Criminal law and procedure — possession of offensive weapon in public place — chilli spray — not offensive weapon per se — whether offensive weapon on basis intended for purpose of causing injury to others — whether lawful authority or reasonable excuse — whether magistrate reversed burden of proof — whether erred by taking account of uncharged acts — whether erred in approach to circumstantial evidence — Public Order Ordinance (Cap. 245) s. 33(1), (2)
Criminal sentencing — possession of offensive weapon in public place — chilli spray intended for purpose of causing injury to others at protest — relevant factors — whether prosecuting counsel attempted to influence sentence by advocacy — Public Order Ordinance (Cap. 245) s. 33(1), (2)
D1–2 were convicted of possession of an offensive weapon in a public place contrary to s. 33(1) and (2) of the Public Order Ordinance (Cap. 245). The prosecution case was that D1, dressed in armour-like protective gear, was with D2 near a protest. D1–2 were found carrying respectively inter alia five bottles of chilli spray and one bottle of chilli spray. The chilli spray was oil-free and contained capsaicin and dihydrocapsaicin (collectively ‘capsaicinoids’) and isopropyl alcohol with effects similar to pepper spray (pain, stinging, irritation and swelling) but mild and not noxious. The bottles could discharge a fine spray over a range of 50 cm. At trial, D1 testified that he was on his way to provide first aid outside certain premises, the bottles contained chilli oil from relatives and he had already consumed some. D2 testified that the bottle was from a friend and he used it while eating out; and he was showing D1, a stranger, the way to the premises in question when they were intercepted. The Magistrate found the prosecution witnesses honest and reliable and rejected. She rejected Ds’ exculpatory testimony, finding that they knew the chilli sprays were inedible; given D1’s clothing and equipment, he expected clashes; and the prosecution had proved Ds possessed the chilli sprays for the unlawful purpose of causing injury to others by them or some other person. Ds appealed against conviction. D1 also appealed against his sentence of nine months’ imprisonment.
Held, dismissing the appeals, that:
Appeal against conviction by D1
- Given her overall analysis, the Magistrate had not shifted the burden of proof onto D1. In considering whether the articles were offensive weapons, she had to make findings on the credibility of D1’s testimony; otherwise it would be impossible to safely determine the relevant issues. She had first accepted the prosecution witnesses as honest and reliable and then rejected D1’s testimony that he had lawful authority or reasonable excuse for possession as incredible. Section 94(A) of the Criminal Procedure Ordinance (Cap.221) did not have much application here. (See paras. 26, 31, 35–36.)
- D1’s clothing and equipment were not evidence of “uncharged acts” but part of the evidence as a whole and relevant to the purpose of his possession of the chilli spray. Such evidence should be admitted if there was no statutory provision requiring its exclusion and the Magistrate properly took it into account (R v. Chong Ah Choi  3 HKC 68, Chim Hon Man v. HKSAR (1999) 2 HKCFAR 145, HKSAR v. Chu Chi Wah (No 1)  4 HKLRD 675, HKSAR v. Kwok Hing Tony  3 HKLRD 761 applied). (See paras. 38–39, 47–48.)
- Given the expert evidence as to the effects of the chilli spray, the Magistrate was entitled to find that D1 knew the liquids were not edible and reject his assertion that they were for consumption as completely unbelievable. There was sufficient circumstantial evidence for her conclusion that D1 had the requisite unlawful intention and this was the only reasonable inference that could be drawn. As for D1’s argument that his clothes were merely the type worn by BMX riders and he had a reflective vest bearing the words “First Aid”, even if they were for other legitimate purposes, it did not affect the finding that D1 possessed items intended to be used by him or other persons to cause injury to others (HKSAR v. Tsang Chi Wai (unrep., CACC 384/2012,  CHKEC 1129) applied). (See paras. 50, 53, 57–63, 67.)
Appeal against conviction by D2
- D2’s conviction was neither unsafe nor unsatisfactory. The chilli spray was not an offensive weapon per se. Even if the liquid might be edible or harmless when consumed, it could become an offensive weapon because of the possessor’s intention to use it to attack others. The Magistrate had a duty to consider all the relevant evidence to determine whether the only reasonable inference that could be drawn was that D2’s possession of the bottle of chili spray was for the purpose of causing injury to others. Her conclusion was amply justified. The expert evidence on the nature of the liquid and its effects was relevant to assessing the credibility of D2’s defence; and his intention in possessing it (R v. Chong Ah Choi  3 HKC 68 applied). (See paras. 80–83, 87–88, 91, 93, 106–107.)
- Given the circumstances as a whole, there was no good reason to interfere with the Magistrate’s finding as to the credibility of D2 and the defence witness. Having found that D2’s defence was untrue, she also rejected the reasonable excuse advanced by him. It was unnecessary to proceed to the second stage of consideration, namely whether the excuse was genuine (HKSAR v. Hung Mei Ling Marine (unrep., CACC 200/2010,  CHKEC 118), HKSAR v. Ho Loy (2016) 19 HKCFAR 110 applied). (See paras. 98–99, 103.)
Appeal against sentence by D1
- The way the Magistrate dealt with D1’s sentence could not be criticised. The prosecution merely reminded her that a case on appeals against sentence was annexed to his closing submission for her to “see if it can assist the Court”. There was no attempt to influence the sentence by advocacy. The Magistrate noted the similarities but also the differences between that case and the present case. (See paras. 111–114.)
- While the liquid could produce only mild and temporary discomfort, D1’s act was premeditated and not for self-defence; and would aggravate the situation. There were no sentencing guidelines for this type of offence as the sentence depended on all the circumstances, including the nature of the weapon concerned, the degree of potential injury and the ultimate intention of possessing the weapon. (See paras. 117, 119.)
- D had previous convictions including one relating to an explosive substance. That D1 had five bottles of the liquid in his possession suggested that he intended to use them continuously. There was also a risk that some might fall into the hands of others for illegal purposes. Bringing chilli spray to protests might also discourage members of the public from exercising their right to participate in peaceful protests. Accordingly, while D1’s sentence was severe, it was not manifestly excessive. (See paras. 120–121, 123–125.)
This was an appeal by the first defendant against conviction and sentence for possession of an offensive weapon in a public place and by the second defendant against conviction for the same offence imposed by Ms Winnie Lau in the Magistrates’ Court. The facts are set out in the judgment.