Tang Chi Ming v. The Queen
Read the full judgment text of CACC 461/1968 on BabelCite. This Court of Appeal judgment was delivered on 31 December 1968.
1. This matter comes before the Full Court on a reference by a single judge under Section 118(1)(d) of the Magistrates Ordinance (Cap.227).
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CACC000461/1968 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 461 OF 1968 (North Kowloon Magistracy Case No. 24915 of 1968) -----------------
----------------- Coram: Full Court: Hogan, C.J., Rigby, S.P.J. and Morley-John, J. Date of Judgment: 31 December 1968 ----------------- JUDGMENT ----------------- 1. This matter comes before the Full Court on a reference by a single judge under Section 118(1)(d) of the Magistrates Ordinance (Cap.227). 2. The point raised concerns the proper construction and interpretation to be placed upon Section 17 of the Summary Offences Ordinance (Cap.228). That section enacts:
3. The Appellant was charged with two offences, to wit, loitering by night contrary to Section 26(a) of the Summary Offences Ordinance and possession of an instrument fit for unlawful purpose contrary to Section 17 of the same Ordinance. He was convicted upon both charges; he is a youth of 17 years of age and the learned magistrate, having regard to his two previous convictions and after having considered the report of the probation officer placed before him, directed that he be sent to a training centre for the statutory period of not less than 9 months and not more than 3 years. 4. The Appellant appealed against his conviction. The facts as proved and accepted by the learned magistrate present no difficulty. The Appellant was observed by two police constables at about 9.30 p.m. standing at a bus stop in Prince Edward Road, Kowloon. When the first bus arrived a number of persons sought to board the bus. The Appellant was in the rear of those persons. He was seen by both police officers to touch the rear pocket of one of the persons about to board the bus, and who did in fact get on the bus. The Appellant himself did not board the bus although there was ample room inside to enable him to do so. Instead, he waited for the next bus and precisely the same thing happened again; the Appellant again touched the rear pocket of one of the last passengers getting on to the bus, not himself getting on to it although, again, there was ample room inside the bus for him to do so. It would appear that he then saw that he was being observed by one or both of the two police constables, both of whom were in plain clothes, and he started to walk away. Upon being stopped and questioned by the police constables he said that he was on his way to Kwun Tong to see a friend. In fact, the buses going to Kwun Tong stopped on the opposite side of the road and proceeded in the opposite direction. It was then observed that he had half a razor blade between the middle and index fingers of his right hand and secured there in position by a piece of adhesive tape. When he was later searched no money was found upon him. It was the suggestion of the prosecution that the razor blade was so fixed between the fingers of the Appellant to enable him, if necessary, to cut the pockets of unsuspecting passengers about to board a bus, and thus the more easily to facilitate his intention to steal from their person. There was ample evidence, if believed, to support the conviction. 5. The sole problem with which this court is concerned is whether the charge as laid under Section 17 of the Summary Offences Ordinance was a charge valid in law and whether the facts as established supported that charge. The particulars of the charge as laid were that the accused, on the 24th day of June, 1968, at Kowloon, had in his possession half of a razor blade, an instrument fit for unlawful purpose and was unable to give a satisfactory account of his possession thereof. 6. A proper construction to be placed upon Section 17, the terms of which have been already set out, has given trouble in the past. As one magistrate has aptly observed, it is a most unfortunately worded section and is capable of - and has in fact been given - various interpretations. The section itself was first enacted in 1845 and except for very minor amendments made in 1932, when the commas originally placed after the word "bludgeon" in line 2 and the word a" immediately preceding the word "satisfactory" in line 5, the section remains in its original and identical form. 7. One interpretation placed, in 1965, by a magistrate (Mr. Grant) upon the section was that the words "spear, bludgeon" were, per se, offensive weapons and that it was reasonable to expect the possessor of a spear or bludgeon or, indeed, any other weapon which had the character of, and could be described as, an "offensive weapon" to give a satisfactory account of his possession, failing which he could be convicted of an offence under this section without there being any obligation upon the Crown in such a case to prove an intention to use that offensive weapon for an unlawful purpose. Similarly, in the case of a "crowbar", "picklock", "skeleton-key" these were, per se, instruments which could properly be regarded as housebreaking instruments, and therefore it was reasonable to expect the possessor of any one or more of those specifically named instruments to give a satisfactory account of his possession, in the absence of which he could be convicted for an offence under this section without there being any obligation upon the Crown in such a case to prove an intention to use the some for an unlawful purpose. However, in the case of any "other instrument fit for unlawful purposes", those words cover such a very wide field that, in the view of the magistrate and upon a proper construction of the section, to sustain a conviction it would be necessary for the Crown to prove prima facie an intention to use the same for an unlawful purpose before the defendant could be called upon to give a satisfactory account of his possession. He, therefore, thought that upon a proper construction of the section it should be broken up into the three following categories:
8. The obvious difficulty with regard to this construction of the section arises in relation to the third category of offence. If the prosecution have proved not only that the accused person had the instrument in his possession but, furthermore, that he had it in his possession with intent to use the same for an unlawful purpose what, then, could be the point of inserting into the section the additional words "unable to give a satisfactory account of his possession"? Furthermore, the interpretation sought to be placed upon the section by the magistrate did violence to the actual words used by the Legislature in that it necessarily altered the word "or" after the words "such unlawful purpose" to read as "and". 9. In a later case, in 1968, another magistrate (Mr. Power), whilst agreeing with Mr. Grant in his interpretation of the section as to the first two categories of offence, took the view that, applying the ejusdem generis rule of construction, the words "crowbar, picklock, skeleton-key" clearly contemplated housebreaking instruments, and therefore the immediately succeeding words "or other instrument fit for unlawful purposes" should be read as denoting, and restricted to, any other instrument fit for housebreaking purposes. In support of that construction he made reference to the later expression "such unlawful purpose" appearing in the section and took the view that such unlawful purpose could only relate back to the earlier expression "fit for unlawful purposes" which he considered was restricted to housebreaking purposes. Whilst accepting, therefore, the first two categories of offences as specified by Mr. Grant, he took the view that the third category of offence contemplated by the section should be read in the following manner:-
10. In the case with which Mr. Power was concerned, the accused had been charged with having in his possession a penknife, an instrument fit for unlawful purposes, and was unable to give a satisfactory account of his possession thereof. At the outset of the case, and before any plea was taken, the prosecuting police officer, in answer to a question from the court, informed the court that the prosecution was not in a position to prove intent in relation to the said charge. Thereupon the magistrate then dismissed the charge on the ground that it disclosed no offence under the section; in so doing, of course, he gave effect to the view that he had already formed that when a charge was brought alleging possession of an equivocal instrument, such as a penknife, which could clearly be used for a perfectly lawful purpose, the Crown was required to prove both that the accused had such an instrument in his possession with intent to use the same for such unlawful purpose, and he was unable to give a satisfactory account of his possession. 11. The Crown appealed by way of case stated from the decision of the magistrate, and it was for the purposes of the case stated that the learned magistrate set out what he considered to be the proper construction of Section 17. Upon the hearing of the appeal, Mills-Owens, J., held. in effect:-
12. I agree with the view taken by Mills-Owens, J. as set out above, namely, that the section envisages two, and not three, separate and distinct categories of weapons or instruments, and that for the purpose of the charge, whether it falls within the first category of an unlawful purpose, it was open to the Crown to aver in the charge either that the accused was in possession of such weapon or instrument "with intent to use the same for an unlawful purpose" or that he was "unable to give a satisfactory account of his possession thereof". The difficulty in reading into the section the existence of a third category of offence to be construed in the manner considered by the learned magistrate, Mr. Power, is that it requires the word "or" in line 4 of the section to be read as meaning "and". Such a construction not only does violence to the precise word used in the section, but it revives the criticism already made, to wit, that if the prosecution has proved not only possession of the instrument fit for an unlawful purpose, namely housebreaking, but also intent to use it for such specific purpose, it would seem ludicrous to add the additional requirement that the accused would be guilty of an offence under the section only if he was "unable to give a satisfactory account of his possession of the instrument". If the prosecution proved both possession of an instrument fit for unlawful purposes, coupled with intent to use it for an unlawful purpose, then the evidence would clearly be sufficient to sustain a conviction. On the other hand, if the prosecution failed to prove either of those essential ingredients, then the charge would obviously fail, and the words "unable to give a satisfactory account of such possession" would be really meaningless and unnecessary. 13. But I would agree with the learned magistrate, Mr. Power, that the words "or other instrument fit for unlawful purposes" ought to be read, sui generis, as bearing some connotation or relationship to the particular words "crowbar, picklock, skeleton-key" immediately preceding them, and read in conjunction with the words "any such unlawful purpose" almost immediately following, should be construed to mean and intend possessing an instrument fit for an unlawful purpose of a kind such as one might expect a "crowbar, picklock, skeleton-key" to be so unlawfully used. The learned magistrate, Mr. Power, restricted the unlawful possession of any such instrument to its use for housebreaking purposes; that may be placing too narrow a restriction upon the meaning and intention to be attributed to the words "or other instrument fit for unlawful purposes", and I would be disposed to agree with the rather wider restriction placed upon those words by my Lord the President in this case, namely, possession of such an instrument for the purpose of securing unlawful access to a building or enclosed space or object as, for example, a stationary motor-car or the boot of such a vehicle. 14. I must confess that I would myself have wished to have construed the section in the following manner:-
But, unfortunately, that is not what the section says, and I must again confess that in seeking to place such an interpretation upon the section my mind has been coloured by the Prevention of Crime Act, 1953, in relation to the possession of offensive weapons and the manner in which the courts in England have interpreted that section. But, as Mr. Boy, for whose assistance we are indebted in this case, has pointed out, the expression "offensive weapon" is expressly defined in that Act and the English cases can therefore be of little or no value in assisting us in the proper construction of the present section under consideration which has been almost entirely unaltered since 1845. 15. The only English case that seems to me of any assistance is that of R. v. Patterson.(1) In that case the appellant had been charged and convicted of the offences of housebreaking with intent to steal and possessing housebreaking implements by night. There was abundant evidence to support the conviction for housebreaking, the appellant being found by night 150 yards away from his motor-car, in a florist's shop that had been broken into, with a screwdriver on him, with a hammer in one hand and the other hand resting on the cash till in the shop. His defence was that he was carrying a hammer and screw-driver in order to do work on the exhaust of his motor-car. 16. Section 28 of the Larceny Act, 1916, enacted:
17. For the purposes of this appeal the Court of Criminal Appeal convened a bench of five judges to consider what was the proper direction to a jury in the case of implements which could be used for a perfectly innocent purpose as well as for housebreaking. It is, I think, of relevance to quote in some detail passages from that judgment. Lord Parker, C.J., delivering the judgment of the court, said:-
Later on, in the course of his judgment Lord Parker said:
18. Applying the reasoning stated in that case to a charge under Section 17 of the Summary Offences Ordinance, the prosecution must first prove that the accused was found in possession of an implement which can properly be described as one of those specifically named in the section, or an implement capable in fact of being used either as an offensive weapon or "fit for unalwful pruposes" from its common though not exclusive use for that purpose or from the particular circumstances of the case in question. Once possession of such an implement has been shown the burden shifts to the accused to give a satisfactory account of his possession thereof. Quite clearly, the more sinister and suspicious the circumstances in which the accused is found in possession of the implement the greater will be the burden placed upon him to give a satisfactory explanation of his possession of that implement. Each case - and the conclusion reached in each case - must necessarily depend upon its own particular facts. 19. In the case of R. v. Brown(2) the Court of Appeal in England, following Patterson's case, held that a torch could be a housebreaking implement in that it was capable of being used to facilitate housebreaking and was commonly so used. There again, the conclusion of the court was dependent upon the particular circumstances of the case. It is no doubt a somewhat startling proposition that a person is liable to be arrested and charged under this section for possession of an offensive weapon or an instrument fit for unalwful purposes by reason of the fact that he has a penknife in his pocket or a torch in his hand but, as the court pointed out in Brown's(2) case, it is inconceivable that the police would arrest a man simply because he has a torch - or carries a penknife - unless there were - as in the present case now under consideration before us - highly suspicious circumstances. In each case there must be reasonable grounds for suspicion to justify the arrest and support the charge, and if there are not such reasonable grounds by the police officer to justify the arrest, then the person so arrested has his remedy in a civil action for damages for unalwful arrest and detention. 20. Turning again to the judgment of Mills-Owens J., whilst agreeing with the conclusions reached by him that the section envisages:-
there are subsequent passages in his judgment which, at first sight, would seem to conflict with those conclusions which he had already reached. It is important to observe that in the case with which Mills-Owens J. was concerned, the charge had been dismissed by the magistrate because he was of the opinion that it disclosed no offence. The charge itself was possession of a penknife, being an instrument fit for unalwful purposes, and that the accused was unable to give a satisfactory account of his possession thereof. Having earlier reached the conclusion that there were two categories of implements covered by the section, namely,
and that the charge could be laid in the alternative in the sense to which I have already referred, the learned judge went on to say:
21. I think it is clear that once one accepts the fact that, for the purposes of this section, first, a penknife falls within the category either of an offensive weapon or an instrument fit for unlawful purposes in the sense that it was capable of being used as an offensive weapon or in the much wider sense that it was capable of being used "for unalwful purposes" within the meaning I have earlier indicated and, secondly, that the charge may properly be laid in the alternative by the use of the words "unable to give a satisfactory explanation thereof", then, as a purely academic exercise, the charge as laid in the case then under consideration before Mills-Owens, J. was a perfectly valid charge. But it is, I think, equally clear that Mills-Owens, J., in arriving at his decision to dismiss the appeal against acquittal, was concerned not so much in the strict formal validity of the charge as laid, but in the statement made by the prosecution to the magistrate at the outset of the case that the prosecution was not in a position to adduce any evidence that the accused person had had the penknife in his possession for an unlawful purpose - either as an offensive weapon or as a housebreaking instrument. In such circumstances and in the absence of any evidence other than mere possession of the penknife, the learned judge clearly considered that there was no evidence to support the charge, that it should never have been brought; and accordingly he dismissed the appeal. Looking at his judgment in that light I would respectfully agree with it. Indeed, it is directly pertinent here to observe that section 17 of the Summary Offences Ordinance is not to be used as a convenient method of seeking to obtain a conviction against a suspect when there is not sufficient evidence to charge him with an attempt to commit a crime (see the observations of Hewart L.C., J. and Talbot J. respectively in Frederick Dean, 18 Cr. App. R., page 133 and Henry Cadwell, 20, Cr. App. R., page 60 in cases brought under the Vagrancy Act of 1824.) 22. In conclusion, it remains only to consider the specific questions referred to us by the single judge. They are:
In my judgment the answers to these questions are:
Representation: Appellant in person. Boy, Ag. D.P.P. for Respondent. (Separate Judgments delivered) (1) (1962) 1 All E.R. 340. (2) The Times 14.11.67 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 461 OF 1968 -----------------
----------------- Coram: Hogan, C.W., Rigby, S.P.J. & Morley-John, J. Date of Judgment: 31 December 1968 ----------------- JUDGMENT ----------------- Chief Justice: 23. Section 17 of the Summary Offences Ordinance (Cap.228), under which the accused was charged, reads as follows:
The construction of this section has given rise to much argument and has been the subject of differing judicial interpretations, none of which, it is claimed, is entirely satisfactory. Putting aside for a moment the problem as to whether the terms "offensive weapon" and "instrument fit for unlawful purposes" are subject to the ejusdem generis rule, difficulty arises from the passage "with intent to use the same for any such unlawful purpose, or is unable to give satisfactory account of his possession thereof". Does this passage present two alternatives? If so, do they apply to all the articles previously mentioned so that a person in possession of an offensive weapon is guilty only if he intends to use the same for an unlawful purpose or is unable to give a satisfactory account of his possession of it? 24. On a strictly literal interpretation it would seem that offensive weapons stand apart and that mere possession of them is, rightly or wrongly, made an offence whilst the housebreaking instruments or other instruments fit for unlawful purposes only come into the culpable category if the person possessing them intends to use them for "such" unlawful purposes or is unable to give a satisfactory account of his possession. This interpretation assumes that the "inability to give a satisfactory account" is an alternative to the intent which immediately precedes it and that the intent because of the expression "such unlawful purpose" is linked with the category of instruments immediately preceding it, i.e. those fit for unlawful purposes. But this somewhat ill-constructed section is, I think, also capable of being construed as meaning that the person who possesses an offensive weapon must, in addition, either intend to use it for an unlawful purpose or be unable to give a satisfactory account of his possession before, bringing himself into the category of those who can be prosecuted. Common sense would indicate that this is a more reasonable construction. It is also the more lenient construction and in the present instance should, I think, be followed. This view is strengthened by the presence of the comma after the words "unlawful purposes", and, although the presence of the word "such" creates a difficulty, it is not insuperable. Mr. Justice Mills-Owens in the case of A.G. v. Li Chu(1) has suggested the word "such" is otiose and should be disregarded. He found support for this view in the absence of any specified unlawful purpose, which, he said, makes the word meaningless. This would seem to be correct if the expression "unlawful purposes" is entirely at large; but may not be so, if that expression is more narrowly confined by the ejusdem generis rule. Even if so confined and even if the expression "such unlawful purpose" is related back to purposes thus described and, consequently, possession of an offensive weapon for any other unlawful purpose is not prohibited, although possession of it without being able to give a satisfactory account is culpable, the section can, I think, be properly construed in the way I have suggested, i.e. that each alternative is applicable to the "offensive weapon". 25. This construction, though for slightly different reasons, seems to accord with that adopted by Mills-Owens, J. in Li Chu's case(1). I would have found some difficulty in following his reasons, as expressed, for rejecting the charge in that case if they rested simply on the description of a penknife as an instrument fit for an unlawful purpose but I have his authority to say that, whilst the charge might, as an academic exercise, have been treated as good, the stated inability of the prosecution to prove any thing beyond the mere possession of the penknife led him to the conclusion that there could be no offence on the facts. 26. It seems to me that the article, the subject of the charge, if it is not one of those specifically mentioned, may be simply described as an article fit for unlawful purposes. It would remain for the prosecution to prove that, in the particular circumstances of the case, it was properly so described. 27. If the expression "fit for unlawful purposes" is confined, as I am inclined to think it should be, to unlawful purposes similar to those served by crowbars, picklocks and skeleton-keys, which might briefly be described as the purpose of securing unlawful access to a building, a receptacle or an enclosed space, the charge can still be expressed in this way. It will be for the prosecution to prove that the instrument which they have specified in their charge is one which can be properly described as fit for such an unlawful purpose when in the possession of the accused. 28. But what is an "instrument fit for unlawful purposes"? Does it mean fit only for unlawful purposes or does it include an instrument which is fit for both lawful and unlawful purposes? The latter may include a great variety of articles but I see no reason to shrink from that conclusion, because no offence is created unless the possessor has the intent specified or cannot give a satisfactory explanation for his possession. 29. Moreover, we can, I think, find a measure of guidance in this matter from the approach of the English courts to the construction of the analogous provision in Section 28 of the Larceny Act 1916, which makes it an offence for a person to have "in his possession without lawful excuse (the proof whereof shall lie on such person) any key, picklock, crow, jack, bit or other implement of house-breaking". 30. Earlier legislation of a similar kind was considered in the case of R. v. Oldham(2) and the result is summed up in Archbold's Criminal Pleading Evidence and Practice 36th edition page 678 in the following terms:
31. This adopts the intention of the prisoner at the time as one test for determining the nature to be ascribed to the implement. 32. In the much more recent case of R. v. Patterson(3) the English court of criminal appeal whilst retaining this approach introduced another test. At an early stage in delivering the decision of the 5-judge court the Chief Justice said:
It may be, however, that some limitation should be read into that passage because at a later stage the Chief Justice said:
33. Moreover the decision went on to criticize as "going too far" the direction given in the court below in the following terms: "As to what are housebreaking implements the position simply is this: that any implement that can be used for the purpose of housebreaking, whatever its other legitimate use is, is a housebreaking implement". However, they found in the case before them that the appeal should be dismissed because "the implements in question, namely, a screw-driver and a claw hammer, are undoubtedly articles capable of being used for housebreaking and are commonly used for that purpose". 34. It would seem, therefore, that the test which the court was prepared to adopt was "commonly used", as opposed to the occasional or exceptional use, for the purpose of housebreaking and that they were prepared to take judicial notice that at any rate certain domestic appliances were commonly so used. 35. This approach is further illustrated by the recent decision of the Court of Appeal (Criminal Division) in R. v. Brown(4) where the headnote states:
36. In the judgment, after referring to the passage quoted above from Patterson's case(3), the court said:
37. It seems to me that the approach adopted by the English appellate courts can properly be followed in interpreting the words "other offensive weapon" and "other instrument fit for unlawful purposes" in Section 17 of Cap.228. 38. Turning to the specific questions put to us on the latter expression, I would not have thought it necessary in the charge to specify a particular unlawful purpose. If the prosecution were going to rely on the particular intent allegedly harboured by the accused as proof that the instrument was fit for unlawful purposes there would clearly be little difficulty in specifying such particular purpose, but if the intention was to rely on the second test adopted by the English courts in the Patterson(3) and Brown(4) cases, i.e. a common use of the article in question, I should not have thought it necessary to specify this in the charge. Some types of instrument, e.g. a knife, are commonly used for a number of unlawful purposes, e.g. a knife could be used for prising open windows in housebreaking, cutting into a suitcase or slitting a registered letter. To exclude from consideration any of those not mentioned in the charge and to require from the prosecution a greater particularity or precision than that of the section would not appear to be justified. 39. Normally it is sufficient to lay a charge in the terms of the section creating the offence. I think sufficient intimation that the expression "unlawful purpose" or "unlawful purposes" is being used in the restrictive sense given to it by Section 17 of the Summary Offences Ordinance would flow from a reference to that section in the charge. As for proof, the aptitude for an unlawful purpose, within the limits of the particular meaning attached in to it in Section 17, can be proved by direct evidence or, in an appropriate case, might be left to judicial notice as a notorious fact. Which course will be preferable must depend on the facts of the case in question. 40. Because of the provision in Section 7 of the Interpretation Ordinance that the plural should include the singular unless a contrary intention appears I have, in reaching the above conclusions, attached little importance to the use in Section 17 of the plural form "unlawful purposes" instead of the singular. 41. For the reasons indicated I would be disposed to answer the questions put to us in the following way:
Representation: Appellant in person. D. R. Boy, Acting Director of Public Prosecution, for Respondent. (1) Criminal Appeal No.215 of 1968. (2) 2 Den. 472. (3) 16 C.A.R. 106. (4) 52 C.A.R. 70. IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 461 OF 1968 -----------------
----------------- Coram: Hogan, C.J., Rigby, S.P.J. & Morley-John, J. Date of Judgment: 31 December 1968 ----------------- JUDGMENT ----------------- Morley-John, J. : 42. I concur with the judgments as delivered by my learned Brothers. |
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