Hong Kong protests: provision deeming zip ties ‘fit for unlawful purposes’ can be interpreted broadly, prosecutor argues in top court
- People can be caught for carrying pen to forge signatures, senior prosecutor argues
- Justice department asks top judges to uphold first jail sentence of defendant over possession of plastic fasteners at 2019 protest
A legal provision that categorises plastic zip ties as “instruments fit for unlawful purposes” can be interpreted so broadly that people can be caught for carrying a pen to forge signatures, a senior prosecutor has argued before Hong Kong’s top court.
The justice department was asking the top judges to uphold the first jail sentence and conviction of a defendant over possession of the plastic fasteners at a 2019 protest.
Property agent Chan Chun-kit received 5½ months behind bars for carrying 48 zip ties near the scene of clashes in Causeway Bay in November 2019.
During the hearing at the Court of Final Appeal on Friday, prosecutors submitted that the charge of possessing an offensive weapon – which covers instruments fit for unlawful purposes – could be considered a legal tool that encompassed every ordinary item “of a violating nature against person, property or place”.
A lower appeal court had upheld Chan’s conviction by allowing a broad interpretation of the charge so as to cover different, and even innovative, instruments used in a crime. The top court was asked to review such an interpretation.
Section 17 of the Summary Offences Ordinance bars the possession of “any wrist restraint or other instrument or article manufactured for the purpose of physically restraining a person, any handcuffs or thumb cuffs, 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 purposes”.
Lawyers for the appellant have argued that based on the items listed, legislators had only intended to limit three unlawful acts – restraint, injury to person and housebreaking – when they first drafted the law in the 1840s.
The zip ties in the present case, they said, were not produced or intended to be used to perform any of those acts.
The leading counsel, Steven Kwan Man-wai, on Friday said the appeal court below had displaced the roles of the government and legislature by expanding the provision’s meaning to fill the lacuna in the legal text.
He cited a 1984 Legislative Council document where the then attorney general, the counterpart of the secretary for justice during British rule, told lawmakers that “possession of a handkerchief or a piece of string” was outside the ambit of the law.
Acting deputy director of public prosecutions Anthony Chau Tin-hang countered by referring to the Chinese translation of the original English text, which he said better represented the legislative intent to classify the last part of the provision – “other instrument fit for unlawful purposes” – as a stand-alone, catch-all category.
Mr Justice Johnson Lam Man-hon, one of the five judges at the hearing, noted the Chinese text came into being more than a century after the English counterpart by way of authenticated translation instead of formal legislative procedure.
Mr Justice Anthony Gleeson, a non-permanent judge from Australia, posed his question by way of an analogy.
“If I fraudulently forged somebody’s signature using a pen, would I commit an offence of possessing an instrument for unlawful purposes?” Gleeson asked.
“If the legislative intent is aimed at [outlawing] possession of instruments for unlawful purposes, I would say yes,” Chau replied, but immediately added that Section 17 might not be the best legal tool in this scenario.
The judge followed up: “What if I changed my mind [and decided against committing the crime]?”
“Then it depends on the evidence,” the prosecutor said.
The court, also presided over by Chief Justice Andrew Cheung Kui-nung, and justices Roberto Ribeiro and Joseph Fok, will hand down its decision on a later date.