Tsoi Shun-hing v. The Queen
Read the full judgment text of CACC 639/1977 on BabelCite. This Court of Appeal judgment.
1. The Appellant was charged before a magistrate with impersonating a public servant and with "possession of instrument for unlawful purpose". The particulars of the second charge were:
Cited by 6 cases
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CACC000639/1977
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----------------- Coram: Huggins, J.A., Leonard and Cons, JJ. Date of Judgment: 21st July 1977. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. The Appellant was charged before a magistrate with impersonating a public servant and with "possession of instrument for unlawful purpose". The particulars of the second charge were:
The Appellant was convicted on both charges and appealed to a judge of the Supreme Court against his convictions. Morley-John, J. dismissed the appeal in respect of the first charge, but in relation to the second charge has referred two questions to this court. They are:
2. In so far as they are relevant to these questions the findings of the magistrate were that the Appellant and two other men were seen in the street acting in a manner which led a party of police officers to stop and search them. The Appellant was found to be carrying a pair of hand-cuffs of the type normally used by the Royal Hong Kong Police Force and a police warrant card belonging to someone else. His explanation of his possession of the hand-cuffs was that one of his friends had just bought two pairs at a gunsmith's shop and had presented one of them to him as a souvenir. 3. Section 17 of the Summary Offences Ordinance, under which the second charge was laid, is now in these terms:
The section was amended in 1975 by the alteration of an obviously ungrammatical verb and by the deletion of the words "spear, bludgeon or other" which had previously appeared before the words "offensive weapon". However, no attempt was then made to eliminate other difficulties which arise from the wording of the section and which had been the subject of comment in at least two decisions of the courts. 4. Prior to the case to which the first question relates there had been an appeal heard by Mills-Owens, J.: Attorney General v Li Chu 1968 H.K.L.R. 242. There was evidence there that the appellant had been found in possession of a penknife and it was submitted that this was not prima facie evidence of an offence under the section. The submission was upheld on the grounds that the section envisaged only two categories of articles and that, while a penknife could be an "instrument fit for unlawful purposes", it was an article the possession of which was prima facie not of an incriminating nature and that in the absence of evidence that the appellant intended to use it for an unlawful purpose there was no offence disclosed. The learned judge concluded that the word "such" in the section was otiose and meaningless. 5. In Tang Chi-ming v Reg. 1968 H.K.L.R. 716 Hogan, C.J. doubted whether the word "such" was meaningless and said that if the words "other instrument fit for unlawful purposes" were subject to the ejusdem generis rule it might have some meaning. He appears to have had in mind a case where a person was in possession of an offensive weapon with intent to use the same for the unlawful purpose of offence, but, with respect, such an unlawful purpose (as Mills-Owens, J. had pointed out) is nowhere specified in the section. The other two judges in the Full Court did not express any views as to the construction of the word "such", but the court was unanimous in supporting Mills-Owens, J.'s conclusion that there were only two categories of articles covered by the section, namely (1) "any spear, bludgeon or other offensive weapon" and (2) "any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes". The court further held that the ejusdem generis rule applied so as to restrict "other instrument" to an instrument which was commonly used in the commission of "breaking" offences and which was shown by the circumstances of a particular case to be fit for the commission of such offences. 6. Morley-John, J. has indicated that the Full Court in Tang Chi-ming v Reg. was not referred to the provisions of the Interpretation and General Clauses Ordinance and, in particular, to the definition of the word "or":
Mr. Alderdice, to whom we are greatly indebted for his assistance in a case where the Appellant has not been professionally represented, has submitted that Tang Chi-ming v Reg. was wrongly decided and that, if "or" is construed disjunctively, s.17 covers three categories of articles:
We are unable to accept this submission for the following reasons. First, and perhaps most important, the amending Ordinance of 1975 did not introduce any alteration which could affect the number of categories of articles covered and it must be assumed that the Legislature was aware of the interpretation which had been placed upon the section by the Full Court: if that interpretation did not accord with the actual legislative intention no doubt an attempt would have been made to put the matter right. Secondly, we think the wording of the section, obscure though it is, does favour a "two category interpretation" and we bear in mind that s.3 of the Interpretation and General Clauses Ordinance is always subject to s.2 and applies only where the context of that Ordinance or of some other ordinance or instrument does not otherwise require. In our view the context of s.17 of the Summary Offences Ordinance does exclude a disjunctive interpretation and the ejusdem generis rule does apply. We think the Full Court would have come to the same conclusion as it did had the present submission been made to it. It therefore matters not that the pair of hand-cuffs in the present case could have been used, for example, as part of the deception in an offence of impersonating a police officer or for the unlawful restraint of some person. The first question put to us must, therefore, be answered "Yes, at least in so far as it laid down that only two categories of articles are envisaged by s.17". Whether the razor-blade there in issue was correctly held to be within the second category it is unnecessary for us to decide. 7. It is conceded before us that a pair of hand-cuffs is not an instrument which is commonly used for "breaking" offences and, further, that there was no evidence that hand-cuffs, although not inherently of an incriminating nature, were in the circumstances of the case likely to be used in the commission of "breaking" offences. It is not necessary for us to answer the second question in the form in which it is put to us and we confine ourselves to saying that in the present case the pair of hand-cuffs was not an instrument fit for unlawful purposes within the meaning of the statute. 8. It follows that the appeal against the conviction on the charge under s.17 of the Summary Offences Ordinance must be allowed. The conviction is quashed and the sentence set aside. 21st July 1977. Representation: |
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