ATTORNEY GENERAL v. CHIU MAN LUN

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J U D G M E N T

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Power, J.A. reads the judgment of the Court:

1. This matter comes before the Court of Appeal by way of Case Stated. The Respondent on the 1st of December 1987 had an information preferred against him by the Attorney General under s.30 of the Summary Offences Ordinance Cap.228 charging that he had in his possession one plastic bag containing items which were reasonably suspected of having been stolen or unlawfully obtained. The matter was heard by Mr. Z.E. Li in the Magistrate's Court and the charge was dismissed.

2. The facts found by the magistrate, as set out in the Case Stated, are as follows:

"The Respondent was found by a police party including PW1 inside an amusement game centre of G/F, 86 Puk Wing Street, Kowloon, holding a plastic bag.

The Respondent was taken out of the amusement game centre and was subsequently searched by the police.

As a result of the search, the following items were found inside the plastic bag carried by the Respondent:

(a)    2 boxes of cassette tapes;

(b)    1 pair of earphones;

(c)    1 radio/tape recorder with earphones;

(d)    1 portable radio; and

(e)    1 Portable radio ("walkman" type).

Upon the request by the police, the respondent explained that he had bought the said items from a shop at Mongkok, Kowloon. The Respondent could not produce any purchase receipts.

Upon further request by the police, the Respondent then explained that he had bought the said items from an unknown man at Apliu Street, Kowloon for HK$800.

Subsequently the Respondent picked up the plastic bag and fled. The Respondent put up a struggle with the police and was later subdued at Kweilin Street where he was arrested.

The Respondent then led the police to Apliu Street and Pei Ho Street but failed to locate the shop from which he had purchased the said items.

The police checked all the shops in the area but could not find the seller. The shop-keepers could not recognise the Respondent."

3. The Respondent having elected to give no evidence the magistrate found that the Crown had not proved the offence beyond reasonable doubt and acquitted him.

4. The questions arising for determination of this court, as set out in the Case Stated, are -

"Firstly whether it is correct in law that, to prove an offence under s.30 of the summary offences Ordinance, Cap.228 the Crown has to show firstly possession in the course of a journey before the Respondent is required to give an account how he came by the suspected goods;

Secondly whether I was correct in dismissing the case in the circumstances."

5. The problem which the magistrate and, in turn, this court must resolve is whether the phrase "possession or conveying" used in s.30 of the Summary. Offences ordinance is to be construed to mean "either while possessing or while conveying" or to mean "possessing while conveying".

6. We will deal firstly with the submission of Mr. Stephen Wong, who appeared for the Crown, that, whatever may be the position elsewhere, the definition of the word "or" in s.3 of the Interpretation and General Clauses ordinance which provides that "'or' shall be construed disjunctively and not as implying similarity, unless the word 'similar' or some other word of like meaning is added" conclusively established the former construction in Hong Kong. He submits that as there is no word such as "similar" in the phrase it must therefore be construed.disjunctively.

7. Section 2 of the Interpretation and General Clauses Ordinance, however, provides that that Ordinance does not apply "where the contrary intention appears either from this ordinance or from the context of any other ordinance". We are satisfied, for the reasons set out hereunder, that the context of the Summary Offences Ordinance and of the Police Force Ordinance, Cap. 232 do indicate an intention that the word "or" be not construed disjunctively.

8. Section 30 of the Summary Offences ordinance reads as follows:

"Any person who is brought before a magistrate charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account, to the satisfaction of the magistrate, how he came by the same, shall be liable to a fine of $1,000 or to imprisonment for three months."

This section is in the same terms as s.24 of the English Metropolitan Police Courts Act 1839.

9. Section 55 of the Police Force Ordinance reads:

"It shall be lawful for any police officer to stop, search and detain any vessel boat, vehicle, horse or other animal or thing in or upon which there is reason to suspect that anything stolen or unlawfully obtained may be found and also any person who may be reasonably suspected of having or conveying in any manner anything stolen or unlawfully obtained ......."

This reproduces, in part, s.66 of the English Metropolitan Police Act 1839, the material part of which reads as follows:

"Any constable may also stop, search, and detain, any vessel, boat, cart, or carriage, in or upon which there shall be reason to suspect that anything stolen, or unlawfully obtained, may be found, and also any person who may be reasonably suspected of having or conveying in any manner anything stolen or unlawfully obtained ......."

10. In Hadley v. Perks⁽¹⁾ the court dealing with section 24 and section 66 held that s.24 was supplemental to s.66 and that s.66 applied "only to possession in the streets and not to possession in a house". Blackburn, C.J., when dealing with the power to arrest on suspicion that a person was conveying stolen goods, said at p.456:

"........ neither a constable, nor anyone else, could arrest a person merely on suspicion of his having illegally obtained goods. This is a misdemeanour, and a power to arrest is given with respect to it quite beyond the common law. That power is given by the 66th section, and we must look at that section, to see what the power given to the constable is. Where any person is reasonably suspected of having or conveying anything stolen or unlawfully obtained, the constable is authorized to arrest him in transitu in the street; and one can see at once that very good reasons could be given for this summary power to do what could not be done elsewhere it might be expedient to give the power to arrest such persons, because they might otherwise very speedily get out of the way, and not be taken at all, though it might not be expedient to give the same power to arrest them when the goods are found in a house. There is also a further summary power given to a person to whom suspected goods are offered to be sold or to be pawned, to arrest the person offering them; and there are clearly the same reasons why a person who has received the goods and unlawfully tenders them to a pawnbroker should be arrested, because if not arrested he might probably . speedily disappeared. The Legislature has therefore required that the constable or other person should arrest a suspected person summarily under the given circumstances. But the power of arrest given by the statute is confined to these particular cases. One, where the person is 'having or conveying' the goods, the other where the goods are tendered by him for sale or pledge. Now, this being the case, I think it throws a good deal of light upon the 24th section of c.71 and we must take that and read it as part of the same statute. Here is a power given of summarily arresting those who are found 'having or conveying' evidently persons moving about the streets 'having or conveying'."

Blackburn, C.J. went on to say, at p.458:

"But the mischief intended to be met by s.66 and 24 was evidently that of suspected goods being carried along the streets; as where there is a bag of coffee, for instance, found on a man, and there is reason to believe that it has been pilfered from some ship or warehouse, but from which particular ship or warehouse it is difficult to prove. If a man is found carrying anything of this kind along the street, there is a summary power to arrest him, and to punish him; but I think in the case of the search warrant there must be an information on oath that the goods have actually been stolen or unlawfully obtained."

11. The court was concerned to draw a clear distinction between an arrest in the street without warrant based upon suspicion such as is authorized by s.66 and an arrest in premises which would only be lawful under a warrant based. upon an information that goods have actually been stolen or unlawfully obtained. The court was satisfied for the reasons set out above that the words "having or conveying" in s.66 and in s.24 were intended by the Legislature to mean having while conveying in the street". Given the correctness of that decision, and no one questions its correctness as the law stood in England at that time, the words are not susceptible of bearing any other meaning unless the Legislature expressly enacts that they must or enacts legislation the necessary implication from which is an intention to change that meaning.

12. The approach in Hadley's case to the two sections has been followed in England since 1886.

13. The same approach has been followed in Hong Kong. Williams, J. in Li Man v. The Crown⁽²⁾ relying upon Hadley's case, held that s.29 (now s.30) of the Summary Offences Ordinance should be read with s.50 (now s.55) of the Police Force Ordinance.

14. Macfee, J. in WONG Kwan v. The Queen⁽³⁾ was clearly satisfied that Hadley's case correctly stated the law applicable in Hong Kong. He referred in that case to Willey v. Peace⁽⁴⁾ which placed the only significant gloss upon the reasoning in Hadley's case when Lord Goddard held that the conveyance does not necessarily terminate when a person enters a building. He was satisfied that the conveying continued as long as the person was in the course of a journey.

15. Again in 1966 in CHAN Hoi & another v. The Queen⁽⁵⁾ Briggs, J. was of the view that Hadley's case "most clearly, does apply" in Hong Kong.

16. It is, however, the argument of Mr. Wong that, as s.66 was in England the only section giving power to arrest a person suspected of conveying something suspected of being stolen, the courts understandably took the view that s.24, which made provision for the trial of a person arrested under s.66, was merely supplementary to that section. He argued that this is not so in Hong Kong as there are three ways, other than that set out in s.55, whereby a person brought before the court charged with an offence under s.30 might have been arrested without warrant. He refers to s.50(1) and s.54 of the Police Force Ordinance and to s.27 of the Summary Offences Ordinance. He relies when presenting this argument on Mandavu v. R.⁽⁶⁾. In that matter Conroy, C.J. having set out the reasoning in Hadley's case, said at 302:

"Does the same reasoning apply to the interpretation of s.287 of the Penal Code enacted by the Legislature of Northern Rhodesia? Unlike the English provision there are no less than three ways in which a person accused of an offence under s.287 may be arrested without warrant. I do not deal with those cases where a person may be arrested with a warrant, or a person may be summonsed for an offence against s.287. In the first place; s.19A of the Criminal Procedure Code (which is very similar in its. terms to s.66 of the Metropolitan Police Act, 1839), gives a power of arrest without warrant. In the second place, the Police may arrest without warrant under s.22(a) of the Criminal Procedure Code because an offence' against s.287 of the Penal Code is congnisable to the police. In the third place, the police may arrest without warrant under s.22(d) of the Criminal Procedure Code for offences against s.287. In my view, therefore s.287 of the Penal Code is not controlled by, and supplementary to, s.19A of the Criminal Procedure Code, but stands by itself. That being so the ratio decidendi in Hadley v. Perks, does not apply to the interpretation of s.287, because the Northern Rhodesia law is not in pari materia with the English law."

17. Unfortunately we have not had the benefit of seeing the Northern Rodesian legislation in question. However for the reasons which we set out below, we are satisfied that the reasoning adopted in Hadley's case continues to apply in this jurisdiction.

18. That reasoning, we think, may be fairly summarised as being that as the only possible power of arrest applicable was exercisable only "in transitu in the street", the offence itself could only be committed in similar circumstances. That was however precisely the position in Hong Kong on the 2nd December 1845 when the offence was first created here, as a misdemeanour, by Section 25 of ordinance 14 of that year. By Section 17 of the same ordinance - a further indication that the two sections were intended to be complementary - a power of arrest was given to constables in similar terms to the English legislation, other than that constables had only the powers of arrest given to a constable at Common Law: Section 11 of Ordinance 12 of 1884. Those powers did not include the power to arrest for misdemeanour.

19. The subsequent history of the legislation is confusing. According to the Alabaster collection similar sections were enacted respectively as Sections 36 and 28 of the Summary offences ordinance No.1 of 1845. Yet a collection of laws 1841-54 published at the Office of the Hong Kong Gazette in 1856, and a further collection "published by authority" of laws in force as at the 30th June 1865, show Ordinance 1 of 1845 to be an ordinance for the Suppression of Triad and other Secret Societies. No mention is made of a Summary Offences Ordinance. On the other hand the Summary Offences Ordinance No.1 of 1645 was expressly repealed by Section 32 of the summary offences Ordinance No.40 of 1932.

20. No doubt this apparent anomaly can be easily resolved by those with more time at their disposal. What is important for the present exercise is that when the offence with which we are now concerned was first created none of the three sections on which Mr. Wong relies had yet been enacted. We have to assume therefore that the Legislature had intended, as it had in England, to create only one offence, that of "having and conveying".

21. The question then arises whether the Legislature has done anything since to enlarge the ambit of the offence or to divide it into two separate offences.

22. Although it was not put in this way, the substance of Mr. Wong's argument must be that the Legislature has done so by the enactment of one or more of the three sections. In our view it has not. The power of arrest in Section 54 of the Police Force Ordinance, being limited to the "street or other public place etc." is hardly different from that in Section 55. Admittedly the powers contained in Section 50(1) of that Ordinance and Section 27 of the Summary Offences Ordinance are unfettered as to place, so that, had they been in force in 1845, the reasoning adopted in Hadley's case would have been untenable. But to enlarge the ambit of an established criminal offence by increasing general powers of arrest would seem a very curious and unexpected approach by the Legislature. Had such a change beenintended we are confident it would have been effected more directly. As Blackburn C.J. pointed out in Hadley's case the problem which was overcome by S.24 and 66 of the Metropolitan Police Act 1839 was the person found in the street with goods for which he could give no satisfactory account and of the difficulty in proving where they had been obtained. To extend that principle to provide that if goods are found elsewhere, perhaps in a person's home, that person can be brought before a magistrate and commits an offence if he cannot then provide a satisfactory account of how he obtained them is such a radical step we would require a clear statement that the Legislature so intended. In the circumstances we are satisfied that the courts of this jurisdiction have been correct to follow Hadley's case.

23. We should mention, as it were by way of footnote, that the forerunner of the present Section 50(1) of the Police Force Ordinance, which gave express power to arrest for misdemeanour as well as felony, was enacted in 1862 i.e. before the decision was given in Hadley's case. It was however then already 17 years after the original legislation and we do not think it affects the principles upon which we have come to our conclusion.

24. Does this leave us directly in conflict with the reasoning in Mandavu v. R.⁽⁶⁾ we think not. It seems to us that the further sections s.22(a) and s.22(d) of the Criminal Procedure Code of Northern Rhodesia to which Conroy, C.J. made reference in that case as giving a power of arrest without warrant beyond that given by s.19A of the Criminal Procedure Code (our s.55) must have been enacted before or at the same time as s.19A and that he was, therefore, rightly persuaded that s.287 (our s.30) was not controlled by and supplementary to s.19A. In such circumstances, which do not, as we have already said, exist in Hong Kong the reasoning in Hadley's case would have no application.

25. The first question asked in the case stated is whether it is correct that the Crown has to show "possession in the course of a journey before the Respondent is required to give an account how he came by the suspected goods". It is to be noted that, no doubt because of the particular circumstance of this case, this question is framed in terms consistent with the ruling in Willey v. Peace⁽⁴⁾ which, as we have already remarked, extended the operation of the section insofar as it applied it to persons who may no longer be "in transitu in the street" (Hadley's case) but who are nonetheless, having left the street, still in the course of a journey. We are satisfied that the answer to this question is in the affirmative.

26. The second question is "whether I was correct in dismissing the case in the circumstances". It is submitted by Mr. Wong that if the meaning "in the course of a journey" is given to the words of the section there is evidence upon which the magistrate could have found that the Respondent at the time of his apprehension was in the course of a journey. We see no such evidence. The facts recite that he was found in an amusement game centre. It is true that he told the police that he had bought the goods from either a shop in Mongkok or a man in Apliu Street but there was no finding by the magistrate that it was he who had brought the goods to the centre or that he was about to take them out of the centre, i.e. there was no finding that he was in the course of a journey at the time when he was stopped and searched. The answer to the second question must also be in the affirmative.

(1) [1886] L.R. Q.B. 444

(2) [1952] H.K.L.R. 77

(3) [1962] H.K.L.R. 263

(4) [1950] 2 All E.R. 725

(5) [1966] H.K.L.R. 42

(6) [1962] R. & N.L.R. 298