HKSAR v Chan Chun Kit [2022] 3 HKLRD 588, [2021] HKCA 1493

Mr Steven Kwan and Ms Charlotte Chan represented the appellant in HKSAR v Chan Chun Kit [2022] 3 HKLRD 588, [2021] HKCA 1493.

D was convicted after trial in the Magistrates’ Court of possession of an instrument fit for an unlawful purpose, contrary to s.17 of the Summary Offences Ordinance (Cap.228) (the Ordinance). D had been found in possession of a pack of 48 cable ties by the police while they were dispersing a crowd in the vicinity of an assembly. Section 17 provides “Any person who has in his possession any wrist restraint or other instrument or article manufactured for the purpose of physically restraining a person, any handcuffs or thumbcuffs, any offensive weapon, or any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes, with intent to use the same for any unlawful purpose, shall be liable to a fine at level 2 or to imprisonment for 2 years.” The Magistrate held that “other instrument fit for unlawful purposes” must relate to physically restraining a person, injuring a person or housebreaking, and here the cable ties could be used to physically restrain a person; and that for “with intent to use the same for any unlawful purpose” any unlawful purpose was sufficient, and here D in fact intended to use the cable ties to bind objects to form large structures for use inter alia in armed confrontations and road blockages. D appealed against conviction and sentence. The main issue before the Court of Appeal involved the interpretation of the words “unlawful purposes” and “unlawful purpose” in the two phrases in s.17. D contended inter alia that the ejusdem generis rule of statutory interpretation applied such that for the “instrument fit for unlawful purposes” offence, the words in both phrases referred to the purpose of housebreaking. The prosecution’s primary position was that there was no restriction on the type of unlawful purpose in both phrases. At the first hearing of the appeal, the Court indicated that the English and Chinese texts of s.17 had differences in expression, and adjourned the case so that the parties could file supplementary submissions on that issue, as well as on other points such as whether the principle that a statute was “always speaking” applied to s.17.

Held, dismissing D’s appeals against conviction and sentence, that:

• (1) On the proper construction of s.17 of the Ordinance, there was no restriction on the type of unlawful purpose in the two phrases in s.17, and any unlawful purpose would suffice. (See para.73.)
• (2) While certain older authorities had applied the ejusdem generis rule to s.17 of the Ordinance, thereby interpreting it restrictively, there had been subsequent amendments to the provision including the addition of a new category of instruments for restraining a person, and the deletion of the word “such” from “with intent to use the same for such unlawful purpose”, in 1984 and the removal of the alternative element for intention of “being unable to give satisfactory account of his possession thereof” in 1995. Consequently, s.17 after 1994 was a completely different provision from the previous one. Modern Hong Kong courts, especially at first instance, had been giving an extremely liberal interpretation to the phrase “other instrument fit for unlawful purposes” (Attorney General v Li Chu [1968] HKLR 242, R v Tang *590Chi-ming [1968] HKLR 716, R v Tsoi Shun-hing [1977] HKLR 408, Attorney General v Ip Pui Leung [1989] 1 HKC 498, R v Chong Ah-choi [1994] 2 HKCLR 263, R v Ho Ka On [1996] 1 HKC 69, HKSAR v Leung Yau-sing (HCMA 293/2000, [2000] CHKEC 484) considered). (See paras.42-59.)
• (3) As to the correctness of that approach, first, s.10B of the Interpretation and General Clauses Ordinance (Cap.1) (which states, inter alia, that the English and Chinese text were equally authentic) applied in determining the proper construction of s.17 of the Ordinance. In relation to the phrase “other instrument fit for unlawful purposes”, the structure of the Chinese text clearly showed that the words “unlawful purposes” should be given a wide construction. In the circumstances, the types of instruments listed in s.17 should be construed separately, and the ejusdem generis rule should not apply. Such interpretation did not amount to a distortion of the wording and was consistent with the way most first instance courts had interpreted s.17 since 1993 when the Chinese text was deemed authentic (Attorney General v Ip Pui Leung [1989] 1 HKC 498, HKSAR v Leung Yau-sing (HCMA 293/2000, [2000] CHKEC 484) approved; R v Ho Ka On[1996] 1 HKC 69 applied; HKSAR v Tam Yuk Ha [1997] HKLRD 1031 considered; R v Tang Chi-ming [1968] HKLR 716, R v Tsoi Shun-hing [1977] HKLR 408 not followed). (See paras.59-65.)
• (4) Second, given that the object of s.17 of the Ordinance was to punish the possession of instruments for criminal purposes, there was nothing wrong with applying the “always speaking” principle to the construction of both phrases “other instrument fit for unlawful purposes” and “with intent to use the same for any unlawful purpose”. Under this approach, a wide construction of the first phrase was favourable as it would capture various, or even newly invented, instruments used to commit crimes. It followed that the second phrase was also to be given a wide construction in order for the two phrases to be consistent and to give effect to the legislative intent of s.17 (Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800, R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687, Hong Kong Mobile Television Network Ltd v Office of Communications Authority [2016] 2 HKC 44, HKSAR v Yuong Ho Cheung (2020) 23 HKCFAR 311 applied). (See paras.66-71.)

Appeal against conviction and sentence

These were the defendant’s appeals against conviction and sentence for possession of an instrument fit for an unlawful purpose, contrary to s.17of the Summary Offences Ordinance (Cap.228), imposed by Magistrate Cheang Kei-hong.

[Editor’s note: The Court of Final Appeal allowed the defendant’s appeal on 15 July 2022 and set aside the conviction and sentence (see [2022] HKCFA 15, [2022] HKEC 2800).]

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