HKSAR v. IP CHOR CHEONG

HCMA 58/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 58 OF 2000

(ON APPEAL FROM SKCC 2335/1999)

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J U D G M E N T

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1. The Appellant appeals against his conviction in the Magistracy on one charge of Possession of Offensive Weapon in a Public Place contrary to section to 33(1) of the Public Order Ordinance, Cap. 245, that showed that on 20 August 1999, he was found in a public place with an offensive weapon, a baseball bat, without lawful authority or reasonable excuse.

2. There were several grounds of appeal which related to the evidence. It was submitted that in evaluating the evidence of identification, which was a significant point at trial, the learned Magistrate applied the "Turnbull" guidelines wrongly. I have considered that point in view of the Magistrate's very lengthy and detailed Statement of Findings, and I am satisfied that he gave himself the appropriate direction and dealt with the identification evidence correctly.

3. It was submitted also that the Magistrate wrongly took judicial notice of the fact that, as he stated "many police constables in Hong Kong are handicapped in writing in the sense that they could not express themselves very clearly in writing".

4. I considered that in the context of the remark made by the Magistrate, at para. 3.1 of his Statement of Findings, he was not actually taking judicial notice of this fact, but that this was just a comment and perhaps one which he should not have made. However, I do not find that this remark detracts from this Statement of Findings.

5. It was submitted further that in deciding whether the first witness had framed the Appellant, the Magistrate wrongly ruled out such framing as a possibility simply because that witness had no grudges against the Appellant. That was not the only ground on which the Magistrate came to his conclusions. He had the evidence of the witnesses before him and it was for him to decide on and evaluate PW1's evidence.

6. It was submitted that in considering the Appellant's case, the Magistrate failed to take into account the statement he made under caution. I find nothing in that ground, the Magistrate was well aware that the statement was an exculpatory, spontaneous statement and was aware too of its content and the time it was made, when he considered the defence case.

7. The only matter of possible significance that is raised on appeal is that there was a material irregularity in that at trial, Appellant's counsel thought that Appellant was facing a charge under section 17 of the Summary Offence Ordinance, when in fact Appellant was facing a charge under section 33 of the Public Order Ordinance. From looking at the transcript this matter was made known to counsel at least when the charge was put at trial. He did nothing about it then, nor when he had it explained to him at the close of the trial that the charge was under the Public Order Ordinance did he choose to do anything further about the matter.

8. The charge had been properly amended. It had been put to the Appellant on an occasion, prior to trial, when he was not represented and he had pleaded to it. No doubt he would have been given copies of the amended charge, he had representation at the trial and it was his responsibility to give any amended charges to his counsel, or his solicitors.

9. I have considered whether the fact that there was an error made by counsel was a matter for which the Appellant was unfairly penalized. However, in considering the defence that was run at the trial, I cannot say that there was any injustice done to this Appellant. The differences between section 17 and section 33 were irrelevant in this case because his case was, first of all, that he was mistakenly identified and secondly, that he did not have possession of the baseball bat at any time.

10. I cannot see anything has been raised that shows I should allow this appeal and the appeal is dismissed.