HKSAR v. CHAN CHUN KIT

[English Translation-英譯本]

HCMA 242/2020

[2021] HKCA 1493

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 242 OF 2020

(ON APPEAL FROM ESCC NO 677 OF 2020)

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court):

A.  Introduction

1.  On 28 August 2020, the appellant was convicted by the trial magistrate (Mr. CHEANG Kei-hong)  of the offence of, put briefly, “possession of an instrument fit for an unlawful purpose”, contrary to section 17 of the Summary Offences Ordinance, Cap.228, Laws of Hong Kong, and sentenced to imprisonment for five months and two weeks.  On the same day, the appellant filed a notice of appeal against conviction and sentence.  One month later, he was granted bail by the Court of First Instance of the High Court pending appeal.  On 9 February 2021, i.e. the original date of hearing of the appeal, the Department of Justice applied to have the case transferred to the Court of Appeal on account of the complex legal issues involved and their wish for the Court to lay down relevant sentencing guidelines in the process.[1]  Their application was granted on the same day.

B.  The Offence

2.  It was alleged in the particulars of offence that the appellant “on 2 November 2019, at the junction of Percival Street and Russel Street in Causeway Bay, Hong Kong, was in possession of an offensive weapon or an instrument fit for an unlawful purpose, namely a pack of cable ties, with intent to use the same for any unlawful purpose”.  The cable ties in question were made of plastic, and there were 48 of them in total, each six inches long. They are the common type with a hole at one end and the other end going through it, to be tightened to lock, after which the only way to unlock it is by cutting it with scissors.

C.  The Prosecution Case

3.  PW1 and PW2 were police officers and they were the only two witnesses for the prosecution.  Their evidence, except for certain details, was not disputed and not directly related to the issues of this appeal[2]:

“10. On 2 November 2019, there were people gathering in the vicinity of Victoria Park in Causeway Bay, Hong Kong, to solicit votes for the District Council Election. The assembly had not been given any letter of no objection by the Hong Kong Police Force.

11. .... At about 4:24 pm on the same day, PW1 arrived at various places in Causeway Bay to disperse the crowd. When it was about 6:30 pm on the same day, PW1 finished his crowd dispersal task at the junction of Percival Street and Russell Street and was about to leave. Meanwhile, a person present clamoured provocatively, yelling “bloody dirty cops”, “get lost” and words in foul language. PW1’s colleague(s)  went to subdue that person while PW1 was on guard nearby. At the time, there were people gathering around them to look on. PW1 saw that the defendant was dressed in black (i.e. Exhibits P1 and P2), with his face covered in a black face scarf and carrying a black rucksack (i.e. Exhibit P5). He was standing at the back of a throng wearing reporters’ vests, watching the police perform their duties. At the time, PW1 was about 4 metres away from the defendant. PW1 pointed at the defendant and said to him, “The scene of an unlawful assembly. Please take off your face scarf.” However, the defendant paid no heed to PW1. He simply turned around to leave. PW1 then moved forward, intercepted the defendant and took him to the side of the pavement for a search.

12. PW1 found a respirator (Exhibit P8), a black helmet (Exhibit P6)  and a pair of brown gloves (Exhibit P10)  in the rucksack carried by the defendant. PW1 asked the defendant where he lived and why he came to the scene. The defendant replied that he lived in Ma On Shan and that he had arranged to meet his friend for dinner. PW1 then asked the defendant why he needed to bring the above items for having dinner with a friend, but the defendant did not answer. As there was no response from the defendant, PW1 then arrested the defendant for the offence of unlawful assembly and violation of the Prohibition on Face Covering Regulation.

…

14. … At 8:45 p.m. on the same day, PW2 searched the defendant in the temporary detention room of North Point Police Station and seized the following items:

(i)  a black upper garment (Exhibit P1)

(ii)  a pair of black trousers (Exhibit P2)

(iii)  a pair of grey sneakers (Exhibit P3)

(iv)  a pair of black shoe covers (Exhibit P4)

(v)  a black rucksack (Exhibit P5)

(vi)  a black helmet (Exhibit P6)

(vii)  a white mobile phone (Exhibit P7)

(viii)  a respirator with two filter cartridges (Exhibit P8)

(ix)  two black face scarfs (Exhibit P9)

(x)  a pair of brown gloves (Exhibit P10)

(xi)  a pair of grey gloves (Exhibit P11)

(xii)  a pack of 48 black cable ties (Exhibit P12)

15. When the defendant was searched at the scene, there were a white T-shirt and a pair of dark blue shorts in his rucksack (see the video clip of Exhibit P13)  and the defendant was then wearing a black upper garment (Exhibit P1)  and black trousers (Exhibit P2). For the purpose of seizing and retaining Exhibits P1 and P2 as exhibits, the defendant was told by the police to change into the white T-shirt and dark blue shorts that night before he was released on bail.

16.  … Exhibit P12, i.e. the 48 cable ties, was found upon search in the main compartment (i.e. the compartment with the largest capacity)  of Exhibit P5 (the defendant’s rucksack).”

D.  The Defence Case

4.  The appellant elected not to give evidence. Instead, he called a witness (DW1).  DW1 said[3] that he first met the appellant when they were in secondary school.  The day before the incident, the two of them arranged to go together to the appellant’s old office the next day after dinner to “clear the place”, meaning to move the furniture, electrical appliances and sundry items there into the warehouse.  On the day of the incident, DW1 first went to the real estate company for which the appellant worked to wait until the appellant went off duty. They then walked from Tin Hau to Causeway Bay through Victoria Park for dinner.  When they came to the scene, they saw many journalists, and therefore went over to have a look out of curiosity. The appellant walked faster than DW1 did, and he stopped about 4 metres in front of DW1 to look on.  Having watched for a short while, the appellant turned around to leave, but he was caught by an officer from the riot squad. To put it briefly, DW1 had twice helped the appellant clear his old office before the incident.  The appellant had said that the things had to be wrapped in bubble wrap first.  The appellant had also said that the entire old office had to be reinstated before it could be handed over to the landlord[4].

E.  The Verdict at Trial

5.  Having made detailed analysis, the trial magistrate refused to accept DW1’s evidence[5], pointing out that his evidence made no mention at all of the subject cable ties and how the cable ties were related to the alleged arrangements for the evening in question (having dinner and clearing the office together)[6].  The trial magistrate believed that none of the items found on the appellant, i.e. the cable ties, helmet, gloves and respirator, was to be used for moving furniture, electrical appliances and sundry items. He said, “As a judicial officer, [I] have to move from one court building to another from time to time, [but] I have never seen any worker having any need to tie up anything with this kind of cable ties (Exhibit P12)  for ease of moving”[7].

6.  In summary, the trial magistrate’s findings of fact were as follows[8]:

“35. On the day of the incident, there were people gathering in the vicinity of Victoria Park, and the assembly had not been given any letter of no objection by the Hong Kong Police Force. PW1 testified that around 4:24 pm on that day, he arrived at various places in Causeway Bay to disperse the crowds. At about 6:30 pm, at the junction of Percival Street and Russell Street, some people were still clamouring provocatively, and some were gathering in throngs. It can also be seen from Exhibit P13, the video clip, that there were crowds gathering near the scene, watching the police as they carried out their duties, and there were people yelling from time to time.

36.  The defendant was dressed in a black upper garment and black trousers, having a black face scarf covering his face and wearing gloves on both hands.  In the defendant’s rucksack, there were also a helmet (Exhibit P6), a respirator with two filter cartridges (Exhibit P8), and a pair of gloves with hard protruding parts (Exhibit 10).  Considering the circumstances, time, place, the defendant’s outfit and equipment, and the fact that over the months from early June 2019 to 2 November 2019, illegal protesters had often been seen, either individually or jointly, using plastic cable ties to bind together miscellaneous objects found on the street and/or metal railings detached from the edge of pavements to form large structures for use in armed confrontations, fights, inflicting injuries, or in obstructing/blocking streets and road traffic, even though there was no direct evidence from the prosecution to prove anyone at the scene having used cable ties to do anything related to illegal assembly, I can draw an irresistible inference that the defendant, who was at the time in possession of Exhibit P12, i.e. a total of 48 plastic cable ties (two or more of which could be linked up to make a longer cable tie)  and wearing gloves (Exhibit P11)  on both hands, did intend, whenever an opportunity arose, to take out the cable ties from his rucksack and use them to tie up and bind together metal railings detached from the edge of the pavements or other miscellaneous objects to form large structures for the unlawful purpose of using them in armed confrontations, fights, inflicting injuries or in obstructing/blocking streets and road traffic.  I can also make an irresistible inference that before and after the defendant took action, there must have been division of labour among his allies in collecting miscellaneous objects and/or dismantling metal railings, and also in grouping those railings and miscellaneous objects together to form large structures which would then be moved to the roads to obstruct the traffic or be used in armed confrontations, fights and inflicting injuries.  It is also my inference that by bringing a white T-shirt and a pair of dark blue shorts with him while dressed all in black, it was a deceptive ploy of the defendant to change into a different outfit to avoid being chased after carrying out illegal acts at the scene of the protest.” 

7.  Based on the above findings of fact, the trial magistrate further held as follows[9]:

“51. In view of the above analysis, I find beyond all reasonable doubt that at the time and place in question, the defendant was in possession of Exhibit P12, the 48 cable ties in total. As the cable ties could be used to physically restrain a person, they are therefore ‘an instrument fit for an unlawful purpose’. The defendant in fact intended to use those cable ties to tie up and bind the railings detached from the edge of the pavements or other miscellaneous objects to form large structures for use in armed confrontations, fights, inflicting injuries or in obstructing/blocking streets and road traffic, which was an unlawful purpose. In the light of my interpretation of section 17, Cap. 228, Laws of Hong Kong above, I find that the prosecution has proved all the necessary elements of the subject offence beyond reasonable doubt. I therefore find the defendant guilty as charged.”

F.  Core Issues

8.  The extract in Paragraph 7 above shows that it was based on his interpretation of section 17 of the Summary Offences Ordinance that the trial magistrate found the appellant guilty.  The Chinese and English texts of the relevant section are quoted as follows:

“17. 管有攻擊性武器等，並有所意圖

任何人管有任何腕銬或其他為束縛人身而製造的工具或物件，或管有任何手銬、指銬、攻擊性武器、撬棍、撬鎖工具、百合匙或其他適合作非法用途的工具，意圖將其作任何非法用途使用，可處第2級罰款或監禁2年。

17. Possession of offensive weapon, etc., with intent

  Any person who has in his possession any wrist restraint or other instrument or article manufactured for the purpose of physically restraining a person, any handcuffs or thumbcuffs, any offensive weapon, or any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes, with intent to use the same for any unlawful purpose, shall be liable to a fine at level 2 or to imprisonment for 2 years”

9.  The trial magistrate’s analysis of the relevant section, which was set down before the conclusion quoted above, is now summarized by this Court as follows[10]:

(1)  The term “unlawful purpose(s)”, which twice appear in the relevant section, can be called “unlawful purposes A” and “unlawful purpose(s)  B” in short according to the order in which they appear.

(2)  The defence’s contention that both “unlawful purposes A” and “unlawful purpose(s)  B” must be related to one of the three purposes of physically restraining a person, injuring a person or housebreaking was not preferable.  On the contrary, the prosecution’s counter-argument that only “unlawful purposes A” are subject to such restriction while “unlawful purpose(s)  B” refer generally to any unlawful purpose(s)  should be correct.

(3)  The above conclusion was supported by the Legislative Council’s passing of the amendment in 1984, when English was the only language used in enactment of legislations, which deleted from the text the word “such” which served to link to “unlawful purpose(s)  B” (“with intent to use the same for any [such] unlawful purpose”),[11].

(4)  The above conclusion does not distort the literal meaning of the provision, and at the same time it allows section 17 to achieve its legislative purpose. Moreover, this method of or approach to legislative interpretation has also been affirmed by the Court of Final Appeal and cited by the Court of Appeal. For the relevant cases, see Cheung Kwun-yin[12], Fugro Geotechnical Services Ltd[13], Tse Yee-ping[14] and Leung Kwok-hung[15].

(5)  Since the cable ties in question can be used to physically restrain a person, they are able to satisfy the requirement of “unlawful purposes A”.  As “unlawful purpose(s)  B” are not subject to any restrictions, when the same batch of cable ties are used to bind objects into roadblocks and implements for fights, the requirement of the provision is likewise satisfied.  Therefore, when the findings of fact are also taken into account, it follows naturally that the appellant should be found guilty.

G.  Appeal against Conviction

G1.  Grounds of Appeal

10.  Mr. Kwan acting for the appellant was not the defence counsel at trial.  His contentions were very different from the stance of the defence at trial in that he had an even narrower interpretation of both “unlawful purposes A and B”.  He also complained that the trial magistrate had abused the use of judicial notice.  The details are as summarized below.

11.  First of all, it is his interpretation of “unlawful purposes A”, i.e. ground of appeal (1).

12.  Mr. Kwan contended that section 17 only covers instruments fit for three kinds of purposes, namely physically restraining a person, injuring a person and housebreaking.  If the ejusdem generis rule is applied properly, the instruments which fall within the scope of “unlawful purposes A” must be understood as having the same purpose as that of “crowbar, picklock, skeleton-key”, namely the purpose of housebreaking. This conclusion is supported by two Full Court/Court of Appeal[16] cases of the 1960s and 1970s: Tang Chi-ming[17]; Tsoi Shun-hing[18].  Although the provision involved in the two cases was the old version and the existing latest version with a wider coverage had yet to be formulated, it does not affect their ratio and binding effect as precedents.

13.  Based on the above authorities, the trial magistrate was wrong in accepting the common ground of the prosecution and defence that to satisfy the requirement of “unlawful purposes A”, the cable ties only had to be of the same type as one of the three types of instruments, namely the instruments for physically restraining a person. Moreover, it is specified in section 17 that instruments for physically restraining a person such as wrist restraint, handcuffs and thumbcuffs are “instrument or article manufactured for the purpose of physically restraining a person”. However, the cable ties in question were not specially manufactured for that particular purpose.  Generally speaking, they would only be used for binding electric cords.  See Ho Ka On[19] for the above observations.

14.  Next comes his interpretation of “unlawful purpose(s)  B”, i.e. ground of appeal (2).

15.  Mr. Kwan went on to submit that even if “unlawful purposes A” was established, that is, an article was indeed of the same type as a crowbar, a picklock and a skeleton key, i.e. an instrument “fit for” the purpose of housebreaking, the prosecution would still have to prove that the defendant possessed the article “with intent to” use the article for housebreaking in order to satisfy the requirement under “unlawful purpose(s)  B”.

16.  The above contention is supported by Tang Chi-ming and Tsoi Shun-hing. Both cases affirmed that “unlawful purpose(s)  B” must correspond with the purpose(s)  of the article in question per se.  The trial magistrate who had come to a different conclusion on account of the removal of the word “such” from the existing text on “unlawful purpose(s)  B” had simply ignored the background in which it was removed, namely that the word was dismissed as “otiose” and “meaningless” in Li Chu[20], an appeal heard before a lower court slightly earlier than Tang Chi-ming. The relevant background can be seen in the contemporaneous Executive Council Memorandum.  An amendment based on this reason is not enough to prove that the Government and Legislative Council at the time intended to have the previous cases overturned.  As a matter of fact, the interpretation of “unlawful purpose(s)  B” in Li Chu is on the whole consistent with the conclusion of the Full Court in Tang Chi-ming.

17.  Even in Leung Yau-sing (梁有勝)[21], a magistracy appeal case in 2000 cited by the magistrate, the Court of First Instance, without thoroughly analyzing Tang Chi-ming’s reasoning, had done no more than mentioning that the ambit of “unlawful purpose(s)  B” could be extended to make it related to physically restraining a person, physically injuring a person or housebreaking, which is very different from the finding of the magistrate that any unlawful purpose would suffice, including binding objects to make roadblocks and instruments to be used  in fights.

18.  In any event, after the removal of the word “such” from “unlawful purpose(s)  B”, although the only words remaining are “any unlawful purpose”, the term cannot be taken as having no limitations at all. It was pointed out in certain cases that, depending on the context, “any” should be taken to mean “any such” or “such a”: see Re Proulx[22]. See also Craies on Legislation[23]and Majorstake Ltd v Curtis[24] on how the word “any” should be understood.

19.  In conclusion, Mr. Kwan stressed that in interpreting provisions in criminal law, the court should make a restrictive interpretation according to the principle referred to by this Court as “no penalty when in doubt” for short (“avoid adopting a construction which penalises a person when the legislator’s intention to do so is doubtful”): T v Commissioner of Police[25].

20.  The last is the issue of abuse of judicial notice, i.e. ground of appeal (3).

21.  Mr. Kwan reckoned that whether the cable ties in question would be used for moving furniture, electrical appliances and sundry items, or for tying up illegal instruments by the protesters was clearly beyond the realm of judicial notice. It was even more unacceptable that the trial magistrate relied on his personal experience of relocation at work which made it impossible for the applicant to put up a rebuttal.  For relevant authorities, see Criminal Evidence in Hong Kong[26] and Yang Xianu[27].

G2.  Reply by the Respondent

22.  The standpoint of the respondent was also different from that of the prosecution at trial.  The following are the key points.

23.  During the times of Tang Chi-ming and Tsoi Shun-hing, section 17 was very different from the current one, in that not only were there fewer kinds of articles included, but there was also an alternative element of the offence other than “unlawful purpose(s)  B”, namely “or is unable to give satisfactory account of his possession thereof”. The existence of this element, hereafter named the “alternative element”, did affect the Full Court/Court of Appeal’s interpretation of section 17.

24.  In view of the above, the ratio decidendi of Tang Chi-ming and Tsoi Shun-hing are limited in their application.  As it was held in Chong Ah-choi[28] that the “alternative element” was inconsistent with the Bill of Rights, the interpretation of section 17 in those two cases is no longer binding.  In fact, the Court of Appeal had unequivocally pointed out in the contemporaneous caseof Ho Ka On that as the old version of the provision was “framed slightly differently” from the current one, they did not find Tang Chi-ming of much assistance (“do not consider that the case offers much assistance”).

25.  Under the circumstances, the court is entitled to interpret section 17 afresh. The process of interpretation should not be overly influenced by the “ejusdem generis rule”. Otherwise, in order to fit a certain word or sentence into a certain interpretation, the ordinary and natural meaning of the relevant word or sentence may be lost and eventually the legislative intent of the provision may also be lost: Wu Ka Fai[29]. If the implements or circumstances set out in the relevant provision, when properly interpreted and understood, are indeed of the same genus, there would simply be no need to apply the “ejusdem generis rule” in the interpretation.  For relevant examples of the affirmative and the negative, see Luk Kin Peter Joseph[30], Moulin Global[31], and Ling Lai Mo[32].

26.  From the latest version of section 17, it can be seen prima facie that there are four kinds of implements which are completely different in nature, namely instruments for physically restraining a person, injuring a person, housebreaking and other instruments fit for an unlawful purpose. Therefore, there is simply no need and no room to apply the “ejusdem generis rule”. The prosecution contended at trial that there were only the first three kinds, but the respondent does not agree with that contention.  Instead, the court can apply what we call the “always speaking” construction (a statute is “always speaking”)  to the fourth kind of implements such that it can be construed liberally to include cable ties, which have often been used by radical protesters to break the law.

27.  If the court did not accept the above argument, the respondent would reiterate the prosecution’s contention at trial that even under the “ejusdem generis rule”, the fourth kind of implements is not confined to merely an extension of the third kind (instruments for housebreaking), but rather, it can be of the same kind as any one of the first three, and that cable ties do fall within the first kind of implements (instruments for physically restraining a person).  Such proposition is supported by the plural form of “unlawful purposes A” in the English text (“unlawful purposes”)  and the legislature’s decision in not amending the fourth kind of implements to “other instruments fit for housebreaking…”.  Obviously, the Legislative Council at the time did aim at giving the fourth kind of implements the widest coverage.

28.  With regard to “unlawful purpose(s)  B”, the position of the respondent was the same as that of the prosecution at trial, i.e. it generally refers to any unlawful purpose. The respondent emphasized that the word “any” just means any, which is the most natural construction, and according to case law, it is not necessarily restricted by the context of the provision. See Smith v Chief Superintendent, Woking Police Station[33] and L v Director of Public Prosecutions[34].  The respondent also pointed out that “unlawful purpose(s)  B” appears at the end of section 17 and there are no words that follow to restrict its meaning.  In the circumstances, the “ejusdem generis rule” does not apply.  For cases advocating the opposite, see Moulin Global[35].

29.  In a nutshell, the respondent emphasized that the legislative intent of section 17 was to combat crimes.  Taking the 1984 amendment as an example, when instruments for physically restraining a person were added in, it was because there were criminals carrying such instruments with an obvious intent to break the law, but there was no law to tackle it. However, wrist restraint, handcuffs, thumbcuffs and the like can be used in various crimes such as robbery and kidnapping.  For that reason, when the amendment was made, it was impossible and inappropriate to impose corresponding restrictions on “unlawful purpose(s)  B”. The respondent stressed that the relevant restrictions would create serious legal loopholes, and the court should not impose them lightly.

30.  Lastly, the respondent did not accept that the trial magistrate had taken judicial notice.  Instead, they took the view that the trial magistrate only made factual findings based on common sense and all that had transpired during the incident.

G3.  Textual Variants and the “Always Speaking” Construction

31.  At the first hearing of the case, this Court pointed out that the Chinese and English texts of section 17 are different, at least in terms of their concrete expressions.  We then adjourned the case after a brief discussion to give both parties an opportunity to file supplementary submissions on that issue and other relevant issues like the “always speaking” construction.

G3.1  The Appellant’s Supplementary Submission

32.  Mr. Kwan cited certain authorities to point out the circumstances under which it would be appropriate for the court to apply an “always speaking” construction and how it would go beyond its legitimate scope.  His arguments can be reduced to the following six key points:

(1)  The English Court of Appeal has questioned the full and unreserved acceptance of the “always speaking” construction.  It is likewise doubtful whether the courts should assume that the legislature expected the statues to be interpreted to cure whatever mischief may arise in the future, however unforeseen and unforeseeable: ex p Hammersmith and Fulham London Borough Council[36].

(2)  The Appellate Committee of the House of Lords also mentioned that sometimes a statute that was enacted to deal with a specific problem should be “historically interpreted”: Ireland[37].

(3)  Before applying the “always speaking” construction, the court must be sure that the new situation is within the mischief at which the provision is aimed and that it falls within the intention of the legislature: Victor Chandler International Ltd[38].

(4)  On the “always speaking” construction, Lord Wilberforce’s observations in Royal College of Nursing[39] provide the most authoritative guidance. One of the key points is that courts cannot go beyond the actual wording of a provision and fill the gaps as they wish in order to accommodate circumstances not within the legislature’s contemplation.   As to the weight of his Lordship’s observations, see Fitzpatrick[40] and R(Quintavalle)[41].

(5)  The Court of Final Appeal has also reminded Hong Kong courts that they should not, on the pretext of giving a purposive interpretation to statutory provisions, distort or even ignore the plain meaning of the text in order to achieve a certain result: China Field Ltd[42].

(6)  The Court of Final Appeal refused to adopt an interpretation that goes beyond the original scope of the provision just for advancing a desirable public policy, emphasizing that it is not the function of the court: Cheng Ka Yee[43].

33.  Based on the above principles, Mr. Kwan contended that the “always speaking” construction was not applicable to the present case.  He emphasized that section 17 not only had its historical background to its enactment, but it also had been interpreted by higher courts for a number of times; therefore, its intrinsic meaning should not be altered lightly.  On this point, he cited Statutory Interpretation in Australia[44], saying that according to the principle of “contemporaneous exposition”, a long-standing interpretation which people have come to rely on and was reached by earlier courts that were more aware of the reasons underlying the passage of the particular statute should not be too readily overturned by later courts.  The same line of thought was also seen in an English magistracy appeal case: Thompson v Nixon[45].

34.  As for the Chinese and English texts of section 17, Mr. Kwan submitted that there is no meaningful difference between the two.  It appears at a glance that the main difference was caused by the absence of enumeration comma (、)  in the English language. Conversely, as “thumbcuffs” (“指銬”)  and “offensive weapon” (“攻擊性武器”)  were followed by commas in the English text and enumeration commas in the Chinese text to separate them from the next kind of articles, while there was no punctuation mark separating “skeleton-key” (“百合匙”)  from “or other instrument fit for unlawful purposes” (“或其他適合作非法用途的工具”), it serves as a powerful proof that “unlawful purposes A” should be construed as referring to the same kind of instruments as those used for housebreaking.  In fact, the Court noticed the second situation mentioned above as early as in Li Chu and found that helpful in the interpretation of section 17 as it was then.

35.  Assuming that the court does find difference(s)  in meaning between the Chinese and English texts of section 17, the court shall then be bound by section 10B of the Interpretation and General Clauses Ordinance, Cap. 1, Laws of Hong Kong. According to section 10B (3)  of  that Ordinance, “the meaning which best reconciles the texts, having regard to the object and purposes of the Ordinance, shall be adopted” only when there is a difference in meaning “which the rules of statutory interpretation ordinarily applicable do not resolve”.  In other words, the court should not ignore the plain meaning of the text in either language too easily in order to attend to the legislative purpose of the Ordinance.

36.  Lastly, Mr. Kwan cited two Canadian cases which in his opinion would assist the court in resolving differences disclosed in bilingual statutes and are in favour of the appeal: Medovarski[46] and Daoust[47].

G3.2  The Respondent’s Supplementary Submissions

37.  With regard to the “always speaking” construction, the respondent did not dispute the cases and principles cited by the appellant.  However, the respondent also emphasized that if the necessary conditions are met, the Court should as far as possible interpret the legal provisions as covering circumstances which were previously unforeseeable.  For relevant examples, see the Court of Final Appeal’s judgments in Wong Yuk Man[48] and Yuong Ho Cheung[49].  In Hong Kong Mobile Television Network Ltd[50], the Court of First Instance even pointed out directly that the “always speaking” construction and the usual approach of interpretation co-exist in parallel.

38.  The respondent went on to say that in the present case, the conditions for applying the “always speaking” construction were met.  Both “unlawful purposes A” and “unlawful purpose(s)  B” can naturally be construed as covering instruments and intents in relation to purposes other than physically restraining a person, injuring a person and housebreaking.  It was argued that such an interpretation would serve the legislative purpose of section 17 without distorting the plain meaning of the provision.

39.  As Tang Chi-ming and Tsoi Shun-hing were no longer binding as soon as the “alternative element” in section 17 was deleted, the interpretation reached by applying the “always speaking” construction will not result in trouble from having to reverse a large number of old cases.  In fact, despite Tang Chi-ming and Tsoi Shun-hing, the courts have so far made quite a number of decisions that contradict the two cases, for example Ho Ka On.

40.  The respondent, like Mr. Kwan, did not find any substantive difference between the Chinese and English texts of section 17.  It was the respondent’s view that the Chinese text conveyed the meaning in a clearer manner, and that both texts pointed to the construction advocated by the respondent.  The respondent also stressed that according to section 10B(2)  of the Interpretation and General Clauses Ordinance, the court should first assume that both the Chinese and English texts are authentic texts having the same meaning, and section 10B(3)  should only be invoked when the problem cannot be resolved: Tam Yuk Ha[51].

41.  The respondent submitted that the Canadian cases are not applicable to resolving the issue of interpretation of bilingual statutes.

H.  Discussion on Appeal against Conviction

H1.  Three Old Cases

42.  The three old cases referred to here are Li Chu, Tang Chi-ming and Tsoi Shun-hing.

43.  Li Chu (1968)  is somehow less authoritative than the other two because it was a magistracy appeal by way of a case stated[52] and was heard by a single High Court judge (Mills-Owens J).  Section 17 at that time was in English only and read as follows[53]:

“17. 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.”

44.  According to Mills-Owens J’s ruling, the then section 17 included only two kinds of articles, namely offensive weapons and housebreaking instruments.  His reasons and related observations can be summed up in the following four points[54]:

(1)  The provision has a particular pattern of expression, that is, the phrase “or other ...” appears after both “spear ...” and “crowbar ...”, the two groups of instruments that are of broadly dissimilar classes.  This shows that the provision was meant to use a more general expression after the specific articles to include instruments of the same category, which reads “or other offensive weapon” and “or other instrument fit for unlawful purposes”. 

(2)  On the use of punctuation marks, there is no comma after “bludgeon”, but there is a comma after “or other offensive weapon” which immediately follows.  Likewise, there is no comma after “skeleton-key”, and the phrase “or other instrument fit for unlawful purposes” follows that immediately after.

(3)  “With intent to use ...” and “unable to give satisfactory account ...” are two different elements of offence which apply to both kinds of instruments for injuring a person and housebreaking, and proving either one of the elements is sufficient for a conviction.

(4)  When the above method is used to interpret section 17, the word “such” in “with intent to use the same for any such unlawful purpose” is “otiose” and “meaningless”, especially when there is not any particular kind of unlawful purpose which has previously been specified.

45.  The judgment in Tang Chi-ming (also a case in 1968)  was written mainly by Hogan CJ and Rigby SPJ. They and another judge agreed unanimously that Mills-Owens J’s interpretation of section 17 was correct, especially the two points mentioned in paragraphs 44(1)  and 44(3)  above[55]. As for whether the word “such” in the provision was otiose, Hogan CJ said[56] that Mills-Owens J’s statement might not be correct if the “ejusdem generis rule” was applied and the word was to be interpreted as referring to the two purposes of injuring a person and housebreaking.

46.  The case of Tsoi Shun-hing took place nine years later (in 1977). With the amendment made in 1975, section 17 had undergone minor changes in which the two specific articles “spear” and “bludgeon” were removed, but the word “such” was retained:

“17. Any person who has in his possession any 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 being unable to give satisfactory account of his possession thereof, shall be liable to a fine of five thousand dollars or to imprisonment for two years.”

47.  The Court of Appeal affirmed in that case that section 17 covered only two categories of articles, and the “[f]irst and most important [reason]” was that while the Legislative Council was supposed to know the decision in Tang Chi-ming, it did not make use of the 1975 amendment to change the structure of the provision.  In addition, the Court of Appeal held that, based on the context of section 17, the word “or” in “or other instrument fit for unlawful purposes” should not be given a disjunctive interpretation, and instead, the “ejusdem generis rule” should apply so that those articles would be categorized as instruments for housebreaking[57]. Regarding the word “such” in “with intent to use the same for any such unlawful purpose”, the Court of Appeal was of the view that Mills-Owens J’s observation in Li Chu was justified, and apart from Hogan CJ, the other two judges in Tang Chi-ming did not express any opinion on this point[58].

48.  Thus far, this Court finds the respondent’s assertion, that the decision in Tang Chi-ming was influenced by the existence of the phrase “unable to give satisfactory account ...” also known as the “alternative element” above, questionable.  It is true that the Full Court had discussed the issue at some length, but the focus of the discussion was on how to deal with the articles involved in the case the nature of which was not readily discernible. On the contrary, looking at the entire analytical context of that case and even Tsoi Shun-hing, it can be seen that the structure and method of expression of the relevant section were the actual reasons for which the Full Court and Court of Appeal respectively held that section 17 included only two categories of articles.

49.  It should also be mentioned that Rigby SPJ pointed out in Tang Chi-ming that the second category of articles in the section should be construed as a kind of instruments similar to that for housebreaking but at the same time not limited to that particular purpose[59]:

“The learned magistrate … 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 wide 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 motorcar or the boot of such a vehicle.”

Hogan CJ further extended the concept to include “receptacle”[60]. This Court is of the view that the above two judges’ observations are undoubtedly correct and they also explained why the defendant in that case was convicted for cutting another person’s trousers’ pockets with the razor blade fastened between his fingertips.  This Court considers that this category of articles should be defined as instruments for “unlawful access” rather than instruments for housebreaking (infra).

H2.  The last two amendments and subsequent developments

50.  In Tsoi Shun-hing, the defendant was in possession of a pair of handcuffs with intent to impersonate a police officer.  In the end, he was acquitted on appeal because section 17 covered only two categories of articles.  To remedy the situation and to cope with the increase in similar cases, the government took steps to amend the Ordinance five years later, and in the following year (1984), the proposed amendments were passed to include instruments for the purpose of physically restraining a person and to have the word “such” deleted from the provision.  Having reviewed the relevant documents of the Executive Council and the Legislative Council, this Court confirms that such amendments were not aimed at overturning cases like Tang Chi-ming.  Regarding the word “such”, the documents simply said that in Li Chu, the word was held to be otiose[61]. It was not denied in the documents that the original section 17 included only two categories of articles.

51.  With the above amendments, the modern version of section 17 began to take shape, but the “alternative element” remained part of the provision until it was found in Chong Ah-choi in 1994 to have violated the Bill of Rights.  Subsequently, by way of further amendments to the Administration of Justice (Miscellaneous Provisions)  (No. 2)  Ordinance 1995 (68 of 1995), the “alternative element” was officially removed from the provision and the current version of section 17 first appeared in Chapter 228 of the Laws of Hong Kong.

52.  As we have pointed out earlier, we do not agree that the “alternative element” had any influence on the interpretation of section 17 in Tang Chi-ming and Tsoi Shun-hing.  However, this Court agrees that the removal of the “alternative element” is of considerable importance to the present case.  In other words, section 17 after 1994 is actually a provision which is completely different from the previous one.  The key is that if the previous interpretation of “unlawful purposes A” was too liberal and the prosecution was free to prosecute using the “alternative element” which would make it easier to prove guilt in the face of weaker evidence, the protection enjoyed by the public would then become seriously inadequate.  Therefore, it was a completely different situation from the current one.

53.  If the time is pushed back for ten more years, the following would be a better example to reflect the point just raised.  The scene in question is the Secretary for Justice explaining the 1984 amendments to the Legislative Council[62].  He made it clear in his speech that the newly added category of articles would not be defined too loosely (see the negative example of handkerchief and string), that the category of articles represented only instruments having no other purposes than to physically restrain a person, and that such a design could save the police from the difficult task of proving the intent of possessing such category of articles (see the sentence “to prove ... purpose ... is notoriously difficult”). In other words, at that time, section 17 was designed to make good use of the convenience of proof brought about by the “alternative element”, but it was precisely for this reason that the articles and categories of articles in the section needed to be defined relatively strictly:

“ If section 17 of the Summary Offences Ordinance is amended as proposed, it will mean that any person who has in his possession any wrist restraint or other instrument or article manufactured for the purpose of physically restraining another person, or in possession of handcuffs or thumbcuffs, intending to use such article for an unlawful purpose or being unable to give satisfactory account of his possession of it, will be guilty of an offence and liable to a fine of $5,000 or to imprisonment for two years.

Handcuffs have been used in the course of some 57 crimes committed in 1982 and the first half of 1983 so honourable Members may well be disposed to agree that there should be some prohibition on the possession of handcuffs without lawful excuse. Thumbcuffs are a modern variation of an ancient device which have no conceivable use except for restraint. It is difficult to envisage any lawful excuse for their possession. Possession of other forms of wrist restraint will be similarly unlawful where they have been specially manufactured for the purpose.

Sir, care has been taken to ensure that the amendment is not too widely drawn. Possession of a handkerchief or a piece of string has been excluded (laughter), although of course they are capable of being used for restraint. The amendments are solely directed to articles manufactured for restraint. Nor are the police required to prove the purpose of possession, which is notoriously difficult.”

54.  Similar to the situation of the “alternative element” is that of the word “such” mentioned earlier.  As this Court has pointed out, the removal of the word in 1984 does not mean that the Legislative Council intended to overturn the relevant cases.  Nonetheless, we also agree that section 17 with the word “such” removed is less restrictive in its interpretation.  That is to say, there is a difference between the subjective purpose and the objective effect of the amendment.  If the court has other reasons to interpret section 17 afresh, this amendment would have the same opening effect or even facilitative effect as that of the “alternative element” amendment.

55.  At this point, this Court will turn to analyse the cases cited by the parties.  A correct understanding of those cases can help assess the weight and application of Tang Chi-ming in the present day, when more than 50 years have gone by.

56.  Chronologically, the first case to be discussed is Ip Pui Leung[63] (1989). The defendant in that case was found standing and holding two baseball bats in his hands at the rear lane of the bar where he worked.  The evidence clearly showed that he had taken the bats in response to customers who had just caused trouble and attempted to leave the bar without paying their bills[64].  However, the magistrate was of the opinion that the baseball bats were not offensive weapons per se, and therefore acquitted the defendant of the offence under section 17.  The prosecution then lodged an appeal.  In the end, the High Court held that the magistrate’s judgment was correct, but in the particular circumstances of the case, the baseball bats came within the category of instruments fit for unlawful purposes (referring to a fight).  Therefore, the case was remitted to the magistrate for trial[65]. The above decision is especially worthy of notice because the presiding judge cited Li Chu and Tang Chi-ming at some length, according to which he even listed two categories of articles allegedly covered by section 17[66].  Yet, he ended up focusing only on discussing how to ascertain the nature of a particular article, while the core decision of Tang Chi-ming, namely the decision that “unlawful purposes A” actually refers to unlawful access, was completely put aside; in other words, knowing but ignoring it.

57.  The next in line is Ho Ka On (1995).  The defendant in that case was convicted of possession of an instrument fit for an unlawful purpose as he had in his possession a roll of household cellulose tape and admitted under caution that he would use the tape to tie up the hands of the person(s)  to be robbed by him[67]. The defence cited Tang Chi-ming on appeal, arguing that the tape in question did not fall within the categories of articles covered by section 17[68].  The argument was most straightforward and should have been upheld if Tang Chi-ming had been applied as it was (the tape was not an instrument specifically manufactured for physically restraining a person, not an offensive weapon, and not an instrument for unlawful access as included in “unlawful purposes A”).  However, the Court of Appeal, based on the fact that the section had been framed differently (covering fewer categories)  and that the issue to be dealt with was different (the application of the “ejusdem generis rule” in section 17), pointed out expressly that the case did not offer much assistance[69].  The Court of Appeal emphasized that the cellulose tape was not an instrument specifically manufactured for the purpose of restraining people and allowed the appeal[70].  The judgment of that case is not long and there is only one page that is relevant to our present purpose, but the bench hearing the appeal was formed by very senior judges (among them, Patrick Chan J and Power VP who subsequently became PJ and NPJ of the Court of Final Appeal respectively), and it was impossible that they did not have a perfectly good grasp of Tang Chi-ming.  Therefore, their decision was indeed a major reversal of Tang Chi-ming.  At the very least, they refused to endorse the way articles were categorized in Tang Chi-ming.

58.  The third case is Leung Yau-sing (2000).  The defendant in that case was found on the rooftop of a building and when the police ordered him to stop, he immediately dumped a bag containing gloves, an electric cord, a screwdriver, and a wrench, and in the end he was convicted under section 17.  Since one of the grounds of appeal was that the charge should but did not specify what unlawful purpose(s)  the articles were fit for, the case did not touch directly on the core issue of Tang Chi-ming.  However, as in the previous two cases, the presiding High Court judge knew Tang Chi-ming and quoted part of its judgment.  This Court has every reason to believe that he did follow the whole judgment of the case, but likewise, he ignored the classification of articles in Tang Chi-ming.  He said, “if the ‘ejusdem generis rule’ was invoked” (quoted from his judgment), the purposes under “unlawful purposes A” “should be related to physically restraining a person, injuring a person or housebreaking. The instruments in the appellant’s possession ... can all be meant for lawful purposes... can also be used for a number of unlawful purposes... For example, electrical cords can be used to restrain others, screwdrivers and wrenches can be used for breaking in residential premises, and wrenches can also be used by the ‘head-bashing gangs’ as an offensive weapon... The court ... can take judicial notice ... and therefore, it was up to the trial magistrate to rule that these instruments in the possession of the appellant are fit for unlawful purposes.”[71]

59.  In sum, since the 1960s and 1970s, the Hong Kong courts seemed not to have adopted the interpretation of “unlawful purposes A” in Tang Chi-ming.  Taking the above three cases from the 1980s and 1990s to the 2000s as examples, the presiding judges were all judges of the Court of First Instance or above, and their judgments were not per incuriam, i.e. they were not made when there was a lack of due regard to Tang Chi-ming, but the results were all inconsistent with that case.  In fact, based on the experience of the three judges in this Court, modern Hong Kong courts, especially courts responsible for first instance trials, have all been giving an extremely liberal interpretation to “unlawful purposes A”.  Looking at the recent past, the so-called “anti-amendment bill” cases handled with this approach are numerous.  Even the defence would accept that without hesitation, and no one has ever challenged that even on appeal.  Of course, while the above situation has remained the same for several decades, it does not mean that the relevant approach is correct.  However, this situation shows that: firstly, section 17 per se may give rise to different interpretations; secondly, interpreting section 17 afresh would not create confusion.  Whether it would really be so depends very much on the issues explored in the following two subsections (H3 and H4).

H3.  Differences between Chinese and English texts

60.  As mentioned above, both the appellant and the respondent contended that there was no difference between the Chinese and English texts of section 17.  In that regard, we are frankly surprised and believe that very likely, such a position was fiercely supported by the parties because they both wished to maintain the strength of their respective arguments as much as possible. Otherwise, when the Chinese text is the only text for reference, it would be inevitable that a user of the Chinese language would come to a conclusion that the instrument(s)  under “unlawful purposes A” is/are independent from and unrelated to the other articles or categories of articles referred to in the section.

61.  Certainly, none of the three judges of this Court has any professional background in law drafting, and we also understand that bilingual legislation in Hong Kong is not a translation from English to Chinese. Nevertheless, if the structure of section 17 in the English text is to be retained as much as possible, its Chinese version may well be drafted as follows: “任何人管有任何腕銬或其他為束縛人身而製造的工具或物件、任何手銬或指銬、任何攻擊性武器，或任何撬棍、撬鎖工具、百合匙或其他適合作非法用途的工具，意圖將其作任何非法用途使用，可處第2級罰款或監禁2年。”  (“Anyone in possession of any wrist cuffs or other instrument or article made for physically restraining a person, any handcuffs or thumbcuffs, any offensive weapon, or any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes, with intent to use the same for any unlawful purposes, shall be liable to a fine at level 2 or imprisonment for 2 years.”)  [Translation provided for reference only.]  However, for some reasons, perhaps certain reasons not discernible to this Court, there are major differences between the current Chinese text and the draft suggested above (see paragraph 8 above).

62.  In any event, the reality is that the sentence in the current Chinese text has two sub-divided parts beginning with “管有” (“in possession of”).  The articles and categories of articles listed in the second sub-divided part are varied in nature.  They include distinctly different instruments for various purposes of physically restraining a person (handcuffs and thumbcuffs), injuring a person (offensive weapon)  and gaining unlawful access (crowbar, picklock and skeleton-key), and they are all separated only by enumeration commas which indicate a “parallel structure” of words[72]. In these circumstances, it would be natural for readers to construe “unlawful purposes A”, i.e. “other instrument fit for unlawful purpose(s)” as a separate unit unrelated to other articles and categories of articles.  As the ending of the same sub-divided part, the phrase “or other instrument fit for unlawful purpose(s)”, which has a wide meaning and a comprehensive coverage without omission, does reinforce the above construction.  On the other hand, the appellant would find it hard to answer the following questions: Given the current structure of the provision, how can “unlawful purposes A” be interpreted as relating only to gaining unlawful access?  For what reasons can the instruments for physical restraint and physical injuries juxtaposed in the same sub-divided part of the sentence be excluded?  Yet if they are all included, would it not conflict with the conclusion in Tang Chi-ming?  Is it true that the “ejusdem generis rule” need not or cannot cross over and be applied to the first sub-divided part of the sentence because of the separation of the provision?

63.  Assuming this Court’s analysis above is correct, that is to say, the structure and corresponding meaning of the Chinese text are indeed somewhat different from the English text, the next question is how to determine the correct construction of section 17 (in both Chinese and English)  – despite the fact that the courts since Tsoi Shun-hing have mostly opted not to follow the older cases in question.  In this regard, section 10B of the Interpretation and General Clauses Ordinance (Cap 1)  provides the definitive and only guidance:

“10B. Construction of Ordinances in both official languages

(1)  The English language text and the Chinese language text of an Ordinance shall be equally authentic; and the Ordinance shall be construed accordingly.

(2)  The provisions of an Ordinance are presumed to have the same meaning in each authentic text.

(3)  Where a comparison of the authentic texts of an Ordinance discloses a difference of meaning which the rules of statutory interpretation ordinarily applicable do not resolve, the meaning which best reconciles the texts, having regard to the object and purposes of the Ordinance, shall be adopted.”

64.  The case of Tam Yuk Ha[73] cited by the respondent focused on the difference between the terms “addition” and “增建工程” in certain subsidiary legislation.  The Court of Appeal, when ruling that the two terms had the same meaning on the ground that “工程” did not necessarily involve architectural or structural works but could also include removable temporary installations, invoked the presumption in section 10B (2).  The following are some of the observations made by Hon. Patrick Chan, CJHC (as he then was)  in that case, and his emphasis on the importance of reflecting the legislative intent is particularly noteworthy[74]:

“ Under s.10B of Cap 1, both the English and Chinese texts of an ordinance are equally authentic and they are presumed to have the same meaning. The court should try to interpret the relevant provisions of the ordinance on this basis. This must be the approach to be adopted. It is only when there is clearly a difference of meaning that the court has to reconcile the two texts.

In my view, the intention of the relevant by-laws is clear. A licence is required for the operation of a food business. In an application for a licence, certain particulars must be provided. These particulars include the location, area and dimensions of the space which are allocated to be used in connection with the food business. They must be set out in a plan which has to be approved before a licence is granted. The purpose of by-law 35 is to restrict the operation of the food business to the location, area and dimensions of the allocated space which is set out in the plan which formed the basis of the granting of the licence. Hence, any material deviation from these particulars are prohibited as a contravention of by-law 35 and is punishable as an offence. With respect to the judge in the Tam Yuk Ha case, there is no question of any alteration or addition to the plan or indeed to the premises. What is prohibited is an alteration or addition in respect of the premises which would result in a material deviation from what was originally set out in the plan as showing the scope of the operation of the food business for the purpose of obtaining a licence. For the reasons given by my brother Liu JA, it is quite clear that what was done in the present case was an expansion of the allocated space of the food business which had been set out in the original plan approved as a basis for the granting of the licence. Such expansion had resulted in a material deviation from the particulars shown in the plan. The charge had been proved to the satisfaction of the trial magistrate. I do not think there is any merit in this appeal.”

On the application of section 10B (3), although neither the Appellant nor the Respondent were able to cite any authorities, the principle enunciated in the section is very clear and the only thing to do is to apply it when necessary.

65.  After repeated consideration, this Court is of the view that the meaning of the Chinese text of section 17 is clear and unambiguous.  Unless deliberately twisted, its structure simply does not allow “unlawful purposes A” to be construed narrowly as unlawful access.  If the “ejusdem generis rule” is extended to include all the articles and categories of articles in the second sub-divided part of the sentence, then the first sub-divided part which has already been separated from the rest of the sentence would become notably odd.  Therefore, it is most reasonable and reflective of the statute’s legislative intent to interpret the instrument(s)  for “unlawful purposes A” as an independent category of articles to make it an open-ended closing of the entire section 17.   As for the English text, due to the difference in syntax and variance in use of punctuation, the conclusion of the Full Court in Tang Chi-ming is reasonable to a certain extent, but it would result in major limitations, which would be utterly disadvantageous to the implementation and promotion of the legislative intent of section 17.  Therefore, this Court is of the view that a construction compatible with the Chinese text should be adopted as the correct construction of section 17.  As far as the English text is concerned, this construction may seem a little awkward, but it could not be said to be a distortion, and this Court believes that in the interpretation of section 17, it is the method that most trial courts have relied on since 1993, after the Chinese text had been authenticated[75], including but not limited to those handling cases conducted in English by bilingual judges.  Otherwise, it would be difficult to explain the large number of relevant judgments that everyone has in mind.

H4.  Does the “Always Speaking” construction apply

66.  The appellant and the respondent agreed that as to the application of the “always speaking” construction, Lord Wilberforce’s guidance in Royal College of Nursing should prevail[76].  The guidance is the most authoritative and was quoted by Lord Bingham in R (Quintavalle), who gave the following speech in the House of Lords[77]:

“10 …More pertinent is the guidance given by the late Lord Wilberforce in his dissenting opinion in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800. The case concerned the Abortion Act 1967 and the issue which divided the House was whether nurses could lawfully take part in a termination procedure not known when the Act was passed. Lord Wilberforce said, at p 822:

‘In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament’s policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case, when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take, under the law of this country; they cannot fill gaps; they cannot by asking the question ‘What would Parliament have done in this current case – not being one in contemplation – if the facts had been before it?’ attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself.’

Both parties relied on this passage, which may now be treated as authoritative…”

67.  The Court of First Instance further pointed out in Hong Kong Mobile Television Network Ltd that statutory interpretation requires a good grasp of the circumstances in which the legislation was passed in order to ascertain the purpose and meaning of the legislation.  That is not inconsistent with the concept of the “always speaking” construction, and the two principles can even be described as “in parallel existence”.  In fact, subject to the legislative purpose and textual meaning of the legislation, it is permissible or even necessary to construe a statute to cover evolving and changing situations[78]:

“57. It is correct that it is relevant to look at what was the relevant existing state of affairs at the time of enactment to ascertain the objective intention and meaning of the relevant statute. However, this does not mean that any such construction can and must only be limited to those states of affairs. There is a parallel principle in statutory construction that the statute is always speaking, in the sense that it is also permissible and in fact sometimes necessary to construe a statute to cover and apply to evolving and changing circumstances so long as that would not be contrary to the statute’s express words or clear objectives.”

68.  The Court of Final Appeal also pointed out in Yuong Ho Cheung that if the necessary conditions are met, the “always speaking” construction is applicable to the interpretation of a criminal statute, and this will not constitute an undue extension of the statute[79]:

“55.  Instead, the present case raises the question of whether, merely because the Uber platform was used by passengers to request the applicants to pick them up and to give them the destination to which they wished to be carried, in return for a payment by the passenger to Uber and by Uber to the applicants, this falls outside the legislative intent of s.52(3)  because that platform did not exist in 1982.  For the reasons set out above, there is no good reason to hold that it does.  This is simply an application of the principle that a statute is “always speaking”: see HKSAR v Wong Yuk Man (2012)  15 HKCFAR 712 at [27] and R (Quintavalle)  v Health Secretary [2003] 2 AC 687 per Lord Bingham at [9]–[10].  It is also an example of the situation described by Lord Jowitt LC in Joyce v Director of Public Prosecutions [1946] AC 347 at p.366: “[i]t is not an extension of a penal law to apply its principle to circumstances unforeseen at the time of its enactment, so long as the case is fairly brought within its language.”  Notwithstanding that smartphone applications enabling the Uber business model were not specifically in contemplation when the relevant statutory prohibition was enacted, the activities of the applicants constituted “carriage of passengers for hire or reward” within the meaning of s.52(3)  and well within the mischief that the statutory scheme seeks to address.”

69.  To clarify the legislative purpose of a particular piece of legislation, one can generally begin with the long title of the legislation. For the Summary Offences Ordinance, the long title is “To consolidate the law relating to summary offences”.  The description is entirely appropriate because the Ordinance does bring together a large number of miscellaneous offences, largely independent from each other and scattered in various ordinances, which regulate different matters and carry a lower degree of criminality[80].  In this regard, the variety of the items listed in the Ordinance’s table of contents alone speaks volumes.  If a bit of history is required for illustration, The Annotated Ordinances of Hong Kong has the following introduction (the opening alone is enough to reflect the essence of the Ordinance):

“Introduction

The first Summary Offences Ordinance was passed in 1932 to consolidate and amend the law relating to summary offences. The principal ordinance had been passed in 1847 and various amending Ordinances had caused a loss of cohesion, which was corrected in the consolidation. Offences concerning nuisances committed in public places were introduced in 1932 for the first time in section 4.  It was based on the provisions of the Scavenging and Conservancy by-laws that governed conveyance of pig-wash and night soil.  Previously police had no power to arrest offenders so there had been difficulty in enforcing those by-laws.  Section 8 included the main provisions of § 19, 20, 21, 22, 23 and 24 of the Malicious Damage Ordinance 1865 (6 of 1865)  combined with § 8(1)  and 21 of the Summary Offences Ordinance (1 of 1845), in respect of damage to trees.  This eliminated overlapping between the provisions of the two Ordinances. It was decided to transfer offences for various forms of drunkenness from s 93 of the Magistrates Ordinance (Cap 227)  to the Summary Offences Ordinance (Cap 228)  (referred to as ‘the Ordinance’).  Previous penalties for being drunk in public were raised from $10 to $25, and for being drunk and disorderly and drunk in charge of a vehicle (other than a motor vehicle)  from $25 to $100 for the other two offences.”

In the premises, the legislative purpose of the Summary Offences Ordinance is not very helpful to the question to be discussed at the moment, as is the analysis of the pattern of expression of various other offences in the Ordinance.  Whether the “always speaking” construction is applicable in this case depends more on the wording, structure and legislative intent of section 17 itself.

70.  The wording and structure of section 17 have been extensively discussed by this Court above.  As for the original intent of the legislation, this Court believes that it cannot be clearer.  Put simply, it is to punish the act of possessing instruments for criminal purposes, and the act is at the core of the offence.  As the offence is preventive in nature and clearly aimed at cases involving less harm, it is therefore included in the basket of summary offences (while serious cases are covered by other ordinances).  Of course, the articles and their categories listed in section 17 range from specific (such as wrist cuffs, handcuffs), relatively neutral (such as crowbars, skeleton-keys), to general in nature (other instruments fit for unlawful purposes), but it does not affect the provision’s original intent to punish possession of instruments for criminal purposes.  The title of section 17 in the Summary Offences Ordinance is precisely “Possession of offensive weapon etc., with intent”.

71.  Considering the matter from the above perspective, this Court is of the view that there is nothing wrong with applying the “always speaking” construction to interpret “unlawful purposes A”, which can effectively deal with criminals using various or even newly invented instruments to commit crimes.  Yet, if that course is taken, the interpretation of “unlawful purpose(s)  B” must at the same time be opened up. Otherwise, the two would not be compatible, and that would hinder the implementation of the legislative intent of section 17.   That is naturally so and self-evident.  Taking the baseball bat as an example, it can be used in both fights and vandalism.  Gloves can be used to prevent slipping and avoid leaving fingerprints.  Therefore, they are common instruments for armed attacks and burglaries.  As for knives and cutters, they are weapons which robbers and sexual offenders often use to threaten their victims.  There are countless other similar examples.  The fact is that any instrument fit for an unlawful purpose can be used to commit more than one type of offence.  Even those articles expressly referred to in section 17 are no exception.  Handcuffs used for the purpose of impersonating a police officer is a good example mentioned by both the case authorities and the trial magistrate.

72.  In respect of the complete opening up of the interpretation of “unlawful purposes A and B”, Mr. Kwan argued that in the process, the phrase “fit for” in “unlawful purposes A”, namely “fit for unlawful purposes”, would be downgraded to “capable of”.  He argued that taking such a course would give rise to extreme cases such as one in which a person stopped on the street would be convicted for possessing a rope at home.  He queried whether that was the legislative intent of section 17.  On the first point, this Court understands that “fit for” necessarily incorporates “capable of”, but “capable of” does not necessarily mean “fit for”.  However, that is an approach which attaches too much importance to the literal meaning of the words.  If focus is placed on analysing the purposes of an instrument, this Court believes that the difference between the two is at most one between “fit for” and “better fit for”, which carries no practical significance.  In Tang Chi-ming, when discussing how a certain article should be categorized, it was for the same reason why Hogan CJ and Rigby SPJ cited an English case which said “other implement of housebreaking ... mean no more than any other implement capable of being used for housebreaking”[81]. As for Mr. Kwan’s second concern, he has actually answered his own question: it is really an extreme case which is not going to happen in the real world.  In that example, unless there is other cogent or even irrefutable evidence, who would be ready to admit that the rope is to be used to commit a crime?

H5.  Conclusions on the issue of interpretation

73.  Although the trial magistrate adopted a different approach when analysing the issue, the conclusion he reached was basically consistent with this Court’s.  For the reasons mentioned above, including the requirements in interpreting bilingual legislations and the correct application of the “always speaking” construction, this Court finds that both “unlawful purposes A and B” do not have any specific content and they are not subject to any restrictions under the ejusdem generis rule. Before reaching this conclusion, this Court has carefully considered all the submissions and authorities put forward by the appellant and the respondent.  If any of them is not mentioned in this judgment, it is because they are not helpful to the analysis, not because they are omitted.  In addition, it should be emphasised that a fully liberalised interpretation of “unlawful purposes A and B” will not lead to abuse of process or innocent people being convicted, given that the “alternative element” of section 17 has been struck down, and the prosecution must prove its case to the court’s satisfaction that the defendant did have the relevant intent. This is a good protection to the general public, and it is no different from any other charges.  However, those people who indeed have criminal intent will not go unpunished merely because the nature of the instruments in their possession is not covered.  Lastly, this Court must point out to the authorities that section 17 has long been criticised, including it being denounced as ungrammatical back in the days when there was only the English version.  Therefore, the relevant section should be amended promptly regardless of the outcome of this case.

H6.  The issue of judicial notice

74.  The cable ties involved in the case were each six inches long only.  How they help in moving furniture, electrical appliances and sundries is just a matter of common sense.  It cannot be said that they are completely useless.  They can come in handy if used to tie up the cords of electrical appliances and computers as preparation, but whether an average person would have such care and patience when relocating or even shutting down and cleaning up a company is another matter.  When the trial magistrate said that he had never seen workers moving chambers for him use these cable ties, that was what he meant.  This Court does not think that he was taking judicial notice.  In any event, Mr. Kwan’s attempt to elevate this small observation of the trial magistrate to make it the basis for questioning the relevant findings of fact is plainly frivolous. The trial magistrate refused to accept DW1’s evidence for many reasons.  One example is DW1’s assertion that on the day in question, before the outbreak of Covid-19 in Hong Kong, he, for fear of being photographed by reporters, had been wearing a black face mask all day, from the time he set out from home and during the whole time when he was waiting at the appellant’s company[82].  In addition, what is more directly related to the core issue of this case is DW1’s inability to explain the appellant’s clothing at that time and why he needed to carry the numerous articles and tools that were later found on him[83]:

“29. In my opinion, if the above testimony of DW1 is true in that if they were just going to the Bowrington Road Market for dinner and would return to Tin Hau after dinner for the defendant to retrieve his car and drive to Tsim Sha Tsui, then why did the defendant need to carry all the items in his rucksack (including the helmet, the respirator with two filter cartridges, the gloves and the cable ties)  from Tin Hau to Causeway Bay and carry those items back from Causeway Bay to Tin Hau after dinner? Why did the defendant need to change his shirt and suit pants into a black T-shirt and black trousers before leaving his property agency office, but at the same time carry along a white T-shirt and dark blue shorts in his rucksack? According to the route described in DW1’s testimony, the defendant had absolutely no need to carry with him those various items in his rucksack (including the helmet, respirator with two filter cartridges, gloves and cable ties)  while walking to the Bowrington Road Market for dinner. He could have left those items at the property agency office where he worked and retrieved them later from the office when he went back to pick up his car after dinner; or he could have first put those items in his car parked on Lau Li Street. In my view, if the planned route of DW1 and the Defendant on that day as described in DW1’s testimony were true, the Defendant would have no reason at all to carry those items in his rucksack when he appeared at the scene. In my view, the fact that the Defendant appeared at the scene with those items in his rucksack reflected precisely that the planned route of DW1 and the Defendant on that day as described in DW1’s testimony was fabricated.”

In this Court’s view, the above analysis is absolutely reasonable and irrefutable, and once DW1’s testimony was held to be “fabricated”, there was no more evidence in the case to support that the cable ties were for moving things.  No matter how vigorously the defence had advocated this possibility at the closing of the case, this fact was not going to change.  Since the appellant did not testify, the judgment mentioned in footnote 4 above, in which the court allegedly ordered the appellant’s company to surrender the flat in question, is merely neutral and of no evidential value to the defence.

I.  Appeal against Sentence

I1.  Sentence after Trial

75.  The trial magistrate pointed out that there was no sentencing guideline in respect of section 17[84], and therefore in sentencing, it was necessary to consider the nature, type and quantity of the instrument in question, whether it is easy to use, and the intention of the defendant in possessing such instrument[85].

76.  The trial magistrate reckoned that while the appellant was in possession of the cable ties, with the intention of tying up railings and miscellaneous objects to make instrument(s)  to be used in fights and blockage of roads when the opportunity arose, in order for him to succeed, it was necessary that there be “joint participation of people sharing the same belief and common targets”, i.e. including people who had dismantled railings from both sides of the road beforehand[86].  In his view, if the appellant’s plan had succeeded, a relatively large number of citizens would have been affected, and the consequence would have been far more serious than that of similar crimes aiming at individual targets[87].  The trial magistrate took the view that the present case could not be directly compared with the other four similar cases which he knew about[88].

77.  In the last few paragraphs of the reasons for sentence, the trial magistrate said[89]:

“63. I have not ignored that the maximum sentence for the offence of obstruction of public places was only three months’ imprisonment under section 4A of Cap 228 of the Laws of Hong Kong. However, as I have found that the intention of the defendant was to use the cable ties to make not only barricades but also large-sized structures for use in armed confrontations, fights or inflicting injuries, I do not think that the sentence in this case is to be bound by section 4A of Cap 228, Laws of Hong Kong.

64. I also think that in view of the background and facts of this case, the court must impose a deterrent sentence to deter others from committing the same offence and following in the defendant’s footsteps, and to protect the general public, ensuring that their civic rights are not to be affected by the defendant’s bullying acts. In my view, an immediate custodial sentence is necessary.

65. The defendant’s acts have also affected the rights of other citizens to take part in peaceful protests and petitions, in that those who only intend to express their views peacefully may hold back and give up their rights to peaceful protests and petitions: see HKSAR v Yung Wai Shing & Chu Tsz Wan, HCMA 101/2020, para 42.

66. Having considered the above factors and Mr. Chan’s submission in mitigation, I am of the view that although this case involves only 48 cable ties, as many people would be affected by the harmful outcome which the defendant intended to produce by using those 48 cable ties, I will adopt a starting point of 6 months’ imprisonment in this case.

67.  As the defendant had a clear record before committing the offence in this case, I will exercise my discretion and reduce the term to five months and two weeks (i.e. a discount of about 8.3%). Save and except this, there is no other valid mitigating factor for any further discount on sentence. The defendant is therefore sentenced to imprisonment for five months and two weeks.”

I2.  Grounds of Appeal

78.  Mr. Kwan reiterated that the trial magistrate had abused the use of judicial notice and erred in finding that the cable ties would not be used for transporting furniture, electrical appliances and miscellaneous objects.  He asserted that once the error was rectified, there would be no evidence in the case which could prove that the appellant intended to use the cable ties in question to make instruments for fights and road blockage.  Mr. Kwan said that by comparison, the four cases mentioned by the trial magistrate were obviously more serious, and therefore adopting six months as the starting point in the present case was manifestly excessive.

I3.  Discussion on Appeal against Sentence

79.  This Court has just pointed out why there was no credible evidence to show that the cable ties were to be used for transporting things, which was a negative factor.  In fact, there was no lack of evidence which positively proved that the cable ties were to be used for binding things together to make unlawful instruments.  It can be said that the trial magistrate has been very careful in his analysis in this regard.  First, this can be seen clearly from his observations on certain exhibits[90]:

“32. I have carefully inspected Exhibits P8 and P10 and I have the following observations:

(i)  Exhibit P8 (see Exhibit P14(19)  to (22)), the 3M respirator with two pink filter cartridges, can cover the major part of the face of the person wearing it. As a one-way mirror (silvered)  film has been added to the transparent part of this respirator, it is impossible for others to see the face of the person wearing it, but the person wearing it can still see what is happening outside; and

(ii)  There are four protruding hard objects in the middle of the back of each glove of Exhibit P10 (see Exhibit P14(23)). If one puts on one of these gloves, closes his hand into a fist and punches others with the protruding parts, the injury caused would be more serious than punching with a bare fist without the glove.”

Next is his awareness of the relevant law[91]:

“34. Next, I have to consider and analyse the defendant’s intention at the material time and location of possessing exhibit P12, i.e. the pack of 48 plastic ties in total, each 6 inches long. On this issue, I refer to HKSAR v SHY, HCMA 13/2020, per M Poon J, at para 46:

‘46. While there is no direct evidence, it should be for the trial magistrate to infer the appellant’s intention of possessing the laser pointer. In HKSAR v Chan Yiu Shing, Wong J translated the relevant paragraph as follows:

“40. In R v Chong Ah Choi, the Court of Appeal pointed out that in considering whether such an inference can be drawn, the court is entitled to take into account the following:

(1)  the nature and condition of the implement itself;

(2)  all the circumstances surrounding the accused’s possession of it, such as the time, the place, what legitimate use it might have at such a time and in such a place, whether it was carried concealed, his observed behaviour in general, his reaction to being approached by the police and so on.”’”

and the applicability of the relevant law in the present case: for details, see the extracts in para 6 above of the written decision of the trial, i.e. paras 35 and 36 of the Reasons for Verdict and Reasons for Sentence of the original trial.

80.  It is worth noting that concerning the radicals violating the law by using cable ties, even Mr. Kwan himself admitted in the second hearing that “we have all seen on television” that cable ties were used as an instrument to tie up objects to make barricades[92].  This undoubtedly supports the fact that the trial magistrate simply drew the inference on the basis of the common experience of ordinary people, which can hardly be criticised.  Of course, Mr. Kwan’s concession was confined to road barricades only.  According to his assertion, the notion that fighting with railings and miscellaneous objects and binding things together to make any relevant instrument require the work of many people is beyond the general experience of ordinary people.  I regard this submission as being completely out of touch with reality or an indication of inability to properly understand what the trial magistrate meant.  In our view, throughout 2019/20, “armed confrontations, fights or inflicting injuries” (the original wording of the trial magistrate)  always included making use of railings and miscellaneous objects bound together to perform acts like pressing, charging at others and dashing.  Such scenarios were often seen on television.  The people involved would at least include those who had first dismantled and collected the railings and miscellaneous objects.  It would never be done by only one person throughout.  I do not think there is anything wrong with the judgment of the trial magistrate.

81.  The backgrounds of the four cases referred to by the trial magistrate in his decision are respectively, in the following sequence: demonstration of power by the triad (informally called “showdown of power”), collecting repayment by loan shark, gang burglary and illegal immigrants hiding on the hillside for a chance to burgle.  The crucial details and sentences of the cases were summarised by the trial magistrate as follows.  This summary shows at least the range of sentence in cases with different backgrounds[93]:

“61. As mentioned above, in respect of the subject offence, different facts do involve different instruments fit for unlawful purposes and different intentions. As a result, there is no guideline on its sentence:

•  In HKSAR v Cheng Chi Wah, HCMA 1255/2004, one of the charges was ‘possession of an offensive weapon’ under section 17 of Cap 228 of the Laws of Hong Kong, involving one 90 cm long aluminium pipe. At the material time, the appellant waved the aluminium pipe to threaten the opposite party. Lunn J (as he then was)  regarded a starting point of six months’ imprisonment as appropriate.

•  In HKSAR v黃觀柏and five others, DCCC 820/2009, the 8^th and 9^th charges were ‘possession of instruments fit for unlawful purpose with intent’. District Judge Joseph Yau (as he then was)  adopted nine months and 11 months as the starting point respectively. The instruments involved in the case were gloves, turpentine, liquid adhesive, red paint, sprayer for adhesive, thinner, padlocks and chains.

•  In HKSAR v Wu Chi-man & Ko Wing-lim, DCCC 490/2013, the 3^rd charge was ‘possession of instruments fit for unlawful purposes’ which involved eight skeleton keys for the purpose of burglary, and District Judge Gary Lam adopted a starting point of nine months’ imprisonment.

•  In HKSAR v 李發錢 and蘭滿財, DCCC 61/2015, the 6^th charge was also ‘possession of instruments fit for unlawful purposes’ which involved eight crowbars, six screwdrivers and two files with the intention of using them for the purpose of burglary. District Judge Josiah Lam adopted a start point of 21 months’ imprisonment.”

In the paragraph that immediately followed, the trial magistrate pointed out that the seriousness of the present case had its unique feature, i.e. endangering various rights of people having different opinions, similar to “bullying acts” (see the extract in para 77 above).  In our view, that was correct, and his approach was basically consistent with what this Court has mentioned in the series of sentence reviews related to the “anti-amendment bill” cases: see Chu Anson Pui Hang[94], Chow Kin Nok[95], Chung Ka Ho[96], and so on.

82.  The type of cable ties involved in the present case can be used for many unlawful purposes.  Nevertheless, they can be bought extremely easily, are suitable for concealed carriage, and normally do not arouse suspicion; and once they are used, they basically cannot be untied unless scissors are brought along.  In view of the above points, coupled with the background of the present case and also the number of offenders possibly involved and the adverse consequence resulted if they are actually used to tie and make instruments for blockage of roads and fights, the offence committed by the appellant indeed would constitute a significant threat to public order.  The starting point of six months and the final sentence of five months and two weeks are therefore not manifestly excessive.  Lastly, as the actual circumstances under which section 17 is violated come in a great many varieties, this Court does not consider it appropriate to lay down any sentencing guideline on this offence.

J.  Overall Decision

83.  The appeals against conviction and sentence are both dismissed.  The appellant is to be remanded in prison forthwith.