HKSAR v Chan Chun Kit (2022) 25 HKCFAR 191, [2022] 6 HKC 1, [2022] HKCFA 15
Steven Kwan and Charlotte Chan represented the appellant in HKSAR v Chan Chun Kit (2022) 25 HKCFAR 191, [2022] 6 HKC 1, [2022] HKCFA 15.
The appellant was convicted by a magistrate of one count of ‘possessing instrument fit for unlawful purposes’, the instrument in question being a bag containing 48 pieces of 6-inch plastic cable ties, contrary to s 17 of the (hk) Summary Offences Ordinance (Cap 228), which provided ‘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’. On appeal, the Court of Appeal dismissed the appeal, and, with emphasis on the Chinese version of the section which came into existence in 1993, and the ‘always speaking’ rule of construction, held that the ‘unlawful purposes’ for which an instrument was fit and the ‘unlawful purpose’ for which a defendant intended to use the instrument were not restricted to any specific purposes, hence giving an updated, unrestricted interpretation, and departing from the earlier case law, which had taken a more restrictive approach under the ejusdem generis principle. The appellant obtained leave to appeal to the Court of Final Appeal, with the Appeal Committee granting leave on the basis of four questions of law, on the true construction of s 17, certified by the Court of Appeal and also on the basis that it was reasonable that there had been a material departure from accepted norms, namely, when departing from earlier decisions, the Court of Appeal failed to apply the principle that any ambiguity in penal statutes should be resolved in favour of the accused, and failed properly to give effect to s 10B(3) of the (hk) Interpretation and General Clauses Ordinance (Cap 1), where a difference may exist between two versions of the text in bilingual legislation.
Held, unanimously, allowing the appeal, and setting aside the conviction and sentence:Per Cheung CJ (Ribeiro, Fok and Lam PJJ and Gleeson NPJ agreeing)
(1) The history of s 17 of the (hk) Summary Offences Ordinance (Cap 228), the previous case law on the earlier English version, and the circumstances under which the Chinese text came into being, all formed an important part of the context in which the section in its modern form (in English and Chinese) should be construed. The phrase ‘other instrument fit for unlawful purposes’ covered ‘other’ instruments fit for unlawful purposes, ie other instruments besides ‘crowbar, picklock, [and] skeleton-key’. The courts in the earlier case law had correctly applied the ejusdem generis rule to the phrase to limit its meaning to instruments fit for gaining unlawful access. The words ‘any crowbar, picklock, skeleton-key’ followed by ‘or other instrument fit for unlawful purposes’ plainly signified a genus consisting of articles or instruments fit for offences which involved gaining unlawful access to premises, vehicles or other private objects or spaces. The government and the legislature were obviously ware of the case law concerning the scope of application of s 17. In 1984, the addition of a new category of articles or instruments manufactured for the purpose of physically restraining a person was obviously premised on the construction of s 17 placed on it by the courts that the section did not contain an independent, third category covering ‘other instrument fit for unlawful purposes’ as such. Attorney General v Li Chu [1968] HKLR 242 and Tang Chi-ming v R [1968] HKLR 716 ; [1968] HKCU 54 approved (paras 16, 20, 22-28, 35, 36).
(2) The Chinese text, introduced by the Official Languages (Authentic Chinese Text) (Summary Offences Ordinance) Order pursuant to s 4B(1) of the (hk) Official Language Ordinance (Cap 5), was an inaccurate translation of the original English text. As such, the Chinese text did not provide a basis for changing or otherwise affecting the construction of the section under the original English text. There was no suggestion that the Chinese text was intended to widen the scope of application of the section. Where the difference in meaning between the two texts was the result of inaccuracies in translation, the original English text must be taken as better reflecting the object and purposes of the provision, which should be construed accordingly. No weight should be attached to the more recent authorities which gave an unrestricted interpretation based on the Chinese text. Further, the subsequent repeal of the alternative basis for founding liability under s 17 (‘being unable to give satisfactory account of his possession thereof’) could not be taken to mean to widen the scope of application of s 17 of the Summary Offences Ordinance. Chan Fung Lan v Lai Wai Chuen [1997] 1 HKC 1, HKSAR v Lau San Ching [2003] 2 HKC 378 ; [2004] 1 HKLRD 683, R v Chong Ah-choi & Ors [1994] 3 HKC 68 ; [1994] 2 HKCLR 263 and R v Ho Ka On [1996] 1 HKC 69 considered (paras 54-65).
(3) The ‘always speaking’ rule of construction relied upon by the Court of Appeal must be applied within the constraint of the wording of the provision. It must not give the provision a meaning its language could not bear. Granted, there may well be a need in society for punishing the possession of instruments other than those covered by the section (as restrictively interpreted) in the prevention of crime, and the offence may be described as ‘preventive’ in nature targeting possession before any substantive crime was attempted or committed, the doctrine simply did not allow the court to ignore the language of the statutory provision and give it a blanket interpretation that totally disregarded an applicable rule of construction. Despite its deficiencies in drafting, s 17 of the Summary Offences Ordinance provided a classic example of the application of the ejusdem generis rule. If the unrestricted construction were correct, there was no need to spell out any specific articles or instruments in the section. It simply eclipsed all the specific articles or instruments mentioned in the section and rendered them redundant. The scope of application would be extremely wide, covering many if not most items in daily use which could also be said to be fit for unlawful purposes. Under such construction, s 17 would in reality be a thought crime, depending on what a defendant’s intent was at the material time. There was simply no warrant that this was the legislative intent. Quite the contrary, it could be clearly seen that when the legislature wanted to update and enlarge the scope of s 17 to cover new articles or instruments, it would do so by a specific amendment to the Ordinance, and the class of new articles or instruments would be carefully defined and supported by justification. Restraint was exercised to ensure that the amendment would not cover articles or instruments not intended to be covered. To give a wide meaning and scope of application on the supposed basis of the ‘always speaking’ doctrine would go contrary to what had happened in the past in the evolution of s 17, and the restrained, incremental approach of the legislature. Royal College of Nursing v DHSS [1981] AC 800 and HKSAR v Yuong Ho Cheung (2020) 23 HKCFAR 311 ; [2020] HKCU 3358 considered. HKSAR v Chan Chun Kit [2022] 2 HKC 175 overruled (paras 69-76).
(4) The words ‘with intent to use the same for any unlawful purpose’ should take the meaning from the context of the uses and purpose set out in the earlier part of s 17. It laid down the mens rea of intended use corresponding to the actus reus of the intended uses of the articles and instruments. The words must be understood to refer to an intent to use the offending article or instrument in a manner reflecting the stated use or purpose under the section. There was no suggestion whatsoever that the deletion of the word ‘such’ in ‘with intent to use the same for such unlawful purpose’ in the 1984 amendments was meant to widen the scope of the mens rea requirement to any unrestricted unlawful purpose, unrelated to the offending article or instrument in question covered by s 17. Rather, it was a legislative response to earlier judicial comment that the word ‘such’ was ‘otiose or meaningless’. Attorney General v Li Chu (supra) considered (paras 29, 37, 81-84).
(5) In the present case, the 6-inch plastic cable ties did not fall within any of the categories of articles or instruments under s 17. Accordingly, the appellant should not have been convicted (paras 85, 86).
[The above is excerpted from the headnote to the report in HKC.]
