HKSAR v. CHAN YIU SHING

FAMC No. 5 of 2018

[2018] HKCFA 22

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 5 OF 2018 (CRIMINAL)

(On APPLICATION FOR LEAVE TO appeal

from HCMA No. 377 of 2016)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.  We dismissed this application for leave to appeal after hearing counsel for the applicant, indicating that we would hand down our reasons for doing so in due course.  These are those reasons.

2.  The applicant was convicted of the offence of possession of an offensive weapon in a public place contrary to section 33(1) and (2) of the Public Order Ordinance[1] and sentenced to nine months’ imprisonment.

3.  The facts of the case were, in summary, as follows.  The applicant and another man were arrested walking in Yuen Long a few streets away from where a demonstration was taking place against parallel goods traders.  The applicant was wearing protective clothing consisting of hard black plastic described by the judge as “similar to a set of armour” and a reflective vest.  The police stopped the applicant and, on searching him, found five spray bottles of chilli oil, a helmet, headlamp, gas mask, goggles, gloves, walkie-talkie, a coil earpiece, torches, a lighter and a mobile phone.  His companion was also found to have one bottle of oil spray.  The applicant said he was going to Yuen Long to perform first-aid work.

4.  Section 2 of the POO defines “offensive weapon” as:

“any article made, or adapted for use, or suitable, for causing injury to the person, or intended by the person having it in his possession or under his control for such use by him or by some other person.”

The prosecution against the applicant was on the basis that the chilli oil was intended by him for use for causing injury to the person.  The defence case was that the chilli oil was for eating and the applicant testified to this effect and denied any intention of using it as an offensive weapon.  The magistrate disbelieved the applicant and convicted him of the offence as charged.  The applicant’s appeal was dismissed by the judge.

5.  In his notice of application for leave to appeal, the applicant sought leave to appeal on two questions of law, namely:

(1)  “Whether transient mild to moderate discomfort is capable of amounting to ‘injury’ for the purpose of Section 33 of the Public Order Ordinance, Cap 245?”

(2)  “Whether a person may be convicted of possession of an offensive weapon under Section 33 of the Public Order Ordinance, on the basis of the third category of the definition of ‘offensive weapon’ in Section 2 of the same ordinance, where there is no evidence of specific intent to use the alleged weapon?”

6.  At the hearing, Mr Paul Harris SC[2] withdrew the application for leave to appeal in respect of Question (2).  As to Question (1), we were not satisfied that it raises a reasonably arguable point of law.  In any event, Question (1) was not raised before the magistrate or the judge and we do not think it is sufficiently exceptional to warrant being raised for the first time in the Court of Final Appeal.

7.  The premise of Question (1) appears to be a passage in R v Donovan [1934] 2 KB 498 at 509, namely:

“… we think that ‘bodily harm’ has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling.”

8.  It is plainly a question of fact whether a spray bottle of chilli oil can be used to cause hurt or harm to another person sufficient to constitute “bodily harm” in this sense.  In the present case, there was expert evidence from a forensic pathologist as to the effects of the chilli liquid in question on the human body.  Although less than the effect of pepper spray, the chilli liquid could cause mild to moderate discomfort similar to the pain, tearing and closure of the eyes caused by sand blown into the eyes or redness and swelling of the skin after prolonged exposure to the sun.  The evidence was that the larger the dose sprayed, the greater the effect.  In short, the premise of Question (1), which seeks to minimise the effects of spraying the chilli liquid, is not justified on the facts.

9.  It is unnecessary to address Question (2), in view of Mr Harris’ withdrawal of the application in respect of it.  It suffices to record that, in any event, the respondent accepted that, where the “intended by the person having it in his possession … for such use” limb of the definition of “offensive weapon” in the POO is relied upon, the prosecution needs to prove an intent to use the article in question to cause injury to the person.  In the present case, there was ample evidence from which the magistrate could properly draw the inference that the applicant intended to use the chilli oil to cause injury to the person. This included the facts that: the applicant was stopped a short distance from the location of a demonstration in progress in which protestors were charging the police; he was aware of the protest and the resulting confrontation; he was walking in the direction of the demonstration; he was wearing protective gear over his body and had with him a helmet and goggles; the chilli oil was in a bottle that would enable its contents to be sprayed 29 to 61 cm in distance; the chilli oil could cause harm if sprayed in the eyes and face; and the chilli oil bottles were kept by him in a waist bag enabling him to use them easily.  We are satisfied that the inference drawn by the magistrate as to the applicant’s intention to use the chilli oil to cause injury to the person was irresistible.

10.  For these reasons, we dismissed the application.

A reminder of the need for proper compliance with Practice Direction 2.4

11.  By way of postscript, we would add a few words about the filing of submissions in this case.  The Application for Leave to Appeal (Form B) in this case was dated and filed on 12 January 2018.  On 3 April 2018, the parties were given notice that the date for the hearing of the application would be today’s date at 2.30pm.

12.  Paragraph 6 of Practice Direction 2.4,[3] entitled “Court of Final Appeal – Time Management”, provides:

“Skeleton arguments must be no more than 5,000 words in length overall (including footnotes and any appendices), printed in a clearly legible 14 point or larger typeface on one-sided A4 paper and accompanied by a soft copy in Word format enabling a word count to be performed electronically. The applicant’s and respondent’s skeleton arguments must be filed not less than 42 days and 21 days respectively before the date fixed for hearing. Any submissions in reply must be filed not later than 14 days before the hearing date. Non-compliant submissions can expect to be rejected.”

13.  The Skeleton Arguments for the Applicant were dated 3 April 2018.  On 23 April 2018, the Respondent’s Submissions and List of Authorities were filed.  In accordance with paragraph 6 of Practice Direction 2.4, any submissions in reply were to be filed not later than 14 days before the hearing date, namely 30 April 2018.

14.  The applicant had ample time in which to prepare and file any reply submissions intended to be relied upon at this hearing.  Instead, at 4.30pm last Friday, 11 May 2018, the solicitors for the applicant faxed to the Registrar a letter seeking leave to file the Applicant’s Reply Submission and Supplementary List of Authorities. No explanation was given for the lateness of this intended filing and Mr Harris’ statement at the hearing that it was the consequence of his pressure of work was an inadequate excuse.

15.  This undisciplined approach to the filing of documents for an application for leave to appeal to the Court of Final Appeal should not be adopted.  As the Practice Direction itself states, non-compliant submissions can expect to be rejected. If there is a valid reason for needing further time, an explanation should be proffered and an extension sought.  The present case did not give rise to a complicated application for leave to appeal and there was no good reason for failure to comply with the prescribed time limit.  On the contrary, in the applicant’s solicitors’ letter enclosing the reply submissions no explanation for the delay was given.  Nor was any explanation given to the court by leading or junior counsel, whose names appeared on those submissions, until the hearing of the application itself.  If there was a need for more time to prepare those submissions, it would have been appropriate (and courteous) for the applicant’s solicitors to have written at or shortly before the deadline for their filing (i.e. 30 April 2018) to put the Court and respondent on notice that reply submissions were intended to be filed but that further time was required to finalise them and to provide a brief explanation of the reason for the delay.

16.  Both branches of the legal profession are expected to be familiar with the rules and practice directions applicable and to comply with them.  Where this is not possible and an indulgence needs to be sought, counsel and solicitors are expected to act responsibly and courteously in giving timely notice of an intention to seek that indulgence and an explanation of why that has become necessary.  This forms part of the context in which the expectation adverted to in the Practice Direction arises.