HKSAR v. THAPA, PURAN BAHADUR

HCMA 406/2024

[2025] HKCFI 3700

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 406 OF 2024

(ON APPEAL FROM TMCC 699 OF 2024)

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J U D G M E N T

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1.  The Appellant was convicted after trial before the Magistrate of 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. He was sentenced to 3 months’ imprisonment. The Appellant now appeals against his conviction.

Prosecution Case

2.  As briefly summarised by the Respondent, it was the admitted facts that on 26 March 2024, at about 8:09 pm, the vehicle of the Appellant was parked at a restricted area in Yuen Long.  At the around 8:27 pm, PC21827 (“PW2”)  searched the Appellant’s vehicle and seized the following items:

(1)  one 18cm long folded knife, exhibit P3, inside the glove compartment at the left front passenger seat of the vehicle;

(2)  a brown recycle bag, exhibit P4, in the rear compartment, that is the boot of the vehicle.  P4 contained:

(i)  one 40cm long kukri knife with a sheath, exhibit P5; and

(ii)  two 10cm long knives, exhibit P6. 

3.  PW2 gave evidence that there were other items in the boot of the vehicle but he took them out piece by piece while searching the boot where P4 was found in its bottom.  P4 was zipped up but not locked.  The glove compartment where P3 was found was closed but not locked.  He could not recall whether or not there were other items in this compartment. 

4.  In cross-examination, PW2 agreed that he did not know to whom the items found on the vehicle belonged to and he did not know who placed these items in the vehicle.  And it was also immediate that the Appellant received a fixed-penalty ticket for illegal parking, which was paid in full later on. 

Defence Case

5.  The Appellant did not give evidence or call upon any defence witness.  In the closing submissions, defence counsel essentially stated that the prosecution failed to prove that the Appellant had knowledge about the seized items and there was no evidence that the Appellant was carrying or holding them, or he had put inside in his car.  And the Appellant did not know about the item in the glove compartment which was not in the driver’s seat nor under the driver seat, and there was no admission from the Appellant that he knew the seized items were in the vehicle. 

6.  PW2 also testified that he did not know how these items got into the vehicle and there was no evidence who put these items in the vehicle.  There was the possibility of someone putting the items in the unlocked vehicle or in the unlocked glove compartment, and there was no forensic fingerprint linking the Appellant to the seized items.  Also, there was no evidence that the Appellant refused the search and if he had known about the seized items in the vehicle, at least he would hardly allow the police to search the vehicle. 

7.  PW1, SPC55507, did not come up to proof and tried to frame up the Appellant.  The Magistrate therefore ruled no case to answer for the other charge of dangerous driving. PW1 was a member of the police team, therefore maybe his evidence would taint the whole case and there was a possibility of police failing up or doing something up to the Appellant.  And lastly, the Appellant also got a clear record. 

Magistrate’s Finding

8.  First of all the items, which was alleged to be offensive weapons, were one 18cm long knife (exhibit P3), one 40cm long kukri knife with sheath (exhibit P5), and two 10cm long knives (exhibit P6).  The Magistrate found that the items were offensive weapons within the meaning of the relevant ordinance.  The Appellant who was in his vehicle, parked in a public street, was in a public place.  The defence did not advance any argument to the contrary. 

9.  The remaining question is whether the Appellant was in possession of the subject offensive weapons at the material time.  The Magistrate considered that although the testimony of PW1 was rejected, PW2’s evidence concerning the present charge was not in dispute.  There was no dispute about the search and seizure of these items. 

10.  The Magistrate also reminded himself about that the Appellant had a clear record.  There was no admission on the Appellant, and also no forensic evidence against the Appellant. Even though there was no evidence that the Appellant was the registered owner of the vehicle, it was not in dispute that he was the only person driving the vehicle and was in control of the vehicle at the material time. 

11.  The Appellant was in control of the car key as captured by the CCTV footage.  He was the only person who approached the vehicle when the police party arrived.  He boarded the vehicle on the driver’s seat, ignited the engine, and subsequently drove off.  No other person was seen near, approaching, boarding or alighting from the vehicle in the present case.  The Appellant also said to have paid a penalty ticket for illegal parking in respect of this vehicle. 

12.  The Magistrate also considered there may be many possibilities as suggested by the defence, but the court were not obliged to imagine all kinds of possibility for the defence. 

13.  The Appellant exercised his right not to testify and as a result, there was no evidence to rebut or undermine the prosecution case.  The Magistrate finally concluded that the only reasonable and irresistible inference that could be drawn from present evidence was that the Appellant was at the time of offence in sole control of the vehicle, in possession of the items found in the boot as well as in the glove compartment of the vehicle.  So the Appellant was convicted on the charge accordingly. 

Grounds of Appeal

14.  Mr Allan put forward the following grounds of appeal.  Ground 1, the Magistrate erred in law and in fact to find the evidence that the only reasonable inference was that the Appellant was in possession of these items.  Particularly PW2, the searching officer, also agreed that he did not know to whom the objects in the vehicle belonged to and did not know who put the item in the vehicle.  Therefore, the Magistrate should have found such evidence to be in favour of the defence case.  And ground 2, concerning that the Appellant had a clear record.  So the conviction in all the circumstances would be unsafe and unsatisfactory. 

15.  Mr Allan in his detailed written submissions stated out that concerning ground 1, the Appellant’s knowledge of these items inside the vehicles was crucial.  The Appellant did not dispute what was found, but nothing incriminating was found on the Appellant’s body.  The words of the charge, namely “had with him”, would require proof of closer contact by the Appellant.  Also in cross-examination, PW2, the police officer who was searching the item also did not know to whom the objects found in the vehicle belonged to, and he did not know who put the items in question in the vehicle. 

16.  The Appellant said there was not any fingerprint or forensic evidence against the Appellant. The answer given by PW2 was also clearly favourable to the Appellant which would have raised a reasonable doubt in this case.  However, the Magistrate appeared to have failed to consider that properly. 

17.  And the Magistrate’s finding was simply that he was in sole control of the subject vehicle to infer that he was in possession of the items found.  The Appellant said that the conviction would be unsafe and unsatisfactory in the circumstances, particularly there had not been any admission by the Appellant who had a clear record. 

18.  Lastly, the Appellant said that there was no evidence that the Appellant was seen carrying the items or objects in question, and had refused to allow the search of the vehicle.  There was also no direct evidence that the Appellant knew of the presence of the items concerned. 

19.  And particularly concerning the Appellant’s clear record, so all in the circumstance the prosecution failed to prove beyond doubt that the Appellant to have knowledge about these items in this vehicle accordingly.  So the conviction would be unsafe and unsatisfactory. 

Respondent’s Reply

20.  On ground 1, the Respondent was saying that the Appellant raised the issue that nothing incriminating was found on the Appellant’s body. The words of the charge, namely “had with him”, require proof of closer contact by the Appellant with the items found in the glove compartment and boot of the vehicle. 

21.  However, the Respondent would say as correctly pointed out by the Magistrate, no one, apart from the Appellant had control of and access to the vehicle at the time of the offence.  The Appellant drove the vehicle and was the only person in the vehicle for which he subsequently received a penalty ticket.  The offensive weapons were not locked.  It is simply in the respective place in the glove compartment and the boot of the vehicle to which the Appellant could have easily and readily gain access to.  And there had been no explanation offered by the Appellant, who did not give evidence at all.  The Respondent would say that there was sufficient evidence to draw the only reasonable and irresistible inference that the Appellant knew about the presence of the offensive weapons in the vehicle. 

22.  And concerning the wording of the charge, “had with him”, section 33 of Cap. 245 stated that: 

“(1)  Any person who, without lawful authority or reasonable excuse, has with him in any public place any offensive weapon shall be guilty of an offence …”

23.  The Respondent said it does not mean that the seized items need to be found on the Appellant’s person, or need to be carried by him, for him to be convicted of the present charge.  The Respondent referred to the case of R v Kelt [1977] 65 Cr App R 74, which have been referred to in the judgment of R v Ng Wai Hung & Ors [1990] HKC 43. In the case of Kelt, it was stated that:

“The legislature must have had in mind that, in regard to those offences where it is an offence for the person to have with him a firearm, there must be a very close, physical link and a degree of immediate control over the weapon by the man alleged to have the firearm with him.”

It was held in Kelt the words “have with him” were capable of covering the situation, where the firearm was found in the defendant robber’s kitchen in which he was arrested.

24.  In Ng Wai Hung stated above, four young men and four offensive weapons were found in an unladen van, in a public place, in the early hours of the morning.  No explanation was offered by this state of affairs.  The convictions for possession of offensive weapons in public space were upheld. 

25.  And in R v Pawlicki and Swindell [1992] 95 Cr App R 246, convictions were also upheld where at the material time the guns were in a locked car 50 yards away from the intended site of a robbery where the Appellants were found.  But in R v Christopher Henderson [2016] EWCA Crim 965, the conviction was unsafe where the knife was in the Appellant’s car in the car park, but the Appellant was inside a private flat some distance away.  The knife was not immediately available or readily accessible to the Appellant.  There was also no evidence linking the knife to any ongoing or criminal enterprises. 

26.  After reviewing all these authorities, particularly in Kelt and Pawlicki and Swindell, the Respondent will submit that in determining whether a person has a weapon “with him”, the relevant consideration should be included:

(1)  possession of a weapon is a wider concept than having it “with him”; 

(2)  having a weapon “with him” is a wider concept than carrying it; 

(3)  the propinquity between the person and the weapon;

(4)  whether the weapon is immediately available to the person; 

(5)  the accessibility of the weapon;

(6)  the context of any criminal enterprise embarked upon; and

(7)  the purpose of applicable statute. 

27.  In the present case, the Respondent will submit that the Appellant was inside the vehicle where the offensive weapons were placed, those items were following the Appellant who was driving the vehicle.  He could have without any difficulty obtained physical access to these items which were unlocked in the vehicle, hence this item were immediately available and readily accessible to him. There was a very close physical link and a degree of immediate control over these items by the Appellant. 

28.  The Respondent therefore submitted that there is sufficient evidence to prove that the Appellant had the offensive weapons with him as required by the charge.  So the conviction is safe and satisfactory.  The appeal should be dismissed. 

Consideration

29.  In the Court of Final Appeal case, HKSAR v Hui Lai Ki [2024] HKCFA 7, it was stated that the Magistracy Appeal is conducted by way of rehearing.  On all the evidence before the court, the judge must be satisfied that the Appellant’s guilt has been proven beyond a reasonable doubt on the evidence, failing which the appeal must be allowed.  On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which satisfy Appellant intervention to reverse the decision of the magistrate to convict. 

30.  The Court recognised that an appellate court conducting a rehearing would be subject to limitations arising from the fact that it is not at the advantage of receiving witness evidence first hand.  Hence, it must exercise caution when considering findings of fact based on oral testimony.  Yet, despite that limitation it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion and on disputed issues of fact or law. 

31.  Firstly, the case is quite straightforward in that offensive weapons were found in the Appellant’s vehicle, including 18cm long folding knife inside the glove compartment at the left front passenger seat, 40cm long kukri knife with its sheath and two 10cm long knives were inside the brown recycle bag found in the rear compartment of the vehicle.  

32.  The Appellant basically contended that he had no knowledge about the seized items, particularly PW2 also confirmed that he did not know to whom these items belonged to nor did he know who put these items to the vehicle. 

33.  Mr Allan further stated that there was no fingerprint evidence or any other evidence linking the Appellant to these items.  This was not a case that the Appellant had with him these items. 

34.  However, the Magistrate clearly had in mind all these matters, but pointed out that the Appellant was the only person driving and in control of the vehicle, particularly the Appellant was the only person approached the vehicle when the police party arrived, and there was no other person alighting nor boarding the vehicle at the material time.  And that the Appellant had also settled the penalty ticket issued for the illegal parking. 

35.  Moreover, in the absence of the Appellant’s evidence to undermine the prosecution’s case, accumulatively the Magistrate found the only irresistible inference was that the Appellant was in possession of the offensive weapon. 

36.  On rehearing, I also agree with the Magistrate’s analysis.  Obviously, the term “had with him” did not only confine to a person’s physical body.  As respondent referred to above cases including Kelt, Ng Wai Hung, Pawlicki and Swindell, a wider concept shall be adopted and considered.  In the present case:

(1)  The Appellant was the only person in control and driving the vehicle. 

(2)  The Appellant was the only person seen approaching the vehicle when the police party arrived. 

(3)  The glove and rear compartment were not locked where the Appellant could readily access to. 

(4)  The offensive weapons were immediately available to the Appellant. 

(5)  The Appellant also settled the penalty ticket for illegal parking for the vehicle. 

(6)  There was no contrary evidence for the Appellant to contradict or undermine the irresistible inference drawn against him. 

Therefore, the prosecution had proved beyond reasonable doubt that the Appellant was possession of the offensive weapons at the material time.

37.  The Appellant also suggested that PW1 was not believable, the prosecution’s case may have been tainted.  However, PW1’s evidence only concerned the other charge of dangerous driving, and there was no dispute at all about PW2’s evidence on the whereabouts of all these items and those offensive weapons were found in the Appellant’s vehicle.  Therefore, even PW1’s evidence was not believable, that did not concern the present charge at all.

38.  As to PW2’s evidence that he did not know who put these items to the vehicle or who was the owner, that was certainly the opinion evidence of PW2 which need not to be considered in the circumstances and that did not affect the conviction at all. 

39.  On rehearing, I am also satisfied the Appellant’s guilt had been proven beyond all reasonable doubt.  Therefore, the conviction do stand and the appeal be dismissed accordingly.  The Appellant has to serve the sentence immediately.