HKSAR v. CHENG MAN

[English Translation – 英譯本]

HCMA 406/2020

[2022] HKCFI 1984

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 406 OF 2020

(ON APPEAL FROM KCCC 1443 OF 2020)

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BETWEEN

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J U D G M E N T

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A. Introduction

1.  The appellant was charged with one count of “possession of offensive weapon in a public place”, contrary to section 33(1) and (2) of the Public Order Ordinance, Cap. 245 of the Laws of Hong Kong. She pleaded not guilty, and was convicted after trial and sentenced to 6 months’ imprisonment before Mr Cheng Lim-chi sitting as a magistrate in the Kowloon City Magistrates’ Courts (hereinafter referred to as “the magistrate”). She appeals against the conviction.

B. Facts

2.  Representing the respondent, Mr Cheung Cheuk Kan, Ivan, Senior Public Prosecutor, and Mr Lee Wing Yin, Wayne, Acting Senior Public Prosecutor, set out in their written submissions both the case of the prosecution and that of the defence, which I basically adopted and used.

B.1 Prosecution Case

3.  The prosecution alleged that on 10 November 2019, in a public place in the area of Nathan Road and Argyle Street, Mongkok, the appellant, without lawful authority or reasonable excuse, had with her an offensive weapon, namely a device capable of emitting laser beam (hereafter referred to as “laser pointer”)[1].

4.  Before the commencement of the trial, the parties agreed on certain facts. The appellant admitted during the trial that the police had seized from the appellant a black cap, a black polo shirt, a pair of black sleeves, black pants, a pair of black shoes, a white face mask and a bumbag[2]. A total of nine witnesses were called to testify for the prosecution.

5.  It is the prosecution’s case that on the evening of 10 November 2019, when a police vehicle on Nathan Road turned into Argyle Street, dozens of people clad in black were gathering on the pavement and roadway. All of a sudden, a protester dressed in black hurled a petrol bomb at the police vehicle and a fire line was formed. Some police officers then alighted from the vehicle and chased after the people gathering there. Having chased the appellant for a few dozen metres, the first prosecution witness (PW1) managed to subdue the appellant with the help of the second prosecution witness (PW2) who was also the arresting officer of the appellant[3].

6.  PW3 was responsible for searching the appellant’s bumbag from which he found some personal belongings, saline solution and a battery while PW4 was the one who conducted a body search of the appellant inside Hunghom Police Station and found from the left front pants pocket of the appellant a laser pointer with batteries[4]. Having examined the laser pointer, PW6 confirmed that it was a type 3B laser product which, according to international standards, was capable of hurting the human eye within a distance of 60 metres[5].

7.  PW7, PW8 and PW9 are all witnesses proving the chain of exhibits (including the laser pointer)[6], and PW5 was assigned to take photographs of the exhibits[7].

8.  The prosecution’s stance was that the appellant intended to cause injury to others with the laser pointer on his person.

B.2. Defence Case

9.  The appellant elected to testify at the trial and called one defence witness.

10.  The appellant said in her evidence at trial[8] that she worked as a patient care assistant in a hospital and she had been on duty on the day in question until around 3 pm. She then drove a private car to Festival Walk with a friend (DW1) on board, intending to go shopping before proceeding to Tsuen Wan for dinner. After that, her plan was to go to Mongkok to join another friend for sweet soup.

11.  Having arrived at Mongkok, the appellant parked her car in Fa Yuen Street and walked along Sai Yeung Choi Street with DW1 in the direction of Prince Edward where they were to wait for another friend. The street was full of people. Some of them were shouting, “Cops. Run!”. The smell of the tear gas made it difficult for the appellant to breathe and her eyes were painful. DW1 thus gave the appellant an N95 face mask plus five tubes of saline solution. As the appellant was having adverse reactions to the tear gas, when an unknown private car drove past and delivered cool sleeves, she took a pair and put them on her arms for the purpose of protection. The appellant then heard people again shout, “Cops. Run!”. So, she just ran along with the fleeing crowd and was apprehended in the end.

12.  The appellant said that the laser pointer was bought as early as December 2018 for the purpose of catching cuttlefish as the beam from the laser pointer is attractive to cuttlefish and can increase the catch. The laser pointer had all along been in the bumbag which the appellant habitually carried. She had taken it out during dinner and shown it to DW1, after which she just put it in her pants pocket conveniently. The appellant claimed that at the time of her arrest, there was a fishing weight in her bumbag which was later seized by the police but returned to her subsequently.

13.  DW1’s evidence was largely the same as the appellant’s[9].

C. Grounds of Appeal

14.  Mr Randy Shek, counsel for the appellant, submitted that the conviction was unsafe and unsatisfactory based on three grounds of appeal：

(1) The magistrate was wrong in finding the appellant in possession of an offensive weapon with intent;

(2) The magistrate was wrong in rejecting the evidence of the appellant and that of her witness; and

(3) The magistrate was wrong in neglecting the legal principle on the evidence of “flight” which was used to substantiate the prosecution case or as the basis of conviction, and he failed to apply the same properly in the present case.

C.1. Ground (1)

15.  The appellant submitted that as the magistrate already decided that the laser pointer is by nature not an offensive weapon, whether the appellant committed the offence must depend on the intention of her possession of the laser pointer at the material time.

16.  In considering the issue, the magistrate cited HKSAR v Chan Yiu Shing and another[10] in which the Court of First Instance quoted the relevant considerations of the Court of Appeal in Chong Ah Choi:

“40. In R v Chong Ah Choi, the Court of Appeal pointed out that in considering whether an inference can be drawn, the court is entitled to take into account the following:

(1) the nature and condition of the implement itself；

(2) all the circumstances surrounding the accused’s possession of it, such as the time, the place, what legitimate use it might have had at such a time and in such a place, whether it was carried or concealed, his observed behaviour in general, his reaction to being approached by the police and so on.”

17.  According to the prosecution case, before the appellant was arrested, an unlawful assembly had taken place in the vicinity of the location of arrest, and some people had even attacked the police. However, apart from the evidence that the appellant was subdued by the police, there is no other evidence to show, before and during the arrest, where the appellant was, whether she had participated in the unlawful assembly or committed any acts of attacking the police. Likewise, there is no evidence in the present case to show that anyone, not to mention the appellant, had shone a laser pointer at the police officers to provoke or attack the police.

18.  Even though an illegal assembly was taking place nearby before the appellant was arrested and someone even attacked the police, PW3 did confirm during cross-examination that there were other people at the scene, including onlookers, civic medical personnel, members of “Protect the Children” and journalists[11], who did not participate in the illegal assembly or the attack on the police. Given that it was a busy downtown area where the offence took place, and that pedestrians were able to come and go at will, the appellant’s presence at the scene, even when she was dressed in black, was not a sufficient reason for the magistrate to make the only irresistible inference that the appellant took part in the illegal assembly or attacking the police. Likewise, it cannot be inferred therefrom that the defendant was in possession of a laser pointer for the intended purpose of attacking others.

19.  The appellant contended that as the laser pointer in the instant case was small in size and equipped with a key ring, it was just normal and reasonable to put it in the pants pocket, and the fact that it was kept there cannot be taken as a basis to infer, just as what the magistrate did, that the appellant must have intended to take it out conveniently to attack others.

20.  The appellant said in her testimony that she possessed the laser pointer for using it to increase the catch of cuttlefish, and the magistrate accepted that cuttlefish catching was possibly the appellant’s hobby. Against such evidential background, even if the magistrate believed that the appellant did not intend to engage in cuttlefish catching on the night in question, the fact that the appellant had kept the laser pointer in her pants pocket cannot be relied upon to come to the only irresistible inference that the appellant must have intended to use the laser pointer to attack others.

21.  The appellant pointed out that even if she relied on the statutory “lawful excuse” as a defence, what she was required to do would be just to adduce evidence to raise the issue of “lawful excuse”. The prosecution must still prove beyond any reasonable doubt that the appellant did have an intention to attack.

22.  The appellant submitted that on this issue, the magistrate should have considered whether the appellant intended or might have intended to use the laser pointer in her possession for the purpose of catching cuttlefish. As the magistrate accepted that cuttlefish catching was possibly the appellant’s hobby, it was then possible that the appellant’s possession of the laser pointer was for catching cuttlefish. Judging from that, the prosecution was unable to prove the case beyond any reasonable doubt, and the magistrate also erred in finding that the appellant had the relevant intention at the material time.

C.2. Ground (2)

23.  The appellant referred to the basic legal principle that as long as the defence case is true or likely to be true, it would be impossible for the prosecution to prove its case beyond reasonable doubt.

24.  In this case, the defence is under no obligation to prove that the intention of the appellant possessing the laser pointer must have been to catch cuttlefish, rather than to attack others. The defence needed to show only that the intention of the appellant possessing the laser pointer may have nothing to do with attacking others.

25.  The magistrate refused to accept this possibility for the following reasons:

(1) There is no evidence to support the appellant’s bare assertion that the beam emitted by the laser pointer can help increase the catch of cuttlefish. Besides, it is evident that the appellant could not have planned to engage in the activity of catching cuttlefish that night.

(2) The appellant was arrested with five tubes of saline solution, a white mask, and black cooling sleeves on her person. Although the appellant claimed that her eyes were irritated by the tear gas at the scene of her arrest, she did not immediately wash them with the saline solution.

(3) There was no need for the appellant’s friend, i.e. PW2 Mandy, to hand over the saline solution to the appellant for backup. Mandy is a nurse who is supposed to be more knowledgeable than the appellant about using saline solution. It is therefore unreasonable for her to give the saline solution to the appellant for backup. As both the appellant and Mandy claimed that they were heading towards Prince Edward together to meet up with a friend for some sweet soup, there was simply no need for Mandy to hand over the saline solution to the appellant for safekeeping.

(4) As the appellant was arrested while she was dressed in a way similar to that of those often-seen ordinary protesters, she had put herself in circumstances likely to arouse suspicion. The appellant should have left the scene rather than staying in the area of Mongkok and Prince Edward.

26.  The appellant reiterated that it was not necessary for her to prove that she was going to engage in cuttlefish catching on the night in question. The central issue in this case is whether the appellant might have possessed the laser pointer for purposes other than attacking others. As the magistrate accepted that cuttlefish catching was possibly the appellant’s hobby, he shall need sufficient evidence to support his view that the appellant’s possession of the laser pointer at the time of the offence must have been for attacking others. Otherwise, he would not be able to rule out the possibility that the appellant was possessing the laser pointer for other purposes.

27.  That the appellant felt discomfort in the eyes but did not immediately wash them with saline solution is something of a triviality in itself. When considering this issue, the magistrate only said that the lack of immediate eye washing was not in line with the appellant’s claim of discomfort in the eyes at the time. The key point of the appellant’s testimony and that of her defence witness is that they only passed by the illegal assembly site on that day, and not only had they not participated in any illegal assembly, the laser pointer in her possession also had nothing whatsoever to do with the conflict at the scene. The timing of the appellant’s eye wash itself is not important at all, and the magistrate should not have taken that as a reason for rejecting the possibility of the defence case.

28.  The appellant pointed out that while Mandy was a nurse, the appellant herself was nonetheless a patient care assistant working for a hospital. There is no basis to support the magistrate’s assumption that Mandy “ought to be more knowledgeable than the appellant about using saline solution”. If such an assumption is made due to job-related reasons, the appellant’s work and training in fact could equally help her understand how to use saline solution. In the circumstances, the reason why the magistrate refused to accept the defence case is rather farfetched.

29.  No matter what kind of clothing the appellant was wearing at the time and no matter whether she should have stayed in the area of the illegal assembly site, when the magistrate denied that the appellant’s appearance in the Mongkok area was due to other reasons unrelated to the illegal assembly or attack on the police, his judgment was based only on two points—the appellant’s outfit, which was quite ordinary, and her appearance at the crime scene. It must be borne in mind that although she “put herself in circumstances likely to arouse suspicion”, mere suspicion is not enough to constitute an internal inconsistency or an inherent improbability for which the magistrate should refuse to accept the defence case.

30.  As for the magistrate’s observation that the appellant should have left the scene immediately rather than staying there, the appellant argued that both she herself and the defence witness had said that they were going to meet a friend and were heading towards Prince Edward. The evidence already showed that they did not intentionally stay at the scene or participate in the illegal assembly. The magistrate’s observation was not enough to support his view that the appellant did not leave in a timely manner.

31.  The appellant submitted that the magistrate’s considerations in and grounds for rejecting the defence case were rather far-fetched. The magistrate must decide whether the appellant’s case is true or likely to be true. The grounds adopted by the magistrate for rejecting the defence case are insufficient to negate the possibility that the defence case is true.

C.3. Ground (3)

32.  The appellant refers to the matters on which the magistrate relied when making inferences about the relevant intent, including: (1) some 40 to 50 people in black were gathering at the time of the incident; (2) the appellant said, “When I saw other people run, I also ran” and she was obviously among the crowd dressed in black or near them; (3) before the appellant took flight, someone had hurled a petrol bomb at a police vehicle; (4) the laser pointer involved in the case was put in the appellant’s pants pocket within reach; and (5) the appellant could not have been on her way to catch cuttlefish. The magistrate also pointed out that the appellant “initially said that she did not know much about the social events taking place at the time and had not thought about them, but then she was asked why when the people fled, she also fled with them”.

33.  The appellant contended that judging from the above bases of inference, the magistrate did rely on the appellant’s flight as one of the bases. However, the magistrate did not consider citing her flight as a legal basis to support the prosecution’s case.

34.  The appellant cited the directions on “flight” and “absconding” in HKSAR v. So Tsz Kon[12] and HKSAR v. Mo Shiu-shing[13] and pointed out that from the evidence in this case, it can be seen that the appellant fled because police officers were chasing and arresting people gathering on the pavement and roadway of Argyle Street at that time. There is no evidence to suggest that the appellant was with the group of people gathering there and took part in any illegal assembly or attack on any police officers. Although someone threw a petrol bomb at a police vehicle before the appellant was arrested, there was never any evidence in this case that anyone, let alone the appellant, had used a laser pointer in an attempt to attack the police.

35.  In the circumstances, when the police officers were chasing and arresting the people there, it was a most natural reaction for innocent citizens who were not part of any illegal assembly or attack to evade police pursuit and avoid getting involved. Furthermore, the appellant did say that she knew that young people wearing black were the targets of the arrests. Therefore, the appellant’s flight during the police pursuit and arrests was not necessarily due to her possession of the laser pointer with an intention to attack others, or her wish to escape from the scene of crime to avoid exposure of her criminal act.

36.  The appellant submitted that one can see from the reasons given by the magistrate that he believed the appellant’s “flight” was a crucial piece of evidence supporting the conviction. However, the magistrate did not give adequate legal consideration to the issue of “flight”. The magistrate had to be sure that the appellant’s flight was directly related to the offence of “possessing offensive weapons in a public place” with which she was charged, and that when she ran, there was not any innocent reason at all but the feeling of guilt. However, as can be seen from the “statement of findings”, the magistrate never gave any relevant consideration to this legal issue, thereby making a serious mistake in law.

D. Respondent’s Reply

D.1. Ground (1)

37.  The respondent submitted that in this case, the facts accepted by the magistrate included that the appellant fled at the time of the incident while she was among or near the crowd of 40 to 50 people dressed in black; that before the flight, a petrol bomb was hurled at a police vehicle; that a laser pointer was found in the appellant’s pants pocket; that the appellant was wearing black clothes, black cooling sleeves and a face mask; and that there were five tubes of saline solution among the items contained in the appellant’s bumbag.

38.  The respondent summited that according to Chong Ah Choi, all the circumstances surrounding the accused’s possession of the implement, such as the time, the place, what legitimate use it might have had at such a time and in such a place, the accused’s observed behaviour in general, and his reaction to being approached or interrogated by the police, and so on, are all evidence from which inference can be drawn by the court.

39.  The respondent submitted that the circumstantial evidence in this case is similar to that in HKSAR v. SHY[14]. The defendants in both cases were shown to be part of a protest group at the time of the incident due to their clothing, possessions and location. There is also evidence to suggest that those groups had engaged in aggressive behaviour. In the case of SHY, a laser pointer was found in the belt pocket of the defendant’s rucksack. The Court of First Instance, in exercising its appellate jurisdiction, ruled on a retrial basis that there was sufficient circumstantial evidence to support the allegation that the laser pointer was carried with the intention of injuring others. In this case, the laser pointer carried by the appellant at the time of the incident was found in her pants pocket, which is even more accessible compared to the situation in SHY.

40.  The respondent submitted that as the magistrate did not accept the evidence of the appellant and that of the defence witness, and there was no direct evidence regarding the use of the laser pointer in the case, the magistrate, taking into account the nature of the laser pointer in question and in the absence of any possible legitimate use of it at the time and place of the incident, was entitled to draw the only reasonable inference, just as what he had elucidated in his statement of findings, that the appellant had the intention of injuring others with the laser pointer.

D.2. Ground (2)

41.  The respondent submitted that in paragraphs 42 to 55 of the statement of findings, the magistrate has expounded on the unreasonableness of the appellant’s evidence as well as that of the first defence witness (DW1), and there was no logical fallacy or anything far-fetched in the analysis. The unreasonableness affects not only the credibility of the questioned evidence, but also the overall credibility of the appellant and DW1, thereby undermining the credibility of their evidence as a whole.

42.  As for the specific complaints made by the appellant in her written submissions, the respondent has the following observations:

(1) In the appellant’s opinion, the fact that she felt discomfort in the eyes without immediately washing them with saline solution is neither here nor there. However, the respondent’s view is that the importance of the unreasonableness in the matter lies in showing the unreasonableness of the appellant’s explanation about her carrying five tubes of saline solution at the time of the incident. Moreover, as mentioned above, this also affects the credibility of the appellant and the defence witness;

(2) The appellant believes that as she herself is a patient care assistant working in a hospital, the magistrate’s assumption that DW1 as a nurse should have a better understanding than the appellant about how to use saline solution is really far-fetched. However, the respondent is of the view that it was obviously not the focus of the magistrate’s observation on the matter. The real focus was that since the appellant and DW1 intended to stay together while moving along, it was meaningless for DW1 to give the saline solution to the appellant in advance, and this renders the appellant’s explanation about carrying five tubes of saline solution at the time of the incident unreasonable;

(3) The appellant believes that the magistrate was mistaken in holding that the appellant did not leave the scene in a timely manner, as the appellant and DW1 had actually stated that they were going to Prince Edward to meet a friend. The respondent submitted that by carefully reading paragraph 55 of the statement of findings, one can see that the focus of the magistrate’s observation there was not whether the appellant had left the scene or not, but rather to show that the reason given by the appellant and DW1 in their evidence about appearing in Mongkok, i.e. to join another friend for sweet soup, is not credible, the reason being that the appellant’s evidence was that she was already experiencing teargas-induced physical discomfort, which included difficulty in breathing, panting, eye pain, and rash on her arms and wrists. Had the appellant been heading to Prince Edward from Mongkok just for something as insignificant as having sweet soup with a friend, she should have left the affected area as soon as possible instead of continuing along the affected route to get to Prince Edward.

43.  Citing HKSAR v. 張裕驥[15], the respondent contended that the magistrate had the advantage of seeing and hearing the witnesses give evidence, and the appellant did not put forward any grounds to prove that the magistrate’s finding on the credibility of the appellant and DW1 was plainly wrong, such that the Court of Appeal must interfere with it.

D.3 Ground 3

44.  The respondent contends that judging from the reasoning of his statement of findings, the magistrate did not infer from the appellant’s flight that she was guilty. The appellant’s flight was only mentioned in paragraph 60 of the statement of findings as a repetition of her own evidence, aiming to illustrate that the appellant was in or near the group of people wearing black during the police pursuit, thus inferring that the appellant was part of those protesters dressed in black, and in turn, with other circumstantial evidence, what kind of intention the appellant had in possessing the laser pointer. In the circumstances, there is no need for any direction on lies, and in finding the appellant guilty, the magistrate did not rely on the evidence of the appellant evading arrest.

45.  Furthermore, generally speaking, it is not always necessary for professional judges or magistrates to give themselves all relevant directions on law. In any event, the Court of Final Appeal, in Ching Kwok Yin v HKSAR[16], pointed out that even if the magistrate committed an error, the judge hearing the appeal should consider whether the error had rendered the conviction seemingly unjust so that the verdict must be overturned. If the magistrate would undoubtedly have reached the same verdict had he not made the error, then the error would not have been material.

E. The appellant’s further submissions in response

46.  Citing paragraphs 60 and 61 of the statement of findings, the appellant submitted that the magistrate did not say much about his inference that the appellant had the relevant intention.

47.  The appellant further cited the principle referred to in HKSAR v. 陳耀成 and contended that the magistrate’s inference that the appellant possessed the laser pointer for the purpose of attacking others is based on the following facts (1 to 6) from which he came up with the inferences (a to c):

Facts

(1) The offence took place slightly after 11 pm;

(2) At the time of the offence, many people were gathering on the pavement, roadway and around Sincere Podium in Mongkok, including 40 to 50 people dressed in black;

(3) The appellant fled;

(4) Before the appellant fled, someone had hurled a petrol bomb at a police vehicle;

(5) The laser pointer in question was kept in a pants pocket of the appellant which was within easy reach; and

(6) The appellant had to work on that day.

Inferences

(a) The appellant was among the crowd dressed in black or near them;

(b) The appellant could not have been on her way to catch cuttlefish;

(c) Therefore, the appellant intended to injure others with the laser pointer in question.

48.  Although the respondent contended in paragraph 22 of its written submissions that “the appellant was fleeing among or near a crowd of 40 to 50 people dressed in black at the time of the offence” is a fact accepted by the magistrate, that is actually just a finding drawn from inference. The evidence of PW1 (i.e. the first police officer who saw the appellant at the time of the offence) was that he got off the vehicle at Argyle Street outside Sincere Podium, chased along Argyle Street into Garden Street, and ran about 30 metres more on Garden Street before stopping the appellant[17].

49.  Furthermore, PW1 only saw the appellant run without seeing her engaging in any illegal activities or taking part in any unlawful assemblies. It was merely PW1’s speculation that the appellant was involved in an unlawful assembly while standing on the roadway and pavement[18].

50.  Thirdly, there is no other independent evidence in this case to prove that the appellant had participated in the assembly outside Sincere Podium before she was subdued.

51.  Given that the appellant was not subdued at the scene of the illegal assembly outside Sincere Podium, but instead was stopped having turned a corner into Garden Street and run for a further 30 metres, coupled with the fact that it was a bustling place with lots of people moving around, it is not the only irresistible inference that the appellant was once involved in the assembly of the black-clad crowd gathering there on Argyle Street at the time.

52.  With regard to making inference based on circumstantial evidence, the Court of Appeal in paragraphs 42 to 43 of HKSAR v Chan Man Sum Ivan[19] reiterated that regarding the directions for the jury on making the only reasonable inference, if from a set of facts there is an inference to draw against the defendant as well as one in his favour, and both can be considered a reasonable inference, then the jury must not draw the adverse inference on those facts.

53.  The facts related to this issue include the following:

(1) When the appellant was arrested, her clothes were all black.

(2) The appellant only had a laser pointer, some saline solution and some personal belongings on her person.

(3) The magistrate accepted that cuttlefish catching was possibly the appellant’s hobby.

54.  The court did point out that apart from the appellant’s bare assertion, there was no evidence to support the claim that the beam emitted from a laser pointer can help increase the catch of cuttlefish, but at the same time, neither was there any evidence from the prosecution to refute or deny this possibility. On such evidential basis, a favourable inference for the appellant is that as a cuttlefish-catching enthusiast, when the appellant was arrested, she was only in possession of some tools on her person which she would often use for catching cuttlefish. It is worth noting that the laser pointer involved in the case is small in size and it comes with a key ring, not like one of those long pen-shape laser pointers commonly involved in charges like this. That is also consistent with the explanation that the appellant carried the laser pointer with her for use in catching cuttlefish. Carrying the laser pointer with her does not necessarily mean that the appellant would go cuttlefish catching on the night in question or she was on her way to doing that. The allegation that the appellant did have an intention to attack others with the laser pointer at the time of the incident is thus denied.

55.  In paragraph 26 of its written submission, the respondent stated that as far as circumstantial evidence is concerned, this case is similar to HKSAR v. SHY; but taking the facts into account, the appellant believes that there are significant differences between this case and SHY as set out below:

(1) In SHY, the protesters outside V City in Tuen Mun had been facing off against the police for quite some time, and a large number of people were around them watching and shouting (SHY, paragraph 5). In this case, the evidence of PW1 shows that as his police vehicle and the others drove past in convoy, a black-clad person hurled a petrol bomb at the convoy, but before that, the roadways at the scene were not blocked by any clutter of miscellaneous objects at all, and nobody had thrown any miscellaneous items after the person hurling the petrol bomb. The entire process, citing what PW1 said, happened all of a sudden[20].

(2) In SHY, before the appellant was stopped, he was found wandering about three to nine metres in front of the police cordon (SHY, paragraph 6). In this case, the appellant was stopped by the police while leaving with a crowd on another street near the corner adjoining the conflict scene, and there is no evidence to suggest that the appellant was aware of the hurling of a petrol bomb.

(3) In SHY, the appellant had in his possession not only a laser pointer, but also a trekking pole with the handle removed, a modified umbrella, placards of demonstration slogans, cable straps, a helmet, goggles, knee pads and shin pads (SHY, paragraph 6). In this case, inside the appellant’s bumbag, except for five tubes of saline solution and the laser pointer in question, the things were all personal items.

56.  The appellant contended that the circumstantial evidence in this case was not sufficient for the magistrate to exclude all other possibilities and draw the only reasonable inference that the intention of the appellant’s possession of the laser pointer must be to use the same for injuring the police or others, and therefore ground 1 should stand.

57.  The respondent said in paragraph 34 of its written submission that the magistrate’s reference to the appellant’s flight was a mere repetition of her own evidence. In relation to that, the appellant cited those parts of the examination-in-chief and cross-examination containing descriptions of her running：

“ [21] Examination-in-chief:

A: Then we walked to the vicinity of Sincere Podium.

Q: Yes, what happened at that time?

A: Many members of the public were there at that time.

Q: Yes, what next?

A: (I) saw a police vehicle parked diagonally across Sincere Podium.

Q: Yes.

A: Then some people shouted, “Cops. Run!”.

Q: Yes.

A: Then we—Leung Sze-man and I just followed the residents nearby and ran together.

[22]Cross-examination:

Q: Actually, you did participate in the social event at that time. That was why you ran.

A: No.

Q: It was to avoid the police arresting you.

A: They ran, so I ran, following and running together.”

58.  The appellant submitted that based on the above transcript, the magistrate was not merely repeating the appellant’s evidence as pointed out by the respondent. Rather, what happened was that without analysing and discussing the facts of the case to explain why the appellant must have chosen to flee the scene to avoid exposure of her crime as she knew that she had committed the offence in question, the magistrate simply characterised the appellant’s behaviour as flight and even relied on it as one of the factors considered in drawing the inference of intent. In other words, the magistrate did not follow the guidelines as set down in So Tsz Kon and made an error in law.

F. Discussion

59.  I believe that the three grounds of appeal can be dealt with together.

60.  Section 33(1) of the Public Order Ordinance reads:

“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 and shall be sentenced, on summary conviction or conviction on indictment, in the manner specified in subsection (2).”

61.  An “offensive weapon” as defined in section 2 of the Public Order Ordinance is:

“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.”

62.  The phrase “suitable for causing injury to the person” in the definition has been ruled by the Court of Appeal to be in contravention of the Hong Kong Bill of Rights (see R v. Chong Ah Choi[23])

63.  In this case, the laser pointer possessed by the appellant is not by nature/in itself an offensive weapon (as it was not manufactured as or adapted to be an article for causing injury to the person). Therefore, the prosecution must prove that the appellant, in possession of the laser pointer, intended to use it by herself or some other person for causing injury to others.

64.  In the instant case, there is no direct evidence to suggest that the appellant, in possession of the laser pointer, intended to use it for injuring others. The prosecution relied only on circumstantial evidence.

65.  As the respondent pointed out, circumstantial evidence is the evidence from which inference of guilt can be drawn in the form of geometrical progression or by tying together the strands of a rope: see HKSAR v. Lo Hung Kwong[24] and R v Exall[25].

66.  Regarding the evidence of the appellant and that of her defence witness, the trial magistrate had the advantage of seeing and hearing the witnesses giving evidence. Unless he had obviously committed an error or his findings are unreasonable, the appellate court generally would not interfere (see Chou Shih Bin v. HKSAR[26] and HKSAR v Ip Chin Kei and Ors (葉展基)[27].

67.  It is true that judging from the appellant’s Facebook image(s), the appellant appears to be in the habit of catching cuttlefish. The question is, can the prosecution prove that she intended to use the laser pointer in her possession at the time of arrest for injuring others?

68.  The appellant criticised the magistrate for not accepting the defence case, but in my view, the magistrate simply pointed out the parts of the defence case that were unreasonable. In this regard, I totally agree with the arguments submitted by the respondent. In fact, had the appellant had an eye irritation caused by tear gas, she would not have had any reason to refrain from immediately washing them with saline solution and instead only put five tubes of saline solution in her bumbag. Since Mandy is a nurse, I agree that she should be more knowledgeable about using saline solution than the appellant who is a patient care assistant. The focus of the issue is, given the appellant’s eye irritation and the fact that Mandy was in the company of the appellant, there was no reason for Mandy to only give the appellant five tubes of saline solution as “backup”. As she was having an eye irritation, why did the appellant not leave immediately? She explained that she had arranged to meet someone at Prince Edward for “sweet soup”, and therefore did not leave the affected area immediately, but instead continued to move along the affected area to go to Prince Edward. That is unbelievable and unjustifiable.

69.  Furthermore, the appellant’s explanation as to why she was wearing “cooling sleeves” on both arms is likewise farfetched. From the photographs produced in court, I cannot see any signs of bodily sensitivity as described by her and the defence witness.

70.  I agree that, considering the situation as a whole at that time, even if the people there were not involved in the confrontation with the police, they might as well try to flee when they saw the police pursuing them. If the only piece of evidence supporting the prosecution’s case is the appellant’s attempt to “flee”, the conviction would be unsafe.

71.  I agree that the facts of this case are somewhat different from those of SHY as cited by the respondent. What I need to consider is whether the court can draw the only reasonable inference from the evidence in this case that the appellant, in possession of the laser pointer, intended to have it used for injuring others.

72.  Having taken into account all the circumstances of the case, I am of the view that even putting aside the appellant’s attempt to “flee”, I would still find that the prosecution has proved its case beyond reasonable doubt, and that the only reasonable inference is that the appellant, keeping (possessing) the laser pointer in her pants pocket at that time, intended to have it used for causing injury to others by her or by some other person (although the laser pointer could be used for catching cuttlefish at other times).

73.  I find that the prosecution has proved beyond reasonable doubt that the appellant committed the offence.

F. Decision

74.  Based on the above reasons, I dismiss the appellant’s appeal against conviction.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor.