HKSAR v. Chan Chun Kit
Read the full judgment text of HCMA 242/2020 on BabelCite. This High Court CFI judgment was delivered on 11 October 2021.
1. On 28 August 2020, the appellant was convicted by the trial magistrate (Mr. CHEANG Kei-hong) of the offence of, put briefly, “possession of an instrument fit for an unlawful purpose”, contrary to section 17 of the Summary Offences Ordinance, Cap.228, Laws of Hong Kong, and sentenced to imprisonment for five months and two weeks. On the same day, the appellant filed a notice of appeal against conviction and sentence. One month later, he was granted bail by the Court of First Instance of the
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[English Translation-英譯本] HCMA 242/2020 [2021] HKCA 1493 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MAGISTRACY APPEAL NO 242 OF 2020 (ON APPEAL FROM ESCC NO 677 OF 2020) ________________________
________________________ Before: Hon Poon CJHC, Pang and A Pang JJA in Court Dates of Hearing: 27 May and 6 August 2021 Date of Judgment: 11 October 2021 ________________________ J U D G M E N T ________________________ Hon Pang JA (giving the Judgment of the Court): A. Introduction 1.On 28 August 2020, the appellant was convicted by the trial magistrate (Mr. CHEANG Kei-hong) of the offence of, put briefly, “possession of an instrument fit for an unlawful purpose”, contrary to section 17 of the Summary Offences Ordinance, Cap.228, Laws of Hong Kong, and sentenced to imprisonment for five months and two weeks. On the same day, the appellant filed a notice of appeal against conviction and sentence. One month later, he was granted bail by the Court of First Instance of the High Court pending appeal. On 9 February 2021, i.e. the original date of hearing of the appeal, the Department of Justice applied to have the case transferred to the Court of Appeal on account of the complex legal issues involved and their wish for the Court to lay down relevant sentencing guidelines in the process.[1] Their application was granted on the same day. B. The Offence 2.It was alleged in the particulars of offence that the appellant “on 2 November 2019, at the junction of Percival Street and Russel Street in Causeway Bay, Hong Kong, was in possession of an offensive weapon or an instrument fit for an unlawful purpose, namely a pack of cable ties, with intent to use the same for any unlawful purpose”. The cable ties in question were made of plastic, and there were 48 of them in total, each six inches long. They are the common type with a hole at one end and the other end going through it, to be tightened to lock, after which the only way to unlock it is by cutting it with scissors. C. The Prosecution Case 3.PW1 and PW2 were police officers and they were the only two witnesses for the prosecution. Their evidence, except for certain details, was not disputed and not directly related to the issues of this appeal[2]:
D. The Defence Case 4.The appellant elected not to give evidence. Instead, he called a witness (DW1). DW1 said[3] that he first met the appellant when they were in secondary school. The day before the incident, the two of them arranged to go together to the appellant’s old office the next day after dinner to “clear the place”, meaning to move the furniture, electrical appliances and sundry items there into the warehouse. On the day of the incident, DW1 first went to the real estate company for which the appellant worked to wait until the appellant went off duty. They then walked from Tin Hau to Causeway Bay through Victoria Park for dinner. When they came to the scene, they saw many journalists, and therefore went over to have a look out of curiosity. The appellant walked faster than DW1 did, and he stopped about 4 metres in front of DW1 to look on. Having watched for a short while, the appellant turned around to leave, but he was caught by an officer from the riot squad. To put it briefly, DW1 had twice helped the appellant clear his old office before the incident. The appellant had said that the things had to be wrapped in bubble wrap first. The appellant had also said that the entire old office had to be reinstated before it could be handed over to the landlord[4]. E. The Verdict at Trial 5.Having made detailed analysis, the trial magistrate refused to accept DW1’s evidence[5], pointing out that his evidence made no mention at all of the subject cable ties and how the cable ties were related to the alleged arrangements for the evening in question (having dinner and clearing the office together)[6]. The trial magistrate believed that none of the items found on the appellant, i.e. the cable ties, helmet, gloves and respirator, was to be used for moving furniture, electrical appliances and sundry items. He said, “As a judicial officer, [I] have to move from one court building to another from time to time, [but] I have never seen any worker having any need to tie up anything with this kind of cable ties (Exhibit P12) for ease of moving”[7]. 6.In summary, the trial magistrate’s findings of fact were as follows[8]:
7.Based on the above findings of fact, the trial magistrate further held as follows[9]:
F. Core Issues 8.The extract in Paragraph 7 above shows that it was based on his interpretation of section 17 of the Summary Offences Ordinance that the trial magistrate found the appellant guilty. The Chinese and English texts of the relevant section are quoted as follows:
9.The trial magistrate’s analysis of the relevant section, which was set down before the conclusion quoted above, is now summarized by this Court as follows[10]:
G. Appeal against Conviction G1. Grounds of Appeal 10.Mr. Kwan acting for the appellant was not the defence counsel at trial. His contentions were very different from the stance of the defence at trial in that he had an even narrower interpretation of both “unlawful purposes A and B”. He also complained that the trial magistrate had abused the use of judicial notice. The details are as summarized below. 11.First of all, it is his interpretation of “unlawful purposes A”, i.e. ground of appeal (1). 12.Mr. Kwan contended that section 17 only covers instruments fit for three kinds of purposes, namely physically restraining a person, injuring a person and housebreaking. If the ejusdem generis rule is applied properly, the instruments which fall within the scope of “unlawful purposes A” must be understood as having the same purpose as that of “crowbar, picklock, skeleton-key”, namely the purpose of housebreaking. This conclusion is supported by two Full Court/Court of Appeal[16] cases of the 1960s and 1970s: Tang Chi-ming[17]; Tsoi Shun-hing[18]. Although the provision involved in the two cases was the old version and the existing latest version with a wider coverage had yet to be formulated, it does not affect their ratio and binding effect as precedents. 13.Based on the above authorities, the trial magistrate was wrong in accepting the common ground of the prosecution and defence that to satisfy the requirement of “unlawful purposes A”, the cable ties only had to be of the same type as one of the three types of instruments, namely the instruments for physically restraining a person. Moreover, it is specified in section 17 that instruments for physically restraining a person such as wrist restraint, handcuffs and thumbcuffs are “instrument or article manufactured for the purpose of physically restraining a person”. However, the cable ties in question were not specially manufactured for that particular purpose. Generally speaking, they would only be used for binding electric cords. See Ho Ka On[19] for the above observations. 14.Next comes his interpretation of “unlawful purpose(s) B”, i.e. ground of appeal (2). 15.Mr. Kwan went on to submit that even if “unlawful purposes A” was established, that is, an article was indeed of the same type as a crowbar, a picklock and a skeleton key, i.e. an instrument “fit for” the purpose of housebreaking, the prosecution would still have to prove that the defendant possessed the article “with intent to” use the article for housebreaking in order to satisfy the requirement under “unlawful purpose(s) B”. 16.The above contention is supported by Tang Chi-ming and Tsoi Shun-hing. Both cases affirmed that “unlawful purpose(s) B” must correspond with the purpose(s) of the article in question per se. The trial magistrate who had come to a different conclusion on account of the removal of the word “such” from the existing text on “unlawful purpose(s) B” had simply ignored the background in which it was removed, namely that the word was dismissed as “otiose” and “meaningless” in Li Chu[20], an appeal heard before a lower court slightly earlier than Tang Chi-ming. The relevant background can be seen in the contemporaneous Executive Council Memorandum. An amendment based on this reason is not enough to prove that the Government and Legislative Council at the time intended to have the previous cases overturned. As a matter of fact, the interpretation of “unlawful purpose(s) B” in Li Chu is on the whole consistent with the conclusion of the Full Court in Tang Chi-ming. 17.Even in Leung Yau-sing (梁有勝)[21], a magistracy appeal case in 2000 cited by the magistrate, the Court of First Instance, without thoroughly analyzing Tang Chi-ming’s reasoning, had done no more than mentioning that the ambit of “unlawful purpose(s) B” could be extended to make it related to physically restraining a person, physically injuring a person or housebreaking, which is very different from the finding of the magistrate that any unlawful purpose would suffice, including binding objects to make roadblocks and instruments to be used in fights. 18.In any event, after the removal of the word “such” from “unlawful purpose(s) B”, although the only words remaining are “any unlawful purpose”, the term cannot be taken as having no limitations at all. It was pointed out in certain cases that, depending on the context, “any” should be taken to mean “any such” or “such a”: see Re Proulx[22]. See also Craies on Legislation[23]and Majorstake Ltd v Curtis[24] on how the word “any” should be understood. 19.In conclusion, Mr. Kwan stressed that in interpreting provisions in criminal law, the court should make a restrictive interpretation according to the principle referred to by this Court as “no penalty when in doubt” for short (“avoid adopting a construction which penalises a person when the legislator’s intention to do so is doubtful”): T v Commissioner of Police[25]. 20.The last is the issue of abuse of judicial notice, i.e. ground of appeal (3). 21.Mr. Kwan reckoned that whether the cable ties in question would be used for moving furniture, electrical appliances and sundry items, or for tying up illegal instruments by the protesters was clearly beyond the realm of judicial notice. It was even more unacceptable that the trial magistrate relied on his personal experience of relocation at work which made it impossible for the applicant to put up a rebuttal. For relevant authorities, see Criminal Evidence in Hong Kong[26] and Yang Xianu[27]. G2. Reply by the Respondent 22.The standpoint of the respondent was also different from that of the prosecution at trial. The following are the key points. 23.During the times of Tang Chi-ming and Tsoi Shun-hing, section 17 was very different from the current one, in that not only were there fewer kinds of articles included, but there was also an alternative element of the offence other than “unlawful purpose(s) B”, namely “or is unable to give satisfactory account of his possession thereof”. The existence of this element, hereafter named the “alternative element”, did affect the Full Court/Court of Appeal’s interpretation of section 17. 24.In view of the above, the ratio decidendi of Tang Chi-ming and Tsoi Shun-hing are limited in their application. As it was held in Chong Ah-choi[28] that the “alternative element” was inconsistent with the Bill of Rights, the interpretation of section 17 in those two cases is no longer binding. In fact, the Court of Appeal had unequivocally pointed out in the contemporaneous caseof Ho Ka On that as the old version of the provision was “framed slightly differently” from the current one, they did not find Tang Chi-ming of much assistance (“do not consider that the case offers much assistance”). 25.Under the circumstances, the court is entitled to interpret section 17 afresh. The process of interpretation should not be overly influenced by the “ejusdem generis rule”. Otherwise, in order to fit a certain word or sentence into a certain interpretation, the ordinary and natural meaning of the relevant word or sentence may be lost and eventually the legislative intent of the provision may also be lost: Wu Ka Fai[29]. If the implements or circumstances set out in the relevant provision, when properly interpreted and understood, are indeed of the same genus, there would simply be no need to apply the “ejusdem generis rule” in the interpretation. For relevant examples of the affirmative and the negative, see Luk Kin Peter Joseph[30], Moulin Global[31], and Ling Lai Mo[32]. 26.From the latest version of section 17, it can be seen prima facie that there are four kinds of implements which are completely different in nature, namely instruments for physically restraining a person, injuring a person, housebreaking and other instruments fit for an unlawful purpose. Therefore, there is simply no need and no room to apply the “ejusdem generis rule”. The prosecution contended at trial that there were only the first three kinds, but the respondent does not agree with that contention. Instead, the court can apply what we call the “always speaking” construction (a statute is “always speaking”) to the fourth kind of implements such that it can be construed liberally to include cable ties, which have often been used by radical protesters to break the law. 27.If the court did not accept the above argument, the respondent would reiterate the prosecution’s contention at trial that even under the “ejusdem generis rule”, the fourth kind of implements is not confined to merely an extension of the third kind (instruments for housebreaking), but rather, it can be of the same kind as any one of the first three, and that cable ties do fall within the first kind of implements (instruments for physically restraining a person). Such proposition is supported by the plural form of “unlawful purposes A” in the English text (“unlawful purposes”) and the legislature’s decision in not amending the fourth kind of implements to “other instruments fit for housebreaking…”. Obviously, the Legislative Council at the time did aim at giving the fourth kind of implements the widest coverage. 28.With regard to “unlawful purpose(s) B”, the position of the respondent was the same as that of the prosecution at trial, i.e. it generally refers to any unlawful purpose. The respondent emphasized that the word “any” just means any, which is the most natural construction, and according to case law, it is not necessarily restricted by the context of the provision. See Smith v Chief Superintendent, Woking Police Station[33] and L v Director of Public Prosecutions[34]. The respondent also pointed out that “unlawful purpose(s) B” appears at the end of section 17 and there are no words that follow to restrict its meaning. In the circumstances, the “ejusdem generis rule” does not apply. For cases advocating the opposite, see Moulin Global[35]. 29.In a nutshell, the respondent emphasized that the legislative intent of section 17 was to combat crimes. Taking the 1984 amendment as an example, when instruments for physically restraining a person were added in, it was because there were criminals carrying such instruments with an obvious intent to break the law, but there was no law to tackle it. However, wrist restraint, handcuffs, thumbcuffs and the like can be used in various crimes such as robbery and kidnapping. For that reason, when the amendment was made, it was impossible and inappropriate to impose corresponding restrictions on “unlawful purpose(s) B”. The respondent stressed that the relevant restrictions would create serious legal loopholes, and the court should not impose them lightly. 30.Lastly, the respondent did not accept that the trial magistrate had taken judicial notice. Instead, they took the view that the trial magistrate only made factual findings based on common sense and all that had transpired during the incident. G3. Textual Variants and the “Always Speaking” Construction 31.At the first hearing of the case, this Court pointed out that the Chinese and English texts of section 17 are different, at least in terms of their concrete expressions. We then adjourned the case after a brief discussion to give both parties an opportunity to file supplementary submissions on that issue and other relevant issues like the “always speaking” construction. G3.1 The Appellant’s Supplementary Submission 32.Mr. Kwan cited certain authorities to point out the circumstances under which it would be appropriate for the court to apply an “always speaking” construction and how it would go beyond its legitimate scope. His arguments can be reduced to the following six key points:
33.Based on the above principles, Mr. Kwan contended that the “always speaking” construction was not applicable to the present case. He emphasized that section 17 not only had its historical background to its enactment, but it also had been interpreted by higher courts for a number of times; therefore, its intrinsic meaning should not be altered lightly. On this point, he cited Statutory Interpretation in Australia[44], saying that according to the principle of “contemporaneous exposition”, a long-standing interpretation which people have come to rely on and was reached by earlier courts that were more aware of the reasons underlying the passage of the particular statute should not be too readily overturned by later courts. The same line of thought was also seen in an English magistracy appeal case: Thompson v Nixon[45]. 34.As for the Chinese and English texts of section 17, Mr. Kwan submitted that there is no meaningful difference between the two. It appears at a glance that the main difference was caused by the absence of enumeration comma (、) in the English language. Conversely, as “thumbcuffs” (“指銬”) and “offensive weapon” (“攻擊性武器”) were followed by commas in the English text and enumeration commas in the Chinese text to separate them from the next kind of articles, while there was no punctuation mark separating “skeleton-key” (“百合匙”) from “or other instrument fit for unlawful purposes” (“或其他適合作非法用途的工具”), it serves as a powerful proof that “unlawful purposes A” should be construed as referring to the same kind of instruments as those used for housebreaking. In fact, the Court noticed the second situation mentioned above as early as in Li Chu and found that helpful in the interpretation of section 17 as it was then. 35.Assuming that the court does find difference(s) in meaning between the Chinese and English texts of section 17, the court shall then be bound by section 10B of the Interpretation and General Clauses Ordinance, Cap. 1, Laws of Hong Kong. According to section 10B (3) of that Ordinance, “the meaning which best reconciles the texts, having regard to the object and purposes of the Ordinance, shall be adopted” only when there is a difference in meaning “which the rules of statutory interpretation ordinarily applicable do not resolve”. In other words, the court should not ignore the plain meaning of the text in either language too easily in order to attend to the legislative purpose of the Ordinance. 36.Lastly, Mr. Kwan cited two Canadian cases which in his opinion would assist the court in resolving differences disclosed in bilingual statutes and are in favour of the appeal: Medovarski[46] and Daoust[47]. G3.2 The Respondent’s Supplementary Submissions 37.With regard to the “always speaking” construction, the respondent did not dispute the cases and principles cited by the appellant. However, the respondent also emphasized that if the necessary conditions are met, the Court should as far as possible interpret the legal provisions as covering circumstances which were previously unforeseeable. For relevant examples, see the Court of Final Appeal’s judgments in Wong Yuk Man[48] and Yuong Ho Cheung[49]. In Hong Kong Mobile Television Network Ltd[50], the Court of First Instance even pointed out directly that the “always speaking” construction and the usual approach of interpretation co-exist in parallel. 38.The respondent went on to say that in the present case, the conditions for applying the “always speaking” construction were met. Both “unlawful purposes A” and “unlawful purpose(s) B” can naturally be construed as covering instruments and intents in relation to purposes other than physically restraining a person, injuring a person and housebreaking. It was argued that such an interpretation would serve the legislative purpose of section 17 without distorting the plain meaning of the provision. 39.As Tang Chi-ming and Tsoi Shun-hing were no longer binding as soon as the “alternative element” in section 17 was deleted, the interpretation reached by applying the “always speaking” construction will not result in trouble from having to reverse a large number of old cases. In fact, despite Tang Chi-ming and Tsoi Shun-hing, the courts have so far made quite a number of decisions that contradict the two cases, for example Ho Ka On. 40.The respondent, like Mr. Kwan, did not find any substantive difference between the Chinese and English texts of section 17. It was the respondent’s view that the Chinese text conveyed the meaning in a clearer manner, and that both texts pointed to the construction advocated by the respondent. The respondent also stressed that according to section 10B(2) of the Interpretation and General Clauses Ordinance, the court should first assume that both the Chinese and English texts are authentic texts having the same meaning, and section 10B(3) should only be invoked when the problem cannot be resolved: Tam Yuk Ha[51]. 41.The respondent submitted that the Canadian cases are not applicable to resolving the issue of interpretation of bilingual statutes. H. Discussion on Appeal against Conviction H1. Three Old Cases 42.The three old cases referred to here are Li Chu, Tang Chi-ming and Tsoi Shun-hing. 43.Li Chu (1968) is somehow less authoritative than the other two because it was a magistracy appeal by way of a case stated[52] and was heard by a single High Court judge (Mills-Owens J). Section 17 at that time was in English only and read as follows[53]:
44.According to Mills-Owens J’s ruling, the then section 17 included only two kinds of articles, namely offensive weapons and housebreaking instruments. His reasons and related observations can be summed up in the following four points[54]:
45.The judgment in Tang Chi-ming (also a case in 1968) was written mainly by Hogan CJ and Rigby SPJ. They and another judge agreed unanimously that Mills-Owens J’s interpretation of section 17 was correct, especially the two points mentioned in paragraphs 44(1) and 44(3) above[55]. As for whether the word “such” in the provision was otiose, Hogan CJ said[56] that Mills-Owens J’s statement might not be correct if the “ejusdem generis rule” was applied and the word was to be interpreted as referring to the two purposes of injuring a person and housebreaking. 46.The case of Tsoi Shun-hing took place nine years later (in 1977). With the amendment made in 1975, section 17 had undergone minor changes in which the two specific articles “spear” and “bludgeon” were removed, but the word “such” was retained:
47.The Court of Appeal affirmed in that case that section 17 covered only two categories of articles, and the “[f]irst and most important [reason]” was that while the Legislative Council was supposed to know the decision in Tang Chi-ming, it did not make use of the 1975 amendment to change the structure of the provision. In addition, the Court of Appeal held that, based on the context of section 17, the word “or” in “or other instrument fit for unlawful purposes” should not be given a disjunctive interpretation, and instead, the “ejusdem generis rule” should apply so that those articles would be categorized as instruments for housebreaking[57]. Regarding the word “such” in “with intent to use the same for any such unlawful purpose”, the Court of Appeal was of the view that Mills-Owens J’s observation in Li Chu was justified, and apart from Hogan CJ, the other two judges in Tang Chi-ming did not express any opinion on this point[58]. 48.Thus far, this Court finds the respondent’s assertion, that the decision in Tang Chi-ming was influenced by the existence of the phrase “unable to give satisfactory account ...” also known as the “alternative element” above, questionable. It is true that the Full Court had discussed the issue at some length, but the focus of the discussion was on how to deal with the articles involved in the case the nature of which was not readily discernible. On the contrary, looking at the entire analytical context of that case and even Tsoi Shun-hing, it can be seen that the structure and method of expression of the relevant section were the actual reasons for which the Full Court and Court of Appeal respectively held that section 17 included only two categories of articles. 49.It should also be mentioned that Rigby SPJ pointed out in Tang Chi-ming that the second category of articles in the section should be construed as a kind of instruments similar to that for housebreaking but at the same time not limited to that particular purpose[59]:
Hogan CJ further extended the concept to include “receptacle”[60]. This Court is of the view that the above two judges’ observations are undoubtedly correct and they also explained why the defendant in that case was convicted for cutting another person’s trousers’ pockets with the razor blade fastened between his fingertips. This Court considers that this category of articles should be defined as instruments for “unlawful access” rather than instruments for housebreaking (infra). H2. The last two amendments and subsequent developments 50.In Tsoi Shun-hing, the defendant was in possession of a pair of handcuffs with intent to impersonate a police officer. In the end, he was acquitted on appeal because section 17 covered only two categories of articles. To remedy the situation and to cope with the increase in similar cases, the government took steps to amend the Ordinance five years later, and in the following year (1984), the proposed amendments were passed to include instruments for the purpose of physically restraining a person and to have the word “such” deleted from the provision. Having reviewed the relevant documents of the Executive Council and the Legislative Council, this Court confirms that such amendments were not aimed at overturning cases like Tang Chi-ming. Regarding the word “such”, the documents simply said that in Li Chu, the word was held to be otiose[61]. It was not denied in the documents that the original section 17 included only two categories of articles. 51.With the above amendments, the modern version of section 17 began to take shape, but the “alternative element” remained part of the provision until it was found in Chong Ah-choi in 1994 to have violated the Bill of Rights. Subsequently, by way of further amendments to the Administration of Justice (Miscellaneous Provisions) (No. 2) Ordinance 1995 (68 of 1995), the “alternative element” was officially removed from the provision and the current version of section 17 first appeared in Chapter 228 of the Laws of Hong Kong. 52.As we have pointed out earlier, we do not agree that the “alternative element” had any influence on the interpretation of section 17 in Tang Chi-ming and Tsoi Shun-hing. However, this Court agrees that the removal of the “alternative element” is of considerable importance to the present case. In other words, section 17 after 1994 is actually a provision which is completely different from the previous one. The key is that if the previous interpretation of “unlawful purposes A” was too liberal and the prosecution was free to prosecute using the “alternative element” which would make it easier to prove guilt in the face of weaker evidence, the protection enjoyed by the public would then become seriously inadequate. Therefore, it was a completely different situation from the current one. 53.If the time is pushed back for ten more years, the following would be a better example to reflect the point just raised. The scene in question is the Secretary for Justice explaining the 1984 amendments to the Legislative Council[62]. He made it clear in his speech that the newly added category of articles would not be defined too loosely (see the negative example of handkerchief and string), that the category of articles represented only instruments having no other purposes than to physically restrain a person, and that such a design could save the police from the difficult task of proving the intent of possessing such category of articles (see the sentence “to prove ... purpose ... is notoriously difficult”). In other words, at that time, section 17 was designed to make good use of the convenience of proof brought about by the “alternative element”, but it was precisely for this reason that the articles and categories of articles in the section needed to be defined relatively strictly:
54.Similar to the situation of the “alternative element” is that of the word “such” mentioned earlier. As this Court has pointed out, the removal of the word in 1984 does not mean that the Legislative Council intended to overturn the relevant cases. Nonetheless, we also agree that section 17 with the word “such” removed is less restrictive in its interpretation. That is to say, there is a difference between the subjective purpose and the objective effect of the amendment. If the court has other reasons to interpret section 17 afresh, this amendment would have the same opening effect or even facilitative effect as that of the “alternative element” amendment. 55.At this point, this Court will turn to analyse the cases cited by the parties. A correct understanding of those cases can help assess the weight and application of Tang Chi-ming in the present day, when more than 50 years have gone by. 56.Chronologically, the first case to be discussed is Ip Pui Leung[63] (1989). The defendant in that case was found standing and holding two baseball bats in his hands at the rear lane of the bar where he worked. The evidence clearly showed that he had taken the bats in response to customers who had just caused trouble and attempted to leave the bar without paying their bills[64]. However, the magistrate was of the opinion that the baseball bats were not offensive weapons per se, and therefore acquitted the defendant of the offence under section 17. The prosecution then lodged an appeal. In the end, the High Court held that the magistrate’s judgment was correct, but in the particular circumstances of the case, the baseball bats came within the category of instruments fit for unlawful purposes (referring to a fight). Therefore, the case was remitted to the magistrate for trial[65]. The above decision is especially worthy of notice because the presiding judge cited Li Chu and Tang Chi-ming at some length, according to which he even listed two categories of articles allegedly covered by section 17[66]. Yet, he ended up focusing only on discussing how to ascertain the nature of a particular article, while the core decision of Tang Chi-ming, namely the decision that “unlawful purposes A” actually refers to unlawful access, was completely put aside; in other words, knowing but ignoring it. 57.The next in line is Ho Ka On (1995). The defendant in that case was convicted of possession of an instrument fit for an unlawful purpose as he had in his possession a roll of household cellulose tape and admitted under caution that he would use the tape to tie up the hands of the person(s) to be robbed by him[67]. The defence cited Tang Chi-ming on appeal, arguing that the tape in question did not fall within the categories of articles covered by section 17[68]. The argument was most straightforward and should have been upheld if Tang Chi-ming had been applied as it was (the tape was not an instrument specifically manufactured for physically restraining a person, not an offensive weapon, and not an instrument for unlawful access as included in “unlawful purposes A”). However, the Court of Appeal, based on the fact that the section had been framed differently (covering fewer categories) and that the issue to be dealt with was different (the application of the “ejusdem generis rule” in section 17), pointed out expressly that the case did not offer much assistance[69]. The Court of Appeal emphasized that the cellulose tape was not an instrument specifically manufactured for the purpose of restraining people and allowed the appeal[70]. The judgment of that case is not long and there is only one page that is relevant to our present purpose, but the bench hearing the appeal was formed by very senior judges (among them, Patrick Chan J and Power VP who subsequently became PJ and NPJ of the Court of Final Appeal respectively), and it was impossible that they did not have a perfectly good grasp of Tang Chi-ming. Therefore, their decision was indeed a major reversal of Tang Chi-ming. At the very least, they refused to endorse the way articles were categorized in Tang Chi-ming. 58.The third case is Leung Yau-sing (2000). The defendant in that case was found on the rooftop of a building and when the police ordered him to stop, he immediately dumped a bag containing gloves, an electric cord, a screwdriver, and a wrench, and in the end he was convicted under section 17. Since one of the grounds of appeal was that the charge should but did not specify what unlawful purpose(s) the articles were fit for, the case did not touch directly on the core issue of Tang Chi-ming. However, as in the previous two cases, the presiding High Court judge knew Tang Chi-ming and quoted part of its judgment. This Court has every reason to believe that he did follow the whole judgment of the case, but likewise, he ignored the classification of articles in Tang Chi-ming. He said, “if the ‘ejusdem generis rule’ was invoked” (quoted from his judgment), the purposes under “unlawful purposes A” “should be related to physically restraining a person, injuring a person or housebreaking. The instruments in the appellant’s possession ... can all be meant for lawful purposes... can also be used for a number of unlawful purposes... For example, electrical cords can be used to restrain others, screwdrivers and wrenches can be used for breaking in residential premises, and wrenches can also be used by the ‘head-bashing gangs’ as an offensive weapon... The court ... can take judicial notice ... and therefore, it was up to the trial magistrate to rule that these instruments in the possession of the appellant are fit for unlawful purposes.”[71] 59.In sum, since the 1960s and 1970s, the Hong Kong courts seemed not to have adopted the interpretation of “unlawful purposes A” in Tang Chi-ming. Taking the above three cases from the 1980s and 1990s to the 2000s as examples, the presiding judges were all judges of the Court of First Instance or above, and their judgments were not per incuriam, i.e. they were not made when there was a lack of due regard to Tang Chi-ming, but the results were all inconsistent with that case. In fact, based on the experience of the three judges in this Court, modern Hong Kong courts, especially courts responsible for first instance trials, have all been giving an extremely liberal interpretation to “unlawful purposes A”. Looking at the recent past, the so-called “anti-amendment bill” cases handled with this approach are numerous. Even the defence would accept that without hesitation, and no one has ever challenged that even on appeal. Of course, while the above situation has remained the same for several decades, it does not mean that the relevant approach is correct. However, this situation shows that: firstly, section 17 per se may give rise to different interpretations; secondly, interpreting section 17 afresh would not create confusion. Whether it would really be so depends very much on the issues explored in the following two subsections (H3 and H4). H3. Differences between Chinese and English texts 60.As mentioned above, both the appellant and the respondent contended that there was no difference between the Chinese and English texts of section 17. In that regard, we are frankly surprised and believe that very likely, such a position was fiercely supported by the parties because they both wished to maintain the strength of their respective arguments as much as possible. Otherwise, when the Chinese text is the only text for reference, it would be inevitable that a user of the Chinese language would come to a conclusion that the instrument(s) under “unlawful purposes A” is/are independent from and unrelated to the other articles or categories of articles referred to in the section. 61.Certainly, none of the three judges of this Court has any professional background in law drafting, and we also understand that bilingual legislation in Hong Kong is not a translation from English to Chinese. Nevertheless, if the structure of section 17 in the English text is to be retained as much as possible, its Chinese version may well be drafted as follows: “任何人管有任何腕銬或其他為束縛人身而製造的工具或物件、任何手銬或指銬、任何攻擊性武器，或任何撬棍、撬鎖工具、百合匙或其他適合作非法用途的工具，意圖將其作任何非法用途使用，可處第2級罰款或監禁2年。” (“Anyone in possession of any wrist cuffs or other instrument or article made for 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 purposes, shall be liable to a fine at level 2 or imprisonment for 2 years.”) [Translation provided for reference only.] However, for some reasons, perhaps certain reasons not discernible to this Court, there are major differences between the current Chinese text and the draft suggested above (see paragraph 8 above). 62.In any event, the reality is that the sentence in the current Chinese text has two sub-divided parts beginning with “管有” (“in possession of”). The articles and categories of articles listed in the second sub-divided part are varied in nature. They include distinctly different instruments for various purposes of physically restraining a person (handcuffs and thumbcuffs), injuring a person (offensive weapon) and gaining unlawful access (crowbar, picklock and skeleton-key), and they are all separated only by enumeration commas which indicate a “parallel structure” of words[72]. In these circumstances, it would be natural for readers to construe “unlawful purposes A”, i.e. “other instrument fit for unlawful purpose(s)” as a separate unit unrelated to other articles and categories of articles. As the ending of the same sub-divided part, the phrase “or other instrument fit for unlawful purpose(s)”, which has a wide meaning and a comprehensive coverage without omission, does reinforce the above construction. On the other hand, the appellant would find it hard to answer the following questions: Given the current structure of the provision, how can “unlawful purposes A” be interpreted as relating only to gaining unlawful access? For what reasons can the instruments for physical restraint and physical injuries juxtaposed in the same sub-divided part of the sentence be excluded? Yet if they are all included, would it not conflict with the conclusion in Tang Chi-ming? Is it true that the “ejusdem generis rule” need not or cannot cross over and be applied to the first sub-divided part of the sentence because of the separation of the provision? 63.Assuming this Court’s analysis above is correct, that is to say, the structure and corresponding meaning of the Chinese text are indeed somewhat different from the English text, the next question is how to determine the correct construction of section 17 (in both Chinese and English) – despite the fact that the courts since Tsoi Shun-hing have mostly opted not to follow the older cases in question. In this regard, section 10B of the Interpretation and General Clauses Ordinance (Cap 1) provides the definitive and only guidance:
64.The case of Tam Yuk Ha[73] cited by the respondent focused on the difference between the terms “addition” and “增建工程” in certain subsidiary legislation. The Court of Appeal, when ruling that the two terms had the same meaning on the ground that “工程” did not necessarily involve architectural or structural works but could also include removable temporary installations, invoked the presumption in section 10B (2). The following are some of the observations made by Hon. Patrick Chan, CJHC (as he then was) in that case, and his emphasis on the importance of reflecting the legislative intent is particularly noteworthy[74]:
On the application of section 10B (3), although neither the Appellant nor the Respondent were able to cite any authorities, the principle enunciated in the section is very clear and the only thing to do is to apply it when necessary. 65.After repeated consideration, this Court is of the view that the meaning of the Chinese text of section 17 is clear and unambiguous. Unless deliberately twisted, its structure simply does not allow “unlawful purposes A” to be construed narrowly as unlawful access. If the “ejusdem generis rule” is extended to include all the articles and categories of articles in the second sub-divided part of the sentence, then the first sub-divided part which has already been separated from the rest of the sentence would become notably odd. Therefore, it is most reasonable and reflective of the statute’s legislative intent to interpret the instrument(s) for “unlawful purposes A” as an independent category of articles to make it an open-ended closing of the entire section 17. As for the English text, due to the difference in syntax and variance in use of punctuation, the conclusion of the Full Court in Tang Chi-ming is reasonable to a certain extent, but it would result in major limitations, which would be utterly disadvantageous to the implementation and promotion of the legislative intent of section 17. Therefore, this Court is of the view that a construction compatible with the Chinese text should be adopted as the correct construction of section 17. As far as the English text is concerned, this construction may seem a little awkward, but it could not be said to be a distortion, and this Court believes that in the interpretation of section 17, it is the method that most trial courts have relied on since 1993, after the Chinese text had been authenticated[75], including but not limited to those handling cases conducted in English by bilingual judges. Otherwise, it would be difficult to explain the large number of relevant judgments that everyone has in mind. H4. Does the “Always Speaking” construction apply 66.The appellant and the respondent agreed that as to the application of the “always speaking” construction, Lord Wilberforce’s guidance in Royal College of Nursing should prevail[76]. The guidance is the most authoritative and was quoted by Lord Bingham in R (Quintavalle), who gave the following speech in the House of Lords[77]:
67.The Court of First Instance further pointed out in Hong Kong Mobile Television Network Ltd that statutory interpretation requires a good grasp of the circumstances in which the legislation was passed in order to ascertain the purpose and meaning of the legislation. That is not inconsistent with the concept of the “always speaking” construction, and the two principles can even be described as “in parallel existence”. In fact, subject to the legislative purpose and textual meaning of the legislation, it is permissible or even necessary to construe a statute to cover evolving and changing situations[78]:
68.The Court of Final Appeal also pointed out in Yuong Ho Cheung that if the necessary conditions are met, the “always speaking” construction is applicable to the interpretation of a criminal statute, and this will not constitute an undue extension of the statute[79]:
69.To clarify the legislative purpose of a particular piece of legislation, one can generally begin with the long title of the legislation. For the Summary Offences Ordinance, the long title is “To consolidate the law relating to summary offences”. The description is entirely appropriate because the Ordinance does bring together a large number of miscellaneous offences, largely independent from each other and scattered in various ordinances, which regulate different matters and carry a lower degree of criminality[80]. In this regard, the variety of the items listed in the Ordinance’s table of contents alone speaks volumes. If a bit of history is required for illustration, The Annotated Ordinances of Hong Kong has the following introduction (the opening alone is enough to reflect the essence of the Ordinance):
In the premises, the legislative purpose of the Summary Offences Ordinance is not very helpful to the question to be discussed at the moment, as is the analysis of the pattern of expression of various other offences in the Ordinance. Whether the “always speaking” construction is applicable in this case depends more on the wording, structure and legislative intent of section 17 itself. 70.The wording and structure of section 17 have been extensively discussed by this Court above. As for the original intent of the legislation, this Court believes that it cannot be clearer. Put simply, it is to punish the act of possessing instruments for criminal purposes, and the act is at the core of the offence. As the offence is preventive in nature and clearly aimed at cases involving less harm, it is therefore included in the basket of summary offences (while serious cases are covered by other ordinances). Of course, the articles and their categories listed in section 17 range from specific (such as wrist cuffs, handcuffs), relatively neutral (such as crowbars, skeleton-keys), to general in nature (other instruments fit for unlawful purposes), but it does not affect the provision’s original intent to punish possession of instruments for criminal purposes. The title of section 17 in the Summary Offences Ordinance is precisely “Possession of offensive weapon etc., with intent”. 71.Considering the matter from the above perspective, this Court is of the view that there is nothing wrong with applying the “always speaking” construction to interpret “unlawful purposes A”, which can effectively deal with criminals using various or even newly invented instruments to commit crimes. Yet, if that course is taken, the interpretation of “unlawful purpose(s) B” must at the same time be opened up. Otherwise, the two would not be compatible, and that would hinder the implementation of the legislative intent of section 17. That is naturally so and self-evident. Taking the baseball bat as an example, it can be used in both fights and vandalism. Gloves can be used to prevent slipping and avoid leaving fingerprints. Therefore, they are common instruments for armed attacks and burglaries. As for knives and cutters, they are weapons which robbers and sexual offenders often use to threaten their victims. There are countless other similar examples. The fact is that any instrument fit for an unlawful purpose can be used to commit more than one type of offence. Even those articles expressly referred to in section 17 are no exception. Handcuffs used for the purpose of impersonating a police officer is a good example mentioned by both the case authorities and the trial magistrate. 72.In respect of the complete opening up of the interpretation of “unlawful purposes A and B”, Mr. Kwan argued that in the process, the phrase “fit for” in “unlawful purposes A”, namely “fit for unlawful purposes”, would be downgraded to “capable of”. He argued that taking such a course would give rise to extreme cases such as one in which a person stopped on the street would be convicted for possessing a rope at home. He queried whether that was the legislative intent of section 17. On the first point, this Court understands that “fit for” necessarily incorporates “capable of”, but “capable of” does not necessarily mean “fit for”. However, that is an approach which attaches too much importance to the literal meaning of the words. If focus is placed on analysing the purposes of an instrument, this Court believes that the difference between the two is at most one between “fit for” and “better fit for”, which carries no practical significance. In Tang Chi-ming, when discussing how a certain article should be categorized, it was for the same reason why Hogan CJ and Rigby SPJ cited an English case which said “other implement of housebreaking ... mean no more than any other implement capable of being used for housebreaking”[81]. As for Mr. Kwan’s second concern, he has actually answered his own question: it is really an extreme case which is not going to happen in the real world. In that example, unless there is other cogent or even irrefutable evidence, who would be ready to admit that the rope is to be used to commit a crime? H5. Conclusions on the issue of interpretation 73.Although the trial magistrate adopted a different approach when analysing the issue, the conclusion he reached was basically consistent with this Court’s. For the reasons mentioned above, including the requirements in interpreting bilingual legislations and the correct application of the “always speaking” construction, this Court finds that both “unlawful purposes A and B” do not have any specific content and they are not subject to any restrictions under the ejusdem generis rule. Before reaching this conclusion, this Court has carefully considered all the submissions and authorities put forward by the appellant and the respondent. If any of them is not mentioned in this judgment, it is because they are not helpful to the analysis, not because they are omitted. In addition, it should be emphasised that a fully liberalised interpretation of “unlawful purposes A and B” will not lead to abuse of process or innocent people being convicted, given that the “alternative element” of section 17 has been struck down, and the prosecution must prove its case to the court’s satisfaction that the defendant did have the relevant intent. This is a good protection to the general public, and it is no different from any other charges. However, those people who indeed have criminal intent will not go unpunished merely because the nature of the instruments in their possession is not covered. Lastly, this Court must point out to the authorities that section 17 has long been criticised, including it being denounced as ungrammatical back in the days when there was only the English version. Therefore, the relevant section should be amended promptly regardless of the outcome of this case. H6. The issue of judicial notice 74.The cable ties involved in the case were each six inches long only. How they help in moving furniture, electrical appliances and sundries is just a matter of common sense. It cannot be said that they are completely useless. They can come in handy if used to tie up the cords of electrical appliances and computers as preparation, but whether an average person would have such care and patience when relocating or even shutting down and cleaning up a company is another matter. When the trial magistrate said that he had never seen workers moving chambers for him use these cable ties, that was what he meant. This Court does not think that he was taking judicial notice. In any event, Mr. Kwan’s attempt to elevate this small observation of the trial magistrate to make it the basis for questioning the relevant findings of fact is plainly frivolous. The trial magistrate refused to accept DW1’s evidence for many reasons. One example is DW1’s assertion that on the day in question, before the outbreak of Covid-19 in Hong Kong, he, for fear of being photographed by reporters, had been wearing a black face mask all day, from the time he set out from home and during the whole time when he was waiting at the appellant’s company[82]. In addition, what is more directly related to the core issue of this case is DW1’s inability to explain the appellant’s clothing at that time and why he needed to carry the numerous articles and tools that were later found on him[83]:
In this Court’s view, the above analysis is absolutely reasonable and irrefutable, and once DW1’s testimony was held to be “fabricated”, there was no more evidence in the case to support that the cable ties were for moving things. No matter how vigorously the defence had advocated this possibility at the closing of the case, this fact was not going to change. Since the appellant did not testify, the judgment mentioned in footnote 4 above, in which the court allegedly ordered the appellant’s company to surrender the flat in question, is merely neutral and of no evidential value to the defence. I. Appeal against Sentence I1. Sentence after Trial 75.The trial magistrate pointed out that there was no sentencing guideline in respect of section 17[84], and therefore in sentencing, it was necessary to consider the nature, type and quantity of the instrument in question, whether it is easy to use, and the intention of the defendant in possessing such instrument[85]. 76.The trial magistrate reckoned that while the appellant was in possession of the cable ties, with the intention of tying up railings and miscellaneous objects to make instrument(s) to be used in fights and blockage of roads when the opportunity arose, in order for him to succeed, it was necessary that there be “joint participation of people sharing the same belief and common targets”, i.e. including people who had dismantled railings from both sides of the road beforehand[86]. In his view, if the appellant’s plan had succeeded, a relatively large number of citizens would have been affected, and the consequence would have been far more serious than that of similar crimes aiming at individual targets[87]. The trial magistrate took the view that the present case could not be directly compared with the other four similar cases which he knew about[88]. 77.In the last few paragraphs of the reasons for sentence, the trial magistrate said[89]:
I2. Grounds of Appeal 78.Mr. Kwan reiterated that the trial magistrate had abused the use of judicial notice and erred in finding that the cable ties would not be used for transporting furniture, electrical appliances and miscellaneous objects. He asserted that once the error was rectified, there would be no evidence in the case which could prove that the appellant intended to use the cable ties in question to make instruments for fights and road blockage. Mr. Kwan said that by comparison, the four cases mentioned by the trial magistrate were obviously more serious, and therefore adopting six months as the starting point in the present case was manifestly excessive. I3. Discussion on Appeal against Sentence 79.This Court has just pointed out why there was no credible evidence to show that the cable ties were to be used for transporting things, which was a negative factor. In fact, there was no lack of evidence which positively proved that the cable ties were to be used for binding things together to make unlawful instruments. It can be said that the trial magistrate has been very careful in his analysis in this regard. First, this can be seen clearly from his observations on certain exhibits[90]:
Next is his awareness of the relevant law[91]:
and the applicability of the relevant law in the present case: for details, see the extracts in para 6 above of the written decision of the trial, i.e. paras 35 and 36 of the Reasons for Verdict and Reasons for Sentence of the original trial. 80.It is worth noting that concerning the radicals violating the law by using cable ties, even Mr. Kwan himself admitted in the second hearing that “we have all seen on television” that cable ties were used as an instrument to tie up objects to make barricades[92]. This undoubtedly supports the fact that the trial magistrate simply drew the inference on the basis of the common experience of ordinary people, which can hardly be criticised. Of course, Mr. Kwan’s concession was confined to road barricades only. According to his assertion, the notion that fighting with railings and miscellaneous objects and binding things together to make any relevant instrument require the work of many people is beyond the general experience of ordinary people. I regard this submission as being completely out of touch with reality or an indication of inability to properly understand what the trial magistrate meant. In our view, throughout 2019/20, “armed confrontations, fights or inflicting injuries” (the original wording of the trial magistrate) always included making use of railings and miscellaneous objects bound together to perform acts like pressing, charging at others and dashing. Such scenarios were often seen on television. The people involved would at least include those who had first dismantled and collected the railings and miscellaneous objects. It would never be done by only one person throughout. I do not think there is anything wrong with the judgment of the trial magistrate. 81.The backgrounds of the four cases referred to by the trial magistrate in his decision are respectively, in the following sequence: demonstration of power by the triad (informally called “showdown of power”), collecting repayment by loan shark, gang burglary and illegal immigrants hiding on the hillside for a chance to burgle. The crucial details and sentences of the cases were summarised by the trial magistrate as follows. This summary shows at least the range of sentence in cases with different backgrounds[93]:
In the paragraph that immediately followed, the trial magistrate pointed out that the seriousness of the present case had its unique feature, i.e. endangering various rights of people having different opinions, similar to “bullying acts” (see the extract in para 77 above). In our view, that was correct, and his approach was basically consistent with what this Court has mentioned in the series of sentence reviews related to the “anti-amendment bill” cases: see Chu Anson Pui Hang[94], Chow Kin Nok[95], Chung Ka Ho[96], and so on. 82.The type of cable ties involved in the present case can be used for many unlawful purposes. Nevertheless, they can be bought extremely easily, are suitable for concealed carriage, and normally do not arouse suspicion; and once they are used, they basically cannot be untied unless scissors are brought along. In view of the above points, coupled with the background of the present case and also the number of offenders possibly involved and the adverse consequence resulted if they are actually used to tie and make instruments for blockage of roads and fights, the offence committed by the appellant indeed would constitute a significant threat to public order. The starting point of six months and the final sentence of five months and two weeks are therefore not manifestly excessive. Lastly, as the actual circumstances under which section 17 is violated come in a great many varieties, this Court does not consider it appropriate to lay down any sentencing guideline on this offence. J. Overall Decision 83.The appeals against conviction and sentence are both dismissed. The appellant is to be remanded in prison forthwith.
Mr. Steven Kwan and Ms. Charlotte Chan, instructed by Henry Chiu & Partners, for the Appellant Mr. Anthony Chau, DDPP (Ag) and Ms. Moonar Tsoi, SPP (Ag), of the Department of Justice, for the Respondent Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor. [1] See section 118(1)(d) of the Magistrates Ordinance (Cap. 227) [2] Paras 10 to 12 and 14 to 16 of the “Reasons for Verdict and Reasons for Sentence” of the trial. [3] Paras 17 to 21 of the “Reasons for Verdict and Reasons for Sentence” of the trial. [4] At trial, the defence submitted a judgment of the Court of First Instance dated 21 October 2019 under the Evidence Ordinance. The judgment showed that the appellant’s company was the losing party in a tenancy dispute and had to surrender a flat in Tsim Sha Tsui to the plaintiff with compensation. [5] Paras 22 to 30 of the “Reasons for Verdict and Reasons for Sentence” of the trial. [6] Para 26 of the “Reasons for Verdict and Reasons for Sentence” of the trial. [7] Para 33 of the “Reasons for Verdict and Reasons for Sentence” of the trial. [8] Paras 35 and 36 of the “Reasons for Verdict and Reasons for Sentence” of the trial. [9] Para 51 of the “Reasons for Verdict and Reasons for Sentence” of the trial. [10] Paras 38 to 50 of the “Reasons for Verdict and Reasons for Sentence” of the trial. [11] Before 1997, the Chinese name of the Executive Council was行政局 instead of 行政會議, the Chinese name of the Legislative Council was立法局 instead of 立法會, and the Secretary for Justice (律政司司長) was called the Attorney General (律政司). To avoid any misunderstanding, this Court will refer to these institutions and officials by their names after the Reunification in the subsequent discussions. [12] HKSAR v Cheung Kwun-yin (2009) 12 HKCFAR 568. [13] HKSAR v Fugro Geotechnical Services Ltd (2014) 17 HKCFAR 755. [14] HKSAR v Tse Yee-ping (2016) 19 HKCFAR 427. [15] Secretary for Justice v Leung Kwok-hung [2020] 3 HKLRD 190. [16] The Full Court (合議庭) was the predecessor of the Court of Appeal (上訴庭). Both were the titles before 1997. After the reunification, it was renamed as the Court of Appeal (上訴法庭). [17] Tang Chi-ming v R [1968] HKLR 716. [18] Tsoi Shun-hing v R [1977] HKLR 408. [19] R v Ho Ka On [ 1996] 1 HKC 69. [20] AG v Li Chu [1968] HKLR 242. [21] 香港特別行政區訴梁有勝HCMA 293/2000. [22] Re Proulx [2001] 1 All ER 57: Para 46. [23] Craies on Legislation (2017), section 8.2.12. [24] Majorstake Ltd v Curtis [2008] 1 AC 787: Para 17. [25] T v Commissioner of Police (2014) 17 HKCFAR 593: Para 196. [26] Bruce & McCoy, Criminal Evidence in Hong Kong, Division II Section [104]. [27] HKSAR v Yang Xianu HCMA 28/2006: Paras 7 to 9. HKSAR v Yang Xianu HCMA 28/2006: Paras 7 to 9. CLR 263. [29] HKSAR v Wu Ka Fai [2008] 2 HKCLRT 310: Para 33. [30] HKSAR v Luk Kin Peter Joseph (2016) 19 HKCFAR 619: Para 37. [31] Moulin Global Eyecare Trading Limited (in Liquidation) v The Commissioner of Inland Revenue (2014) 17 HKCFAR 218: Paras 123 to 124. [32] The Queen v Ling Lai Mo CACC 221/1985: Para 19. [33] Smith v Chief Superintendent, Woking Police Station (1983) 76 Cr App R 234. [34] L v Director of Public Prosecutions [2008] 1 Cr App R 8 131. [35] Paras 123 and 124 of the judgment. [36] R v Secretary of State for Health, ex p Hammersmith and Fulham London Borough Council (1999) 31 HLR 475: p. 479. [37] R v Ireland [1998] AC 147: p. 158. [38] Victor Chandler International Ltd v Customs & Excise Commissioners [2000] 1 WLR 1296: para 32. [39] Royal College of Nursing v DHSS [1981] AC 800. [40] Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27. [41] R (Quintavalle) v Health Secretary [2003] 2 AC 687. [42] China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342: para 36. [43] SJ v Cheng Ka Yee (2019) 22 HKCFAR 97: paras 45 to 47. [44] Statutory Interpretation in Australia (8th ed) (2014): 4.10. [45] Thompson v Nixon [1966] 1 QB 103: p.110. [46] Medovarski v Canada (Minister of Citizenship and Immigration) [2004] 4 FCR 48. [47] R v Daoust [2004] 1 SCR 217. [48] HKSAR v Wong Yuk Man & Others (2012) 15 HKCFAR 712. [49] HKSAR v Yuong Ho Cheung (2020) 23 HKCFAR 311. [50] Hong Kong Mobile Television Network Ltd v Office of the Communications Authority [2016] 2 HKC 44. [51] HKSAR v Tam Yuk Ha [1997] HKLRD 1031. [52] The magistrates (裁判官) and magistrates’ courts (裁判法院) before the Reunification were called in Chinese 裁判司 and 裁判司署. To avoid any misunderstanding, the Chinese text of this judgment refers to them by their names after the Reunification. [53] It was stated in Tang Chi-ming (p. 719): Section 17 was enacted as early as in 1845. Except for the amendment in 1932 to delete the commas after “bludgeon” and “skeleton-key”, the provision had remained unchanged until 1968, with the original content maintained. [54] Judgment p. 247. [55] Judgment pp. 721-723 and 731. [56] Judgment p. 731 top. [57] Judgment p. 411. [58] Judgment p. 410. [59] Judgment, middle part of p. 723. [60] Judgment p. 731. [61] Memorandum for Executive Council dated 21 December 1983; see especially para 5. [62] Same as above. [63] AG v Ip Pui Leung [1989] 1 HKC 498. [64] Judgment p. 501G. [65] Judgment pp. 501H to 502C. [66] Judgment p. 500 E to I. [67] Judgment p. 70H. [68] Judgment p. 71D. [69] Judgment p. 71E. [70] Judgment p. 71F. [71] Judgment p. 5. [72] “Usage of Punctuation”: jointly issued by the General Administration of Quality Supervision, Inspection and Quarantine of the People's Republic of China and the Standardization Administration of the People's Republic of China on 30 December 2011. [73] See Footnote 51. [74] Judgment in that case, pages 1037J to 1038C. [75] See “enactment history” in Chapter 228, pages E-1 and E-2. [76] See Footnote 39. Judgment pp. 822 B to E. [77] See Footnote 41. Judgment pp. 695H to 696F. [78] See Footnote 50. Para 57 of the Judgment. [79] See Footnote 49. Para 55 of the Judgment. [80] For the offences which can be tried summarily and are punishable on summary conviction, see Section 14A of the Criminal Procedure Ordinance, Chapter 221, Laws of Hong Kong. Such offences are generally regarded as less serious because a magistrate’s sentencing power is capped, only two years’ imprisonment for a single charge. [81] Pages 725 and 732 of the judgment in that case. [82] Para 27 of the “Reasons for Verdict and Reasons for Sentence” of the trial. [83] Para 29 of the “Reasons for Verdict and Reasons for Sentence” of the trial. [84] The maximum penalty is a fine of $5,000 or imprisonment for two years. [85] Paras 57 to 58 of the “Reasons for Verdict and Reasons for Sentence” of the trial. [86] Para 60 of the “Reasons for Verdict and Reasons for Sentence” of the trial. [87] Para 62 of the “Reasons for Verdict and Reasons for Sentence” of the trial [88] Para 61 of the “Reasons for Verdict and Reasons for Sentence” of the trial [89] Paras 63 to 67 of the “Reasons for Verdict and Reasons for Sentence” of the trial [90] Para 32 of the “Reasons for Verdict and Reasons for Sentence” of the trial. [91] Para 34 of the “Reasons for Verdict and Reasons for Sentence” of the trial. [92] Around 10:55 am on 6 August 2021. [93] Para 61 of the “Reasons for Verdict and Reasons for Sentence” of the trial. [94] SJ v Chu Anson Pui Hang CAAR 2/2021. [95] SJ v Chow Kin NokCAAR 1/2021. [96] SJ v Chung Ka Ho CAAR 4/2021. |
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