Attorney General v Li Chu

Judgment Cited authorities (3) Cited in Precedent Map Related
Judgment Date11 June 1968
Judgement NumberCACC215/1968
Year1968
CourtCourt of Appeal (Hong Kong)
CACC000215/1968 ATTORNEY GENERAL v. LI CHU

CACC000215/1968

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO.215 OF 1968

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BETWEEN
The Attorney General Appellant
AND
Li Chu Respondent

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Coram: Mills-Owens, J. in Court.

Date of Judgment: 11 June 1968

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JUDGMENT

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1. This is an appeal by the Attorney General, by way of case stated under the Magistrates Ordinance (Cap.227), against the acquittal of the respondent on a charge laid under section 17 of the Summary Offences Ordinance (Cap.228). The section reads as follows:-

" 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."

The charge was in the terms that the respondent had possession of a penknife being an instrument fit for unlawful purposes and was unable to give a satisfactory account of his possession thereof. The learned Magistrate dismissed the charge on the ground that it did not disclose an offence under the section.

2. In a valuable statement of his views the Magistrate said, inter alia, -

" I consider that the section applies to two categories of articles - offensive weapons and housebreaking implements. The first category is that of spears, bludgeons and other offensive weapons. It is quite reasonable to expect the possessor of such an offensive weapon to give a satisfactory account of his possession and it is neither unfair nor unreasonable that, in the absence of such an account, he should be convicted without there being any requirement that the Crown prove that he had an intention to use the offensive weapon for an unlawful purpose. The second category is divided into two classes of instruments. Firstly there are crowbars, picklocks and skeleton-keys - these are, ex facie, housebreaking implements and it is reasonable to expect the possessor of them to give a satisfactory account of his possession and it is neither unfair nor unreasonable that, in the absence of such an account, he should be convicted without there being any requirement that the Crown prove that he had an intention to use the implement for an unlawful purpose. The second class in the second category comprises - any other housebreaking instruments fit for unlawful purpose in relation to which it is necessary for the Crown to prove prima facie an intention to use the same for an unlawful purpose (it may, of course, be possible that such an intention can be inferred from the surrounding circumstances) before the defendant can be called upon to give a satisfactory account of his possession. I consider that the above interpretation is the correct one as in my view the words "or other instrument fit for unlawful purposes" cover only housebreaking implements as those words must be read sui generis with the preceding words "any crowbar, picklock, skeleton-key". I consider further that the words "with intent to use the same for any such unlawful purpose" apply and apply only to the other instruments fit for unlawful purposes - the inclusion of the word "such" in the phrase "such unlawful purpose" seems to me to leave no other interpretation open. (In this regard it is interesting to compare Section 45 of the Larceny Ordinance).

Bearing in mind that this is a criminal statute and taking into account the mischief which was intended to be cured this appears to me to be the most satisfactory interpretation of this section. It does of necessity require that the word "or" in the sentence "or is unable to give a satisfactory account of his possession" be read as "and". (See R. v. Oakes(1)). I can see no objection to this - it makes sense of a section which is otherwise almost meaningless, and in my view both cures the mischief aimed at by, and gives effect to what must have been the intention of, the legislature. Furthermore the doubt is resolved as it should be when one is construing a penal statute, in a way which is not less favourable to the subject. Indeed if the way that the present charge is worded evidences the way that this section has been interpreted in Hong Kong by persons framing charges, then clearly the interpretation which I suggest...

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