The first person jailed for possessing zip ties during Hong Kong’s civil unrest almost two years ago has failed to overturn his conviction, with an appellate court finding that the everyday item could be an “instrument fit for unlawful purposes”.
In a written judgment released by the judiciary on Monday, the Court of Appeal held that a law initially enacted to prevent specific crimes could also be invoked to charge anyone for carrying any items with a criminal intent.
The much-anticipated ruling is expected to affect more than 100 cases involving the charge of possession of an offensive weapon or instrument fit for unlawful purposes, including those connected to the 2019 anti-government protests.
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Property agent Chan Chun-kit was sentenced to 5½ months behind bars last year for carrying 48 zip ties – each measuring 15cm (six inches) long – when he was stopped by police near the scene of clashes at Victoria Park in Causeway Bay on November 2.
The 35-year-old was the first person to be tried, convicted and jailed for keeping the plastic fasteners.
The ties were commonly used by both sides during the 2019 unrest – with protesters using them to lash together barricades for roadblocks, and by police in restraining suspects.
In one high-profile instance, protesters used them to tie up a mainland Chinese journalist during a sit-in at the airport in August that year.
The Summary Offences Ordinance stipulates that “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 purposes” is liable to a HK$5,000 (US$643) fine or two years behind bars.
At the appeal hearing three months ago, Chan’s counsel, Steven Kwan Man-wai, contended that the wording of the charge was limited to the purposes of restraint, assault and trespass, and did not cover other criminal acts such as obstruction to roads.
Kwan also argued the prosecution had failed to demonstrate an unlawful purpose on the part of the defendant, who insisted he was planning to use the ties for moving offices.
Mr Justice Jeremy Poon Shiu-chor, the chief judge of the High Court, and appeal judges Derek Pang Wai-cheong and Anthea Pang Po-kam rejected those submissions.
Derek Pang, who penned the judgment on behalf of the bench, pointed to multiple amendments of the 1845 provision over the past century that aimed to broaden its application to a wide variety of crimes.
He said a statute was “always speaking”, meaning it was permissible to construe a law to cover and apply to evolving and changing circumstances so long as that would not contravene its express wording.
“The legislative intent cannot be clearer. Simply put, it is to penalise the act of possessing instruments in the commission of a crime,” Pang wrote.
“This court takes the view that applying the ‘always-speaking’ principle to construe [the law] leaves no room for criticism, as it can effectively target criminals who use different or even innovative instruments to commit an offence.”
Such a construction would not lead to miscarriage of justice, the judge said, as prosecutors were still required to prove the defendant harboured a criminal intent.
He said the trial magistrate, Cheang Kei-hong, was right in applying “common sense” to rule that the zip ties found in Chan’s possessions were intended for illegal use during demonstrations, as the defendant was also carrying a helmet, respirator and gloves.
He further snubbed Chan’s appeal against his jail sentence, saying the stiff punishment was in line with the appeal court’s sentencing guidelines issued in previous protest-related cases.
Chan, who was released on bail after serving a month behind bars, must now complete the remainder of his sentence.
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