Hong Kong's top court to rule on challenge over first conviction for carrying zip ties

Hong Kong’s Court of Final Appeal will rule on a challenge of the interpretation of the city’s legislation against possession of “instruments fit for unlawful purposes,” following a hearing on Friday.

Real estate agent Chan Chun-kit was convicted in 2020 and sentenced to five and a half months in jail for possession of an offensive weapon with intent, after he was found carrying 48 six-inch zip ties in Causeway Bay, near a rally held by candidates running in the District Council election at Victoria Park.

Judiciary Court of Final Appeal — Court of Final Appeal Photo: GovHK.

While Chan’s first appeal against his conviction and sentence was rejected in October last year, his second application was approved. He asked 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.”

Chief Justice Andrew Cheung, Permanent Judges Roberto Ribeiro, Joseph Fok, and Johnson Lam, and Overseas Non-Permanent Judge Anthony Gleeson heard arguments from barrister Steven Kwan, who represented Chan, and Anthony Chau, who represented the government.

Four questions to answer

The court was asked to answer four questions, two of which determine whether the “ejusdem generis rule,” meaning “of the same nature,” applies.

Four questions to be answered by the Court of Final Appeal (Click to expand):

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?”

Kwan argued that the rule should apply to section 17 of the Summary Offences Ordinance, and that among the three categories of tools – namely those used to physically restrain a person, offensive weapons, and tools used for housebreaking – “other instrument fit for unlawful purposes,” appeared to refer to other tools for housebreaking, and that zip ties should not fall under that category.

Kwan said that due to the size of the zip ties Chan was found with, they were not intended for restraining people, and because zip ties could not be used for housebreaking, they did not fall under “other instrument fit for unlawful purposes,” under that interpretation.

The barrister also argued that the court should refer to the original English version of the legal text, “if there is any inconsistency” between the English and Chinese versions, as it was the language that the legislation was enacted in. The Chinese version came after via authenticated translation.

Chau, on the other hand, argued that the interpretation of “unlawful purposes” should not be narrow, and that “other instrument fit for unlawful purposes” should be seen as a “standalone” category separate from the three other types.

Anthony Chau. File photo: Kelly Ho/HKFP.

Chau also said that the court should consider the legislative history of the section, and argued that the provision was of a “preventative nature” drafted up “in response to the environment or prevalent crime at the time.”

Chau also argued that the court should look at the Chinese version of the section as “it opened up to be more clear on how to reflect the legislative intent,” when compared with the English version.

After hearing Kwan and Chau’s arguments, the court adjourned the ruling to a later date.

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