Hong Kong’s Court of Final Appeal will hear a challenge filed by a real estate agent who was convicted and jailed for carrying zip ties near a rally held by District Council election candidates in 2019.
Chan Chun-kit, 34, was convicted in 2020 and sentenced to five and a half months in jail for possession of offensive weapon with intent, after he was found carrying 48 zip ties in Causeway Bay, near a rally held by candidates running in the District Council election at Victoria Park.
The real estate agent’s first appeal against his conviction and sentence was rejected in October last year.
Represented by barrister Steven Kwan, Chan filed another appeal a month later, and the second application asking the court to clarify the interpretation of section 17 of the Summary Offences Ordinance, which states:
“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.”
In a judgement published on Wednesday, Chief Judge of the High Court Jeremy Poon, Justices of Appeal Derek Pang and Anthea Pang ruled that the Court of Final Appeal has to make a determination on four questions as they involve “points of law of great and general importance.”
Hong Kong’s top court will answer four questions, two of which determine whether the “ejusdem generis rule”, meaning “of the same nature,” applies:
- 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?
- 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?
- 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?
- 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?”
Previous appeal rejection
The decision made last October, also by the three judges which rejected Chan’s appeal, said that there had been a “looser interpretation” of section 17 of the Ordinance, and that it was commonly used in dealing with “so-called ‘anti-extradition’ bill cases.”
The judges also ruled that opening the interpretation of the law “will not lead to indiscriminate prosecution or the conviction of those who are innocent.”
The judgement rejecting Chan’s first appeal also deemed the 34-year-old’s jail sentence appropriate: “The type of zip ties in the case has a lot of illegal purposes, but is extremely easy to purchase them, and convenient to hide and carry, it will also not easily raise suspicion, and once it is used, unless someone carries a pair of scissors, it cannot be taken down,” the judgement read.
“Based on the above points, and the background of the case, also the number of people offending and the bad consequences if tools for blocking roads and fighting were used, the appellant’s crime constituted [a] considerable threat to public order. Therefore, a sentence starting point of six months and a final sentencing of five months and two weeks are not excessive.”
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