Attorney General v. Li Chu

CACC000215/1968

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO.215 OF 1968

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Coram: Mills-Owens, J. in Court.

Date of Judgment: 11 June 1968

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JUDGMENT

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1. This is an appeal by the Attorney General, by way of case stated under the Magistrates Ordinance (Cap.227), against the acquittal of the respondent on a charge laid under section 17 of the Summary Offences Ordinance (Cap.228). The section reads as follows:-

"          Any person who has in his possession any spear, bludgeon or other offensive weapon, or any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes, with intent to use the same for any such unlawful purpose, or is unable to give satisfactory account of his possession thereof, shall be liable to a fine of one thousand dollars or to imprisonment for three months."

The charge was in the terms that the respondent had possession of a penknife being an instrument fit for unlawful purposes and was unable to give a satisfactory account of his possession thereof. The learned Magistrate dismissed the charge on the ground that it did not disclose an offence under the section.

2. In a valuable statement of his views the Magistrate said, inter alia, -

"          I consider that the section applies to two categories of articles - offensive weapons and housebreaking implements. The first category is that of spears, bludgeons and other offensive weapons. It is quite reasonable to expect the possessor of such an offensive weapon to give a satisfactory account of his possession and it is neither unfair nor unreasonable that, in the absence of such an account, he should be convicted without there being any requirement that the Crown prove that he had an intention to use the offensive weapon for an unlawful purpose. The second category is divided into two classes of instruments. Firstly there are crowbars, picklocks and skeleton-keys - these are, ex facie, housebreaking implements and it is reasonable to expect the possessor of them to give a satisfactory account of his possession and it is neither unfair nor unreasonable that, in the absence of such an account, he should be convicted without there being any requirement that the Crown prove that he had an intention to use the implement for an unlawful purpose. The second class in the second category comprises - any other housebreaking instruments fit for unlawful purpose in relation to which it is necessary for the Crown to prove prima facie an intention to use the same for an unlawful purpose (it may, of course, be possible that such an intention can be inferred from the surrounding circumstances) before the defendant can be called upon to give a satisfactory account of his possession. I consider that the above interpretation is the correct one as in my view the words "or other instrument fit for unlawful purposes" cover only housebreaking implements as those words must be read sui generis with the preceding words "any crowbar, picklock, skeleton-key". I consider further that the words "with intent to use the same for any such unlawful purpose" apply and apply only to the other instruments fit for unlawful purposes - the inclusion of the word "such" in the phrase "such unlawful purpose" seems to me to leave no other interpretation open. (In this regard it is interesting to compare Section 45 of the Larceny Ordinance).

Bearing in mind that this is a criminal statute and taking into account the mischief which was intended to be cured this appears to me to be the most satisfactory interpretation of this section. It does of necessity require that the word "or" in the sentence "or is unable to give a satisfactory account of his possession" be read as "and". (See R. v. Oakes(1)). I can see no objection to this - it makes sense of a section which is otherwise almost meaningless, and in my view both cures the mischief aimed at by, and gives effect to what must have been the intention of, the legislature. Furthermore the doubt is resolved as it should be when one is construing a penal statute, in a way which is not less favourable to the subject. Indeed if the way that the present charge is worded evidences the way that this section has been interpreted in Hong Kong by persons framing charges, then clearly the interpretation which I suggest is more favourable in the subject. I am of the opinion that the section when broken down should read as follows:-

'Any person who has in his possession any spear, bludgeon or other offensive weapons and is unable to give satisfactory account of his possession thereof shall be liable to a fine .........

Any person who has in his possession any crowbar, picklock, skeleton-key and is unable to give satisfactory account of his possession thereof shall be liable to a fine ......

Any person who has in his possession any other housebreaking instrument fit for unlawful purposes with intent to use the same for any such unlawful purpose and is unable to give satisfactory account of his possession thereof shall be liable to a fine ......'

While I consider that the most satisfactory interpretation of the section is the one set out above, I am aware that it is by no means completely satisfactory particularly where an offence is charged in relation to an 'other instrument'. For example a charge under that category might read as follows 'A.B. you are charged that you had possession of an instrument namely a screw driver, fit for an unlawful purpose, namely housebreaking, with intent to use the same for such unlawful purpose, namely to break into No.1 White Avenue, and you are unable to give a satisfactory account of your possession thereof."

It is difficult to see how the defence of 'satisfactory account' has any relevance to such a charge - either the prosecution prove both the possession and the unlawful purpose beyond a reasonable doubt, in which case the defendant must be found guilty, or they fail to satisfactorily prove either possession or intent in which case the defendant must be acquitted.

As I have said the interpretation advanced is by no means free from difficulty, however I consider it to be the most satisfactory open on the section."

3. On the appeal Crown Counsel submitted that the section envisages three categories, viz. (1) spears, bludgeons, or other offensive weapons; (2) crowbars, picklocks, or skeleton-keys; (3) instruments fit for unlawful purposes. A penknife, he contended, was an instrument falling within category (3), rather than an offensive weapon falling within category (1). Crown counsel went on to contend that it was wrong to construe "other instrument etc." as confined to housebreaking instruments. He argued, further, that it was wrong to construe the word "or" as "and"; section 3 of the Interpretation Ordinance (Cap.1) provides that "or" shall be construed disjunctively; in R. v. Oakes,⁽¹⁾ relied upon by the Magistrate, it was necessary to read "and" as "or" in order to make sense of the section of the Act there in question. Crown Counsel contended also that it was wrong to attribute the words "with intent to use the same for any such unlawful purpose" solely to the words "or other instrument fit for unlawful purposes", notwithstanding the word "such". Further, the section provided the alternatives of: (a) intent to use for unlawful purposes; (b) absence of a satisfactory account. If the prosecution proved the intent, counsel submitted, the section was satisfied; if no intent was proved nevertheless the burden lay on the defendant to give a satisfactory account (cf. R. v. Patterson(2)). Crown Counsel referred also to R. v. Payne(3).

4. Unfortunately I find myself in the position of not being able to go the whole way either with the Magistrate or Crown Counsel; in certain respects I think both are right, but on different aspects. Clearly, the section is ungrammatical, and, indeed, there is no construction to be put upon the section, as it seems to me, which is not open to some objection. However, I must state my views. As I see it the section envisages two categories of article, viz. (A) any spear, bludgeon or other offensive weapon; (B) any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes. I say this because each category ends with the similar phrase "or other etc.", thus following a pattern of expression as it were in which specific articles are first enumerated followed by the more general expression "or other (offensive weapon) (instrument fit etc.)"; I say this also because of the presence of a comma after "weapon" and the absence of a comma both after "bludgeon" and after "skeleton-key", and because two broadly dissimilar classes of articles are in contemplation. The foregoing, as it seems to me, affords a correct grammatical, and legal, construction to the earlier part of the section. Next, in my view, the words "with intent etc." and the words "or is unable etc." are intended as alternatives, the one to the other; and they are alternatives which apply to both categories or classes of article, viz. (A) and (B) above. Why should it not be so; on the contrary it is entirely logical that it should be so. There is no occasion to use the 'reddendo singula singulis' construction. Next, I do not agree that "or" should be read as "and"; to do so would mean that although the prosecution proved intent there would still be left an inquiry as to whether the defendant can give a satisfactory account; that would be pointless how could a defendant can give a satisfactory account when he is proved to have had an unlawful intent. I must concede that my construction means that the word "such" is otiose or meaningless. But it is in any event meaningless; "such unlawful purpose" is an expression which has no meaning unless a particular kind of unlawful purpose has previously been specified (to which "such" can be related), which the section does not do. I think that the charge was wrong in categorising the penknife as "an instrument fit for an unlawful purpose", that is to say in the circumstances of this case where it is admitted that the prosecution was in the position of being unable to prove any intent to use it either as an offensive weapon or as a housebreaking instrument. In the absence of circumstances which speak for themselves, and in a case where the article in question is apparently inoffensive or not of an incriminatory nature, a charge framed in the manner adopted in this case, in effect, reverses the onus of proof lying on the prosecution. In other words, the charge sought to assume an essential ingredient which it was necessary for the prosecution to prove. The prosecution must be in the position to point to some such circumstance, or to some such attribute of the article possessed, as brings it within the category of either (1) an offensive weapon or (2) an instrument fit for an unlawful purpose; this the charge as framed sought to avoid, and therein lay the defect in the charge.

5. It follows that in my view in the circumstance of this case (that is to say, where the prosecution concedes its inability to prove any intent-a print essential to this decision) the question put by the case stated, namely "did the charge as framed disclose an offence under section 17 of the Summary Offences Ordinance Cap. 228", must be answered in the negative, and that the respondent was therefore properly acquitted. Clearly, the section could be much improved in many ways. In so far as it is desired to deal with offensive weapons, the provisions of the Prevention of Crime Act, 1953 would seem preferable. In so far as it deals with housebreaking instruments, section 45 of the Larceny Ordinance (Cap.210) affords a precedent which might be adapted for possession of any such instrument in daytime.

6. Appeal dismissed.

11th June 1968.

In the circumstance of this case ( that is to say where the prosecution enoncedes its ability to prove any intent - a point essential to this decision)

Representation:

(1) (1959) 2 All E.R. 92.

(2) (1962) 1 All E.R. 340

(3) (1866) 1 L.R. C.C. 27.