HKSAR v Siu Chi Shing [2024] 2 HKLRD 504, [2023] HKCFI 913

Steven Kwan represented the appellant in HKSAR v Siu Chi Shing [2024] 2 HKLRD 504, [2023] HKCFI 913.

D was convicted after trial of “possession of an instrument fit for unlawful purpose and with intent to use for unlawful purpose” and was acquitted of assaulting a police officer. On the day in question, there were protests in the vicinity of Mongkok and D was arrested at a location around 600 m to 1.1 km from the location of the protests. D was dressed in all black and a universal knife and gloves were found in his trouser pockets and other items including goggles, a gas mask and duct tape were found in his backpack. The Magistrate in her oral verdict found that the purpose of the universal knife “could include the use for damaging properties or during a police-civilian confrontation”; and in her statement of findings found that D had the intent to use the same for unlawful purposes ie “to hold the universal knife with gloves to damage properties or to injure a person.” D appealed against conviction on the basis that the Magistrate erred in finding that: (i) the universal knife was “an instrument fit for an unlawful purpose” under s.17 of the Summary 505 Offences Ordinance (Cap.228) (SOO); and (ii) D’s intent was the “unlawful purposes” referred to in s.17 of the SOO.

Held, allowing the appeal and setting aside the conviction, that:

• (1) In light of the decision of HKSAR v Chan Chun Kit, which was handed down by the Court of Final Appeal after the trial in the present case, it was improper for the Magistrate to have found that D possessed the universal knife with intent to use the same for unlawful purposes ie to “damage property”. The intent under s.17 of the SOO “to use the same for any unlawful purpose” must correspondingly be restricted by the three types of instruments of articles set out in s.17, namely, to restrain a person, to inflict injury or threaten physical harm to another and to obtain unlawful access (HKSAR v Chan Chun Kit (2022) 25 HKCFAR 191 applied). (See paras.24, 70.)
• (2) The Magistrate’s finding in her statement of findings that D possessed the universal knife with the intent for unlawful purposes ie “to injure a person” was literally different from the wording “used at the time of the police-civilian confrontation” in her oral verdict. In any event, taking into account all of the circumstantial evidence, an irresistible inference that D possessed the universal knife with an intent to “cause injury to a person” could not be drawn. (See para.71.)
• (3) As for the prosecution’s request to amend the charge to conform with the decision in HKSAR v Chan Chun Kit, this was not an appropriate case for the Court to amend the charge at the magistracy appeal stage as an amendment of Charge 2 would cause unfairness to D and potentially deprive him of the right to testify. Had D been facing the amended charge at the time of trial, it was very likely that he would have testified to point out to the Court that he was a fire fighter by profession in an attempt to explain why he was in possession of the universal knife as a multipurpose tool (HKSAR v Chan Chun Kit (2022) 25 HKCFAR 191 referred to). (See paras.36, 41, 72.)

[The above is excerpted from the headnote to the report in HKLRD.]