DHCJ Edmond Lee quashed a conviction of possession of offensive weapon (namely two plastic “sticks”) on the basis that the prosecution’s case contained lurking doubt.

The Appellant faced a charge of possession of offensive weapon, namely two plastic “sticks” (“𝐭𝐡𝐞 𝐄𝐱𝐡𝐢𝐛𝐢𝐭𝐬”), when he was driving a private vehicle in Mongkok in 2023. He pleaded not guilty and stood trial before a Deputy Magistrate. The prosecution relied upon an alleged oral confession of the defendant, who said ”I used these two plastic sticks to protect myself and for self defence, give me a chance please” (呢兩條膠條我用嚟防身自衛，比次機會啦。) (“𝐭𝐡𝐞 𝐀𝐥𝐥𝐞𝐠𝐞𝐝 𝐂𝐨𝐧𝐟𝐞𝐬𝐬𝐢𝐨𝐧”). Despite the objection, the Magistrate ruled that the Alleged Confession was admissible. The Appellant called himself, his friend (Lee) (who was in the Appellant’s vicinity at the time when stopped by police officers) and Lee’s sister. The defence case was that the Exhibits were used to elevate the washing machine in the home of Lee’s sister as water was coming out therefrom. The elevated washing machine could facilitate Lee’s sister to dry the water coming out from the machine. The Magistrate rejected the entirety of the defence case and convicted the Appellant. He was sentenced to 2 months ‘ immediate imprisonment. On application, bail pending appeal was granted.

On appeal, DHCJ Edmond Lee found that the prosecution’s case led him with doubt:-

(1) The Exhibits itself was not only blunt but also not thick (50 cm (l) x 4 cm (w) x 1 cm (h)). The Court considered that even if being used, the harm it could create is not only not large, but it would also not even cause much of a threat to others: [40].

(2) Further, the Court noted that police officers at the scene never took photos of how the Exhibits were placed inside the vehicles and whether other renovation-related apparatus (namely gloves, hammer(s), and/or clamp(s)) existed. The Court found it “strange” that police officers repeatedly said under cross-examination that he “could not remember” whether there were renovation-related items found during the car search: [41].

The Court also found the Magistrate to have adopted a harsh and critical (苛刻) approach when considering the defence case: [46]. On a rehearing, the Court found that the defence case was largely consistent and the prosecution had no evidence to rebut the defence case: [47]-[49]. In light of the flaw within the prosecution’s case and the intact defence case which was not refuted by the prosecution, the court found there to be a lurking doubt: [50]. The Court therefore quashed the conviction and awarded 50% of the costs of the appeal to the Appellant.

Simon So appeared with Herman Ho for the Appellant in the appeal. The full judgment was published on https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=170507&currpage=T. They were also trial counsel in the 4-day trial before the Magistrate.