HKS AR v. CHAN CHUN KIT

HCMA 242/2020

[2022] HKCA 34

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) :

1.  By the Notice of Motion dated 18 October 2021, the applicant applies for a Certificate for leave to appeal to the Court of Final Appeal in respect of two questions, which are said to arise out of the Judgment of this Court, dated 11 October 2021, dismissing the appeal against conviction and sentence in respect of one count of “Possession of offensive weapon, etc., with intent”, contrary to section 17 of Summary Offences Ordinance, Cap. 228 (“SOO”) entered by a Magistrate, Mr Anthony Cheang, on 28 August 2020.

2.  The two questions of law that are said to raise issues of great and general importance, are as follows :

(1)  Whether, on the true construction of the English language text and the Chinese language text of s 17 of the SOO, the “unlawful purposes” for which “other instrument” is fit (i.e. “Unlawful Purpose A” referred to in the Judgment) are subject to the ejusdem generis rule and are confined to unlawful purposes similar to those served by “crowbar, picklock, skeleton-key”?

(2)  Whether, on the true construction of the SOO, the “unlawful purposes” for which the accused is alleged to have intent to use the article or instrument referred to in s 17 (i.e. “Unlawful Purpose B” referred to in the Judgment) are confined to purposes served by “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”?

3.  Neither party objects to this application being determined on the papers.

4.  By its written submissions dated 17 November 2021, the respondent does not resist this application on the ground that the proper interpretation of s 17 of the SOO, hence its ambit, does disclose questions of law of great and general importance.  However, it is also suggested that the two questions posed in the Notice of Motion may be modified to address the crux of the matter for the Court of Final Appeal to determine.

5.  By the agreement of the parties, as per their joint letter dated 20 December 2021, the above two questions are amended into four questions, namely :

(1)  On the true construction of the Chinese and English texts of section 17 of the Summary Offences Ordinance (Cap 228), whether the expression “other instrument fit for unlawful purposes” in that section is subject to the ejusdem generis rule?

(2)  If the answer to Question 1 is in the affirmative, whether the expression “unlawful purposes” is confined to purposes similar to those crowbars, picklocks and skeleton-keys are fit for?

(3)  On the true construction of the Chinese and English texts of section 17 of the Summary Offences Ordinance (Cap 228), whether the expression “with intent to use the same for any unlawful purpose” in that section is subject to the ejusdem generis rule?

(4)  If the answer to Question 3 is in the affirmative, whether the expression “any unlawful purpose” is confined to unlawful purposes similar to those the instruments or objects referred to in section 17 are fit for?”

6.  Having considered the representations made by the parties in their respective written submissions, we are satisfied that it is proper for us to certify the four amended questions posed by the applicant in paragraph 5 of this Judgment as they do disclose points of law of great and general importance.