HKSAR v. OMAR HAROON MOHOMED

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 46 OF 1999

(On appeal from ESCC 3764 of 1998)

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J U D G M E N T

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1. The essential elements of the offence under Section 33 of Cap. 245, or one of it, is that the article concerned was an offensive weapon. In the oral reasons given by the learned magistrate during the trial, which is at page 21 of the transcript, there was no finding by the learned magistrate in respect of this element. He mentions "knife" in his short reasons and, of course, the article concerned is a knife.

2. The respondent has conceded that the article was not an offensive weapon per se, nor is it an article adapted to be used as such. Therefore it only leaves the article being used with the intention to injure, which would make it an offensive weapon.

3. In such circumstances, I am of the opinion that therefore it is incumbent upon the learned magistrate, even with admitted facts under 65C, to make a finding that the article was indeed an offensive weapon, and upon that finding to come to his conclusion that the defendant was guilty of possession of offensive weapon in a public place. Therefore, the learned magistrate not having made that finding, the conviction on the offence is unsafe and unsatisfactory. In those circumstances, the appeal against conviction must be allowed.

4. The next question is what order, if any, is to be made by me having varied the conviction, because under section 119(1)(d) I do have the power to make further orders. I have looked at the knife and it seems that the learned magistrate did look at the knife as well, although after he had convicted the appellant. On page 22, having looked at the knife, he says that he found the knife - and I quote - "with a very sharp blade". With great respect, I beg to differ from the learned magistrate. The knife shown to me this morning, which has been in the custody of the police and not been tampered with and must therefore be in the same condition as it was before the learned magistrate, seemed not to be a knife which had a very sharp blade.

5. Without saying more, even in that respect, the learned magistrate was wrong. Having given the case my anxious consideration, I am of the view that no further order should be made. Therefore, the conviction is quashed and the sentence of six months set aside.