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to annoy any reasonable person. It is done every day in London. Nor do I see why an umbrella of reasonable dimensions carried, on a wet day for protection against the rain, should be held to incommode people who are uot selfish and unreasonable. If the Ordinance we are discussing had been passed after November, 1897. I do not think any difficulty could have arisen. because sec- tion 18 of the Interpretation Ordinance. 1897, expressly provides thut in Ordinances there after passed the words ** or. other." and otherwise" shall, unless the contrary inten. tion appears, be construed disjunctively, and not as implying similarity, unless the word similar or some equivalent expression is added.
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The words calculated to annoy rather im- ply that someone has to do the calculation or settle what things come within the category. and I think we may trust to the common sense of the Magistrates in such cases.
In the result, I hold that the bamboo pole in this case comes within the words of the sub-sec- tion and there should have been a conviction. express my views with some diffidence as I understand Mr. Justice Smith has come to a different conclusion. However, by section 24 of Ordinance No. 3 of 1873 (new edition) where, on an appeal, there is a difference of opinion between the two judges. the Chief Justice has a double or casting rote.
The appeal will. therefore, be allowed, but in the circumstances there will be no order as to costs.
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THE HONGKONG WEEKLY PRESS AND
the person who carries it in an entirely in- offensive way will be liable, if the construction now sought to be placed on the sub section prevail, to arrest and fine or imprisonment notwithstanding that he was not carrying it in such a manner as to annoy or incommode The same as regards a portmanteau, a seamstress's stool, a tiffin basket, a milliner's box, an umbrella, a big hat, and scores of articles daily carried on the footway: all these are calculated to annoy or incommodo passengers on the footway, though each one of them may perchance he so carried in a particular instance as not actually to annoy or incommode passengers. In my judgment, it is foreign to the point to say that we must rely on the discretion of the police or the magistrates not to arrest or convict a person for carrying. e.. a dripping umbrella on a footway. We cannot decide a point of construction relying on the discretion of the police or the magistrates to mitigate the effect of our decision.
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[August 8, 1904. a shop or godown to load on a cart or carriage the other side of the footway. It seems plain that a bamboo carrying-pole is not an` article which it is usual either to store in a shop or godown, or to load on a cart or carriage. I do not house my umbrella, nor does a workman honse his implements of trade if such things are taken home of an evening. For the appellant, it was sought to construe the words for the purpose of loading any cart or carriage as meaning for the purpose of using it (e.g. a bamboo pole) to load a cart or carriage. That construction may look possible when you speak of a bamboo pole, but it is obviously impossible if you speak of a cask. You load casks on carts, you do not load carts by means of casks. The words must bear that construction which makes them applicable to all things to which they are intended to refer. So much, then, for the construction of the sub-section froman examina- of its language and effect as evincing the intention of the Legislature.
conreys
It being plain that the only alternative
I will now deal with the cases which were construction to the ejusdem generis conronght up during the argument, and first struction is that construction which brings of all with the case of Regina v. Parne a large percentage of persons within the meshes (L. R. 1. C. C. R. 27.) In that case the defeudant of the law for everyday acts of necessity and was charged with conveying a crowbar into a convenience, is this Court going to impute to prison to facilitate the escape of a prisoner. the Legislature an intention to make liable to and it was held that a crowbar came within the arrest and fine or imprisonment a large body of words "any other article or thing" in the follow- persons carrying things which are both a neces. ing section "Every person who with intent sity and a convenience of life, when the to facilitate the escape of any prisoner. words of the enactment are equally capable of a construction which limits the offences to offence in respect of certain specific articles which it is I desire to add, although of course, this is no not a necessity or convenience of life to roll or part of my judgment, that I consider that the carry along a footway except under circum- coolie in this case has had quite sufficient stances provided for by the law? I hold there- punishment owing to the loss of time he has fore that the construction which we are invited incurred in attending this appeal and taking to put on this subsection leads to the absurdity into account his enforced attendance at the of supposing that the Legislature intended Magistracy, especially as there appears. hitherto interfere with the ordinary concomitants to, to have been some doubt as to whether what of walking on a footway and I decline he did was forbidden by law.
to put that construction on the subsection. preferring the more sensible cjudem generis construction adopted by the Magistrate, which is also at least equally justified by the language used.
The Paisne Judge said-In this appeal the Full Court is asked to say that the refusal of a Magistrate to convict in a certain case was wrong. It appears that on 18th May last two Chinese were separately charged at the Police Court with an offence under what was then sect. subsect. 11 of Ordinance 14 of 1845. but what is now sect. 3 subsect. 11 of Ordinance 14 of 1845. In both cases. the alleged offence charged was that the defendant on the 17th May unlawfully did carry a bamboo pole on the pub- lic footpath at Praya East, such bamboo pole being calculated to annoy and inconmode pas- sengers on the footpath.
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into any prison any mask, dress Or other disguise, or any letter or any other article or thing, shall be guilty of felony This case appears in five. or six Reports, but in not one of the Reports is any reason given for the decision arrived at: no ratio decidendi appears anywhere in the reported judgments. The case was before the Court of Criminal Appeal as to whether the ejusdem generis rule of construction was ap- plicable in the case. The Court apparently held that it was not, but did not give its reason for so holding. However, during the course of the argument in Fenwick v. Schmalz, L.R. 3 C.P. at p. 315, Willes J.. referring to R. v. Payne said "That case falls within the rule that if the The words harrel cask, butt, like the words particular words exhaust the whole genus. house, office, room in the Betting Act 1853, are the general word must refer to some larger the dominant words of the subsection.
By the
genus. This clearly explains the ground of construction contended for, it is sought to make the decision in Regina v. Payne. There the the words other things the dominant words. If words mask, dress or other disguise exhaust this contention were sustained, the effect would the whole genus, and therefore the following be to strike out the words barrel, cask, butt. words are not controlled by the specific words, But I think that the Legislature put them in but are allowed their widest meaning. If that the subsection for a purpose, viz. as a guide to is the explanation of the decision in Regina the nature of the other thing calculated to v. Payne (and it is the explanation of The section and subsection under which the annoy or incommode. I cannot therefore that eminent Judge Sir James Shaw Willes). charges were laid are :-----
adopt a construction which treats the dominant | the decision does not govern the present case, for as surplusage. (See per A. C. Smith, L. J. here the preceding particular words barrėl, cask, 1897. 2 Q. B. 281).
butt, do not exhaust the genus to which they It was further contended that the words "roll belong, as it is easy to see if one merely men- or carry" point to two classes of things, viz, one tions such words as tub, jar, drum, cylinder. class of thing usually moved by rolling, another curboy, which are all within the same genus us class of thing usually moved by carrying. On the words barrel, cask, butt. If the words in the contrary, it seems to me that the words the present case had been barrel, cask, butt or roll or carry indicate that the things aimed at other thing, or any other article or thing by the subsection are things which it is usual calculated. &c. &c.," then the cons'ruction now to more either by rolling or by carrying: in contended for might be upheld, because " barrel, other words, things capable of being moved, some- cask, butt or other thing' would be words times by rolling, sometimes by carrying: and that exhausting a genus; and the succeeding general either mode must be a usual mode of moving the words would have the widest meaning. Thero- thing. Such a construction certainly suitsthewords fore, in my judgment, this case, which at first barrel, cask, butt, which are objects us frequent-sight appeared to be contrary to the view of the ly carried as rolled. Under this construction magistrate. becomes, on consideration, a case the words roll or carry point to the exclusion of which indirectly supports his conclusion. a bamboo-pole from the purview of the sub- section, because a bamboo-pole is not a thing which ordinarily is moved sometimes by being rolled and sometimes by being carried.
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Sect. 2. Every person shall be liable to a penalty not exceeding five pounds who within the Colony of Hongkong shall in any thorough- fare or public place or adjacent thereto commit any of the following offences; that is to say :--- Subsect. II. Every person who, upon any public footway, shall roll or carry any barrel cask, butt, or other thing calculated to annoy or incommode the passengers thereon, except for the purpose of housing them or of loading any cart or carriage on the other side of the. footway."
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The Magistrate refused to convict on the ground that the words other thing meant other thing of a like nature or class as harrel. cask, butt
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There are only two possible constructions of the words "other thing" by one construction they mean "other like thing" by the other construction they mean any other thing whatsoever," whether like a barrel. cask, butt or not. The Magistrate adopted the former construction. The Full Court is invited to adopt the latter construction: that is, it is invited to decide that every person who rolls or carries on the footway anything calculated to annoy or incommode a passenger thereon is liable to summary arrest and to a fine not exceeding five pounds or, in default, to imprisonmout with hard labour for three months. Be it observed, the offence created by the subsection is not that of rolling or carrying in a manner calculated to an- noy or incommode: the offence is that of rolling or carrying certain things calculated to annoy or incommode. Let me illustrate my mean- ing. A rifle when carried on a footway is undoubtedly a thing calculated to annoy or incommode, though ordinarily tolerated: yet
Further, the concluding words of the sub- section seem to me to throw light on the inten- tion of the Legislature. Those words are except for the purpose of housing them or of loading any cart or carriage on the other side of the footway." and they cause the sub-section to mean that, unless you are housing a barrel, cask, butt or other thing, &c., or loading them on any cart or carriage on the other side of the footway, you must not roll or carry such things on a public footway. Now, these words housing and loading must refer to things which it is usual to house or load, and to my mind afford a further indication of the intention of the Legislature that this sub-section sims only at things which it is customary either to take into a shop or godown for storage, or to take out of
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Another case mentioned was that of Shillito
e. Thompson, L.R. 1. Q.B.D. 12. There a grocer was charged with possession, with intent to sell, of cheese unfit for food, the charge being laid as a breach of a municipal bye-law sub- jecting to a penalty any person who should have in his possession, with intent to sell. any meat, fish. poultry or other victuals or provisions, unfit for the food of man. It was argued that cheese was not ejusdem generis with most aud the other things mentioned in the bye-law. Clearly it was, because the genus was food, of which meat, fish, poultry, were only species. This explanation is adequate to an understanding of the decision. The case therefore directly and strongly supports the Magistrate's con- clusion, and is an authority against the appellant instead of in his favour, for the worlds other victuals or provisions were construed as ejusdem generis with the preceding words meat, fish, poultry. Then there were three cases to which