HKSAR v Sam Ka Lam [2021] 3 HKC 320

Steven Kwan appeared for the appellant in the Court of First Instance in HKSAR v Sam Ka Lam [2021] 3 HKC 320.

The appellant pleaded not guilty to a charge of possession of offensive weapon in public place and a charge of possession of offensive weapon with intent. In Charge 1, the Prosecution case was that at around 4 pm on 1 January 2021, outside a building in Wanchai, the appellant wore a black hat and a black jacket, held a dark blue umbrella, and carried on his shoulder a black rucksack containing 10-odd items (including black mask, eye mask, masquerade, a box of surgical masks, black gloves, black hand sleeves, black greaves, black rubber shoes and 3M filters etc), and there were a black bag inside his rucksack containing a crossbow and 20 sharpened wooden sticks. In Charge 2, the Prosecution case was that at around 1 am on 2 January 2020, inside the appellant’s apartment, 2 crossbows and 5 arrows were found. At trial, based on the facts that there were vast number of protesters in many places in Hong Kong Island on that day, some extremely violent protesters used violence, and those items in the appellant’s rucksack were attires used by violent protesters, the trial magistrate made an irresistible inference that the appellant’s possession of the items in respect of Charge 1 was intended for use by the appellant himself or by some other person for causing injury to the person. And based on how the appellant dressed, the other items he possessed, and the series of violent protests in Hong Kong had no sign of coming to an end even until 1 January 2020, the magistrate made another irresistible inference that the appellant’s possession of one of the 2 crossbows and 5 arrows in respect of Charge 2 was intended for use by the appellant himself or by some other person for causing injury to the person in protests in the future. The magistrate accordingly convicted the appellant of both charges. The appellant appealed against conviction on the grounds that the magistrate erred in taking judicial notices of violent protests having occurred on 1 January 2020 and of the persistent violent protests having no sign of coming to an end, and that the magistrate erred in relying on the appellant’s attire on that day, so as to infer the intent of the appellant in respect of both charges.

Held, dismissing the appeal against conviction in respect of the two charges:

Charge 1

(1)        The magistrate was not obliged to act only upon evidence in taking judicial notices. The widespread and persistent protests in 2019 due to the proposed amendments to the Fugitive Offenders Ordinance were facts well-known to everyone. One would have independent memory and recollection of protests occurring on an important and a specific holiday. It was not inappropriate for the magistrate to take judicial notice that ‘there were mass number of people protesting in many places in Hong Kong where extremely violent protesters used all sorts of violence’, which was well-known to the public in respect of the event of a specific holiday (the New Year’s Day). Even if the magistrate could not consider actual events of violence having occurred on the New Year’s Day, but only the facts that the protests having no sign of coming to an end even until 1 January 2020 and there were still some violent protesters who would use violence in the protests, he could still have taken such judicial notice. The appellant not only knew there were protests on-going on that day, but he also admitted he was among those protesters. His possession of those items, such as face masks and eye masks, obviously showed his knowledge in and consideration of their relevance in violent social unrest. The magistrate had properly considered the authorities and made the inference, and the Court agreed with his irresistible inference that the appellant’s possession of the crossbow and sharpened wooden sticks (being items made or altered by appellant himself which were capable of causing personal injury) was intended for use by the appellant himself or by some other person for causing injury to the person. Even if the magistrate could not consider violent protests having occurred on the New Year’s Day in 2020, but the protests indeed had no sign of coming to an end even until the New Year’s Day in 2020, the appellant at that time possessed the crossbow capable of causing injury to the person and 20 sharpened wooden sticks, together with his attire and belongings similar to those commonly worn or used by other protesters, the Court considered all circumstantial evidence to infer the only reasonable inference that the appellant’s possession of the crossbow and the sharpened wooden sticks at that time was intended for use by the appellant himself or by some other person for causing injury to the person. The appellant’s possession of the crossbows and the sharpened wooden sticks, his attire and his belongings etc were each a cord, when all the cords were stranded together as a rope, the only irresistible inference above could be made. The conviction of Charge 1 was not unsafe. R v Chong Ah Choi [1994] 3 HKC 68 and 香港特別行政區 曾志偉 [2013] HKCU 2637, (CACC 384/2012, Cheung CJHC, Cheung JA and Barnes J, 15 November 2013, unreported) applied (paras 44-59).

Charge 2

(2)        The magistrate did not take the crossbow and sharpened wooden sticks in Charge 1 into consideration of Charge 2; what he did was unduly lenient to the appellant. Separate treatment of the two charges did not mean the court could not or should not consider in Charge 2 the circumstances of Charge 1. The crossbows in the present case were different from other commonly seen gadgets; the crossbows in Charge 2 were similar to that in Charge 1. The similarities between the crossbow that the appellant brought to public place and the two crossbows that were found in the appellant’s home constituted the overall circumstantial evidence. The magistrate should take the crossbow in Charge 1 into consideration. Taking into account the social circumstances at that time, the appellant’s attire earlier, and his possession of some sort of weapon in attendance of the scene, the only reasonable inference of his intent in possession of the crossbow and arrows was that, in future protests, in combination of his other belongings, he intended for use by himself or by some other person for causing injury to the person. The conviction of Charge 2 was not unsafe (paras 60-68)

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

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