HUI HON-CHIU v. THE QUEEN

CACC000427/1977

  

IN THE SUPREME COURT
	Criminal Appeal
	1977 No. 427

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BETWEEN
	HUI Hon-chiu	Appellant
	and
	THE QUEEN	Respondent

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Coram: Huggins, J.A., Pickering, J.A. and McMullin, J.

Date of Judgment: 24th August, 1977.

  

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JUDGMENT

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Huggins, J.A.:

1. This Appellant was charged in the District Court with robbery, and with possession of an offensive weapon under s.17 of the Summary Offences Ordinance. Counsel has told us that she is unable to advance any ground of appeal in respect of the first charge. We have heard the Appellant himself upon that matter and we are satisfied that there is in fact no ground upon which we could interfere with the conviction for robbery. The Appellant was identified by the victim, property identified by the victim as his was found in the home of the Appellant, as was a knife which was identified by the victim as similar to that which was used by the robber.

2. For the second time in a fortnight we have before us a charge under s.17 of the Summary Offences Ordinance, the particulars of which are a hybrid between particulars appropriate to s.17 and particulars appropriate to s.33 of the Public Order Ordinance. In the present case the particulars are that the Appellant

"had with him an offensive weapon, namely a folding knife, and was unable to give a satisfactory account of his possession thereof".

Counsel has argued that the words "with him" are not as wide as the word "possession". The learned judge found the Appellant guilty because he said that the Appellant was in constructive possession of the knife at his home. (The charge related to the time of the Appellant's arrest and not, as it might well have done, to the time of the robbery.) At the time of his arrest the knife was found under a sink in his home - in a place of concealment. The Appellant occupied that home with a number of other persons. It does not appear that he was in the immediate vicinity of the sink at the time.

3. In our view the words "with him" must be construed reasonably and it is a matter of degree. Without trying to define exactly what is meant by those words, which must depend entirely on the nature of the article concerned and the distance, we think that a small object like this knife was not "with him" when it was hidden under a sink in another room. That being so, the particulars did not agree with the facts proved and the conviction cannot stand. For this reason the appeal on the second charge is allowed, the conviction quashed and the sentence set aside.

  

24th August, 1977.

 

Representation: