August 8, 1904.]
CHINA OVERLAND TRADE REPORT.
true interpretation of all statutes in general, be they penal or beneficial, restrictive or enlarging of the common law, four things are to be dis-
Sub-section eleven sets out the offence thus: "Upon any public footway, rolls or carries any barrel, cask, butt, or other thing calculated to annoy or incommode the passengers thereon,cerned and considered :- except for the purpose of housing it or of load. ing any cart or carriage on the other side of the footway."
Now, the Magistrate found, as facts, that the pole, a large, heavy bamboo carrying pole, was carried on the respondent's shoulder at 5.45 pm.. on May 17th on the public footway at Praya East, that it was carried in such a way as to obstruct the footway and to be calculated to annoy and incommode passengers thereon, and that it was not being carried for the pur- pose of being housed, or for the purpose of being loaded on any cart or carriage on the other side of the footway.
The Magistrate, however, refused to convict because. in his opinion, the general word "thing" following the specific words barrel, cask, or butt," takes its meaning from them and must be presumed to be restricted to articles of the same genus.
It was argued before the Magistrate on behalf of the prosecution, and again before this court, that the general purpose of the Ordinance was, inter alia, to prohibit nuisances on the footway, and that the words or othee thing" were not limited in their meaning by thr specific words barrel, cask, or butt. which precede them. because they must be read with the words "calculated to annoy or incommode the passengers thereon (... on the footway) which immediately follow them. and that the genus contemplated by the Ordinance consists of any; thing whatsoever so calculated to annoy and incommode. It was also argued that the excep. tion as to housing or loading did not limit the meaning of the general words.
The question the Court has to decide, on this appeal, is whether the words "or other thing calculated to annoy or incommode the pas sengers on the footway as used in the sub-sec. tion ought to be so construed as to include the bamboo pole, which has been found by the Magistrate to be so carried as to annoy and incommode passengers.
It is clear that unless the words must be so limit- ed by the preceding words asto mean only things ejusdem generis with a barrel, cask, or butt (butt meaning a large cask), they include the bamboo pole in question.
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1st What was the common law before the making of the Act?
2nd What was the mischief and defect for which the common law did not provide?
3rd What remedy the Parliament hath resol- red and appointed to cure the disease of the commonwealth, and
4th The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy and to suppress subtle inventions and evasions for the continuance of the mischief. pro privato commodo, and to add force and life to the cure and remedy. according to the true intent of the makers of the Act pro bono publico."
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There are certainly cases in which it has been held that where a general word follows parti- cular and specific words of the same nature as itself, the general word takes its meaning from them and is to be presumed to be restricted to the same genus as those words or in other words as comprehending only things of the same kind as those designated by them; unless of course there be something to show that a wider sense was intended."
I am quoting the language of Maxwell on the Interpretation of Statutes. p. 469.
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But it will be observed that he qualifies the proposition by the words unless, et cetera. When we look at the case before as we find the words are not simply "any barrel, cask. butt. or other thing." in which case some qualification of the word "thing" would be required. but any barrel, cask. butt, or other thing calculated to annoy or incommode the passengers."
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Is there not then here something to show that a
wider sense is intended for other thing" than merely something ejusdem generis with a barrel, cask, or butt? It is to include anything reasonably calculated to annoy and incommode reasonable passengers on a public footway. That is the meaning I place upon the words.
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It may be well if we look at the probable origin of the Ordinance in question. It was passed on 26th December. 1841. It was intend- ed to put a stop to various nuisances, and sub- section eleven was intended to prevent passengers on public footways from being annoyed and incommoded by the rolling or carrying, on such footpaths. of casks. barrels. and other things calculated to annoy and incommode such pas- sengers. It appears to me that sub-section eleven, as well as some of the other sub-sections of the section in question. were taken from the Metropolitan Police Act. 2 & 3 Victoria, c. 47. section 54. passed in 183). Sub-section 8 of that section renders liable to a penalty :-
Every person who shall roll or carry any cask, tub, hoop, or wheel, or any ladder, plank. pole. show-board, or placard, upon any footway. except for the purpose of loading or unloading any cart or carriage, or of crossing the footway."
It seems to me that the Hongkong drafts- man instead of giving a list. which might suit London requirements but not prove sufficiently exhaustive in this Colony, after specifying casks, &c., used general words intended to cover everything calculated to cause passengers on the foot path to be annoyed and incommoded.
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and then another point was taken by the prisoner's counsel namely, that the former Prisons Act, George IV. c. 64, Section 43, used the words mask, vizor, or other disguise, instrument or arms, proper to facilitate the escape of
any prisoners, whereas the word “instrument, which clearly includes 蹑 "crowbar," Was omitted in the Act under which the prisoner was accused. and which repealed the former section: whereupon Chief Baron Pollock ob- served:
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"It substitutes the more general words any article or thing, and Barou Pigott added:— Clearly showing thereby that the Legislature intended to embrace more things than were included under the old Act.”
The conviction was upheld. Pollock. C.B. saying: We are all of opiniou that a crowbur is included under the words or other article or thing. That was the case of the Queen . Payne Crown Cases Reserved. p. 27. decided in 1866.
In the case we are deciding the draftsman evidently substituted general words for the more detailed list set out in the Metropolitan Police Act, and I take the same view of the result as the judges did in Queen v. Payne. I think that the Legislature meant to protect passengers using the footpath from being annoyed and incommoded by obstructions caused by the rolling of casks. or the carriage of bulky or improper things for which the only suitable place would be the roadway. It seems to me strange to hold that such protection must be limited to cases where the cause of the cb. struction is a thing like a cask. or in the same genus as a cask. Are coolies to be allowed to carry large bundles of bamboo scaffolding poles along the footpath. in Queen's Road for in- stance Looking at the wording of the Or dinance I do not believe the Legislature in- tended the restricted meaning suggested. It seems rather to me that, after forbidding the rolling or carrying of barrels and casks on the footway, the Legislature proceeded to also for- hid the rolling or carrying of any other thing which would cause reasonable people to by annoyed and incommoded in their proper use of the footpath.
I am aware that one learned judge, in 1868. in another case, said with reference to the case of the Queen. Payne, that it "fell within the rule that if the particular words exhaust a whole genus the general word must refer to Rome larger genus." but that rather subtle refinement is certainly not mentioned in any of the reports of the case itself which have heen able to discover. Assuming, however. that such distinction was present to the minds of the five judges who decided the Queen r. Payne, the present case appears to me to show that the ·larger genus intendel here
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anything calculated to annoy or incommode." The case of Skinner v. Shew (1893), 1 Chan- cery. p. 413. seems also to me to be in point I do not think we derive much assistance from the various cases relating to the question what is a place within the meaning of the Betting Act, 1853 ? Some were over-ruled by the House of Lords in Powell The Kempton Park Racecourse Company. Limited. Appeal Cases (1899), p. 143, and the question of "user greatly complicated the inquiry in the betting
house cases.
How, then, must this Ordinance beconstrued? It is a penal statute, but, nevertheless, it must be construed so as to carry out the intention of the Legislature. At one time, no doubt, penal statutes were construed very strictly. I quite agree with the following passages in Sir P. B. Maxwell's work OB the Interpretation of Statutes. They occur at pp: 367-369 of the third edition of his Book, and are as follows:- The rule which requires that penal and some other statutes shall be construed strictly was more rigorously applied in former times, when the number of capital offences was very large when it was still punishable with death to cut down a cherry- tree in an orchard, or to be seen for a month in the company of gypsies. or for a soldier or sailor to beg and wander without a pass. But it has lost much of its force and importance in recent times, since it has become more and more generally recognised that the paramount duty of the judicial inter- preter is to put upon the language of the
I must confess that I am not alarmed at the Legislature, honestly and faithfully, its plain
prospect of my decision causing hardship to and rational meaning, and to promote its object.
law-abiding citizens. If my interpretation It does not allow the imposition of a
leaves the terms of the prohibition somewhat restricted meaning on the words, wherever
elastic, we may, surely, attribute some measure any doubt can be suggested, for the purpose
of common sense to the Executive as well as of withdrawing from the operation of the
to the Magistrates and Judges. In this case statute a case which falls both within its scope!
for instance, the Magistrate feeling a doubt. and the fair sense of its language. This would
very naturally left the matter for the decision be to defeat, not to promote, the object of the Section 37 of the Prison Act 1865 made of this Court. If people are, hereafter, impro- Legislature, to misread the statute and mis- everyone guilty of felony who with intent to perly harassed by prosecutions for carrying, on understand its purpose. A court is not at facilitate the escape of any prisoner conveys or the public footway, things not reasonably cal- liberty to put limitations on general words causes to be conveyed into any prison any mask.culated to annoy or incommode reasonable people. which are not called for by the sense, or the dress or other disguise, or any letter, or any having regard to the conditions of modern life objects, or the mischiefs of the enactment, and other article or thing." A prisoner was con-
and to all the circumstances of the case, I take no construction is admissible which would sunc-victed of conveying a crowbar into a prison, it the Magistrate would very properly refuse to tion an evasion of an act.'
and it is clear that, if the words other article convict and, if he thought it necessary, would or thing" must be construed as meaning only censure the course adopted by the police or things ejusdem generis with masks or letters, prosecutor. He would regard the spirit as well they would not include a crowbar. The point as the letter of the Ordinance. If not, legisla was reserved for the consideration of the Judges tion would be called for. For example, to notice for Crown Cases Reserved. First, the point one or two instances mentioned, in argument. about ejusdem generis was taken on argument I do not see why a rifle properly carried by u before the five Judges who composed the Court. volunteer along a footpath should be calculated
Indeed this seems to me to be simply a return to the sound principles of common sense en- unciated by Coke three hundred and twenty years ago. In Heydon's case, A.D. 1584, report ed at page 18 of volume 2 of Coke's Reports, Parts III and IV, he says that the Barons of the Exchequer resolved "that for the sure and
Of course if he did not use apt words to carry but his intention the Legislature alone can amend them, but, giving fair meaning to the words, is not the intention of the Legislature clearly enough expressed
I will take a decided case which seems to me to be very much in point.
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