TNAG-1722-FCO40-2415-Future-of-Hong-Kong-Basic-Law-1988 — Page 38

6

5.

to the original intent of the legislation. Punishment by analogy is a system in which conduct that is criminal, but is not named in the relevant section

the criminal

under the most similar article of that section.

of

law,

can be punished

and

b) Although it is subject to ratification by the SPC, punishment by analogy is generally carried out by local courts procuratorates.

ឆក

C) Supreme judicial interpretation becomes effective promulgation and is binding on all organs of the administration of justice. Whereas punishment by analogy must be reported to the SPC and only becomes effective once it receives the court's approval. Furthermore it has no binding effect on other cases.

Judicial interpretation must also be distinguished from the criminal case precedents of the SPC. Case precedent narrowly construed means the case judgments of the SPC. In the broader sense it includes written replies concerning judgments of lower courts, compilations of case reports and releases of case reports and other forms of SPC documents which clearly show approval of lower court judgements. Case precedents of the SPC are an important means of coordinating the national administration of justice, however they are only used for reference and have no binding effect..

III

Supreme judicial interpretation of criminal law

can categorized according to the methods of interpretation, the identity of the issuing body and the form of the opinion:

1. Supreme judicial interpretation uses both syntactical and logical methods of interpretation:

a) Syntactical or literal interpretation means the interpretation of the law according to the grammar and internal coherence of the written provisions of the criminal law. For example, Article 44 of the Criminal Law states that the death penalty cannot be imposed on pregnant women. The SPC decided that this also excludes the use of the death penalty with two year suspension because there is no statutory rule that permits its imposition. This is unlike the statutory prohibition against the death penalty for 16 to 18 year old's which specifically allows for the imposition of the death penalty with two year suspension in serious cases.

b) Logical interpretation, including both extending and restricting analysis, means the application of the law based on a logical analysis of the original intent of the legislation. An extending analysis is therefore a logical interpretation of the range of

meaning contained in the written words of the statute. For example, Article 170 of the Criminal Law established a criminal offense for the

"production or sale of pornographic