HKSAR v. Chan Chun Kit (陳俊傑)

FAMC No. 31 of 2021

[2022] HKCFA 5

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 31 OF 2021 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO. 242 OF 2020)

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.The applicant was convicted after trial before the Magistrate[1] for possession of an instrument fit for unlawful purposes under section 17 of the Summary Offences Ordinance (Cap 228).  The instrument in question consisted of 48 6-inch plastic cable ties.  His appeal was reserved for consideration by the Court of Appeal which dismissed his appeal[2] but certified the following questions as involving points of law of great and general importance,[3] namely:

“(1) On the true construction of the Chinese and English texts of section 17 of the Summary Offences Ordinance (Cap 228), whether the expression ‘other instrument fit for unlawful purposes’ in that section is subject to the ejusdem generis rule?

(2) If the answer to Question 1 is in the affirmative, whether the expression ‘unlawful purposes’ is confined to purposes similar to those crowbars, picklocks and skeleton-keys are fit for?

(3) On the true construction of the Chinese and English texts of section 17 of the Summary Offences Ordinance (Cap 228), whether the expression ‘with intent to use the same for any unlawful purpose’ in that section is subject to the ejusdem generis rule?

(4) If the answer to Question 3 is in the affirmative, whether the expression ‘any unlawful purpose’ is confined to unlawful purposes similar to those the instruments or objects referred to in section 17 are fit for?”

2.The respondent does not dispute the suitability of those questions for the grant of leave and we are satisfied that the leave to appeal should be granted in respect thereof.

3.The applicant also seeks leave to appeal on the ground that the Court of Appeal’s construction of section 17 involved a departure from accepted norms which was so serious as to constitute a substantial and grave injustice. 

4.In particular, he seeks to argue that the Court of Appeal departed from earlier decisions at the same appellate level which had applied the ejusdem generis rule in construing section 17, thereby adopting a broader meaning than previously accepted; that in doing so, it failed to apply the principle that any ambiguity in penal statutes should be resolved in favour of the accused, and failed (so he submits) properly to give effect to section 10B(3) of the Interpretation and General Clauses Ordinance (Cap 1) where a difference may exist between two versions of the text in bilingual legislation. 

5.We are satisfied that it is reasonably arguable that there has been a material departure from accepted norms and that leave should also be granted on the abovementioned basis.

6.The appeal will be listed for hearing on 17 June 2022 (originally announced for hearing on 16 June 2022).

Mr Steven Kwan and Ms Charlotte OT Chan, instructed by O Tse & Co., for the Applicant

Mr Anthony Chau, DDPP (Ag) and Mr Wayne Lee, PP, of the Department of Justice, for the Respondent