Hong Kong’s top court has ruled that zip ties are “not instruments fit for unlawful purposes” under existing legislation, warning that authorities could penalise “thought crimes” otherwise.
Laying down the landmark ruling, five Court of Final Appeal judges on Friday unanimously acquitted the first person jailed for carrying the plastic fasteners during an anti-government protest in 2019.
The ruling drew to a close a court debate on whether an 1845 provision initially enacted to prevent specific crimes could be a catch-all clause enabling those found to be carrying items with ill intent to be charged.
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Hong Kong protests: zip tie law can be interpreted ‘very broadly’, court told
Property agent Chan Chun-kit, 35, was the first person to stand trial and later be convicted and jailed over the possession of zip ties, receiving 5½ months behind bars for carrying 48 such fasteners – each measuring more than 15cm – when he was stopped by police near the scene of clashes at Victoria Park in Causeway Bay on November 2, 2019.
The Court of Appeal upheld his conviction and jail sentence last October after ruling that a sweeping interpretation of the charge under Section 17 of the Summary Offences Ordinance could effectively target criminals using different or even innovative instruments to commit an offence.
Section 17 seeks to penalise “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”.
In a written judgment, Chief Justice Andrew Cheung Kui-nung said the lower appellate court had erroneously given the last part of the provision, “other instrument fit for unlawful purposes”, a blanket interpretation, adding such an unrestricted construction would “do violence to the language” of the law.
Instead, the top judge held that the wording confined its use only to three expressed illegal purposes: physical restraint, injury to a person, and gaining unlawful access.
The lower court’s approach, he said, was contrary to the legislative intent of restraining the scope of the provision.
Hong Kong’s top court to decide whether zip ties are ‘fit for unlawful purpose’
“The Section was not a convenient method of seeking to obtain a conviction against a suspect when there was insufficient evidence to charge him with an attempt to commit a crime,” Cheung said.
The wider construction placed on the provision by the Court of Appeal in this case would go far beyond using the offence in that way, as it would mean almost all articles or instruments could be considered fit for some unlawful purpose, he said.
“In other words, under this construction, Section 17 is in reality a thought crime, depending on what a defendant’s intent was at the material time subject to proof. There is simply no warrant to suggest that this was the legislative intent.”
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