THE QUEEN v. MAK PUI WAI AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 128 OF 1986

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BETWEEN

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JUDGMENT

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1. The appellants, aged 15 and 14 respectively, were separately charged that on the 23rd June, 1985 at an open space near the public lavatory of the Round Table, Cheung Chau, Hong Kong, being a public place, had in their respective possession, an offensive weapon, namely a 2½ foot long water-pipe, without lawful authority or reasonable excuse. It was conceded by the defence that the water-pipes in question were sharpened and were offensive weapons. Both appellants were legally represented in the court below.

2. A summary of facts was admitted in evidence by agreement, as well as one water-pipe seized from the 1st appellant and two waterpipes seized from the 2nd appellant although in respect of the last two water-pipes the Crown conceded it was not able to identify which of the two pipes was in the 2nd appellant's possession.

3. Also admitted by agreement were the cautioned statements made by each of the appellants in the presence of one of their parents or guardian.

4. The agreed facts stated, inter alia, that at 3 o'clock on the morning of the 23rd June, 1985 a police party saw four Chinese males acting suspiciously at the open space outside the lavatory referred to. Two of the males ran away and one officer saw the 1st appellant throw away a 2½ foot long water-pipe into the bush. When questioned, the 1st appellant said that he "just took the pipe for fun". At the police station the 1st appellant was cautioned and he said he and the three other persons took the water-pines 'intending' (sic), to rob camper at Pak Cho Wan.

5. The agreed facts also stated that at 2.15 p.m. on the 23rd June, 1985 the 2nd appellant was arrested at the ground floor of No. 64, Peak Road, Cheung Chau. Under caution the 2nd appellant admitted he had been in possession of a water-pipe in the open space referred to on the night in question.

6. The 1st appellant in his cautioned statement said, inter alia, that at 1 o'clock on the morning in question he and CHOI Lam-cheong, LO Chi-wai and CHIU Yuk-wai arrived outside the Yuen Cheuk Village public lavatory. They sat on the ground and chatted. CHOI left and returned with 4 mater-pipes and he asked other three to go together to rob campers at Pak Tso Wan. The lst appellant replied he did not want to go and CHOI said to him "If you don't go I will beat you. The friendship between us will cease". They each took a I rater-pipe but when they reached the centre of the village it was so dark CHOI said they should get a torch. Therefore the other three returned to the outside of the public lavatory and they chatted there until two police officers got hold of CHIU Yuk-wai and said they attempted to rob. He also said, "As a matter of fact, we have not gone to Pak  Tso Wan to rob campers".

7. In his cautioned statement the 2nd appellant said, inter alia, "Sir, I admit that I was in possession of a sharpened iron water-pipe at 1.30 a.m. on the 23rd June, 1985"   He also said, "However, the sharpened iron water-pipe did not belong to me. All four of the pipes were taken out from the Round Table Third Village Centre by CHOI Kam-cheong."

8. On the 19th of September, 1985 the 2nd appellant was shown some water-pipes and asked to look at them. He was asked whether he wanted to make an explanation and cautioned. The 2nd appellant said, inter alia, that on that day, CHOI, CHIU, MAK Pui-wah and he went to the Round Table Village ''to have fun" and that each of them was carrying an iron-pipe. He went on to say when CHOI and he saw the police he and CHOI ran away separately and that when he was running away he threw the water-pipe somewhere nearby the public lavatory of Round Table Village.

9. The Crown adduced no viva voce evidence relying on the agreed facts, the cautioned statements by the appellants, and three of water-pipes seized from the appellants.

10. The defence then stated to the learned magistrate that the defences relied on were that (1) the appellants were in possession of the pipes under duress emanating from CHOI and (2) that although the appellants initially came into possession of the water-pipes intending to use them to rob campers, prior to the arrival of the police they had abandoned that intention and therefore that the Crown had to prove that the appellants intended to use the pipes in future. (see Davis v. Alexander (1970) 54 Cr. App. R398) The submission that although the appellants had water-pipes to rob as that had been abandoned before the arrival of the police, the Crown, then had to prove the appellants intended to use the water-pipes in the future is transparent nonsense. The Crown had to prove no such thing. Once the Crown had established that the appellants were in possession of offensive weapons on the 23rd June, 1985, it was then for the appellants to satisfy the learned magistrate, on the balance of probabilities, they had lawful authority or a reasonable excuse for being in such possession.

11. The charges laid against the appellants was one of possession of offensive weapons in a public place without lawful authority or reasonable excuse. The charges were not of attempted robbery or a  conspiracy to rob.

12. In his evidence the 1st appellant said, inter alia, he refused to go with CHOI and the others to rob. CHOI threatened to beat him up and that their friendship would cease. The 1st appellant eras afraid CHOI would "beat him up". He said he did not take the water-pipes. Later he said when CHOI went to get a torch the pipes were held by them in their hands. He said CHOI came back and said there was no torch. The 1st appellant stated he was not then (sic) going to rob because CHOI "ceased to go" he said he would not go, presumably to robe. The 1st appellant admitted he was still holding the water-pipes when the police arrived. He was asked: "CHOI did not say he was not going to carry out any robberies" and he replied, "Correct".  He was then asked, "You still had the pipes for carrying out robberies" and he replied, "Yes". The 1st appellant said he had no specific intention while he had those pipes. He said that from the time he decided not to rob until the police arrived was a few five minutes. Defence Counsel had no re-examination but at the prompting of the learned magistrate he was asked a few questions in re-examination. The 1st appellant said that he was still holding the pipes because he was merely thinking of playing with them while he was sitting but in answer to a leading question by his counsel he said he did not have any specific intention of using the water-pipes and that he did not intend to rob at that time (see Davis v. Alexander, supra).

13. The 2nd appellant in his evidence said, inter alia, that CHOI handed them water-pipes and said, "If you don't hold now I shall beat you and we shall cease being friends".   CHOI said they were going to rob and the 2nd appellant refused. He was afraid that CHOI would really beat him up so he took the water-pipe. CHOI approach him and suggested leaving so he then dropped the water-pipe. This is at variance with his cautioned statement that when he saw the police he ran away and threw away the water-pipe . He testified that CHOI returned without the torch and said in frustration that they couldn't now go - "what a pity". And then the 2nd appellant said, "After that I did not intend to rob''.

14. The most authoritative definition of duress as a defence is by Murrahan J in the Irish Court of Appeal in the case off A-G v. Whelan (1934) IR 518 where his lordship said duress was a defence because:

"……the threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted as a justification for acts which would otherwise be criminal''.

15. Neither appellant stated in their statements nor in evidence that because of what CHOI said to them they were in fear of their lives or of serious bodily injury. They were afraid of being beaten up. The learned magistrate made no finding whether (1) the appellants were threatened as they alleged and that, if so, (2) it amounted to duress.

16. It was not disputed by the defence that at 3 a.m. at the time of their arrest, the duress, if any, had dissipated and that, in any event, by that time the appellants had been in a position to remove themselves from the scene.

17. In his Reasons for Findings of Fact the learned magistrate appears to have made three errors in law or rather, one error of law, repeated three times.

18. At page 21 of the record the learned magistrate said:

"It was certain that the appellants were unable to raise a reasonable doubt on the basis of having lawful authority for being in possession of the water-pipes".

 

19. Later he said:

"Unlike the English equivalent, Section 331) of the Public Order Ordinance, Cap 245 does not appear to transfer the onus of proof to the accused to establish a reasonable excuse'.

20. And later he said:

"The Court was presumably expected to accept that such a change of intention was sufficient to raise a doubt on the basis that the Appellants did have a reasonable excuse for being in possession."

21. All these statement seem to indicate, indeed do indicate, that the learned magistrate was of the view all the appellants had to do was to raise a reasonable doubts He obviously thought that not only had the Crown to establish possession of the offensive weapons but also that the appellants had no lawful authority or reasonable excuse for possessing them. In a sense, the learned magistrate's error in law favoured, rather than prejudiced the appellants.

22. This case could have been decided by the magistrate on two separate bases. First, if having disposed of duress as a defence, that on their own admission the appellants were in possession of the water-pipes between. 1 a.m. to 1.30 a.m. for the purpose of robbery. Second, that at 3 a.m. at the time of their arrest, the duress having admittedly been dissipated, that there was no evidence that at that time the appellants had lawful authority or reasonable excuse for being in possession of the water-pipes.

23. I am of the opinion as I indicated tentatively during the appeal, that the learned magistrate came to the right conclusions despite his misdirections of law.

24. It was urged upon me I should not use the equivalent of  "the proviso"   in Section 119 of the Magistrate's Ordinance.

25. This has caused me considerable anxiety. Magistrates work under heavy pressure. The learned magistrate was misled by the defence, no doubt unintentionally, on the onus of proof once possession is proved and he did not seem to have been assisted on this aspect by the prosecutor.

26. My task would have been made easier if the learned magistrate had indicated (1) his views on the credibility and reliability of the appellants in their evidence and (2) whether he accepted that at 1 a.m. to 1.30 a.m. they were under duress to take possession of the water-pipes.

27. The particulars to the charge did not specify a particular time and it would have been open to the magistrate, to find the appellants guilty of possession between 1 a.m. and 1.30 a.m. if he had disposed of the defence of duress as an issue or (2) duress have been conceded not to exist at 3 a.m. when they were arrested, that the appellants had failed to establish, on the balance of probabilities, that they had lawful authority or reasonable excuse for their admitted possession of the water-pipes.

28. My own view is that if the learned magistrate had properly directly himself on  the law he would have come to the same conclusions as he did. But I am reluctantly persuaded that the appellants, being 15 and 14 years of age respectively, might have difficulty in appreciating that the conclusions should stand despite the fact that the magistrate misdirected himself on the burden of proof.

29. I have, therefore, with great reluctance decided that this would not be a proper case to exercise "the proviso" and I therefore quash the convictions The Appellants have already been in detention for 2 days short of 4 months.