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CACC000388/1980
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Professing to be an office-bearer of a triad society - Cap. 151, section 19 - admission made in response to questioning by police officer - whether "professing" - mens rea of the offence - statutory interpretation - whether reference to Objects and Reasons and Legislative Council debates permissible to ascertain the mischief sought to be remedied by the legislation |
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IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
CRIMINAL APPEAL NO. 388 OF 1980
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Cheng Chung-wai |
Appellant |
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The Queen |
Respondent |
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Coram: Leonard, J.A., Addison and Garcia, J.J.
Date of Judgment: 24th July, 1980
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JUDGMENT
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Addison, J.:
1. The appellant was charged with "professing to be an office-bearer of a triad society, contrary to section 19 of the Societies Ordinance, Cap 151" the particulars of which alleged that he, on the 22nd of February, 1980 "professed to be the 432 straw sandal office-bearer of the 'Wo Shing Wo' Triad Society, an unlawful society". No objection was taken that the Statement of Offence overlooked that the offence created is one of professing to be an office-bearer of an "unlawful society" and not of a triad society; however "office-bearer" is defined in section 2 of the Ordinance as, in the case of a triad society, "any person holding any rank or office in the triad society other than that of an ordinary member".
2. This offence under section 19 carries a penalty on conviction on indictment of a fine of $5,000 and imprisonment for 5 years.
3. The appellant gave evidence in his own defence at the conclusion of which the learned magistrate simply recorded on the record: "Verdict: Guilty as charged". Nine days later the appellant re-appeared before the court for sentence when the magistrate then noted on his record: "Charge: M.O.T.S. (Office-bearer)". He then proceeded to consider a report from the probation officer and, having heard what the appellant had to say, sentenced him to 12 months' imprisonment. That was on the 18th April. On the 28th April the learned magistrate recorded his Statement of Findings.
4. In his Statement of Findings the learned magistrate first pointed out that the appellant was charged with the offence of professing to be an office-bearer of a triad society contrary to section 19 of Cap. 151 and went on to say:
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After some questions the said appellant admitted he was a member of Wo Shing Wo - 432 straw sandal. I further found that a voluntary cautioned statement was taken which contained statements that the said appellant was an office-bearer of Wo Shing Wo triad society .... |
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When imposing the sentence I took a very serious view of triad societies and particularly an office-bearer of such triad societies. I also took judicial notice that Wo Shing Wo was a known triad society and that no expert evidence need be obtained." |
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5. The learned magistrate referred to section 39 of the Societies Ordinance. He did not state that he found as a fact that a 432 straw sandal was an office-bearer within that triad society but such is ascertainable from books and articles referred to in section 39 of Cap. 151 and no evidence to the contrary was adduced on this appeal. In my opinion this matter need not be explored further.
6. One of the grounds of appeal alleges that the learned magistrate "appeared to have in mind" the offence of being an office-bearer rather than that of professing to be an office-bearer and "to have convicted the appellant on the former rather than the latter charge." This ground of appeal therefore raises the question on which charge was this appellant convicted? Was it of professing to be an office-bearer?
7. The learned trial magistrate in his Statement of Findings said:
"I was (at the end of the trial) absolutely convinced that the Crown had proved its case beyond any reasonable doubt and that the cautioned statement was indeed a voluntary statement. I also cautioned myself that there was only the evidence of the cautioned statement against the said appellant (see Lui Chik-wah v. R. (1975) H.K.L.R. 359)"
8. In fact it was not accurate to say the cautioned statement was the only evidence against the appellant. What happened was this. The appellant was visited by two police officers who asked him whether he had joined any unlawful society and in reply to that question the appellant said that he was a Wo Shing Wo 432 straw sandal. He was then and there arrested after which he was cautioned. He then wrote in the officer's notebook:
"I am now the 432 straw sandal of the 'Wo Shing Wo'. In the beginning of 1970, at the Yung Shu Tau, Yaumatei I joined the 'Wo Shing Wo' as a 49 member. The big brother was 'Por Tsai'. A 'lai sze' of $3.60 was given. Later in the beginning of 1975 inside a cafe in Nanking Street, Yaumatei, the big brother 'Por Tsai' verbally recommended 'lai sze' and promoted me to be the 432 straw sandal. No any ceremony was performed nor any henchman was taken. Only one 'lai sze' was given."
9. Thus there was before the court both the verbal statement to the two police officers as well as the appellant's cautioned statement. Both statements were prima facie admissions of being an office-bearer of a triad society and it was his verbal admission that formed the basis of the prosecution's case. I say this because it seems unlikely a prosecution would not have been instituted had the appellant declined to say anything in answer to the caution. One wonders why the learned magistrate recorded at the resumed hearing: "Charge: M.O.T.S. (Office-bearer)" and why when imposing the sentence that he did he used as a yard stick the sentence of 9 months' imprisonment imposed on an office-bearer in Criminal Appeal 91/69. He did not, when passing sentence, indicate whether he considered professing to be an office-bearer to be a more or less heinous offence than that of being an office-bearer.
10. These are some of the arguments raised by the appellant on this appeal. Insofar as "professing" to be an office-bearer can be equated to being an office-bearer the argument based on the magistrate's approach to sentence can be regarded as equivocal but Mr. Gall, who appeared for the Crown, readily admitted trepidation in answering this ground of appeal. He contended that the entry made on the record by the magistrate at the resumed hearing was a kind of "short-hand" note and that the appellant was properly convicted of "professing" at the conclusion of the hearing. He pointed out that the learned magistrate did spell out the exact charge at the opening of his Statement of Findings. But one is still left with the uncertainty as to why the magistrate referred, exclusively to the written cautioned statement saying that that was the only evidence when the Crown were content to present their case of professing to be an office-bearer on the verbals with the cautioned statement adding evidential weight to the utterance.
11. Whichever way one looks at the case as a whole it is not clear beyond peradventure that the appellant was convicted of professing to be an office-bearer rather than of being an office-bearer. There being some doubt in my mind on this point I would allow the appeal on this ground even though this is not the principal ground of appeal raised.
12. Mr. Litton has cogently argued that the admission made by the appellant in response to the question asked of him by the police officer does not constitute the crime of "professing to be an office-bearer" within section 19 of the Ordinance. Implicit in his argument is that an admission of membership in identical circumstances would not constitute an offence contrary to section 20(2) of Cap. 151. This argument has raised its head on more than one occasion before the courts in Hong Kong and we feel that this court has now to grasp the nettle and decide the matter.
13. Section 19 of Cap. 151, which was formerly section 10, was amended by Ordinance No. 36 of 1964 by the inclusion of the words "or any person professing or claiming to be an office-bearer."
14. We have been invited to look at the Objects and Reasons of the Bill No. 29/64 not for the purpose of contruing those words but to ascertain the mischief sought to be remedied. As an authority for this Mr. Litton has cited to us passages from the judgment of Lord Reid in Black-Clawson International Limited v. Papierwerke Waldhof-Aschaffenburg A.G. (1975) A.C. 591 at pages 613 et seq. and from the judgment of Lord Diplock in Davis v. Johnson (1979) A.C. 264 at pages 329 - 330. Mr. Litton contends that there is no other material before the court to identify the mischief other than the Objects and Reasons and the statement made by the Attorney-General to the Hong Kong Legislative Council when first moving the Amendment Bill. It is his argument that Hansard may be looked at to identify the mischief which the legislation is directed at curing and therefore one may have recourse to the reports of the Hong Kong Legislative Council.
15. However in Davis v. Johnson (1979) A.C. 64 the headnote reads:
"It has always been a well established and salutary rule that Hansard can never be referred to by counsel in court and therefore can never be relied on by the court in contruing a statute or for any other purpose."
16. Lord Diplock agreed with what Viscount Dilhorne and Lord Scarman had to say about the use of Hansard as an aid to the construction of a statute: (see page 329 of the report). Scarman L.J. at page 349 put the matter succinctly when he said:
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There are two good reasons why the courts should refuse to have regard to what is said in Parliament or by Ministers as aids to the interpretation of a statute. First, such material is an unreliable guide to the meaning of what is enacted. It promotes confusion, not clarity. The cut and thrust of debate and the pressures of executive responsibility, essential features of open and responsible government, are not always conducive to a clear and unbiased explanation of the meaning of statutory language. And the volume of Parliamentary and ministerial utterances can confuse by its very size. Secondly, counsel are not permitted to refer to Hansard in argument. So long as this rule is maintained by Parliament (it is not the creation of the judges), it must be wrong for the judge to make any judicial use of proceedings in Parliament for the purposes of interpreting statutes. |
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In Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G. (1975) A.C. 591 this House clarified the law on the use by the courts of travaux preparatoires. Reports such as are prepared by the Law Commission, by Royal Commissions, law reform bodies and Select Committees of either House which lead to legislation may be read by the courts to identify the mischief, including the weaknesses in the law, which the legislation is intended to remedy or reduce. The difficulty, however, remains that one cannot always be sure, without reference to proceedings in Parliament which is prohibited, that Parliament has assessed the mischief or understood the law in the same way as the reporting body. It may be that, since membership of the European Communities has introduced into our law a style of legislation (regulations having direct effect) which by means of the lengthy recital (or preamble) identifies material to which resort may be had in construing its provisions, Parliament will consider doing likewise in statutes where it would be appropriate, e.g., those based on a report by the Law Commission, a Royal Commission, a departmental committee, or other law reform body." |
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Lord Diplock at page 329 had this to say: |
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"I have had the advantage of reading what my noble and learned friends Viscount Dilhorne and Lord Scarman have to say about the use of Hansard as an aid to the construction of a statute. I agree with them entirely and would add a word of warning against drawing too facile an analogy between proceedings in the Parliament of the United Kingdom and those travaux preparatoires which may be looked at by the courts of some of our fellow member states of the European Economic Community to resolve doubts as to the interpretation of national legislation or by the European Court of Justice, and consequently by English courts themselves, to resolve doubts as to the interpretation of Community legislation. Community legislation viz. Regulations and Directives, are required by the Treaty of Rome to state reasons on which they are based, and when submitted to the Council in the form of a proposal by the Commission the practice is for them to be accompanied by an explanatory memorandum by the Commission expanding the reasons which appear in more summary form in the draft Regulation or Directive itself. The explanatory memoranda are published in the Official Journal together with the proposed Regulations or Directives to which they relate. These are true travaux preparatoires; they are of a very different character from what is said in the passion or lethargy of parliamentary debate; yet a survey of the judgments of the European Court of Justice will show how rarely that court refers even to these explanatory memoranda for the purpose of interpreting Community legislation. |
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A closer analogy with travaux preparatoires is to be found in reports of such bodies as the Law Commissions and committess or commissions appointed by government or by either House of Parliament to consider reforming particular branches of the law. Where legislation follows upon a published report of this kind the report may be used as an aid to identify the mischief which the legislation is intended to remedy; but not for the purpose of construing the enacting words in such a way as to conform with recommendations made in the report as to the form the remedy should take: Black-Clawson International Ltd. v. Papierwereke Waldhof-Aschaffenburg A.G. (1975) A.C. 591. This does not mean, of course, that one must shut one's eyes to the recommendations, for a suggestion as to a remedy may throw light on what the mischief itself is thought to be; but it does not follow that Parliament when it legislates to remedy the mischief has adopted in their entirety, or, indeed, at all, the remedies recommended in the report." |
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(See also Reg. v. Prison Governor, Ex parte Littlejohn (1975) 1 W.L.R. 893, 900 D.C.) |
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In Black-Clawson's case the headnote reads, inter alia: |
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"Per Lord Wilberforce and Lord Diplock. It is not proper to use the report of a committee or commission or any official notes on a clause of a draft Bill for a direct statement of what a proposed enactment is to mean or what the committee or commission thought it means." |
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(cf. Firman v. Ellis (1978) 3 W.L.R. 1). |
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17. Mr. Litton's argument is that we should look at these statements in order to ascertain the mischief and not for the purpose of interpreting the words.
18. In my judgment pronouncements in the legislative Council may not be looked at. Nor is the court entitled to have regard to the Objects and Reasons attached to the Bill other than for the purpose of ascertaining the mischief sought to be remedied. Not only is this in accordance with the expressed principles of statutory interpretation but it is in keeping with the statutory requirement laid down in section 19 of the Interpretation Ordinance that:
"An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as well best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit."
19. But when all is said and done I should have thought that recourse to the Objects and Reasons to determine the purpose behind the amendment achieves little more than what common sense would decree since it seems perfectly plain to me that the amendment was directed to strike at those who hold themselves out as belonging to triad societies by asserting they either are members of such or hold a rank within that association.
20. The real issue in this ground of appeal is not the meaning of the words "professing" or "claiming" where they appear in the phrase "professing or claiming to be an office-bearer of a triad society" but what is the specific mens rea of the offence. Quite clearly the actus reus is the utterance of the words. That is not in dispute. Neither is it in dispute that the offence is not one of strict liability. The Crown contends that the mens rea is simply that of a conscious utterance of the offending words whether in the form of a confession to a police officer in response to a question or not. It is the Crown's argument that since "profess" includes "confess" a confession is therefore a professing. This is the strict literal approach to interpretation. After all if a person is asked whether he belongs to a certain club or not and if he says he is a member thereof it is difficult to see how he has not "professed or claimed" to be a member of that club.
21. Mr. Litton argues that the requisite mens rea for the offence of "professing" to be an office-bearer, or member of a triad society goes beyond the mere conscious utterance of that fact. He maintains that the utterer must intend to cause or at least foresee the probability of causing some impact or reaction on the part of the person addressed. Such would arise if the utterer intended or hoped the addressee would be intimidated in some way or caused him to act to his detriment or sought some advantage, if only a compact of minds. What Mr. Litton strongly argues is that there is no mens rea present on the part of the utterer confessing membership to a police officer who simply questions him as to whether he is a member or office-bearer of a triad society.
22. This court is bound by its earlier decision in Ng Chi-wah v. R. (1978) H.K.L.R. 101. The facts of that case were almost identical to those in this case and it was held that the offence of "claiming" to be a member of a triad society was not made out. That was the ratio decidendi. In delivering the majority decision of the Court of Appeal McMullin J. (as he then was) said, obiter:
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"There remains, however, the admission made in the statement after caution. Undoubtedly, in view of what has been said above, the admission there made could amount to a claim in the weaker sense of a confession. We think that Mr. Duncan is right to suggest that the charge should properly have been one of 'professing' rather than 'claiming'. Since the Legislature has put in the hands of prosecutors a legislative provision which can be interpreted as covering two quite distinct kinds of assertion there seemed to be no good reason for not taking the legislative hint and adopting a practice whereby claims of the bolder kind made for advantage to the public should be charged as 'claiming' simpliciter while those obtained as the result of questioning in custody, and which are properly admissions, should be charged as 'professing'. Between these two kinds of assertion there may be a world of difference, in terms of practical culpability. The man who, some years prior to the charge, has some what reluctantly acceded to pressure in joining such an association and has there after done nothing save give at the most minimal and nominal support is clearly in a very different category from the man who prowls the streets using a name of dread to induce compliance with his wishes. |
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The offence in the present case was clearly an offence of 'professing' rather than 'claiming'. We would hope that in future cases where the circumstances are comparable with those in the present case the charge will be laid as one of 'professing'. Had this been a case of 'claiming' in the stronger sense then, despite the reliance by the magistrate upon matters which he should not have relied upon, we would have acceded to Mr. Duncan's suggestion that we employ the powers given to the appellate court under section 119 of the Magistrates Ordinance. We might then have considered whether the conviction should in any event be sustained on the understanding that the appellant had in a measure succeeded upon the appeal on the point of law. The evidence, however, discloses that this was truly a case of what must henceforth be called 'professing'. The cautioned statement (the only evidence now subsisting against the appellant) makes it clear that he was himself a victim of brutal conduct which alone impelled him to join the ranks of this society." |
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23. Mr. Litton has argued that the attention of the court in that case was not specifically directed to the issue of mens rea though the Court was aware of its necessity. He argued that the approach the court there adopted was what he called the "dictionary approach" and he cited to us various cases which indicate that a strict literal approach which relegates to the background the necessity for proof of mens rea can lead to an unjust result which was never intended by the legislature. Such an unjust result was corrected by the C.C.R. in R. v. Tolson (1889) 23 Q.B.D. 168. At page 175 of the report, Wills, J. said:
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"If the words are not conclusive in themselves; the reasonableness or otherwise of the construction contended for has always been recognised as a matter fairly to be taken into account." |
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At page 176 Wills, J. continued: |
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"Now in the present instance one consequence of holding that the offence is complete if the husband or wife is de facto alive at the time of the second marriage, although the defendant had at the time of the second marriage every reason to believe the contrary, would be that though the evidence of death should be sufficient to induce the Court of Probate to grant probate of the will or administration of the goods of the man supposed to be dead or to prevail with the jury upon an action by the heir to recover possession of his real property, the wife of the person supposed to be dead who had married six years and eleven months after the last time that she had known him to be alive would be guilty of felony in case he should turn up twenty years afterwards. It would be scarcely less unreasonable to enact that those who had in the meantime distributed his personal estate should be guilty of larceny. It seems to me to be a case to which it would not be improper to apply the language of Lord Kenyon when dealing with a statute which literally interpreted led to what he considered an equally preposterous result, 'I would adopt any construction of the statute that the words will bear in order to avoid such monstrous consequences. '" (Fowler v. Padget, 7 T.R. 509, 514.) |
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24. Mr. Litton referred this court to the Australian case of Thomas v. The King 59 C.L.R. 279 where at page 303 where Dixon J. (as he then was) said:
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"The argument in Tolson's case (1889) 23 Q.B.D. 168 that reasonable mistake afforded no excuse rested upon the presence of the express exceptions and the absence of any reference to mistake. No doubt the inference drawn from these considerations would find some justification in our principles of literal construction of there were no general prima facie rule by which even statutory offences, unless a contrary intention appears from the words, subject matter or nature of the enactment, are understood to admit of a defence based upon essential mistake. But, after all, such a mode of dealing with a crime known to our law for centuries simply because it is the creation of statute is that mocked at by the Mikado in his answer to the assurance of Koko and his companions that they had no idea and knew nothing about it and were not there, viz.: ' That's the pathetic part of it. Unfortunately the fool of an Act says 'compassing the death of the heir apparent.' There's not a word about mistake, or not knowing, or having no notion, or not being there. There should be of course; but there isn't. That's the slovenly way in which these Acts are drawn.' Against such a view, however, there stood the much more reasonable doctrine that when a statute introduced into our criminal code a new offence it should be understood prima facie to intend the offence to take its place in a coherent general system and to be governed by the established principles of criminal responsibility. |
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Tolson's case was taken to reaffirm and finally to establish that a general doctrine of the common law existed opposed to what I may call the principles of the Mikado. It was, indeed, a decision that a contrary presumption was applicable alike to offences created by statute and to crimes existing at common law. The rule accepted was that in the case alike of an offence at common law and, unless expressly or impliedly excluded by the enactment, of a statutory offence, it is good defence that the accused held an honest and reasonable belief in the existence of circumstances which, if true, would make innocent the act for which he is charged." |
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25. What is sometimes overlooked here in Hong Kong is that there are some people who having joined a triad society see a way of purifying themselves by confessing their membership to a person in authority, thereby breaking their oath of secrecy. They regard this act as ridding themselves of all connection with the society but whether this is so is neither here nor there. If the strict literal approach is adopted, with the mens rea being nought else than the conscious utterance of the confession itself then instead of finding they have purged themselves of their association they are likely to find themselves imprisoned, as indeed this appellant was, for 12 months. Thus the interpretation the Crown asks for affords no defence to the accused who holds an honest and reasonable belief that by confessing he is thereby ridding himself of his triad association.
26. Perhaps the Crown would not prosecute in such circumstances perhaps the court would discharge the offender without punishment but, as Mr. Litton argues, what is required is not a series of undertakings but the interpretation of the section.
27. In my opinion the amending words must be construed in their context. I do not believe their grammatical meaning was intended to be applied in isolation. As is stated by Cross in Statutory Interpretation page 44:
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"For some time the law relating to statutory interpretation was bedevilled by the notion that it was wrong for a court to look beyond the words with which it was immediately concerned if their meaning was clear when they were considered in isolation. Blackstone had said that recourse should only be had to the context if the words 'happen still to be dubious' and the notion derived support from Tindal, C.J.'s advice to the House of Lords in the Sussex Peerage case: 'if the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in that natural and ordinary sense ... but if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting that intention to call in aid the ground and cause of the making of the statute...' It is difficult to believe that the notion of construction in complete isolation was ever taken wholly seriously, and we saw that Tindal, C.J. was not above relying on the second section of the Royal Marriage Act 1772 as support for his construction of the first. Nonetheless, even in the 20th century, it has proved necessary for appellate courts to administer mild rebukes to judges for their isolationist approach to statutory construction. |
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For example, in Re Bidie (1948) 2 All E.R. 995, a case concerned with a widow's application under the Family Inheritance Provisions Act 1938, the deceased had died on 16th January 1945 and, no will having been found, a grant of administration was made to his widow and one of his children on 13th April 1945. A will was subsequently discovered and the grant of administration was revoked, a grant of probate to the executor named in the will being made on 7th September 1946. As the will contained no provision for her, the widow issued a summons under the 1938 Act on 8th January 1947. Section 2(1) of the Act provided that 'an Order under this Act shall not be made save on an application made within six months from the date on which representation in regard to the testator's estate for general purposes is first taken out'. If the grant of administration was 'representation' within the meaning of the subsection the summons was out of time and this was the conclusion reached by the trial judge. But his decision was reversed by the Court of Appeal on the ground that, in the context, 'representation' meant representation in respect of a testamentary disposition for it was only by virtue of such a disposition that the court had jurisdiction under the Act. Lord Greene said: |
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In the present case, if I might respectfully make a criticism of the learned judge's method of approach, I think he attributed too much force to what I may call the abstract or unconditioned meaning of the word 'representation'.... The real question which we have to decide is what does the word mean in the context in which we find it here, both in the immediate context of the subsection in which the word occurs and in the general context of the Act, having regard to the declared intention of the Act and the obvious evil that it is designed to remedy." |
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28. Bearing in mind the words of Lord Greene I am of the opinion that an admission to or confession of being an office-bearer made by a person to a police officer in response to a question asked in that regard does not amount to "professing" within the meaning of that word in section 19 of the Societies Ordinance, Cap. 151. Such may afford evidence of that person being an office- bearer but that is entirely another matter. I know of no case under our law where a truthful confession to a police officer constitutes the actus reus of a crime. For these reasons I would allow the appeal on this ground also.
Representation:
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