ATTORNEY GENERAL v. NGO KIN LING

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H E A D N O T E

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S.17 SUM MARY OFFENCES ORDINANCE - POSSESSION OF OFFENSIVE

WEAPON ETC - NO REQUIREMENT FOR "SATISFACTORY ACCOUNT" TO BE GIVEN TO POLICE.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1767 OF 1988

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J U D G M E N T

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1. This is an appeal by the Attorney General, by way of case stated, from an order acquitting the respondent made by Mr Mitchell-Heggs at South Kowloon Magistracy.

2. The respondent was charged with having in his possession an offensive weapon, namely a baseball bat, and being unable to give a satisfactory account of his possession thereof.

The questions of law posed by the magistrate are:

"(1)    whether I erred in law in holding that upon a true construction of section 17 of the Summary Offences Ordinance, Chapter 228, the respondent's account of his possession of the offensive weapon did not have to be given at the time when the officer sought such at the scene,

(2)    whether I erred in holding that there was no case to answer in the circumstances,

(3) whether I erred in ordering the appellant to pay costs to the respondent."

Section 17 reads:

"any person who has in his possession any spear, bludgeon or other offensive weapon, or any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes, with intent to use the same for any such unlawful purpose, or is unable to give satisfactory account of his possession thereof, shall be liable to a fine of one thousand dollars or to imprisonment for three months."

3. The magistrate points out in an amendment to the case stated that, at the close of the prosecution case, he amended the particulars of offence, of his own motion, to read "and you are unable to give a satisfactory account ......"  The original charge had been framed in the past tense.

4. The section is contrasted with s 30 of the same, ordinance, which provides:

"Any person who is brought before a magistrate charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account, to the satisfaction of the magistrate, how he came by the same, shall be liable to a fine of $1,000 or to imprisonment for 3 months."

5. Similarly s.10 of the Prevention of Bribery Ordinance, Cap 201also specifically refers to giving a satisfactory explanations "to court".

6. I bear in mind however that these two latter sections are comparatively recent legislation. S.17 is of Victorian origin.

S.160(1) of the Crimes Ordinance, Cap. 200 provides:

(1) Any Person who loiters in a public place or in the common parts of any, building shall, unless he gives a satisfactory account of himself and a satisfactory explanation for his presence there, be guilty of an offence and shall be liable on conviction to a fine of $2,000 and to imprisonment, for 6 months."

7. In Attorney General v. Chan Chin-hung (1980) H. K. L. R. 737, Roberts C. J., giving the judgment of the Court said:

"....we have come to the conclusion that, if the Legislature had intended that the account and explanation provided for under section 160(1) was to he tendered to a magistrate, it would have said so.

Furthermore, in the absence of clear words, it is surely desirable to adopt that interpretation which best safeguards members of the public. If an offence is complete solely on the basis that a person is seen 'loitering', he could thereupon be arrested and brought before the court, without more. This would put innocent people at hazard and would be an unnecessarily wide power in the hands of the police.

Thus we see no reason to diverge from the view which this court expressed in the Attorney General v. Tse Kam-pui, that to. establish an offence of loitering, the Crown must show both that the suspect was loitering and that, having been afforded an opportunity to do so he failed to give a satisfactory account and explanation to a police officer who asked for it.

It may sometimes happen that a suspect gives to a police officer an explanation which is palpably unsatisfactory. Thereafter when he is tried, he may give an entirely different explanation, which the magistrate may find credible. In this event, the defendant would, nonetheless, be guilty of the offence charged. Though the magistrate might well take the view that no more than a nominal penalty, if any, should be imposed upon the defendant."

8. Counsel for the Crown urges this court to construe s.17 in the same way, on the basis that the inability to provide the satisfactory account is an integral part of the offence. Mr Mccoy, for the respondent, on the other hand submits that the giving of an explanation is a matter of defence and not part of the actus reus

9. Mr McCoy also relied on the admission by both parties under S.65C of the facts of the case, which included the defendant's caution statement, as an admission binding the crown. I am satisfied however that the only admission by the Crown was that the defendant had made this statement; it was not admitting that the contents were true. The caution statement therefore takes the matter no further.

10. The giving of an explanation by a loiterer will usually be a shorter and simpler process then explaining the possession of an offensive weapon. In the present case the explanation given by the respondent in the police station occupies a pace and a half of typescript. Counsel for the crown concedes that, in those circumstances, the giving of the explanation may he deferred until it is practical to do so e. g. in the police station.  Nevertheless there is less risk of putting 'innocent people at hazard' by requiring a court appearance in the case of possessors of offensive weapons than in the case of loiterers.

11. Mr Coghlan also points out that, if the explanation does not have to be given until trial, a magistrate will tend to place more weight on the explanation if it has also been given at the first reasonable opportunity. This, he submits, would be an infringement of the defendant's common law right to silence when arrested.

12. Using the same argument for different purposes, Mr McCoy submits that the right to silence can only be impugned by clear words; any ambiguity should be resolved in the defendant's favour. Section 160(1) he says implicitly demands an explanation at the time of arrest; loitering is therefore sui generis.

13. The right to silence is however subject to exceptions. Recently, for example, the English Court of Appeal has held that the trial judge was correct to give a direction on recent possession, since the appellants failed to explain the presence in a warehouse of stolen goods discovered by the police, when innocent men would have been expected to explain willingly. See R v. Raviraj and Others (1987) 85 CAR 93.

14. I do not think the point at issue in this appeal turns on the right to silence.

15. The only reported decision touching on the point is some years ago and it is obiter. In Tang Chi-ming v. R (1968] H.K.L.R 716, the Full Court was asked to decide if "unlawful purposes" referred only to housebreaking or to so me other unlawful purposes.

16. Rigby S.P.J. cited R v. Patterson [1962]1 AER 340, in which the Court of Appeal was concerned with the meaning of s. l(1) of the Prevention of Crime Act 1953, under which it is an offence if "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 ......"Lord Parker C. J. said "once possession of such an implement has been shown, the burden shifts to the prisoner to prove on the balance of probabilities that there was lawful excuse for his possession of the implement at the time and place in question".

Rigby S.P.J. then said at p. 725:

"Applying the reasoning stated in that case to a charge under section 17 of the Summary Offences Ordinance, the prosecution must first prove that the accused was found in possession of an implement which can properly be described as one of those specifically named in the section, or an implement capable in fact of being used either as an offensive weapon or 'fit for unlawful purposes' from its common though not exclusive use for that purpose or from the particular circumstances of the case in question. Once possession of such an implement has been shown the burden shifts to the accused to give a satisfactory account of his possession thereof. Quite clearly, the more sinister and suspicious the circumstances in which the accused is found in possession of the implement the greater will be the burden placed upon him to give a satisfactory explanation of his possession of that implement. Each case - and the conclusion reached in each case - must necessarily depend upon its own particular facts."

17. As I recall, this is certainly the way in which magistrates interpreted the section at that time.  This is the first time that construction has been challenged.

18. There is no objection, in my judgment, to a defendant pointing out to the magistrate that he has already given his explanation to the police and that he now relies upon it as an answer to the charge. If this puts him in a better position than the person who gives his explanation for the first time to the magistrate, that is perfectly just. The magistrate may still accept the latter's explanation as satisfactory.

19. The answer to the first question is therefore "no". The Crown does not seek an answer to the second question.  There remains the question of costs.

20. There was no justification for awarding costs against the Crown. The police were not hound to accept that the account given in the defendant's caution statement was true. They may have taken a sceptical view of such a story and in that case they were entitled to take the defendant to court. It was then a matter for the magistrate to decide, if it amounted to a satisfactory explanation of his possestion of the baseball bat.

21. The answer to the third question is therefore "no".