HKSAR v. IMTIAZ, IMRAN

HCMA 207/2023

[2024] HKCFI 890

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 207 OF 2023

(ON APPEAL FROM TMCC 468/2022)

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J U D G M E N T

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Appeal Against Conviction Only

1.  The appellant was charged with one count of possession of offensive weapons in a public place, contrary to section 33 (1)  and (2)  of the Public Order Ordinance, Cap 245.  After trial, the appellant was found guilty and sentenced to 2 months’ imprisonment.  The appellant now appeals against conviction only.

The Prosecution Case in the Admitted Facts

2.  It was admitted that on 3 April 2022 at 22:51pm the police approached a parked vehicle XM 2363 on Hop Yip Road, Yuen Long, New Territories.  It was admitted that the appellant was sitting in the driver seat whilst another Pakistani male was sitting next to him in the passenger seat.  There was no challenge that the appellant was the registered owner of the vehicle at the material time, Exhibit P2 and when a police officer searched his person they found the key to that vehicle in his left front trouser pocket, Exhibit P3. Only the appellant had a car key on his person.

3.  It was also admitted that the vehicle itself was searched in the presence of the appellant and the other male.  A machete with a sheath, Exhibit P4 and P5, were found under the front passenger seat.  A baseball bat, Exhibit P6 and a wooden stick, Exhibit P7 was found in the back trunk or boot of the vehicle.

4.  The photograph album Exhibit P8 was admitted which consisted of 12 photographs. There was no challenge as to the chain of evidence relating to the physical exhibits.  Lastly, the appellant was a person with a clear record.  With these admitted facts, Exhibit P1, all of the prosecution’s case was admitted.

The Defence Case

5.  The appellant elected not to give evidence.  The defence case was that there being another person in the vehicle with the appellant meant that the prosecution had failed to prove the exhibits found in the vehicle including the car boot were possessed by the appellant.

The Magistrate’s Findings

6.  The magistrate considered the prosecution’s burden of proof and standard of proof.  He warned himself that the appellant had nothing to prove.  He warned himself the fact that the appellant elected not to give evidence which proves nothing; certainly no adverse inference could be drawn against him.  Lastly, he gave himself a full warning as to the appellant’s credibility and lower propensity to commit a crime as a man with a clear record.

7.  The magistrate analysed all the evidence consisting of admitted facts; proven facts.  He considered whether he could draw an irresistible inference or the only reasonable inference the appellant was in possession of those three items he defined as weapons in the absence of any direct evidence.

8.  He considered the fact that the appellant was the registered owner of the vehicle, had the key to the vehicle on him at the time, was sat in the driver seat parked up very late at night and had sole control of the vehicle.  He considered the two exhibits in the boot or trunk were not concealed and once the boot was opened they were visible.  He drew the irresistible inference from the circumstantial evidence; the appellant was in possession of the baseball bat and the wooden stick in the trunk.

9.  As far as the machete under the other man in the front passenger seat was concerned, the magistrate was not satisfied that the only reasonable inference to draw from the facts was that the appellant was in possession of that machete.  Therefore, he found the prosecution had failed to prove that the appellant possessed that machete and its sheath.

10.  The magistrate had to consider the statutory meaning of offensive weapon under the Public Order Ordinance and found both the baseball bat and wooden stick adapted or changed from the original form or purpose.  He found the cloth material wrapped round the handle of the baseball bat was deliberate and to help the wielder of the bat have a better grip.  He found it adapted and an offensive weapon per se.

11.  Similarly, the wooden stick, which was 1.1 m long, had a screw protruding from it at one end; the sharp point of a screw protruded at about 1.5 cm.  This would, if it struck someone cause more injury than just being hit by a wooden stick.  The magistrate found this no ordinary wooden stick and modified, therefore an offensive weapon per se.  Obviously, the vehicle being parked on a public street meant the appellant was in a public place.  He had no lawful authority or reasonable excuse to possess those two offensive weapons.

Grounds of Appeal

12.  In his grounds of appeal, counsel for the appellant, Mr William Allan, advanced the following three grounds.

(1)  Ground 1 – “ the Learned Trial Magistrate erred in law and misdirected himself in his Statement of Findings in that, having correctly found that the machete with a sheath which was found under the front passenger seat with another male sitting on that seat, there were three possibilities as to who was in possession wrongly failed to consider properly or at all that the said person who had been sitting in the front passenger car seat could have also placed or other persons placed and possessed the baseball bat and the wooden stick found in the back trunk of the vehicle.”

(2)  Ground 2 – “the Learned Trial Magistrate erred in Law and Fact in his Statement of Findings, in finding that the baseball bat had been adapted with some clothing material to become an offensive weapon per se and further that the wooden stick which had a fixed screw protruding out of it was also adapted to be an offensive weapon per se.  Whilst such finding was a possible inference to be drawn, it was not looking at the baseball bat and wooden stick found in the trunk of the Appellant’s car to be the only irresistible inference to be drawn that they were weapons per se.”

(3)  Ground 3 – “in all the circumstances of the case, the said Conviction recorded against the Appellant is unsafe and unsatisfactory.”

Discussion

13.  A magistracy appeal is conducted by way of a “rehearing” on the evidence heard before the magistrate.  The legal principles concerning the approach to magistracy appeals includes the principle that the appellate court will only depart from the lower courts findings of fact and assessment where the findings of fact is plainly wrong.

14.  The test in deciding whether the magistrate has erred in a manner that the appeal should be allowed is whether it is just for the conviction to be quashed.  The court should examine closely whether on the evidence adduced the charge was proved beyond reasonable doubt, failing which the appeal should be allowed.

15.  Unless the magistrate’s findings are shown to be unreasonable, illogical, or inherently improbable the conviction must stand.

16.  Mr Allen relies on the fact that the magistrate found more than one possible inference as to whom was in possession of the machete found under the front seat.  He submits that the magistrate should have applied the same possibilities to the two items found in the boot or trunk.

17.  Much was made of the fact they were not concealed in the trunk but visible to the eye once the trunk was open.  It was suggested that if the appellant had possessed those two items in the boot, they would have been inside the vehicle itself and concealed.

18.  Essentially the appellant argues that the magistrate was wrong to draw from the set of facts proven the only irresistible inference was that the appellant possessed the two items in the boot of the vehicle.

19.  Where circumstantial evidence is relied upon, the inference of guilt must be the only reasonable inference, that can be drawn before a person can be properly convicted.  The respondent reiterates the principles of when one can or how one can draw the irresistible inference of guilt.  Mr Choi quoted the Court of Appeal in HKSAR v Au Hau Ching, CACC 146/2008, when the court adopted what was said in the decision of the High Court of Australia in Shepherd v R [1990] 170 C.L.R 573 , I quote,

“the cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance.

  In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to find the inference is established beyond reasonable doubt.  This is likely to be the case where the incriminating facts relied on to establish the inference of few in number….”

20.  His reference to that authority highlights there may not be many incriminating facts in this case but each fact is admitted and proved beyond reasonable doubt.  Moreover, cumulatively the facts show the appellant was in sole control of the vehicle; he was the registered owner found by the police sat in the driver’s seat with the key to that vehicle in his possession.  There was another man, only a passenger, sat next to him with a machete under his seat.  In the trunk of the vehicle were a baseball bat and a wooden stick in plain sight when the trunk was opened.

21.  Mr Choi submits the magistrate was right when he found he could draw the irresistible inference the appellant being in control of the vehicle, was in possession of the items found in the closed trunk.

22.  I agree with that submission and am satisfied that on the admitted facts, the only irresistible inference to be drawn is that the appellant was in possession of both the baseball bat and the wooden stick without lawful authority or reasonable excuse in a public place.

23.  There is no merit in the first ground.

24.  Was the magistrate right to define the two items found in the trunk as offensive weapons?  This is the crux of the second ground.  The magistrate considered the statutory meaning of offensive weapon according to section 2 of the material Ordinance, which says, “offensive weapon means 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 such use by him or by some other person.”

25.  His finding was that the baseball bat had been adapted so the handle “was more easily to be grabbed by the person who used it.”  Repeatedly in cases of this nature, we see weapons with cloth wrapped around the handles such as machetes or beef knives obviously to give the person wielding it a better grip.

26.  His finding that it has been adapted must be right; a baseball bat does not normally need wrapping in fabric to play baseball.  Therefore, why wrap it for a better grip?  To use it as a weapon.

27.  The other finding was that the piece of wood had a screw protruding from one end was not an ordinary wooden stick.  There is no evidence the screw had been screwed in for the purposes of adapting the piece of wood, it would appear that the piece of wood had been unscrewed from something larger and because it now had a screw protruding from it, it must be right that it was no longer an ordinary wooden stick.

28.  It was a stick with a difference.  Being hit by wooden stick could cause injuries.  Being hit by wooden stick with a screw sticking out of one end could be more injurious to a person.  Moreover, this stick with the sharp end of a screw protruding from it was next to an adapted baseball bat in the trunk of a car.  Together, there is no doubt they were offensive weapons per se.

29.  There is no merit in the second ground either.

30.  It follows that there is no merit in the third ground that the conviction recorded against the appellant is unsafe and unsatisfactory.

Conclusion

31.  I find no wrong, fault or flaw in the magistrates findings.  I would have come to the same conclusion as the magistrate after evaluating the evidence.  I see no reason to disturb this safe and satisfactory conviction.

32.  Accordingly, I dismiss the appeal.  The appellant is required to serve the 2-month term of imprisonment imposed by the court below with immediate effect.