of an offensive weapon or an instrument fit for unlawful purposes with intent to use the same for an unlawful purpose” at this stage.

37.  The respondent cited HKSAR v N.H.M.[27] and submitted that the court had the jurisdiction to amend a charge at the stage of a magistracy appeal.

38.  The respondent submitted that if the conditions were met, an amendment of a charge would not cause injustice to an appellant. The respondent submitted that it was not rare for the Court of First Instance to amend a charge and uphold the conviction during a magistracy appeal (see 香港特別行政區 訴 施能取[28], 香港特別行政區 訴 曾兄為[29], HKSAR v Chan Chi Shan Joey[30], HKSAR v Ta Thi Manh[31]).

39.  The respondent submitted that if the Court of Final Appeal’s judgment on Chan Chun Kit had been delivered before the trial, the magistrate would absolutely have allowed Count (2) to be amended as above. Moreover, the directions toward which the appellant defended himself and conducted cross-examinations at trial would not have been different. Looking at the closing submissions of the defence at trial, it was clear that they knew the “unlawful purpose” the prosecution referred to included injuring a person. Moreover, the main dispute the defence had with Count (2) at trial was the course during which the universal knife was found upon search and that there was no evidence to prove the related intent, and that the defence had already dealt with the intent of injuring a person.

40.  The respondent submitted that even if the charge itself was a summary offence, and although the time limit of the offence had expired by the time of the amendment, the court could amend the charge taking into account the fairness at trial. When considering whether a trial is fair, the court must take into account justice for both parties (see Poon Chau Cheong v Secretary for Justice[32], paragraph 27, in which the Court of Final Appeal adopted May J’s dictum in John Bryce).

41.  The respondent submitted that in the present appeal, the amendment for which the respondent applied was to amend the charge so that it conformed to the understanding of the offence by the parties and the court at trial, in view of the Court of Final Appeal’s judgment in Chan Chun Kit. Not only was it not unfair to the appellant, but it was also a way to do justice.

42.  The respondent also submitted that no matter the outcome of the application for the amendment of the charge, solely on the basis of this ground of appeal, apart from the blade part of the universal knife, there also included clippers, a saw, a hook, a screwdriver, a file and a pointed hook, and they were obviously fit for unlawful access.

E.2. Ground of appeal (2)

43.  The respondent agreed that after the Court of Final Appeal in Chan Chun Kit had delivered, the “unlawful purposes” in the provision “with intent to use the same for unlawful purposes” under section 17 of the Summary Offences Ordinance was only restricted to the purposes set out in the categories of articles under section 17, namely, to injure a person, restrain a person and gain unlawful access. Moreover, the intent has to correspond to the category[33].

44.  The respondent also concurred with the magistrate’s ruling, that the appellant’s intent of possessing the universal knife in question for “damaging properties” was not included in the “unlawful purposes” in the “intent to use the same for unlawful purposes” in section 17, which has been currently clarified by the Court of Final Appeal. Amending the charge at this stage to “possession of any article with intent to destroy or damage property” as in section 62 of the Crimes Ordinance would also not be in conformity with the prosecution’s stance at trial, and might cause injustice as well.

45.  The respondent submitted that if the court had accepted the respondent’s application for an amendment to the charge, namely, to add the item of “offensive weapon” to the particulars of Count (2), under the magistrate’s finding of fact that the appellant possessed the universal knife with intent to “injure a person”, the universal knife obviously fell under an offensive weapon[34]. Under such a finding, the category of offensive weapon that it fell under corresponded to the intent to injure a person.

46.  If the court accepts the respondent’s submissions, what needs to be dealt with will be whether the magistrate’s finding of the fact that the appellant possessed the universal knife in question for injuring a person is satisfactory.

47.  The respondent submitted that in the present case, the facts the magistrate has accepted include the road blockades, arsons, police-civilian confrontations and clashes in various parts of Mongkok on the night in question, the appellant’s black outfit and masked appearance, the universal knife and labour gloves found from the appellant’s trouser pockets upon search, the goggles, a gas mask, a pair of sleeves, a T-shirt, shorts and six rolls of duct tape found from the backpack. Moreover, the locations of the abovementioned unlawful acts in Mongkok were about 600 metres to 1.1 kilometres or a walking distance of about 8 to 13 minutes from the appellant’s place of arrest. The appellant was arrested at night.

48.  The respondent submitted that even if each of the facts above could individually be used in the presumption of innocence, when they were taken together in their entirety and accumulated in geometrical progression, it was sufficient to make the magistrate eliminate other possibilities and come to the related conclusions[35].

49.  The respondent submitted that where the appellant elected not to testify so that there lacked direct evidence on the purpose of the universal knife, the magistrate was entitled to state as what she had in her Statement of Findings and come to the reasonable inference that the appellant intended to use the universal knife for injuring a person (see cases such as 香港特別行政區 訴 曾志偉[36], Chong Ah Choi, 香港特別行政區 訴 戴志偉及另一人[37]).

50.  The respondent’s reply to the appellant’s attack on the magistrate’s finding that the appellant possessed the universal knife in question for “damaging property or injuring a person” being equivocal was that section 17 is one on preventive offences with the focus on the intent of the possession. In fact, a person could possess an article for more than one intent. “Damaging property” and “injuring a person” are not mutually exclusive. There is nothing unsatisfactory with the magistrate’s finding of fact that the appellant possessed the universal knife in question with intent to “damage property” or “injure a person” at the same time after considering all the circumstantial evidence.

F. The appellant’s reply to the respondent’s submissions

51.  On the respondent’s view that HKSAR v Chan Chun Kit changed the understanding of section 17 in梁有勝, therefore the appellant was “wise after the event”, the appellant submitted that this was a complete disregard for the declaratory theory of the common law. See Kleinwort Benson Ltd v Lincoln CC[38].

52.  The appellant submitted that Chan Chun Kit was a mere declaration of the construction of section 17 since 1884, in particular, the Court of Final Appeal:

(1) confirmed the construction of section 17 in Magistrate Power (as the NPJ then was) and Mills-Owen J’s Li Chu (1968), Tang chi-ming which the Full Court heard in the same year and Tsoi shun-hing which the Court of Appeal heard in 1977 was entirely correct[39];

(2) but subsequently found that section 17 was misread and there was a departure from Li Chu, Tang Chi-ming and Tsoi Shun-hing[40] in the cases of Ip Pui Leung (per Wong J, 1989), Leung Wah Chai (per Woo J, 1999), 梁有勝 (per DHCJ Toh (as he then was), 2000), 葉耀民 (per M Poon J (as she then was), 2021), 黃俊迪 (per Lee J, in the same year, 2021) and Chan Tung Shing (per Barnes J, in the same year, 2021).

53.  The appellant submitted that this did not mean that Chan Chun Kit has advanced or changed the construction of section 17 in Ip Pui Leung, Leung Wah Chai, 梁有勝, 葉耀民, 黃俊迪 and Chan Tung Shing, but only that it rectified the erroneous construction of section 17 which started in the 1980s.

54.  Hence, Chan Chun Kit is a declaration of the usual construction of section 17 since 1884, and this construction was established in Tang Chi-ming heard by the Full Court 54 years ago and Tsoi Shun-hing heard by the Court of Appeal 45 years ago.

55.  The prosecution can be regarded as turning a blind eye to the binding authorities from the Full Court and the Court of Appeal at the time of drafting Count (2) and when prosecution was carried out on the basis of the charge. The Court of First Instance case of 梁有勝was on the contrary used as the basis of the drafting of the charge and that of prosecution, and Tang Chi-ming heard by the Full Court and Tsoi-Shun-hing heard by the Court of Appeal were not raised at trial but only 梁有勝of the Court of First Instance, leading to the appellant’s conviction under an erroneous construction of the law. When the appellant lodged an appeal and the prosecution applied to amend the charge, the latter even claimed that “no unfairness will be caused to the appellant”. This can be said to be “cherry-picking”.

56.  The appellant complained that the respondent only cited cases of the Court of First Instance (施能取, 曾兄為, Chan Chi-shan Joey and Ta Thi Manh) in its submissions, but not the appeal cases with binding effect and guidance to this court.

57.  The appellant cited a number of cases in which the appellate court refused to amend the charges for the Court of Appeal’s reference, for instance Yuk Mau-Kam v R[41], Wong Man-shun v R[42], Fai Ma Trading Co Ltd v LS Lai (Industry Officer)[43].

58.  The appellant submitted that if the amended charge that the prosecution is currently proposing had been adopted at trial, it would certainly have affected the trial before the magistrate. In this regard, the appellant submitted that although it was shown on the charge sheet[44] that the appellant was a civil servant, he was in fact a fire fighter[45].

59.  The appellant submitted that in the amendment the prosecution is currently proposing, the words “with intent for unlawful purposes” are retained. According to Chan Chun Kit, in terms of an offensive weapon there has to be the intent to use it to injure or to threaten physical harm to another. If the charge had been amended during trial, the defence’s cross-examination would have focused on the place where the appellant possessed the universal knife (namely the location where he was arrested in Prince Edward Road West), whether there was the intent to injure or to threaten physical harm to another. Such cross-examination would have included:

(1) whether there was any act, expression, or language from the appellant to show that he had the intent to injure any person at the time when PW1 was observing the appellant;

(2) whether the appellant had the intent to take out the universal knife in question from his trouser pocket to threaten or injure PW2 or his colleague(s) next to him when PW2 stepped forward to subdue the appellant;

(3) whether the appellant attempted to take out the universal knife in question from his trouser pocket to threaten or injure the police officer(s) who had taken part in subduing him before the appellant was handcuffed;

(4) whether the appellant was having any disputes with any people who seemed to hold a political view different from that of the appellant’s on the scene from where the appellant was first observed to the vicinity of the location where the appellant was subdued;

(5) whether anyone in the vicinity of the scene would be the appellant’s target for an attack with the use of the universal knife; and

(6) whether the universal knife itself carried any signs of having been used to injure someone (for instance bloodstains).

60.  The appellant also pointed out that if the charge had been amended at the time of trial Ms Fiona H.Y. Nam, an experienced counsel for the appellant, would have very likely advised the appellant to testify in court to explain why he was in possession of the universal knife. If the court amends the charge now, the appellant will have lost the right and opportunity to testify in court.

61.  According to Chan Chun Kit, the definition of an “offensive weapon” is mostly taken from section 2 of the Public Order Ordinance:

“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”

62.  Literally, the definition includes four categories of items:

(a) an article made to cause injury to the person;

(b) an article adapted for use to cause injury to the person;

(c) an article suitable for causing injury to the person; and

(d) an article intended by the person having it in his possession or under his control for such use by him or by some other person.

63.  There has been no amendment to the definition in question from 1967 onwards, but according to the Court of Appeal’s view in R v Chong Ah-choi and the Secretary for Justice’s acceptance in HKSAR v Chan Ming Lok[46], there are only three categories of “offensive weapon” in section 2 of the Public Order Ordinance (i.e. para. 61 (a), (b) and (d) above, but not (c) “an article suitable for causing injury to the person”).

64.  The appellant submitted that the universal knife in question was not an article made to cause injury to the person, nor was it an article adapted for use to cause injury to the person.

65.  As the category of “an article suitable for causing injury to the person” no longer existed, the prosecution would have to prove the universal knife in question was an article the appellant intended for himself or some other person to cause injury to the person.

66.  In the context of the present case, there is no evidence to prove that the universal knife was an article intended by the appellant to cause injury to the person by himself or some other person.

67.  Nor did the magistrate find that the universal knife was intended by the appellant to cause injury to the person by himself or some other person. On the contrary, she found that the universal knife was “fit for unlawful purposes”[47], and this is exactly the category of offensive weapon that the Court of Appeal found to have been abolished by the Bill of Rights in Chong Ah-Choi.

68.  The appellant submitted that if the respondent’s proposed amendment (i.e., “in possession of an offensive weapon or an instrument fit for unlawful purposes”) had been accepted, Count (2) would have become one which contained multiple offences, and that would have been a violation of the rule against duplicity. This was because in Chan Chun Kit the Court of Final Appeal found that a tool fit for an unlawful purpose was restricted to one that was fit for gaining unlawful access, and this is another category of instrument independent of offensive weapons.

69.  Regarding the respondent’s allegation that the universal knife in question was “obviously fit for gaining unlawful access”, the appellant pointed out that in Chan Chun Kit, the Court of Final Appeal made it clear that a person in possession of an instrument fit for unlawful access has to have the intent to use the same for obtaining unlawful access at the same time[48]. In the present case, there is no evidence at all to show that the appellant had the intent to obtain unlawful access.

G. Considerations of this court

70.  I concur with the appellant’s arguments in the submissions at the present appeal in their entirety. I understand that at the time of trial the magistrate was still bound by the Court of First Instance’s judgment in梁有勝, and her finding that the appellant possessed the universal knife for unlawful purposes was understandable. No matter what, after the conclusion of this trial, the Court of Final Appeal gave an authoritative decision on the legislation in question. The respondent also concurred that according to the Court of Final Appeal’s judgment in Chan Chun Kit, it was improper for the magistrate to find that the appellant possessed the universal knife with intent to use the same for unlawful purposes, i.e., to “damage property”.

71.  Regarding the magistrate’s another finding that the appellant possessed the universal knife with the intent for unlawful purposes, i.e., “to injure a person”, I also concur with the appellant’s submissions made in respect of the facts of the present case. I take the view that when the magistrate said “used at the time of the police-civilian confrontation” at the time of giving the oral verdict, it was literally different from “injuring a person” referred to in the Statement of Findings. Even if the magistrate misused “used at the time of the police-civilian confrontation” to represent “causing injury to the person”, I am of the view that on the basis of all the circumstantial evidence in the present case, it cannot reach the only reasonable inference that the appellant possessed the universal knife with intent to “cause injury to a person”.

72.  In fact, the respondent’s main point is to request an amendment of the charge by this court. Although I have the authority to amend the charge at a magistracy appeal, having considered the respondent’s submissions and cases, those of the appellant’s and all the evidence in the present case, I concur with the appellant’s submission that an amendment of the charge at the present stage will cause unfairness to the appellant. As in the appellant’s analysis, if the appellant had been facing the amended charge at that time, in addition to cross-examination in a different direction, it was very likely that he would have testified to point out to the court he was a fire fighter by profession in an attempt to explain why he was in possession of that multipurpose tool. An amendment of the charge at the present stage will deprive him of the right to testify.

73.  I refuse to exercise discretion to amend the charge.

H. Conclusion

74.  On the basis of the above reasons, I allow the appellant’s appeal.  His conviction and sentence are set aside.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Ms. Jenny Chung, Solicitor.