HKSAR v. Kwan Ka Hei

HCMA 244/2017

[2019] HKCFI 1093

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 244 OF 2017

(ON APPEAL FROM ESCC 4136/2015)

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J U D G M E N T

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1.The appellant was originally charged with the following offences:

(1)     Possession of explosive substance[2];

(2)     Storing dangerous goods without a licence[3];

(3)     Conveying of dangerous goods not contained in main or inner packing of a type specified[4]; and

(4)     Conveying of dangerous goods whose main or inner packing and protective or outer packing does not bear any label or labels prescribed[5].

2.Offence (2) above was an alternative charge for Offence (1).  The Prosecution asked the Magistrate[6] to consider Offences (3) and (4) only when the appellant was found not guilty of the first two offences.

3.The appellant pleaded not guilty to all the offences[7] and was found guilty by the Magistrate of Offence (1).  He now appeals against the conviction.

FACTS ALLEGED AGAINST THE APPELLANT

4.The appellant was intercepted by police officers at Admiralty Centre.  Upon search, the following items were found inside the backpack the appellant was carrying: 16 smoke cakes and 3 ring-shaped objects contained inside a carrier bag, 13 unused masks, a pack of cigarettes and two lighters.  When the smoke cakes were taken out, the appellant said it was “mosquito balm” used for camping.

5.Government Chemist confirmed that the total weight of the smoke cakes was just under 1 kg and they contained potassium chlorate and ammonium chloride in about 1:1 ratio.

6.An explosives expert[8] (“the expert”) who had carried out flame tests using samples of the smoke cakes said the smoke cakes were a pyrotechnic substance.  It functioned “by non-detonative self‑sustaining energy producing chemical reaction”.[9]

DEFENCE CASE

7.The appellant elected not to testify and did not call any witness.  His video recorded interview was admitted into evidence by way of admitted facts.

8.The legal issue of whether the smoke cakes are “explosive substance” under the Crimes Ordinance[10] (“the CO”) was raised.  The following evidence of the expert was stressed: the mixture once ignited was capable of a self-sustaining burn by reason of the potassium chlorate which is an oxidizing agent, it could produce smoke when ignited but not capable of creating an explosion in the ordinary meaning of the word.[11]

FINDINGS OF THE MAGISTRATE

9.The CO does not contain any definition of “explosive” nor does it refer to pyrotechnic substance or its effect.

10.The Magistrate held that the definition of “explosive” in section 2 of the Dangerous Goods Ordinance[12] (“the DGO”) is applicable to section 55(1) of the CO.[13]  As a result, he considered the case on the basis that “explosive” includes “any substance used or manufactured with a view to producing a practical effect by explosion or pyrotechnic effect” and found the appellant guilty of the offence.  (The primary basis for the conviction.)

11.On an alternatively basis, in the light of the expert’s evidence that pyrotechnic substances are classified as deflagrating or low explosives, and if they are put inside a sealed container, the gases and pressure generated might cause an explosion (no such test had been conducted).  The Magistrate held that the smoke cakes were “explosive substance” as defined in section 52 of the CO[14] in that they were materials for making explosive substance and/or materials or implement aiding in causing explosion.[15]

12.As far as the primary basis for the conviction is concerned, in reaching his decision that section 2 of the DGO was applicable, the Magistrate had the following observations[16]:

(1)     when the Explosive Substances Ordinance 1913 (“the ESO 1913”) was enacted, there was clear reference to the Explosive Substances Act 1883;

(2)     in 1971, the provisions of the ESO 1913 were consolidated into part VII of the CO, the provisions remained largely unchanged;

(3)     the DGO in its present form came into effect in 1956 (“DGO 1956”), although it did not stipulate any root of its definition of “Explosive Substance”, the definition is very similar to that of “explosive” in the Explosives Act 1875;

(4)     despite the sequence in enacting the ESO and the DGO was the opposite of that of the relevant Acts in England, and also that locally there was no mutual applicability provision as in the England Acts, the followings show the link between the two Ordinances:

(a)     noting that it was provided in the ESO 1913 that it was an Ordinance to amend the law relating to explosives substances, the Magistrate was of the view that the law in question included the Explosive Substances Ordinance 1872 (“the ESO 1872”); and

(b)     the ESO 1872 was repealed in 1873 by the DGO 1873 (No 8 of 1873), and was incorporated into the DGO 1873 (No 1 of 1873) which was “an Ordinance for the amendment of the law with respect to the carriage and deposit of dangerous goods”, the DGO 1873 was in 1956 repealed by the DGO in present form,

therefore both ESO 1913 and DGO 1956 were related to the ESO 1872;

(5)     section 16 of the DGO 1956 stipulated that:

“The provisions of this Ordinance shall be in addition to and not in derogation of the provisions of any other enactment relating to dangerous goods, except so far as those provisions are expressly repealed by this Ordinance”,

and section 3 provides that:

“this Ordinance shall apply to all explosives …”;

(6)     notwithstanding that the Legislature chose not to put in the definition as stipulated in the DGO when the ESO 1971 was consolidated into the CO, when a statute is to consolidate various statutes, unless contrary intention is shown, otherwise the legislative intent is presumed purely to consolidate the provisions without any amendment to them; and

(7)     as the purpose of Part VII of the CO and the DGO is similar to that of the Explosive Substances Act 1883 and the Explosives Act 1875, the principle of in pari materia[17]is therefore applicable.

GROUNDS OF APPEAL

13.The appellant was represented by Ms Charlotte Draycott, SC,[18] who put forward the following grounds:

(1)     The Magistrate was wrong to import into penal legislation an expansive definition of “Explosive Substance” from an ordinance that was essentially regulatory in nature when:

(a)     There was nothing to suggest that the Legislature so intended;

(b)     The CO was an ordinance to consolidate (and not amend) other named ordinances which did not include the DGO;

(c)     The CO followed the DGO in time but made no reference to it;

(d)     The Legislature had enacted four ordinances, over a period of 99 years, both before and after the enactment of the DGO, in relation to Explosive Substances without reference to “Pyrotechnic Effect”.

(2)     The Magistrate was wrong to find that there was any ambiguity in the plain words of the CO such that it needed interpretation by reference to another statute.

(3)     The Magistrate failed to have any regard to the presumption to interpret penal legislation strictly and the principle that where there is ambiguity to resolve it in the defendant’s favour.

(4)     The Magistrate failed to apply the literal rule of statutory interpretation.

(5)     The Magistrate was wrong to apply the case of R v Wheatley[19] when the two statutes there in question were linked by their short and long titles and the latter expressly adopted the provisions of the former.

(6)     The Magistrate was wrong to accept the unsupported evidence of PW3 that he was “satisfied that the relevant evidence is a pyrotechnic substance”, when the witness was unable to testify that the substance satisfied the four prerequisites he had specified nor did he explain on what basis he identified it as such.

DISCUSSION AND CONSIDERATION

14.The grounds of appeal can be grouped into two matters: grounds (1) - (5) relate to the question of what amounts to “explosive substance” which is the prohibited subject in section 55(1) of the CO; and ground (6) concerns the finding of facts of the Magistrate.

15.I will discuss and consider the two matters in turn.

The First Matter (Grounds (1) ‑ (5)): “Explosive Substance”

16.The allegation against the appellant was “knowingly in possession or custody or under his control [a thing] which [was] an explosive substance”, an offence under section 55(1) of the CO.  Section 55(1) provides for a defence which is not a concern of this appeal.  One of the issues raised at the trial, and the main concern for this appeal, is whether the substance in the appellant’s possession was an “Explosive Substance” for the purpose of section 55(1).

17.There is no definition in the CO of “Explosive Substance” and “Explosive”.

18.The only relevant provision in the CO is section 52 which provides:

“explosive substance shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or materials used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement.”

19.It is a deeming provision and is identical to the provision in relation to “Explosive Substance” in the English legislation Explosive Substances Act 1883[20]. As the English Court of Appeal in Wheatley[21] observed:

“… it will be seen at once when one reads that definition that it is what one might call an expansive definition. Whatever an explosive substance means, this definition extends the meaning to materials which would otherwise not be within the primary connotation of the phrase. This definition, by contrast with the definition of ‘explosive’ in the Act of 1875[22], provides no indication of the primary meaning of what is meant by an ‘explosive substance’.”

20.Wheatley[23] was heavily relied upon by the Magistrate and the respondent.  A major submission of the respondent is that the definition in the DGO is applicable to the provision in question in the CO since the two Ordinances are in pari materia.

21.Ms Draycott, SC, submitted that both the approach of the Magistrate and the submission of the respondent were wrong.  She commented on each ground relied upon by the Magistrate and submitted that “Explosive Substance” should be given the ordinary meaning of the words.

22.She cited Governor and Company of the Bank of England v Vagliano Brothers[24] in which Lord Herschell said:

“I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.”[25]

23.She also cited R v Leung Kam Ho[26] and submitted that where the language of a statute is clear and unambiguous there is no obligation for the Court to have regard to another similar statute unless a subsequent statute is passed with the express purpose of explaining the legislation in issue.

Ordinary Meaning of the Words

24.“Explosive” and “Explosive Substance” are, unless stipulated otherwise, ordinary words and each has its ordinary meaning.

25.According to the Shorter Oxford English Dictionary, “explosive” is a substance that can be made to explode.  The word “explode” bears different meaning according to the context in which the word is used, and the one most apt to this case seems to be “expand, burst or shatter with extreme violence and noise”.  In the English Oxford Living Dictionaries[27], “explode” is described as “burst or shatter violently and noisily as a result of rapid combustion, excessive internal pressure, or other process.”

26.In R v Bouch[28], the English Court of Appeal addressed the meaning of “explosion” and approved the following definition from the 1886 edition of the Encyclopaedia Britannica:

“… ‘explosion’ may for our purpose be defined as the sudden or extremely rapid conversion of a solid or liquid body of small bulk into gas or vapour, occupying very many times the volume of the original substance, and, in addition, highly expanded by the heat generated during the transformation. This sudden or very rapid expansion of volume is attended by an exhibition of force, more or less violent according to the constitution of the original substance and the circumstances of explosion. Any substance capable of undergoing such a change upon the application of heat, or other disturbing cause, is called ‘explosive’.”[29]

27.The English Court of Appeal also examined what amount to “pyrotechnic effect” in the context of section 3(1) of the Explosives Act 1875 and held that it was not confined to a narrow definition or to fireworks as the expression goes beyond that.  The Court explained that a flare is a pyrotechnic device and that there does not have to be an explosion.  The contention that a pyrotechnic was required to explode was rejected by the Court.  The Court was satisfied that a fireball that emerged from a petrol bomb came within the definition of pyrotechnic effect and was not dissimilar to a flare.[30]

Legislative Intent: Statutory Interpretation

28.The issue of whether the definition of “explosive” in the DGO can be adopted for the purpose of section 55 of the CO is one of statutory interpretation.  The submission of Ms Draycott, SC, generally and in particular relating to grounds (1) ‑ (5) is relevant.[31]  The grounds are self-explanatory. 

29.Ms Draycott, SC, stressed that had the Legislature intended to include the wider definition as provided in the DGO they had the clearest opportunity to do so but it did not, in the circumstances it was not for the Court to stretch the clear words in section 55 of the CO to include the concept of pyrotechnic effect.  She quoted examples of other jurisdictions such as New Zealand, South Australia, India, Malaysia and Singapore where legislation modelling on the British Acts do include pyrotechnic effect in the definition of explosive.

30.She pointed out that the CO was designed to consolidate provisions from various other ordinances which are listed at the start of the ordinance itself.  Explosive Substances Ordinance 1966[32] (“ESO 1966”) which was incorporated as Part VII of the CO, was expressly mentioned.  The DGO[33] is conspicuous by its absence.

31.She also pointed out that Wheatley[34] was decided against a different legislative background.  It was there said that the Acts in question could be read together because they were expressly linked by their long titles and provisions of the latter expressly related to the former.  Further they were each stated to amend previous legislation.  There is no such link between the CO and the DGO.

32.On the other hand, the respondent[35] stressed that Part VII of the CO is concerned with matters of great public interest.  The consequence of misusing a substance that produces a pyrotechnic effect are similar to that of an explosion.  It was submitted that section 52 of the CO deliberately leaves the definition of “Explosive Substance” wide, to make it sufficient to deal with matter of security and public safety.  It was also submitted that the offence of possession of “Explosive Substance” is preventive in nature, and it is clear legislative intent that the net is cast as wide as possible.

33.The respondent also pointed out that there are provisions in Part VII of the CO concerning situations in relation to explosion and made the submission that the legislative intent is not to confine “Explosive Substance” to explosive as a situation involving explosion may constitute an offence distinct from that under section 55.  The provisions are:

(1)     Section 53: unlawfully and maliciously causes by any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property;

(2)     Section 54(a): unlawfully and maliciously doing an act with intent to cause by explosive substance or conspires to cause by an explosive substance, an explosion of a nature likely to endanger life or to cause serious injury to property; and

(3)     Section 54(b): unlawfully and maliciously making or having in possession or under his control any explosive substance with intent by means thereof to endanger life or cause serious injury to property, or enabling others to do so.

These offences require either proof of actual explosion[36] or cover situation of an attempt to cause explosion[37].

34.The respondent sought to support the decision of the Magistrate by stressing that the now well-established principle is that statutory language must be construed having regard to its context and purpose and statutory interpretation is also contextual by reference to other provisions in the same legislation and in legislation of a similar nature.[38]

35.The primary rule of statutory construction is set out in section 19 of the Interpretation and General Clauses Ordinance[39] which provides:

“An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

36.The Court of Final Appeal emphasized in HKSAR v Lam Kwong Wai[40] that:

“The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise.”[41]

37.In HKSAR v Tse Yee Ping[42], Fok PJ said that :

“… the modern approach to statutory interpretation is to construe the statutory language having regard to its context and purpose. Contextual and purposive construction is the method by which courts arrive at an interpretation that gives effect to the legislative intention, always bearing in mind that the interpretation arrived by means of that approach must be such as the language of the statute, understood in the light of its context and purpose, can bear.”

38.Recently, in SJ v Cheng Ka Yee[43], the Court of Final Appeal said that in the course of statutory construction, the Court “looks to the text of the provision to be construed, its context, including the statute of which it is part and its legislative history, and its purpose.”[44]

39.In HKSAR v Leung Chun Kit Brandon[45], Stock NPJ said:

“Any valid exercise in interpretation must be contextual which means that the passage in issue is to be read not only in the context of the enactment as a whole but also in the context of existing common law, where relevant, of legislative history and of other statutes in pari materia.[46]

40.According to Bennion on Statutory Interpretation (“Bennion”), “the context of an enactment comprises, in addition to the other provisions of the Act containing it, the legislative history of that Act, the provisions of other Acts in pari materia, and all facts constituting or concerning the subject-matter of the Act”.[47]

Principle of in pari materia

41.The respondent prayed much reliance on the principle of in pari materia. It was submitted that the CO and the DGO are legislation of a similar nature and therefore the principle applies.  The following features were stressed:

(1)     “Explosive” is definitely a kind of dangerous goods.  Indeed, it is expressly provided in the DGO that the Ordinance “shall apply to all explosives … .”[48]

(2)     The DGO enacted in 1956 stipulated that it is an “ordinance to consolidate and amend the law relating to dangerous goods”.  It was provided in the DGO 1873 that “dynamite shall be deemed to be dangerous goods within the meaning of this Ordinance”[49]. Dynamite is certainly a type of explosive.

(3)     The Explosive Substances Act 1883 was expressly mentioned[50] in the Explosives Substances Ordinance 1913.

(4)     Section 20 of the present DGO provides:

“The provisions of this Ordinance shall be in addition to and not in derogation of the provisions of any other enactment relating to dangerous goods.”[51]

(5)     The principle was adopted in HKSAR v Chan Yiu Shing[52].

42.Bennion has the following observations on the principle of in pari materia:

“An act often defines a term for the purposes of that Act only. Where the same term is used in another Act that is in pari materia and no definition is included, reliance may be placed on the definition in the first Act. Whether it is appropriate to do so will ultimate depend on the context having regard to other interpretative criteria”[53];

“Two or more Acts may be described as in pari materia if … they otherwise deal with the same subject matter on similar lines. … Acts that are in pari materia are sometimes described as forming a single code on a particular matter in the sense that they deal with the same or a similar subject matter and are to be construed as one. They are to be taken together as forming one system, and as interpreting and enforcing each other”[54];

“The principle underlying the treatment of Acts which are in pari materia is based on the idea that there is continuity of legislative approach in such Acts, and common terminology.”[55];

“Where a later Act is in pari materia with an earlier Act, provisions of the later Act may be used to aid the construction of the earlier Act. In determining whether the later provision alters the legal meaning of the earlier, the test is whether or not Parliament intended to effect such an alteration.”[56]; and

“Statutes in pari materia are to be all taken as one system to suppress the mischief”[57].

43.Lord Mansfied said in R v Loxdale[58]:

“Where there are different statutes in pari materia, though made at different times, or even expired and not referring to each other, they shall be taken and construed together as one system and as explanatory of each other.”

44.The principle of in pari materia was applied in Wheatley[59], which was a case concerning whether a mixture containing sodium chlorate and sugar was an explosive substance under the Explosive Substances Act 1883. There was no dispute that whilst this mixture might produce a pyrotechnic effect, it was not an explosive within the normal meaning of the word.  The issue was whether the Explosive Substances Act 1883 should incorporate the definition of explosive substance contained in the Explosives Act 1875.

45.The relevant provision in the Explosive Substances Act 1883 was:

“In this Act, unless the context otherwise requires: ¾

The expression ‘explosive substance’ shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or materials used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement”.[60]

46.The relevant provision in the Explosives Act 1875 was:

“This Act shall apply to gunpowder and other explosives as defined by this section.

The term ‘explosive’ in this Act¾

(1.)Means gunpowder, nitro-glycerine, dynamite, gun-cotton, blasting powders, fulminate of mercury or of other metals, coloured fires and every other substance, whether similar to those above mentioned or not, used or manufactured with a view to produce a practical effect by explosion or a pyrotechnic effect; and

(2.)Includes fog-signals, fireworks, fuses, rockets, percussion caps, detonators, cartridges, ammunition of all description, and every adaptation or preparation of an explosive as above defined”. (emphasis added)

47.The Court of Appeal held that what was an “explosive substance” under the Explosive Substances Act 1883 should be determined by applying the definition of “explosive” in the Explosives Act 1875.

48.The Court took into account the short title as well as the long title of the two Acts which is respectively as follows:

(1)     The Explosive Substances Act 1883: “An Act to amend the Law relating to Explosive Substances”; and

(2)     The Explosives Act 1875: “An Act to amend the Law with respect to manufacturing, keeping, selling, carrying, and importing Gunpowder, Nitro-glycerine, and other explosive substances.”

49.The Court observed:

“Looking at the two statutes, at the nature of the provisions which they both contain, and in particular at the short and long titles of both statues, it appears to this Court that clearly they are in pari materia, and that conclusion alone would seem to us to be sufficient to justify the conclusion which the learned judge reached that the definition of the word “explosive” found in the Act of 1875 is available to be adopted and applied under the provisions of the Act of 1883.”

50.In essence, the Court found that the expanded definition did not affect the primary connotation of “explosive” as defined in the Explosives Act 1875, rather it extended it to materials other than the explosive itself.

51.Whilst the Court held that the two statutes were in pari materia and “that conclusion alone would seem to us to be sufficient to justify the conclusion that the definition should be adopted”, the Court further observed that if there was doubt it was resolved by the express reference to the Explosives Act 1875 in Section 8 of the Explosive Substances Act 1883, which provided that certain powers in relation to the 1875 Act shall apply for the purposes of the 1883 Act.  It was said that these powers could not logically apply to the earlier Act unless they shared the same definition.  The Court observed:

“It would make a nonsense of any attempt to apply Section 8 of the Act of 1883 if one had to say that the concept of ‘explosive’ as defined in the Act of 1875 did not apply for the purposes of the Act of 1883 and one had to apply under the Act of 1883 a very much narrower, layman’s concept of what an ‘explosive’ is.”

52.Ms Draycott, SC, accepted that the decision in Wheatley[61] was readily understandable, as having regard to the long titles of the Acts, the order in which they were promulgated, and their express connection, the Court was able to perceive the legislative intent and give effect to it.  However, she submitted that caution should be exercised in referring to Wheatley[62] as there were differences in the statutory provisions as well as in the legislative history.  It was her submission that the ordinary rules of statutory interpretation as they apply to penal provisions should prevail.

Lack of Express Reference

53.As noted, there is an express reference in the Explosive Substances Act 1883 to the Explosives Act 1875[63], and this was a distinctive feature in the case of Wheatley[64], whereas there is no reference in the CO (or its precursor Explosive Substances Ordinance 1913) to the DGO.

54.The submission of Ms Draycott, SC, was that express reference in the later legislation indicates the intention of the legislature and the absence of such reference must be taken into account in construction.

55.She also highlighted the words “In this Ordinance” in section 2 of the DGO 1956 which included pyrotechnic effect in the definition of explosive, and made the submission that the definition in the DGO 1956 was meant to confine to that Ordinance.

56.Both the Magistrate and the respondent pointed out that the 1883 Act was mentioned in the 1913 Ordinance as a reference.  It was the submission of Ms Draycott, SC, that, it is at least doubtful whether by doing so the 1875 Act has been implicitly incorporated into the Hong Kong legislation.  I agree that such reference at the margin without more should not be accorded undue weight in ascertaining the intent of the legislature.

Legislative History

57.Ms Draycott, SC, also stressed the difference in the legislative history in the two jurisdictions.

58.The respondent accepted that the order of enacting the local legislation was opposite to their English counterpart, but made the submission that the Magistrate was entitled to come to his conclusion on the basis of in pari materia.

59.It may be useful to examine the legislative history of the local legislation which can be outlined as follows.

60.The first local statute dealing with explosive substances was the Explosive Substances Ordinance 1872[65].  Its long title reads “an Ordinance to regulate the Manufacture, Importation, Storage and Carriage of Explosive Substances”.  It provided, inter alia, for regulations relating to the articles to which the Ordinance applied and empowered the Governor in Council to make bye-laws for regulating the place(s) at which ships carrying any of the articles to which the Ordinance applied were to be moored.[66]  The articles to which the Ordinance applied must be explosive substances, as stated in the Long and Short Titles.  There was no definition of explosive substance in this Ordinance.  It did declare some goods or articles to be deemed to be “specially dangerous”[67] and this provision was relevant to certain additional rules[68] and penalties[69].

61.The Explosive Substances Ordinance 1872 was repealed in 1873 by the DGO 1873.[70]  The long title of the DGO 1873 read “an Ordinance for the amendment of the law with respect to the carriage and deposit of dangerous goods”.  Items such as petroleum, dynamite, blasting powders and gunpowder were deemed to be dangerous goods within the meaning of the Ordinance.[71]  Some of these items are clearly explosive substances.

62.When the original DGO, DGO 1873, was enacted, the Explosive Substances Ordinance, the precursor of section 55 of the CO, was not yet in existence.

63.The Explosive Substances Ordinance was enacted 40 years later in 1913.  It had the following provision which was obviously copied from the Explosive Substances Act 1883:

“In this Ordinance, ‘explosive substance’ shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or materials used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement”.[72]

64.During the enactment process of the Explosive Substances Ordinance 1913, the Attorney General had these to say[73]:

(1)     This was an Ordinance to amend the law relating to “Explosive Substance”.

(2)     There were three parts of the law in existence relating to “Explosive Substance”: the Arms and Ammunition Ordinance, the law relating to Dangerous Goods, and relevant provisions in the Offences against the Person Ordinance 1865.

(3)     There was a hiatus in the law and the Bill was intended to fill the gap, the hiatus being that the first two areas of law were not penal in nature and the third area of law was restrictive.

(4)     The Bill aimed at:

(a)     Defining “Explosive Substance”;

(b)     Creating offences in relation to:

(i)     explosion caused by explosive substance[74]; and

(ii)     possession or control of explosive substance for a sinister object[75];

(5)     A person who commits any offence under this Ordinance, if the case is not serious, may be dealt with for an offence punishable at common law or other ordinance[76].

(6)     “The provisions of this Bill have been in force in England practically since 1883, and are taken verbatim from the English Explosives Act of 1883”.[77]

65.Forty years later, the DGO took the present form in 1956 “to consolidate and amend the law relating to dangerous goods”.  It was at that time, and for the first time in Hong Kong, that “pyrotechnic effect” was included in the definition of “explosive”.  “Explosive” was stipulated as one of the dangerous goods for the purpose of the Ordinance.[78]

66.The DGO makes no reference to the Explosive Substances Ordinance 1913 which was by that time in existence.  However, it expressly provides that the Ordinance applies to explosive.[79]

67.In 1965, the Explosive Substances Ordinance was amended to strengthen the law in relation to possession of explosive substances. The element of knowledge of the nature of the substance was removed[80] and a provision with presumption effect was introduced[81].

68.The amendments also covered the following two aspects:

(1)     Proceedings for an offence under the Ordinance may be heard in camera[82]; and

(2)     Consent of the AG is required for any prosecution under the new section 5(1)[83].[84]

69.The same provision allowing prosecution under the common law and other ordinance, as in the Explosive Substances Ordinances 1913[85] also exists.  Section 7 of the Explosive Substances Ordinance 1965 provides:

“This Ordinance shall not exempt any person from any indictment or proceeding for any offence which is punishable at common law or by Ordinance other than this Ordinance, but no person shall be punished twice for the same criminal act.”

This provision survives in the CO.[86]

70.In 1972, the Explosive Substances Ordinance 1913 (as amended in 1965) was consolidated without amendment and became Part VII of the CO, which remains in force until today.  There has been no further amendment in this area.

Effect of Consolidation of Statutes

71.As Ms Draycott, SC, submitted, a statute to consolidate the law makes no change to the law itself.  This is right generally.  I note that the provisions to be consolidated do not include the DGO.

72.As to whether the DGO 1956 amended the Explosive Substances Ordinance 1913,[87] it was the submission of Ms Draycott, SC, that it was at best ambiguous and could not clearly be answered.  In the circumstances, she submitted that such ambiguity should be resolved to favour the defendant.

73.In these connections, I note that DGO 1956 expressed itself to be “an Ordinance to consolidate and amend the law relating to dangerous goods” and its section 3 provides that “this Ordinance shall apply to all explosives …”.

74.I also note the provision in section 16 of the DGO:

“The provisions of this Ordinance shall be in addition to and not in derogation of the provisions of any other enactment relating to dangerous goods, except so far as those provisions are expressly repealed by this Ordinance.”

75.As stated in section 18 of the DGO, the provisions repealed by the Ordinance were the DGO 1873, the Gunpowder and Fireworks Ordinance 1901 and the Celluloid and Cinematograph Film Ordinance 1923.

76.The submission of Ms Draycott, SC, in relation to the section 16 was that in considering its effect the different nature of the two Ordinances, as stated in the following section of this judgment, should be taken into account.  Moreover, the words “In this Ordinance” in section 2 of the DGO must be given effect.

Application of Definition in Regulatory Provision to Penal Provision

77.It was the submission of Ms Draycott, SC, that even if it is accepted that Part VII of the CO and the DGO deal with the same subject matter they do not deal with it on similar lines, in that the CO is clearly penal in nature and the DGO is only regulatory.  Section 55 of the CO carries a maximum sentence of 14 years. The DGO only carries a maximum sentence of six months.

78.She further submitted that it was wrong to import into penal legislation a more draconian test drawn from regulatory provisions in the absence of clear legislative intent.  No reasonable legislator would have intentionally broadened the definition and scope of a penal ordinance carrying life imprisonment (the section 53 offence), by means of a new definition in a separate regulatory statute, which did not mention the earlier ordinance and which confined its definition section by the words “In this Ordinance”.

79.She submitted that there were opportunities to incorporate the wider definition into the ESO, in particular when it was consolidated into the CO, the fact that it was not done may be readily and logically understood as one ordinance creating offences in relation to explosives and the other regulating the storage and carriage of dangerous goods.  There is logic to confining the wider definition to the DGO, the regulatory ordinance.

80.She cited Sweet and Parsley[88] in which Lord Reid said:

“It is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.”[89]

81.It was stated in Bennion that the Latin word “par” or “paris” means equal, and not merely similar.[90]

82.In this connection, I have regard to the following three matters:

(1)     Though the offence contrary to section 55 of the CO carries a much higher maximum penalty, it covers a large variety of factual scenario covering a wide spectrum of seriousness, actual penalty to be imposed is case sensitive.

(2)     Though there are other offences in Part VII of the CO which carry even higher penalty, for instance life imprisonment for the section 53 offence, these offences relate to situation causing actual explosion of serious nature[91].

(3)     The provision of section 58 in the CO, as stated in paragraph 69 above.

Possible Anomaly

83.Ms Draycott, SC, pointed out that if the definition of the DGO is adopted, an anomaly would be created in that storage of this quantity of potassium chlorate, which was the substance in question in this case, would be permitted under the DGO as the exemption applies, whilst possession of the same quantity of the substance is penalized under the CO.

84.Under section 6(1) of the DGO, it is unlawful to store a dangerous goods except under and in accordance with a licence granted under the Ordinance.  Section 2 defines “store” as follows:

“when used as a verb, includes to have possession or custody of or control over that to which the verb relates.”

85.There is an exemption provision in section 153(6)(a) of the Dangerous Goods (General) Regulations[92] (“the Regulations”).  As the respondent confirmed, the practical effect of this provision is that storage of up to 5 kg of potassium chlorate is exempted from the licensing requirement, and as a result section 6 of the Ordinance shall not apply.

86.However, the respondent drew the attention of the Court to the different definition of “store” in the Regulations.  Section 2 of the Regulations provides:

“when used as a verb, means to keep for any purpose whatsoever, and ‘storage’ shall be construed accordingly; but, when used as a noun, means a place which is licensed for the storage of dangerous goods within the meaning of the Ordinance and, if used as a noun in relation to premises, means such part of the premises as is so licensed.”

87.On this basis, it was submitted that the exemption only applies in the context of storing as defined in the Regulation, not that of the DGO.  It was further submitted that the anomaly as alleged by the appellant did not arise.  I find this submission sound.

Relevance of the case Chan Yiu Shing

88.Both the Magistrate and the respondent cited the ruling of Zervos J[93] in HKSAR v Chan Yiu Shing[94]. There His Lordship noted that the provision in section 52 of the CO was exactly the same as the definition in the Explosive Substances Act 1883 and said “it is worthwhile examining how the English Courts have dealt with their provisions”[95]. His Lordship also observed that “as ‘explosive’ was not defined in that legislation (the Explosive Substances Act 1883), recourse was taken to the definition of ‘explosive’ in section 3 of the Explosives Act 1875”.[96]

89.Ms Draycott, SC, drew the attention of the Court to the fact that, in Chan Yiu Shing[97], the argument was proceeded on the basis that there was no dispute between the parties for the prosecution to rely on the definition in the DGO and the issue was primarily on whether it followed that the entire statutory scheme in the DGO should become applicable.[98]  It was therefore said, and I agree it was probably the case, that the learned Judge in Chan Yiu Shing did not enjoy the benefit of full argument on the issue of construction.

CONCLUSION

90.The submission of Ms Draycott, SC, is not without force.  However, having considered the whole circumstances, paying particular regard to the following matters, in my judgment the definition of explosive in the DGO is applicable to Part VII of the CO:

(1)     As shown in paragraph 61 above, the root of the DGO 1873 was the Explosive Substances Ordinance 1872;

(2)     What the AG said during the enactment process of Explosive Substances Ordinance 1913[99];

(3)     Section 7 of the Explosive Substances Ordinance 1965[100];

(4)     When the DGO was amended in 1956 and for the first time “pyrotechnic effect” was included in the definition of “explosive”, “explosive” was stipulated as one of the dangerous goods[101];

(5)     The DGO 1956 applies to explosive[102]; and

(6)     Section 16 of the DGO[103].

91.The principle of in pari materia is applicable.  The Magistrate did not err in applying the definition in the DGO to the offence provided by section 55 of the CO.

The second matter: Ground 6

92.This matter relates to the finding of facts by the Magistrate as stated in paragraph 11 above.

93.In making this finding, the Magistrate relied on the definition as provided in section 52 of the CO.  On the basis of the expert evidence[104], he found that the smoke cakes were “Explosive Substance” in that they were materials for making explosive substance and/or materials or implement aiding in causing explosion.

94.I note that the expert said pyrotechnic substances are classified as deflagrating or low explosives.  However, a classification which is not based on legal definition is at best good as reference, what is important is whether there is evidence to prove that the smoke cakes are substances falling within the provision in section 52.

95.In his Report[105], which was admitted as evidence under an admitted fact, the expert said the practical flame test which he carried out with a sample of the smoke cakes produced a practical pyrotechnic effect.  He also said these:

“Pyrotechnic substances can also be categorized as deflagrating or low explosives. However, it is my opinion that the main effects (of the substance) would be pyrotechnic rather than explosive in nature. To cause a practical explosion posing a threat to persons or property then Exhibit 1 would have to be contained within a casing such as a plastic or thin metal container; I have seen no evidence to support this as a theory in this case.”[106]

96.He also admitted that he had not conducted any test to prove this view.  He added that it was his belief that it was possible to cause an explosion but it would be difficult with this substance.[107]

97.From the video footage of the test, which was played both at the trial and the appeal, it could be seen that when a naked flame was applied to the sample, the sample burnt vigorously and released a volume of white coloured smoke.

98.All in all, I agree with Ms Draycott, SC, that it was unsafe for the Magistrate to find that the evidence of the expert supported a conviction of the appellant guilty of the charge based on the definition of explosive substance as provided in section 52.

The Summonse: ESS 22161/2016[108]

99.The appellant had been summonsed under sections 6(1) and 14(1) of the DGO for storing without a licence the smoke cakes which, as the substances containing potassium chlorate, were dangerous goods, on the basis that the appellant was in possession of the substances.[109]

100.The summonse (offence (2) as mentioned in paragraph 1 above) was laid as alternative to the charge for which the appellant was found guilty.[110]

101.Although it was not necessary for the Magistrate to consider the summonse since he found the appellant guilty of charge (1), he did make a finding as the Prosecution asked him to analyse the offence as well.[111] The Magistrate found that the appellant was in possession of the dangerous goods, however as the quantity was less than 5 kg which is the upper limit for exemption under section 153(6), he found that no licence was required for possession of the items.

102.The respondent asked the Court to reverse the finding and find the appellant guilty of the Summonse on the basis that the Magistrate had erred on the law and otherwise he ought to have found the appellant guilty.  Alternatively, the respondent asked the Court to make a declaration on the law without finding the appellant guilty of the offence.  It was submitted that these courses were open to the Court since appeal hearing took the form of re-hearing.

103.Ms Draycott, SC, opposed to both courses, the primary ground being that there had never been an appeal lodged by the respondent against the decision of the Magistrate.

104.First of all, as a result of my decision in this appeal, it is not necessary to consider the summonse.

105.In any case, this is only a case of appeal by the appellant against his conviction.  My duty is to hear, consider and decide on his appeal.  There has been no appeal of any form by the Prosecution against any of the decisions of the Magistrate.  I do not think there is any basis for me to consider whether the appellant should be found guilty of the offence in the Summonse.  As regards the request for a declaration on the law, I agree with Ms Draycott, SC, that in the circumstances it is not appropriate to do so in particular as there would be no submission on the issue from the appellant.  Not only that I have the concern of lack of assistance of submission from all sides, I also have much doubt as to whether it is appropriate for the Court to do so in the circumstances of the present case.

106.The matters are academic in the light of my decision on the appeal.  Whilst I understand why the respondent wishes the Court to take the course as suggested, I decline to accede to the request.

Disposal

107.I find the Magistrate did not err in holding that the definition of “explosive” in section 2 of the DGO is applicable to section 55(1) of the CO.  The conviction is well supported by evidence.  It is neither unsafe nor unsatisfactory.  The appeal against conviction is therefore dismissed.

Mr Andrew Li, SPP of Department of Justice, for the respondent 

Ms Charlotte E Draycott, SC, and Ms Van Ma, instructed by CO Chan & Co, assigned by DLA, for the appellant