R. v. LAU SIK YAN

IN THE COURT OF APPEAL

1993, No. 59
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, J.A.:

1. The applicant was convicted after trial before His Honour Judge Hartmann in the District Court of being in possession of an offensive weapon in a public place contrary to section 33(1) of the Public Order Ordinance, Cap. 245. He had earlier pleaded guilty before the judge to remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully contrary to section 38(1) (b) of the Immigration Ordinance, Cap. 115. For this he was sentenced to 15 months' imprisonment consecutive to the 12 months on the possession charge. He now applies for leave to appeal against his conviction on the possession charge and against his sentence for the offence against the Immigration Ordinance.

2. The evidence on the possession of an offensive weapon charge was that the applicant had boarded a taxi and had instructed the driver to take him to a primary school in Mai Po near the border of China. As the taxi approached the destination, the applicant directed the driver to turn right at a road junction. When the driver protested that this was not the way to the school, the applicant told him to do as he directed. On nearing a small path, the applicant instructed the driver to proceed along it. Becoming suspicious, the driver refused to do so and demanded the $38 fare. The applicant replied that he had no money. While the driver was remonstrating with him a police vehicle arrived. The driver alighted from his taxi and complained to the police that the applicant had not paid the fare. One of the officers then approached the applicant, who was still seated in the rear seat of the taxi, and asked him to produce his identity card.

3. While the officer was shining his torch into the interior of the taxi he saw the applicant remove something from within his jacket and throw it onto the floor. The officer immediately ordered the applicant to alight from the taxi. The officer then shone his torch onto the place where the applicant had dropped the article, and saw a knife with a blade approximately 12 to 14 inches long. He asked the applicant what the knife was for and the applicant replied "Self-defence". The officer then arrested and cautioned the applicant who then admitted that he had brought the knife with him from China for self-defence and that he had spent all his money and had intended to ask the taxi-driver to give him some. He then requested the officer that he be returned to China.

4. When taken to the police station the applicant made a further cautioned statement in which he admitted that he had sneaked into Hong Kong that evening with a friend, that he had brought the knife with him for self-defence and that, on reaching Sheung Shui, his friend wanted to buy something and had taken all his money. The friend then disappeared. The applicant, feeling hungry, decided to return to China.

He therefore took a taxi to Mai Po where he intended to cross the border. He admitted that he had intended to use the knife to scare the taxi driver when asking him for money to buy food and to ensure that he did not pursue him. The judge ruled that the statement had been made voluntarily and admitted it into evidence.

5. On the general issue the applicant gave an account similar to that given in his statement taken at the police station. However, it differed from the statement in that he testified that when he told the driver that he had no money the driver lost his temper, abused him and demanded that he turn out his pockets, which he did. Then, as the driver was about to drive off to the police station, the police vehicle arrived. After he had alighted from the taxi at the order of the police officer, the officer searched the interior and reported that he had found a knife. The officers then became angry, took him behind a bush and violently assaulted him. He was coached by the police to say that he had a knife in his possession for self-defence. It was because of this that at the police station he gave the story that he had been told to tell. He signed the statement because he had no option but to do so.

6. The taxi driver however testified that at the scene he had not heard any sounds of violence after the applicant had been removed from the taxi. Although there were minor discrepancies between the evidence of the taxi driver and that of the police, the judge was satisfied beyond reasonable doubt that the officer who had ordered the applicant out of the taxi had seen him drop to the floor what turned out to be a knife.

7. In his grounds of appeal the applicant complained that the judge wrongly believed the officer when forensic evidence failed to indicate the presence of any of his fingerprints on the knife, that the officer did not testify that he had actually seen the knife in the applicant's hand, and that the statement given at the police station was fabricated.

8. None of these grounds has the slightest merit. The absence of fingerprints on the knife did not establish that the applicant had not had it in his possession. The judge was perfectly entitled to conclude that the knife found on the floor was the object which the officer had seen the applicant drop. Moreover, the judge was entitled to rely on the applicant's admission and to believe the police officer and disbelieve the applicant. The application concerning conviction is therefore refused.

9. As to the sentence passed for the Immigration Ordinance offence, the applicant has admitted that this was the fourth time that he had entered Hong Kong illegally. He said that he came to Hong Kong on this occasion because his father had contracted a serious illness and that it was necessary to raise money to pay for his medical expenses. Whatever the truth of that may be, it did not justify the applicant illegally entering into Hong Kong with a knife. This application is also refused. In view of the frivolous nature of this application we order that three months of the period spent by the applicant in custody pending the hearing of this application be not reckoned as part of the term of his overall sentence.