HKSAR v. NG CHUN WAI

HCCP 505/2019

[2019] HKCFI 2607

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 505 OF 2019

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REASONS FOR DECISION

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Background

1.  The applicant is 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.  The offence is alleged to have happened on 21 September 2019 and the applicant made his first bail application on 23 September 2019 but was refused.  A bail review was sought on 30 September 2019 but again was refused.  The case has been adjourned to 2 December 2019 for further police investigation.

2.  The prosecution alleged that on the day of the offence, shortly before 9:00pm in the evening, about a hundred protestors gathered outside Mongkok Police Station.  At about 9:20pm, police officers were dispersing the protestors outside Mongkok Police Station when the applicant was seen wearing a mask and a pair of gloves running away.  Police intercepted the applicant and upon a search, a glass bottle with a piece of cloth as a stopper, a half‑filled bottle of lighter fluid, a hammer, a laser pointer, a hiking stick, a helmet and other items were found in the applicant’s backpack.  The applicant was cautioned but chose to remain silent.

3.  Upon preliminary examination, residues of lighter fluid were found from the cloth stopper, it is, I am told by counsel for the respondent, expected that the government laboratory report will be available by mid‑October this year.  Police are also examining the applicant’s mobile telephone.

Applicant

4.  The applicant is a 22 year‑old student studying at the Hong Kong Polytechnic University, I am told that he is a fourth‑year accounting student and lives with his mother and two sisters, and he has a clear record.

5.  Counsel for the applicant, Mr Li, submitted that there is no risk whatsoever of the applicant absconding because he was born and bred in Hong Kong and he sees his future in Hong Kong.

6.  Mr Li also submitted that it is difficult for the prosecution to prove that the articles enumerated in the charge ie the glass bottle with the cloth stopper, the lighter fluid and the hammer could be classified as offensive weapons.  And that although the items were found in the backpack carried by the applicant, it is still for the prosecution to prove that the applicant knew the presence of the articles in his backpack and intended to possess them.  Thus Mr Li submitted the case is not a strong one against the applicant.

Legal principles

7.  It is not disputed that an arrested person is entitled to bail under section 9D of the Criminal Procedure Ordinance and that section 9G(1) of the same ordinance set out the circumstances in which the defendant’s right to bail could be deprived.  That sections clearly state that an arrested person need not be admitted to bail if the court finds that there are substantial grounds for believing:

(1)    that the arrested person would fail to surrender to custody as the court may appoint; or

(2)    that he may commit an offence while on bail; or

(3)    interfere with a witness or pervert or obstruct the course of justice.

8.  Under the umbrella of the risk of an arrested person not appearing in court at the appointed time, one of the factors to be considered is the seriousness of the offence which may tempt an accused person not to appear.

Discussion

9.  There is no doubt that the charge the applicant faces now is a very serious charge.  The articles he is alleged to have possessed in his backpack, if used, could cause extremely serious injury particularly the glass bottle filled with lighter fluid when lit and thrown, thereby causing serious or even fatal burns on person or persons coming into contact with such.  Against this, is also the background of the recent disturbances where many petrol bombs have been thrown indiscriminately in the streets of Hong Kong.

10.  There is also no doubt that if the applicant is convicted after trial of such an offence, it is likely that he may receive a sentence which would carry a deterrent effect although it is his first offence.

11.  Having weighed all these factors, I am, of the view, that this is not an appropriate case for bail at this stage pending further investigation.  Thus, I had refused the application.