THE QUEEN v. YUNG YUK

Headnote

Case stated - offensive weapon - meaning of 'satisfactory account' - belief in danger of imminent attack - reasonableness of belief and reaction - test of reasonableness objective - carrying of 16 inch beefknife unreasonable in circumstances.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL N0. 662 OF 1985

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BETWEEN

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JUDGMENT

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1. The respondent, a student aged 17, was charged in Fanling Magistrates' Court with being unable to give a satisfactory account of his possession of an offensive weapon, namely a 16-inch beef knife, contrary to section 17 of the Summary Offences Ordinance, Cap. 228. The learned magistrate found that the respondent's explanation was satisfactory and acquitted him. The Crown now appeals against this decision by way of case stated.

2. The facts of the case were admitted by the defence. On 7th November, 1984, at 4.15 p.m., the respondent was seen by two policemen in a market at Yuen Long. They were suspicious and, searching his handbag, they found the beef knife, which was wrapped in paper covering. The respondent said he had been assaulted some days before and was carrying it in self-defence.

3. The respondent gave evidence before the magistrate, who found him to be a truthful witness. He told the court that, in Tuen Mun six days before his arrest, he had witnessed other students being beaten with wooden, or metal, poles by a group of persons. They were injured and their clothing was torn.

4. 7th November was a sports day at the respondent's school and he was required to wear his school uniform. In view of what he had seen in Tuen Mun, he was apprehensive for his safety and this was why he armed himself with the knife. He also said he believed that other students were assaulted that day prior to his arrest, though the grounds for such belief are not disclosed.

5. The question of law for decision is whether the magistrate was correct in deciding that the respondent had given a satisfactory account of his possession of the weapon. There is no dispute that it was, in fact, an offensive weapon.

6. The meaning of the 'satisfactory account' in the context of section 17 was considered in SIN Kan-chuen and others v. R. ⁽¹⁾.  In that case the appellants claimed to be in fear of a revenge attack on their flimsy wooden but by robbers, whom they had reported to the police following a robbery at knifepoint in the premises. They had consequently armed themselves with sharpened water pipes, triangular files etc., which were found by the police during a raid.

7. The magistrate in that case found that such apprehension did not constitute a satisfactory account for possession of the weapons. He said he thought the law was never intended to permit the keeping of such weapons upon the chance of an attack. In his judgment, dismissing the appeal, Silke J. agreed with the magistrate and said, "I have considered what the appellants did think as disclosed by the evidence, what a reasonable man of the nature of the appellants would think and the findings of the learned magistrate. Cases such as this turn very much on their own facts - in particular here the lapse of time, the lack of any immediacy of a possible attack and the nature of the offensive weapons themselves. People are entitled to defend their homes : they must however give full consideration to the likelihood of an attack, the methods by which their home is secured and the nature of the offensive weapons themselves.".

8. Some years later there was an appeal from a conviction for possession of an offensive weapon, contrary to section 33 of the Public Order Ordinance, Cap. 245. This section provides a defence if a defendant has lawful authority or reasonable excuse for such possession. The appellant in R. v. POON Sin-bik ⁽²⁾ was seen holding a wooden pole in company with three others, each of whom was holding either a wooden pole or a water pipe. He told the police that half an hour earlier, while alone in the playground, he had been bullied by some other people, who had prevented him from playing ball. He knew where these people lived, so he fetched his friends and they went off with the intention of asking the bullies why the appellant was not allowed to play ball. However, as they were in fear of being assaulted, they armed themselves with the poles etc.. He gave no details to suggest that such an assault was likely to occur.

9. Barnes J. reviewed the English authorities and concluded, "While those cases do support the proposition that it may be reasonable in some circumstances to carry offensive weapons for protection, the carrying of such weapons affords a reasonable excuse only when done to meet an immediate and particular threat.".  He held that the conduct of the appellants and his friends was, if anything, "likely to set the scene for a fight, rather than create a peaceful atmosphere for the hearing of the appellant's submissions regarding his lawful right to use the playground. A reasonable excuse based on the need for self-defence - an essential ingredient of which is the necessary use of force to resist attack - could hardly arise in these circumstances.".  The appeal was dismissed.

10. The most recent English case is Attorney-General's Reference ⁽³⁾ . The defendant owned a shop in an area where, on two nights during July, 1981, there was extensive rioting. The police were attacked with stones and petrol bombs. Shops, including that of the defendant, were damaged and looted. For several days the defendant remained in his shop, which he boarded up and equipped with containers of sulphuric acid, with which he intended to spray the attackers if necessary. He also made ten petrol bombs, which he placed on the upstairs landing. In the event the expected attack never materialised.

11. The defendant was charged with possession of an explosive substance, namely a petrol bomb, in such circumstances as to give rise to a reasonable suspicion that he had not made it for a lawful object, contrary to section 4 of the Explosive Substances Act, 1883. The question for the opinion of the Court of Appeal was whether the defence of self-defence was available in such circumstances.

12. The court came to the conclusion that such a defence was available, if the defendant could satisfy the jury on the balance of probabilities that his object was to protect himself, or his family, or his property, against imminent apprehended attack and to do so by means which he believed were no more than reasonably necessary to meet the force used by the attackers.

13. As pointed out by counsel for the Crown in the present appeal, this is a different question to whether a satisfactory explanation has been given for possession of an offensive weapon. The case has relevance however because, in giving the court's opinion, Lord Lane C. J. considered and approved the cases dealing with a reasonable excuse for carrying such weapons, similar principles being involved, though the offences arose under the Prevention of Crime Act, 1953.

14. In the last of these cases, Evans v. Hughes ⁽⁴⁾ - relied upon by the magistrate in the present case - the Divisional Court held ".....  it may be a reasonable excuse for the carrying of an offensive weapon that the carrier is in anticipation of imminent attack and is carrying it for his own personal defence ..... ", and stressed that "the threat for which this defence is required must be an imminent particular threat affecting the particular circumstances in which the weapon was carried.".

15. A similar conclusion was reached by the Court of Criminal Appeal of Northern Ireland in R. v. Fegan ⁽⁵⁾, in which the defendant was prosecuted under the 1883 Act, after equipping himself with a gun for his own protection, following threats and beatings. Allowing the appeal, the court held (per Lord MacDermott at 87 - 88), "Possession of a firearm for the purpose of protecting the possessor or his wife or family from acts of violence, may be possession for a lawful object. But the lawful-ness of such a purpose cannot be founded on a mere fancy, or on some aggressive motive. The threatened danger must be reasonably and genuinely anticipated, must appear reasonably imminent, and must be of a nature which could not reasonably be met by more pacific means. A lawful object in this particular field therefore falls within a strictly limited category and cannot be such as to justify going beyond what the law may allow in meeting the situation of danger which the possessor of the firearms reason-ably and genuinely apprehends.".

16. Lord Lane agreed with the Northern Ireland court's conclusion that possession of a firearm for the purpose of protecting the possessor from acts of violence may be possession for a lawful object. Whether it was so or not had to be determined by the jury in the light of the judge's direction. In the Reference before the Court of Appeal the judge had left to the jury the reasonableness of the means adopted for the repulsion of raiders.

17. I would refer finally to one other case under the Prevention of Crime Act, 1953, namely Bryan v. Mott ⁽⁶⁾. The defendant was charged with having a broken milk bottle in a public place without lawful authority or reasonable excuse. The Crown Court held that the defendant's reason for possessing the bottle - to inflict self-injury or to attempt suicide - was not unlawful and amounted to a reasonable excuse.

18. On appeal by the prosecutor, the Court of Appeal held that, in considering whether the defendant had a reasonable excuse, the question to be asked was whether a reasonable man would think it excusable to carry an offensive weapon in a public place merely in order to have it available to commit suicide. The court concluded that any reasonable tribunal must have come to the conclusion that the excuse, though honestly put forward, was not a reasonable excuse and it allowed the appeal.

19. It would seem therefore that, while the test of immediacy, or he imminence of the threat, may be subjective, the test of reasonable-ness is objective.

20. In this connection I respectfully agree with the observation of Silke J. in SIN Kan-chuen v. R. that 'satisfactory account' in s. 17 is to be construed less strictly than 'reasonable excuse' in s. 33 and hence imposes a lesser onus on the defendant.

21. With these principles in mind I come to examine the facts of this case. In spite of the fact that the respondent told the police that it was he himself who had been assaulted - not other students - the magistrate accepted his evidence concerning the incident in Tuen Mun and that this was the reason for his apprehension on 7th November. I approach the case therefore on the basis that the respondent genuinely believed he was in danger of imminent attack that day and this was the reason he was carrying the knife.

22. The next question is whether this was a reasonable belief. There is no evidence that the respondent had been singled out for attack, or even that the other victims attended the same school. Tuen Mun, after all, is some distance from Yuen Long. The latter is a fair-sized town, with a large number of schoolchildren. I find it impossible to accept that a reasonable youth, in the respondent's situation, would have concluded that the wearing of his school uniform in Yuen Long six days after the Tuen Mun attack, would be likely to expose him to similar danger. Had he received a communication to that effect, it might nave been different.

23. I do not think that the respondent's belief that other students were assaulted on 7th November takes the matter any further. It would appear that this occurred after he had already equipped himself with the knife and ventured forth. In any case, I fancy assaults upon students, of varying degrees of seriousness, and usually by other students, are a common occurrence in Yuen Long, as in other places.

24. In my judgment, not only was the respondent's apprehension unreasonable, but so was his reaction to it. There were a number of options open to him, including arranging for an escort of friends or family reporting to the police, playing truant etc. Even arming himself with a stout walking stick would have been a more reasonable reaction than to carry a 16" beef knife to school.

25. For these reasons I would answer the question posed in the negative. The appeal is allowed and the respondent convicted of the offence charged. The case is remitted to the magistrate for sentence.

(1)    1979 HKLR 460

(2)    CA 1051 of 1983

(3)    No. 2 of 1983

(4)    1972 3 AER 412

(5)    1972 NI. 80

(6)    1976 CAR 71