TNAG-0194-FCO40-230-Emergency-legislation-and-Public-Order-ordinance-discussions-1969 — Page 109

3. Under UK law mere possession is an offence only where the article is "made or adapted for use for

causing injury ..."; there is available to the person in possession the defence of "lawful authority or reasonable excuse" for having it. In the case of

any other article it must be established that the person has it in his possession intending to use it to cause injury.

4. With the addition to the definition in the Hong Kong Public Order Ordinance of the words "or suitable for" causing injury, mere possession of almost any article (e.g. Justice's "pencil", a piece of cloth or scarf suitable for strangling) becomes an offence.

It is unnecessary to establish any intent to use the

article for purpose of causing injury. It is proposed in the amending Bill to make available to the accused the defence of "lawful authority or reasonable excuse" in every section creating an offence in relation to offensive weapons. (The relevant sections are 14, 32 and 33: in the original Ordinance "lawful authority" is a defence in all three sections, but "reasonable excuse" is a defence only in Section 33).

5. The Hong Kong addition of the words "or suitable for" dispenses altogether with the need to establish

intent to cause injury in relation to the possession

of articles that are capable of both an innocent and

Secution offensive use. The provocation has only to establish

possession; the accused can raise the defence of "lawful authority or reasonable excuse" but must

discharge the burden of proof if he does so. There

is justification for assuming intent to use for an

offensive purpose an article which is primarily

designed, or has been adapted, for such purpose. The

problem is to define precisely what circumstances might

be held to justify the assumption of mal-intent in the

case of possession of an article that has primarily an

innocent use although suitable for, and capable of,

being put to an offensive use.

6.

I am marshalling the arguments as I see them.

In my view there is room for debate, although my own

conclusion tends towards resisting departure from the

provisions of the UK legislation. The Minister's

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