Read the full judgment text of FACC 1/2022 on BabelCite. This Court of Final Appeal judgment was delivered on 15 July 2022 before Chief Justice Cheung, Ribeiro PJ, Fok PJ, Lam PJ, Gleeson NPJ.
Criminal law – statutory interpretation – Summary Offences Ordinance (Cap 228) s.17 – possession of an instrument fit for unlawful purposes – plastic cable ties – ejusdem generis rule – whether "other instrument fit for unlawful purposes" is subject to ejusdem generis – whether "unlawful purposes" confined to purposes similar to crowbars, picklocks and skeleton-keys (gaining unlawful access) – whether mens rea requirement "with intent to use the same for any unlawful purpose" subject to ejusdem generis – whether "any unlawful purpose" confined to purposes matching the category of article or instrument – bilingual legislation – Interpretation and General Clauses Ordinance (Cap 1) s.10B(3) – resolution of differences between English and Chinese authentic texts – original English text preferred where Chinese text is a later translation containing inaccuracies – "always speaking" principle cannot override applicable rules of construction or extend language beyond its ordinary meaning – history of s.17 from 1844 Ordinance through 1975 and 1984 amendments – wrist restraints, handcuffs and thumbcuffs added in 1984 specifically to address physical restraint – repeal of alternative basis of liability in 1995 following R v Chong Ah Choi did not widen scope of s.17 – three categories of articles or instruments under English text: (1) wrist restraint or instrument or article manufactured for physical restraint, handcuffs, thumbcuffs; (2) offensive weapon; (3) crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes (gaining unlawful access) – mens rea must correspond to the category of article – cable ties not manufactured for physical restraint, not offensive weapons, and not instruments for gaining unlawful access – conviction quashed.
Legal issues: Application of ejusdem generis rule to "other instrument fit for unlawful purposes" in s.17 · Scope of "unlawful purposes" if ejusdem generis applies to "other instrument fit for unlawful purposes" · Application of ejusdem generis rule to the mens rea requirement "with intent to use the same for any unlawful purpose" · Scope of "any unlawful purpose" if ejusdem generis applies to the mens rea requirement · Resolution of differences between English and Chinese texts of s.17 under s.10B(3) of the Interpretation and General Clauses Ordinance · Application of the "always speaking" principle to the construction of s.17
Outcome: Appeal allowed; conviction and sentence set aside.
Cited by 16 cases · Cites 7 cases