ATTORNEY GENERAL v. LAU TAT KUEN

 IN THE COURT OF APPEAL

1987, No.111
(Criminal)

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J U D G M E N T

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Power, J.:

1. This is an appeal by way of case stated by the Attorney General on a question of 1aw which arose in a prosecution in the District Court on a charge under section 33(1) of the Public Order Ordinance, Cap. 245, which was heard by Judge Daniel on 24th, 25th, 26th, 27^th and 28th November 1986. At the conclusion of the Crown case the judge found that there was no case to answer and acquitted the respondent.

2. Pursuant to section 84 of the District Court Ordinance, the Attorney General applied to the judge to state a case, which he did, as follows:-

"(6)  On the 30th July 1986 the respondent was seated together with friends at a table near a bowling alley in the Bun's Amusement Centre, Shatin.

(7)   whilst seated there another group of men rushed at and assaulted one of the men in the respondent's group seated at the table. There were no weapons used in this assault. 

(8)   The group of assailants then fled. As they fled the respondent obtained an 18 inch beef knife from one of his companions seated at the table with him. Prior to the respondent obtaining the knife the person seated at the table had the knife concealed in the front waist of his trousers. He took the knife from this location and gave it to the respondent. The respondent pursued the fleeing assailants brandishing the knife as he chased them.

(9)   The respondent pursued the fleeing assai1ants for a distance of approximately 10 paces when he was intercepted by police officers.

(10)  At the conclusion of the Crown case Counsel for the respondent made a no case submission. His argument briefly stated was as fo11ows:

(i) the respondent was never in possession of the knife for the purposes of s.33 of the Public Order Ordinance, Cap. 245, and

(ii) s. 33 of this Ordinance is the same in meaning s.1 of Prevention of Crime Act 1953, and

(iii) he relied in his submissions on Ohlson v. Hylton [1975] 2 All E.R. 490 and Bates v. Bulman (1979) 68 Cr. App. R.21 D.C.

(11) In response Counsel for the Crown maintained that the respondent had a case to answer.  His argument briefly stated was as follows:-

(i) that the authorities relied upon only apply to situations where the weapons were not offensive per se, and,

(ii) that the position in Hong Kong under the Public Order Ordinance, Cap. 245 is different from the situation in England under the Prevention of Crime Act 1953 by virtue of the inclusion of the words 'or suitable’ in s. 2 of Cap. 245.

(12)  Having heard these submissions it was my view that the respondent was in possession of the knife in circumstances very similar to those in the case of Bates v. Bulma supra. I found as a fact that the respondent 'seized the knife on the spur of the moment and with a view to use it instantly and offensively’. I therefore upheld the submission of the respondent’s counsel and I ruled no case to answer on the charge and duly acquitted.

(13)  The question arising from this statement:-

'Was I correct in view of the findings set out above in ruling that the respondent had no case to answer in respect of this charge under s. 33 of the Public Order Ordinance, Cap. 245.’”

3. The real question for our determination is whether the judge was right in following the English authorities which culminated in Bates v. Bulman(1). 

4. The material part of s. 1 (1) of the Prevention of Crime Act of 1953 (“the Act”) the section with which the English authorities were concerned, reads as follows:-

“Any person who, without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon, shall be guilty of an offence ……….”

5. The words “offensive weapon” are defined in s. 1(4) of the Act as follows:-

“… “offensive weapon” means any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him.”

6. S. 33( 1) of the Public Order Ordinance (“the Ordinance”), with

Which we are concerned states:-

"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.”

An important difference between the Ordinance and the Act is that s. 2 of the ordinance defines “offensive weapon” as being:  “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 ro under his control for such use by him or by some other person”.

7. Under the Act, therefore, intention must be proved, unless the article is one which is "made or adapted for use for causing injury to the person”.  However,  the definition of offensive weapons in the Ordinance, is far wider, in that no intent need be shown in the case of possession of articles “suitable for causing injury”.

8. Mr Bruce, who appeared for the Attorney General, argued that, by reason of this important difference in wording the approach adopted by the English courts to s. 1 of the Act is not applicable in Hong Kong. He argued, in the alternative, that the Words "has with him in any public place”, which appear both in s.1 (1) of the Act and in s. 33(1) of the Ordinance are simple English words which must be given their ordinary meaning and that the English courts were wrong in attributing a special limited meaning to them.

9. In Oh1son v. Hylton(2) a carpenter, carrying his tools of trade, which included a hammer, became involved in an altercation at an underground station and struck a fellow passenger with his hammer. Lord Widgery C.J. referred at 494, to the decision of Lord Goddard, C.J. referred at 494, to the decision of Lord Goddard, C.J. in R. v. Jura(3) where the latter had said:-

“…. The long title of the Prevention of Crime Act, 1953, is:  'an Act to prohibit the carrying of offensive weapons in public places without lawful authority or reasonable excuse,’ …..  The appellant was not carrying this rifle without lawful excuse because he was at a shooting gallery where for the payment of a few pence people could amuse themselves by firing at a target and was carrying the rifle for that purpose.  He had an obvious excuse for carrying the rifle.  He made use of the rifle in a way which was unlawful, for which he might have been convicted of a felony.  If a person having a rifle in his hand for a lawful purpose, the Offences against he Person Act, 1861, provides appropriate punishment for doing that, but the Act of 1953 is meant to deal with a person who, with no excuse whatever, goes out with an offensive weapon, it may be a 'cosh’ or a knife, or something else, without any reasonable excuse.”

Lord Widgery went on, having reviewed the authorities, to state (at 496):-

“The real quest ion is whether the offensive use of the weapon is conclusive on the question of whether the defendant 'had it with him’ within the meaning of the Act. Lord Goddard, C.J. thought that it was not, and this must now be accepted as correct. Accordingly, no offence is committed ,under the 1953 Act where an assailant seizes a weapon for instant use on his victim. Here the seizure and use of the weapon are all part and parcel of the assault or attempted assault. To support a conviction under the Act the prosecution must show that the defendant was carrying or otherwise equipped with the weapon, and had the intent to use it offensively before any occasion for its actual use had arisen.”

10. In Bates v. Bulman(1), the appellant, having assaulted a man by slapping and punching him, then requested another man to hand him an unopened clasp knife, which the court was satisfied was not made or adapted for use for causing injury, intending to use it to injure the other man. The court held, following Ohlson's(2) case that “the real purpose of the 1953 Act was to prevent the carrying of offensive weapons, and therefore a person not previously in possession of an article which was not offensive per se, who acquired it by borrowing it or picking it up in the street with the immediate intention of using it as an offensive weapon was not guilty of an offence under section 1 (1) of that Act”.

11. Stocker, J., delivering the judgment of the court said:-

"For my part also, it seems to me that the purport of the 1953 Act, as revealed by its long title, is to cover the situation where an accused person, a defendant, has with him and is carrying an offensive weapon intending that it shall be used, if necessary, for offensive purposes. Where an assault in fact takes place, whether it amounts to an assault causing actual bodily harm or a lesser or greater criminal substantive offence, and the only circumstances in which the weapon used is converted or could be converted into an offensive weapon for the purposes of the definition are its use itself in the assault concerned, then an alternative or second charge under the 1953 Act would be more likely to confuse than to resolve the situation.”

Therefore, in my judgment, the real purpose of the 1953 Act is to prevent the carrying of offensive weapons. Their use would almost inevitably be better dealt with by a substantive offence.”

12. Both of the above cases refused to follow a decision in Harrison v. Thornton(4) in which the Divisional Court held that a person who picked up a stone and threw it with the intention of causing injury was guilty of an offence under section 1 of the Act.   The court, dismissing the defendant's appeal, held that the magistrate was right because the defendant had made the stone an offensive weapon by his conduct with it. 

13. It may well be that, where the offensive weapon has been used or was about to be used against another person, the more appropriate charge would be wounding or assault or attempted assault according to the circumstances. This fact of itself, however, in our view, provides no ground for arguing that the charge under section 33(1) of the ordinance would not also lie. As O'Connor, J. said, in the unreported case of Attorney General v. Chan Shui-Leung(5), “There is no reason why the legislature could not make a matter an offence under two identical laws and leave the decision to the Attorney General as to which to prosecute for, or indeed, is there anything to prevent one of those offences carrying a mandatory penalty whereas the other does not”. It must moreover be said that while the English authorities felt that unnecessary complexity would result if a charge for a substantive offence such as assault were brought, together with a charge under section 1(1) of the Act, it was not suggested that the legislature could not, if it saw fit, enact a provision which had this result.

14. The English authorities, save for Harrison v. Thornton(4), are based on the view that the mischief aimed at by the Act, as stated in its long title, was the carrying of articles intended to be used offensively and to that alone. The courts felt themselves bound to give effect to this statement by the legislature as to the intended limits of the Act. There is nothing in the long title to the Ordinance which would suggest that its application should be so limited. The long title to it states that its intention is to consolidate and amend the law relating to the maintenance of public order, the control of organisations, meetings, places, vessels and aircraft, unlawful assembles and riots and matters incidential thereto or connected therewith’. It contains nothing to suggest that any special meaning should be given to the words of s. 33(1).

15. The words of section 33 must, therefore, in our view, be given their ordinary meaning. They state that if a person has an offensive weapon with him in any public place without lawful authority or reasonable excuse, he is guilty of an offence. It is not disputed that the beef knife, was an article “suitable for causing injury” and so was an offensive weapon. Nor was it challenged that the incident occurred in a public place and that the respondent, who was holding the knife, had it with him.  That being so the answer to the question posed in the case stated is 'no'. He reverse the verdict and order the trial be resumed though we understand that the Attorney General does not intend to pursue the matter further.