THE QUEEN v. YU KING KOWK

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 20 OF 1992

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BETWEEN

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J U D G M E N T

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1. This is an appeal from a decision of Mr. Venning, at the Fanling Court. This appellant was charged that outside Block 15, Tai Po Centre without lawful authority or reasonable excuse, having possession of an offensive weapon contrary to section 33(1) of the Public Order Ordinance.

2. The brief facts were that police officers on patrol saw this appellant together with other persons, they were asked to stop and they ran away but they were ultimately intercepted. A 42 cm long beef knife was found in his inside trouser of leg and a pair of white gloves. He was asked what the. knife and the gloves were for and he said "I was hit by others two weeks ago. We want to look for guys who had hit me and hit them back." He was arrested, and taken to a police station. Some hours later, a  so-called interview occurred and the police officer for nearly half an hour just recited what had happened, which appears to me to be not a cautioned statement at all but a recitation of the police officer's evidence. He was then asked questions. When one examines the questions, one can see the police officer was seeking to obtain evidence, either of a robbery or evidence of a conspiracy to wound. They appear to be unrelated to the offence of being in possession of an offensive weapon. There was ample evidence on which this defendant could have been charged and a voir dire occurred in the course of the trial. The Magistrate heard this and on the evidence he had, (the defendant not giving evidence,) he found that the statement was voluntary. In my judgment, that was a correct decision for him to come to. However, he should consider further first of all, the relevance of the statement and secondly, the fact that there was ample evidence on which this young man could have been charged. The authorities are clear and when there is evidence to charge a person, it should then occur. Mr. Hemmings draw my attention the Court of Appeal decision in Lai Kin Ming in January 1984 when that principle was stated succinctly by the then vice-president. The second statement was taken at 1:29 am. I have no reason to think that it was done for improper purposes. It seems to me to be an attempt to get evidence concerning other persons and in my judgment should have been excluded at any rate. The point is taken now that the first cautioned statement should have been excluded in the Magistrate's discretion. In my judgment, that is a correct submission. Although it was voluntary in one sense, in my judgment he should have been charged and the Magistrate should have exercised his discretion particularly having regard to its contents. It really bore little relevance to the charge. I am then left in the position of the evidence of the police officer which itself most probably would be sufficient. However, these are unusual cases in that there is cast upon on the defendant a burden to prove that he had reasonable cause and Mr. Hemmings makes the point that he did not give evidence because no doubt the statement having gone in it was inevitable that a conviction would follow. Although I consider that there was evidence against him, having regard to all the facts in this case. I consider this conviction was unsafe and unsatisfactory and therefore I would allow the appeal.