HKSAR v Sam Ka Lam Sam [2021] 5 HKLRD 345
Steven Kwan appeared for the appellant in the Court of First Instance in HKSAR v Sam Ka Lam Sam [2021] 5 HKLRD 345.
D was convicted after trial of one count of possession of an offensive weapon in a public place, ie a crossbow and 20 wooden rods with a sharpened end, contrary to s.33 of the Public Order Ordinance (Cap.245) (Charge 1), and a count of possession of an offensive weapon with intent, ie two crossbows with five arrows, contrary to s.17 of the Summary Offences Ordinance (Cap.228) (Charge 2). D was stopped and searched in Queen’s Road East in the afternoon of New Year’s Day of 2020. Objects commonly used by protestors were found in his rucksack, together with the crossbow and rods which formed the subject of Charge 1. The two crossbows and the five arrows which formed the subject of Charge 2 were found in his home during a search by police on the following day. In respect of Charge 1, the Magistrate relied on, inter alia, the fact that on New Year’s Day, there were mass protests in different parts of Hong Kong Island, and some extreme and radical protestors used excessive violence. In respect of Charge 2, the Magistrate relied on the objects worn and possessed by D when he was stopped, expressly excluding the crossbow and rods in Charge 1, and on the fact that as at New Year’s Day of 2020, violent protests in Hong Kong had not shown any sign of ceasing. On appeal, D, inter alia, complained that: (i) the Magistrate was not entitled to take judicial notice of the situations about the protests in Hong Kong on/up to New Year’s Day; and (ii) in respect of Charge 2, the Magistrate had erred in relying on D’s attire and possessions at the time he was stopped in order to infer D’s intention of his possession of the crossbows and arrows at his home.
Held, dismissing the appeal, that:
(1) If a protest happened during an important or special festival, such as the 1st of July, the 1st of October or New Year’s Day as in the present case, the general public would have special memory and recollection of it. Protests happening on such a date could not be compared to other individual protests happening on some other day of some other month. There was nothing improper for the Magistrate to take judicial notice that on New Year’s Day there were mass protests in different parts of Hong Kong Island, in which some extreme and radical protestors used violence of different sorts. (See para.48.)
(2) Even if the Magistrate did not consider that actual protests did occur on New Year’s Day, he was still entitled to take judicial notice that as at New Year’s Day of 2020, protests arising from the Extradition Law Amendment Bill had not shown any sign of ceasing, and some radical protestors still resorted to violence during such protests. Considering D’s possessions and attire, the only reasonable inference was that D possessed the crossbow and the rods with the intention of causing injury to others (R v Chong Ah Choi [1994] 2 HKCLR 263 applied). (See paras.49, 56.)
(3) The principle that each Charge shall be considered separately did not mean in considering Charge 2, the Magistrate could not or should not consider the circumstances in Charge 1. If the instrument which was the subject of Charge 1 was a kitchen knife or any other sharp instrument of common use, in considering Charge 2, the Court should not consider the fact that D had in his possession such instrument in public place. However, the crossbow D had brought with him to public place was similar to the two found in his home, and was part of the circumstantial evidence. The Magistrate should have taken into account the crossbow in Charge 1 and in fact was generous in not doing so (R v Exall 176 ER 850, HKSAR v Tsang Chi Wai (CACC 384/2012, [2013] CHKEC 1129) considered). (See paras.57, 63 – 65.)
(4) The Magistrate did not accept D’s contention that the crossbows and arrows were used for his teaching and physical training. Considering the social situation at the time, his possessions, the fact that he had brought with him a similar weapon on his way to a scene of protest, the only reasonable inference was that D possessed the objects with the intention of using the same in future protests, together with other equipment, for the purpose of causing injury to others. (See para.66.)
[The above is excerpted from the headnote to the report in HKLRD.]
