THE QUEEN v. NG WAI HUNG AND OTHERS

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J U D G M E N T

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Kempster, JA :

1. This is the judgment of the Court.

2. On 20 November 1989 Ng Wai-hung, the first defendant, Wong Kin-chung, the second defendant, and Chu Wah-fung, the third defendant, were convicted by HH Judge Gould in the District Court of "possessing offensive weapons in a public place, contrary to section 33(1) of the Public Order Ordinance (Cap 245)" which 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 ... "

3. Against those convictions each of the defendants seeks leave to appeal on the identical grounds that there was no case to answer and that the trial judge had failed to take into account certain considerations relating to the evidence of the fourth defendant who was tried at the same time and acquitted.

4. There was certainly a case once the fourth defendant had given evidence but that is not a factor for our consideration. If, as a matter of law, the trial judge was wrong in concluding that there was a case to answer when submission was made then the applicants are entitled to a finding from us in their favour.

5. The evidence called by the Crown disclosed that at about 2 o'clock on the morning of 29th May 1989 police officers stopped a goods vehicle at the junction of Hip Wo Street and Hong Ning Road, Kwun Tong. It is common ground that this constituted a public place. The applicants and their co-accused, who was the driver, were in the van. In the driver's compartment, where the first and third applicants were sitting, two three-foot long wooden poles were found under the seat and a metal pipe at ground level behind the back cushion. In the goods section of the van, which was quite separate from the driver's compartment and where the second applicant was found, was a jemmy. All four men were arrested, cautioned and taken to Sau Mau Ping Police Station. At the time of submission it was reasonably apparent from those facts that each of the applicants had with him one or more of the articles found. Again it is accepted that the poles, the bar and the jemmy came within the definition section in section 2 of the Ordinance : -

" 'Offensive weapon' means any article ... suitable, for causing injury to the person ..."

6. There was but one issue that remained about which we have been addressed by Mr Wong and who, on the applicants' behalf, has raised and attractively argued a question of considerable interest. That question is whether or not each of the applicants was aware of the presence of one or more of the offensive weapons in the van. If any one of them was not aware of the presence of such weapons or weapon he could not be found to have control over them or it as required for a conviction. As Scarman LJ (as he then was) explained in R v Kelt (1977) 65 Cr App 74 p 78, an authority referred to Mr Wong by Clough JA, in relation to analogous English legislation : -

"The legislature must have had in mind that, in regard to those offences where it is an offence for the person to have with him a firearm, there must be a very close physical link and a degree of immediate control over the weapon by the man alleged to have the firearm with him".

7. This is a different concept from that of possession and it is not necessary for us to consider whether or not one or more of the applicants could have been found to have a case to answer as a possessor and whether or not the same considerations applied to the driver as to the passengers. Neither is it the same concept as that enshrined in section 6(1) of the Theft Ordinance (Cap 210). So we look at the situation which it fell to the trial judge to consider.

8. In the early hours of the morning in question there were found in a van, then apparently unladen and in a public place, four young men and four offensive weapons. No explanation was offered for this state of affairs. Having carefully considered the submissions made on the applicants' behalf we consider that those facts in themselves would have entitled a jury, properly directed, to conclude that each of the four young was aware of the presence of one or more of the weapons in the van. That being the case the jury would have been entitled to convict. Judge Gould, accordingly, was entitled to rule, as he did, that there was a case for the applicants to answer.

9. As regards the second submission advanced on behalf of the applicants to the effect that, at a later stage in the trial, the judge failed adequately to warn himself of the dangers inherent in relying upon the evidence of the co-accused and failed to resolve certain discrepancies between the evidence of that witness and that of police officers, we are not prepared to infer that he failed to take the whole of the evidence into account in determining whether or not the fourth accused was to be believed in the material respects.

10. These applications fail and are dismissed accordingly.