HKSAR v. WU KIM WAN

HCMA 1141/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1141 OF 2001

(ON APPEAL FROM FLCC 2006/2001)

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J U D G M E N T

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1. On 3 October 2001 the appellant pleaded guilty at Fanling Magistrates Court to an offence of possessing a prohibited weapon contrary to section 4 of the Weapons Ordinance Cap. 217. He was sentenced to a term of 2 months imprisonment.

2. Despite his plea in the Magistrates Court the appellant appeals (in person) before me against his conviction. He also appeals (represented by Mr Kwok) against his sentence.

3. Before coming to those appeals I set out here the relevant parts of the learned Magistrate's statement of findings:-

"The defendant who was represented by the Duty Lawyer Scheme pleaded guilty to the charge. After hearing mitigation I sentenced the defendant to a term of 2 months imprisonment. He now appeals against both his conviction and sentence. ......

So far as the appeal against conviction is concerned, I was satisfied that the defendant's plea of guilt before me was voluntary and unequivocal as was his admission of the facts. The admitted facts which are outlined in my reasons for sentence below supported the charge and I found them as the facts. All the essential elements of the offence were proved beyond reasonable doubt and I convicted the defendant accordingly.

REASONS FOR SENTENCE

The admitted facts revealed that the defendant had been searched at the subway of Lo Wu KCRC station by PC2189 on 22 May 2001 and found to be wearing a black pouch containing the baton the subject matter of the charge. Under caution the defendant claimed that he used it for self-defence after having been the victim of a robbery in Shenzhen. He had bought the same in Hong Kong and taken it to the mainland where he kept it in his factory but on 18 May 2001 he had hurried back to Hong Kong bringing the baton with him after he had forgotten to leave it in the mainland. He was on the way back to the mainland with it on 22 May 2001 when he was intercepted. ......

......In mitigation I was told that the defendant was a factory proprietor in the mainland but ordinarily residing in Hong Kong with his wife and 2 young daughters. His explanation for initially acquiring the baton and bringing it to Hong Kong were essentially the same as those that he had given to the police as per the admitted facts. I was asked to consider fining the defendant.

The maximum penalties for this type of offence are a financial penalty of HK$10,000 and a prison term of 3 years imprisonment which demonstrates the serious view of the offence taken by the legislature.

Prior to sentencing the defendant I had examined the baton in question and I was satisfied that if used it was capable of causing considerable injury to another person or persons. I was very sceptical about the defendant's reasons for bringing the baton into Hong Kong as necessarily the defendant would have had to smuggle it both in and out of Hong Kong. I was however prepared to accept that the defendant had been the victim of a robbery in Shenzhen (which I was told occurred in 1998) but this did not, as the defendant seemed to think, give him a licence to carry round with him in Hong Kong a potentially very dangerous weapon some 3 years after a robbery in Shenzhen (whatever the legal position may be of his possession of it in the mainland).

Notwithstanding the defendant's plea and the financial penalties open to me I considered that the only appropriate sentence was one of an immediate custodial sentence as I equated the defendant's commission of the offence with that of an offence contrary to section 33 of the Public Order Ordinance Cap. 245 which provides for mandatory immediate custodial terms of up to 3 years upon a conviction by way of a deterrent sentence. In the defendant's case the baton he possessed was an offensive weapon per se and his mitigation disclosed no lawful authority or reasonable excuse to possess the same and so, subject to a consent to prosecute from the Department of Justice, he could quite properly have faced a charge contrary to Section 33. I took as my starting point 3 months imprisonment and reduced it by 1 month to reflect the defendant's plea. I so sentenced."

4. Following upon the imposition of that sentence the appellant said to the learned Magistrate:-

"Your Worship. I have to feed my children... I am the sole breadwinner of my family. Your worship please, I beg of you. I cannot go to prison. I am the sole proprietor of my factory only me myself. My factory will be closed down."

The appeal against conviction.

5. Section 4 of Cap 217 (which is an Ordinance "to prohibit the possession of certain weapons ... and restrict the possession of martial arts weapons") reads as follows:-

"Any person who has possession of any prohibited weapon commits an offence and is liable to a fine of $10,000 and to imprisonment for 3 years."

6. A prohibited weapon is defined in the schedule to the Ordinance as including a "gravity operated steel baton". The 'weapon' found in the possession of the appellant (which I have seen) is such a steel baton. It is, in simple terms, an extendable length of steel of some weight which can be extended to about 18 inches from its compact length of about 10 inches by shaking it.

7. The appellant repeated before me what was put forward in mitigation before the Magistrate i.e. the reason why he had it; the fact that it was openly for sale in a shop in Hong Kong, and the fact that he had no idea that it was a prohibited weapon by virtue of the schedule to the Ordinance.

8. I need say no more than that the appeal against conviction is without merit.

The appeal against sentence.

9. The Public Order Ordinance (Cap 245) is an Ordinance to

"consolidate and amend the law relating to the maintenance of public order, the control of organisations, meetings, processions, places vessels and aircraft, unlawful assemblies and riots and matters incidental thereto or connected therewith."

Section 2 of that ordinance defines an 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 .......for such use by him or by some other person."

10. Section 33 of Cap 245 provides for mandatory forms of punishment. Section 4 of Cap 217 does not. No prosecution can be instituted for an offence order section 33 without the consent of the Secretary for Justice (presumably because of the mandatory forms of punishment) but there is no such limitation placed upon a prosecution under section 4. Both Section 33 and Section 4 offences are "excepted offences" as defined in the 3rd schedule to the Criminal Procedure Ordinance Cap.221.

11. On the appellant's behalf Mr Kwok has sought to argue 3 grounds of appeal relating to sentence as follows:-

(1) The learned Magistrate erred in principle in equating the present offence with a Section 33 of the Public Order Ordinance offence.

(2) The learned Magistrate had not given adequate consideration to the fact that the baton is intended for self-protection.

(3) The sentence is manifestly excessive in the circumstances of the case.

12. I have outlined above the relevant sections of the Weapons Ordinance and the Public Order Ordinance.

13. During the course of this appeal Mr Kwok referred me to a judgment of Silke J (as he then was) in Sin Kan-chuen and others v. the Queen [1979] HKLR 460. In that case an appellant had been convicted in the magistracy of an offence contrary to Section 17 of the summary Offences Ordinance Cap.228 (as it then was) of being in possession of an offensive weapon in a dwelling place and failing to give a satisfactory account of that possession. The appellant there had been in possession of an unsharpened water pipe in contemplation of a revenge attack and his account was that he intended to use the pipe, if necessary, in self defence.

14. On appeal against a suspended sentence of imprisonment that sentence was set aside and a fine was substituted.

15. In this present case the learned magistrate appears to have been prepared to accept that the appellant had been subjected to a robbery some years ago on the Mainland and that he had bought the weapon concerned quite openly in a shop in Hong Kong for his self defence whilst on the Mainland. He appears also to have accepted that the account of matters which the appellant gave upon his arrest might be true but that nevertheless the offence merited a sentence of imprisonment nor dissimilar to that which he would have received had he been charged under the Public Order Ordinance.

16. In my view, given what I have said concerning the various ordinances; given those facts which the magistrate was prepared to accept following the plea of guilty and given that those facts together with the fact of ignorance of the law (which I feel in the circumstances is anything but fanciful) provide considerable and compelling mitigation.

17. In the light of all of those circumstances together with the appellant's personal circumstances and the fact that he has (since 3 October last year) had to face the prospect of imprisonment and the effect that that would have up-on himself, his livelihood and his family; it is my view that this appeal against sentence should be allowed and accordingly I did allow it to the extent of setting aside the prison sentence and substituting therefor a fine of $2,500.00

18. I should perhaps just add two things as follows: (a) that between the date of the sentence and the date of the hearing of this appeal the appellant and his legal advisors have not sat idly by. They pursued with various 'experts' the question of whether or not the weapon concerned did indeed fall within the schedule to Cap.4 and it was only recently, despite conflicting advice as to that matter, that they accepted that it did, and (b) it seems to me that this case perhaps demonstrates the desirability (if for no other reason than that the public might better know what the law is regarding 'weapons' in Hong Kong and where that law can readily be found) of consolidating the various provision to which I have referred in this judgment