HKSAR v. O'BRIEN MICHAEL JOHN PATRICK

HCMA 47/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 47 OF 2000

(ON APPEAL FROM ESCC 2684/1999)

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J U D G M E N T

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1. This Appellant was convicted in the Magistracy of one charge of Possession of Offensive Weapon in a Public Place and was sentenced to 4 months' imprisonment. He appeals against his conviction.

2. The basic ground of his appeal is that some witnesses were not in court, nor were any statements made by them introduced in court either for him, or against him.

3. The Magistrates' findings showed that the Appellant was in a Pub & Disco called "La Bamba" when he was seen to pull a knife out from a garment at the waist area, hold it up and drop it to the floor. This action was preceded by his throwing a bottle. He was identified by one of the persons in the bar and his actions but not his face, were seen by the manager who followed him to the street. The Appellant was eventually stopped by police who searched him and found the sheath, which the Appellant said belonged to the knife, tucked underneath his T-shirt.

4. It was admitted at the trial that the Appellant had the knife in his possession. However, it was submitted that Appellant had possession of the knife with reasonable excuse because he had been working in security posts in various pubs and discos around Hong Kong and had been attacked on previous occasions by males and injured and that in early June or July of 1999, he had been threatened with death threats. It was for that reason and for similar threats that occurred subsequently, that he carried the knife.

5. In support of his appeal today, the Appellant does not raise any new points. He confirms that he did carry the knife; he confirms there was a death threat against him; he says that PW1 a witness on whom the Magistrate relied, was lying. He said the correct sequence of events was that he had pulled the knife and then thrown the bottle, rather than thrown the bottle and then pulled the knife, the latter scenario being the facts found by the Magistrate.

6. I went through the Magistrate's reasons carefully and I listened to what the Appellant had to say. I can see no justification for interfering with the Magistrate's Statement of Findings. It is quite clear that if there had been a death threat prior to this incident that a sufficiently long time had passed for it not to be justified for Appellant to be carrying a knife.

7. I am satisfied that the Magistrate looked at the evidence carefully, that she took into account the detailed explanation given by the Appellant for his carrying the knife and that she was justified in concluding that at the time he was carrying it he had no excuse to do so. Accordingly, I dismiss this appeal against conviction.