HKSAR v. WONG KOK FUNG AND ANOTHER

HCMA505/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.505 OF 2002

(ON APPEAL FROM TWCC 215 OF 2002)

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J U D G M E N T

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1. The two appellants were convicted on 29 April 2002 of the offence of possession of offensive weapons in a public place, contrary to section 33(1) of the Public Order Ordinance, Cap. 245, by Mr C.C. Poon sitting at Tsuen Wan Magistracy. They now appeal against their convictions. The 1st appellant was given leave to withdraw his appeal against sentence.

2. The evidence adduced at the trial was that on the day in question at about 8p.m., the two appellants and a boy and a girl arrived at an empty space near a flowerbed on the ground floor of a housing estate in Tsuen Wan. The 1st appellant carried one black bag which contained a 32 cm long sushi knife and a red bag containing a 70 cm wooden baseball bat. The 2nd appellant carried a black bag which had inside it a 70 cm long wooden baseball bat. The two appellants and the boy and the girl first sat on a bench which was two metres away from the flowerbed and chatted. The 1st appellant put down the two bags he was carrying on the bench. After a while, the 2nd appellant walked from the bench to the lane which led into the flowerbed and stood at the entrance of the lane. The 1st appellant followed him from the bench but walked inside into the flowerbed. Police officers lying in ambush nearby then left their positions and arrested the two appellants. The 1st appellant was arrested in the lane leading to the flowerbed carrying a bag which contained, inter alia, seven beef knifes.

3. The search of the artificial ceiling next to the flowerbed by the police revealed two more beef knives and eight iron water pipes. As soon as the two appellants were arrested, inquiries were made of the boy still seated on the bench and he said to the police officer concerned that the two appellants had left them to go to urinate.

4. At the hearing of the appeal, the Respondent's Counsel very properly conceded that contrary to what the magistrate had found, the two baseball bats and the sushi knife carried by the two appellants when they first arrived at the scene should not be regarded in law to be offensive weapons. This was on the basis that these implements were not articles made or adapted for use or suitable for causing injury to a person. Similarly it was properly conceded by the Respondent's Counsel that the implements found in the false ceiling next to the flowerbed should not be attributed to the appellants as they were never in possession thereof.

Ground of appeal of the 1st appellant

5. When the 1st appellant was arrested by the police in the lane next to the flowerbed, he was carrying the bag which contained the seven knifes. Mr Ng for the appellant has submitted that the evidence was not such as to make the inference that the magistrate drew that the 1st appellant knew that the bag contained the knives an irresistible one. He submitted that there was no evidence that the 1st appellant had opened up the bag before carrying it in his hands. The bag was still closed when he was arrested carrying it.

6. In my judgment, the magistrate was entitled to draw the inference that the 1st appellant knew that the bag contained the seven beef knives and when he took it from the flowerbed and was on his way out of the lane carrying it, he was in possession of the bag and its contents. The 1st appellant's appeal against conviction is therefore dismissed.

Ground of appeal of the 2nd appellant

7. The ground of appeal relied on by Mr Ng on behalf of the 2nd appellant was that the mere fact that the 2nd appellant was standing at the entrance of the lane while the 1st appellant went in was insufficient to enable the magistrate to conclude that the two of them were on a joint venture to possess the offensive weapons in question. There were submissions by counsel for both sides about whether the utterance by the boy sitting on the bench about where the two appellants had gone was hearsay evidence or whether it was part of the res gestae. The case of R. v. Yiu Man Chung, HCMA156/1996, was quoted where Leong J (as he then was) considered what was said by Lord Ackner in R. v. Andrews 1987 A.C.281, where he said :

"(1) The primary question which the judge must ask himself is can the possibility of concoction or distortion be disregarded?

(2) To answer that question, the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity."

8. In my view that utterance by the boy should have been considered by the magistrate and it would have been open to the magistrate to take it into account or to reject it outright. The fact of the matter is that the 2nd appellant was doing no more than standing at the entrance of the lane. Even though it was he who had left the bench first, he did not go into the lane or into the flowerbed. It was the 1st appellant who followed him and then went into the flowerbed. The 2nd appellant was, in a sense, in no way different from the position of the boy and the girl seated on the bench two metres away from where the lane was. The charge was originally laid against the boy and the girl but was later withdrawn by the prosecution.

9. In my judgment, having regard to the fact that the baseball bat the 2nd appellant was carrying is now conceded to be other than an offensive weapon, the evidence was insufficient for the magistrate to conclude that when the 2nd appellant was standing where he was, he was on a joint venture with the 1st appellant to possess the offensive weapons. I therefore allow the appeal by the 2nd appellant and quash the conviction and the sentence imposed upon him which was that he should be detained in a training centre.