HKSAR v. Kwan Ka Hei

HCMA 244/2017

[2019] HKCFI 2067

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLETE JURISDICTION

Certificate of Application to the Court of Final Appeal for Leave to Appeal

MAGISTRACY APPEAL NO 244 OF 2017

(ON APPEAL FROM ESCC 4136 OF 2015)

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BETWEEN

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Before: Hon Wong J in Court

Date of Notice of Motion: 22 July 2019

Date of Applicant’s Written Submission: 22 July 2019

Date of Respondent’s Written Submission: 6 August 2019

Date of Decision: 22 August 2019

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D E C I S I O N

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1.The applicant was found guilty by a Magistrate of the offence of Possession of explosive substance[1].  He appealed against the conviction.  The appeal was dismissed.  Pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance[2], the applicant by a Motion dated 22 July 2019 asked for the following three questions to be certified as points of law of great and general importance involved in the decision:

“1.  Should the word ‘explosive’ in S.55 of the Crimes Ordinance (Cap 200) bear its ordinary meaning in the absence of any other definition in that ordinance, or should the wider definition of ‘explosive’ from S.2 of the Dangerous Goods Ordinance (Cap 295) be adopted in the absence of any provision indicating that was the intention of the Legislature.

2.  In the absence of clear legislative intent, is the Court free to adopt a definition from regulatory legislation and use it for the purposes of interpreting penal legislation, where the definition adopted favours the prosecution in criminal proceedings intended to curtail a person’s liberty.

3.  Does Regulation 153(6)(a) of the Dangerous Goods (General) Regulations (Cap 295B) which exempts storage of up to 5kg of potassium chlorate from the licensing requirements under S.6(1) of the Dangerous Goods Ordinance apply to ‘storage’ as defined by the S.2 of that Ordinance:

‘when used as a verb, includes to have possession or custody of or control over that to which the verb applies”

As well as to ‘storage’ as defined by Regulation 2 of the Regulations themselves:

‘when used as a verb, means to keep for any purpose whatsoever, and storage shall be construed accordingly”

2.Parties agree that the application can be considered and decided on paper without a hearing.

3.The application was supported by a submission.  The respondent filed submission in response as directed.  The applicant did not file submission in reply by 14 August 2019 which is the deadline stated in the court’s direction.  No submission has been received until the day prior to this Decision.  In the circumstances, I proceed to make the decision.

4.In this case, the applicant was found in possession of smoke cakes which contained potassium chlorate and ammonium chloride.  As such cake functions by non-detonative self-sustaining energy producing chemical reaction, it is the opinion of an expert that it is a pyrotechnic substance.

5.The Crimes Ordinance[3] in which the offence is provided for does not contain any definition of “explosive” save that it states “explosive substance” is to include materials for making any explosive substance, as well as apparatus, machine, implement, materials or their parts used for causing an explosion[4].  It does not refer to pyrotechnic substance or its effect.  Pyrotechnic substance is mentioned in the definition of “explosive” in the Dangerous Goods Ordinance (“DGO”)[5].  The main ground of appeal was whether the Magistrate had erred in applying the definition of “explosive” in the DGO in consideration of the offence.  I held that he did not err, as the principle of in pari materia is applicable.

6.It is in these circumstances that the applicant asked for the questions to be certified.

7.The issue is primarily one of statutory interpretation.  I accept that it is a question of law of great and general importance.  However, instead of certifying questions 1 and 2 as proposed by the applicant, I agree with the respondent that there is substantial overlap between the matters raised in these two questions and the questions can be reformulated to form one single question:

“On the proper interpretation of section 55 of the Crimes Ordinance, Cap. 200, whether an explosive substance includes a substance used or manufactured with a view to producing a pyrotechnic effect?”

8.I certify this reformulated question as a point of law of great and general importance involved in the decision.

9.As regards proposed question 3, I refuse to issue a certificate for the following reasons:

(1)  consideration of the certified question necessarily involves consideration of this question; and

(2)  this question by itself is, in my judgment, not reasonably arguable.

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

Ms Charlotte E Draycott, SC, instructed by CO Chan & Co, assigned by DLA, for the applicant