HKSAR v. LAI YIU KUEN, DOMINIC

HCMA 83/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 83 OF 2007

(ON APPEAL FROM ESCC 1879/2006)

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J U D G M E N T

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1.  The Appellant was convicted, after trial, of one charge of Possession of prohibited weapons, contrary to S4 of the Weapons Ordinance, Cap 217.  He appeals against his conviction.

Prosecution’s case

2.  The prosecution’s case was admitted under section 65C of the Criminal Procedure Ordinance, Cap 221.

3.  Briefly, it was admitted that when police was summoned to the Craigengower Cricket Club, in the Appellant’s vest pocket was found a knuckle duster.  Under caution, the Appellant said it was a paper weight.

4.  It is not disputed that the knuckle duster is a prohibited weapon under the Ordinance.

Defence case

5.  The appellant gave evidence that he had bought the knuckle duster from a shop selling “exquisite objects”, I think he meant to say a curio shop, which he had often patronized.  He also produced a sales memo for that purchase, Exhibit D2.  In that invoice was mentioned 2 items: a “table display” and a “paper weight”.  The Appellant maintained that the paper weight, referred therein, was the knuckle duster that the police had found in his vest pocket.  The Appellant said the shop proprietor had told him that it was a “heavy duty” paper weight.  He said he felt the paper weight was a good match for the pen holder he had bought at the same time which was referred to in Exhibit D2 as a “table display” and the paper weight was suitable for use on the books he had at that time which were made from “yu kou” paper.

6.  The appellant said he had never heard of knuckle dusters or “iron lotus”.

7.  The appellant said that on the night before his arrest, he had worn the vest while studying and fell asleep on the desk and somehow, during the night the paperweight had fallen into his vest pocket without him knowing about it.  In fact, the vest was a bullet proof vest which he wore to the Club the following morning as had intended to shoot trees with his air pistol and the vest would protect him from rebounding bullets.

Magistrate’s Findings

8.  The learned magistrate had reminded himself of the Appellant’s good character when he started his analysis of the evidence.

9.  The learned magistrate found as a fact that the knuckle duster was not heavy and queried why the Appellant had not asked the proprietor why he called it a “heavy weight” one.

10.  The learned magistrate found that it was not logical that the paper weight would fall into the vest pocket without the appellant being aware of it.

11.  The learned magistrate found that the prosecution had proved that the defendant knowingly had custody of the knuckle duster and he knew it was a metal ring with sharp points and thus could not be mistaken as to it’s nature, so he convicted the defendant.

Appeal

The Law:

12.  The Perfected Grounds of Appeal filed on behalf of the Appellant complained of the learned magistrate’s finding of facts, and it will become clear that I have decided this appeal on a matter of law rather than on any error on the facts.

13.  At the appeal, the respondent counsel, for the first time on behalf of the prosecution, argued that S4 of the Weapons Ordinance, Cap 217, is a strict liability offence, if not an absolute liability one.  It is therefore, incumbent upon me to deal with that matter first.

14.  S4 of the Weapons Ordinance, Cap 217 provides:

“	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.”

Mens Rea:

15.  It is, perhaps, important to remind oneself that mens rea is always an essential ingredient in any criminal offence unless the legislature has made it clear or by necessary implication to the contrary.  (See Sweet v. Parsley)[1]

16.  The position was clarified in the seminal case of Gammon (Hong Kong) Ltd. V. Attorney General[2] where Lord Scarman in delivering the advice of the Privy Council said (p. 14B-D):

“	(1)	there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;
	(2)	the presumption is particularly strong where the offence is “truly criminal” in character;
	(3)	the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute;
	(4)	the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue;
	(5)	even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.”

17.  It is apt to now consider the case of The Queen v. Wang Shih-hung and Fong Chin-yue and Others¹.  Those were appeals, transferred from the High Court to the Court of Appeal, relating to the interpretation of s.17 of the Dutiable Commodities Ordinance (Cap. 109).  The appeal by way of case stated by the Attorney General in Fong Chin-yue’s case is relevant to the issues in the present appeal.

18.  The Headnote of that case summed up the position as follows:

“	1.	An offence is not automatically open to challenge under the Bill of Rights Ordinance because it is an offence of strict liability.  Where the conclusion that is a statutory offence is an offence of strict liability is a conclusion arrived at by a process of construction, then there is no room for an argument that the statutory provision creating that offence is inconsistent with the Bill of Rights.  That is because of the high human rights content of the rules of construction which the courts apply to determine what a penal provision really means.
		...
	3.	Whilst the prosecution does not have to prove an accused knew that duty on the goods was outstanding, it is a defence for an accused to prove on a balance of probabilities that he believed for good and sufficient reason, although erroneously that the provisions of the Dutiable Commodities Ordinance, relating to the goods had been complied with.  That represents the true and Bill consistent provision provision and is reached by a process of construction which conforms with the Bill of Rights and meets the criteria laid down in Attorney General v. Lee Kwong Kut (1993) AC 951 for justifying any onus being placed upon an accused.  R. v. Tolson (1889) 23 QBD 168 and Sweet v. Parsley (1970) AC 132 considered.”  (See p.209, lines 25-45).

19.  The Weapons Ordinance Cap. 217 deals specifically with prohibited weapons and martial arts weapons.  In the case of prohibited weapons no statutory defence is provided for by the legislature.  It is clear that the legislature intended to strictly prohibit the possession of the weapons in the Schedule as they are weapons which has the propensity to be used to cause grave injury, if used, and a knuckle duster is one such weapon.  It is beyond a doubt that the legislature clearly intended to make this a strict liability offence as this is “an issue of social concern” and the only effective way of promoting the objectives of the statute is “by encouraging greater vigilance to prevent the commission of the prohibited act”.

20.  To require the prosecution to prove mens rea in this offence would as Bokhary, JA (as he then was) observed “would leave a gap through which the guilty could escape in droves”.  However to preclude a defence of reasonable belief “would leave a gap through which the innocent may fall to harm”.  It is also appropriate to mention here that Bokhary JA (as he then was) also noted that the Court of Appeal’s decision would have been the same had they considered the offences in Fong Chin-yue (supra) to be “truly criminal”.

21.  Thus, applying the principles in Fong Chin-yue (supra), once the prosecution had proved that the defendant was in possession of the knuckle duster, which is a prohibited weapon, then it is open to the defence to raise, on the evidence, that he believed for good and sufficient reason, although erroneously, that it was a paperweight, and it is for the prosecution to prove that he had no such belief.

22.  It was never canvassed at trial before the learned magistrate by either party that this was a strict liability offence, so the learned magistrate considered that it was for the prosecution to prove that the defendant “knowingly had physical or actual custody of the objects concerned, and must prove that the defendant knew the nature of the object which was in his custody” and that the defendant intended to have that object in his custody.

23.  The learned magistrate said he had considered the case of HKSAR v. Hung Chan Wa and another¹ and the legal principles but he did not say what they were.  Hung Chan Wa’s case was dealing with the presumptions in the Dangerous Drugs Ordinance which is not applicable to the present case.  I assume that the learned magistrate is saying that there is no burden on the defendant to prove anything and he only bears the evidential onus.

24.  The learned magistrate therefore, considered that the defendant had the evidential onus of raising his honest belief and that the prosecution had to rebut the defendant’s honest belief beyond a reasonable doubt, which was the basis for the acquittal on the second charge at the trial.

25.  He stated very clearly that the basis of the acquittal was not that he believed the evidence of the defendant but that he believed the evidence of the shop owner who gave evidence on behalf of the defence in the second charge.

26.  In relation to the first Charge, the defence merely produced a receipt (Exh. D2) which the defendant said was for the knuckle duster referred to in the receipt as a “paperweight”, and the learned magistrate rejected his evidence.

27.  At the end of the day, the learned magistrate concluded that the defendant had failed to discharge the evidential onus and the prosecution had proved its case beyond a reasonable doubt.

28.  The Perfected Grounds of Appeal prepared on behalf of the Appellant complained of the way in which the learned magistrate had assessed the facts.  It was only raised by Mr Cheung on behalf of the Respondent at the appeal hearing that this was a case of strict liability, if not absolute liability and invited this court to so rule for the future guidance of magistrates.

29.  Mr Bruce, on behalf of the appellant, argued that the offence is one of strict liability, and the defence has the evidential onus of raising “honest belief”.  I must say, that after considering all the cases refered to by counsel, particularly the case of Fong Chin-yue and Others (supra) it is clear that section 4 is a strict liability offence.

30.  Mr Cheung submitted that although the learned magistrate had not proceeded on the basis that this is a strict liability offence, this court can still uphold the conviction because the learned magistrate had not believed the evidence of the defendant.  Although that argument is somewhat attractive, it is not however just to the defence as, at the trial they were not meeting a strict liability case and if they had been told it was so, then perhaps they may have conducted their defence in a different way.

31.  However attractive the argument, I consider that, in order that justice is to be seen to be done, the case should be remitted back to the lower court for a retrial on Charge 1.

32.  Therefore the appeal against conviction is allowed, and I will order a retrial unless counsel can persuade me otherwise.

[1] (1970) AC 132

[2] (1983) AC 1

1 (1995) HKCLR 193

1 [2006] HKLRD 841