Statutory Interpretation: What constitutes 'Tampering with a Motor Vehicle'?

HKSAR v Law Yat Ting

In HKSAR v Law Yat Ting [2015] HKCFA 71, the Court of Final Appeal considered the meaning of “tampers” in the Road Traffic Ordinance (Cap. 374) (the “Ordinance”). Section 49 of the Ordinance reads as follows:

“If a person otherwise than with lawful authority or reasonable excuse gets on to a vehicle or tampers with any part of the vehicle, he commits an offence and is liable to a fine of $5,000 and to imprisonment for 12 months.”

The Appellant was convicted of one count of tampering with a motor vehicle contrary to s. 49 above. He was convicted after trial and was sentenced to six weeks’ imprisonment. His appeal to the Court of First Instance was dismissed, and he applied for leave to appeal to the Court of Final Appeal.

The Evidence

The evidence at the trial in the Magistracy had been from a van-driver who had been delivering goods from his parked vehicle in Tsuen Wan. From a distance of about 10 feet behind the vehicle, he saw the appellant closing the left front passenger door of the vehicle. The van-driver immediately went to the vehicle and on checking the front seat where he had left his mobile phone, found it to be missing. Suspecting the appellant, the van-driver chased the appellant and intercepted him about 30 feet away from the vehicle. The matter was reported to the police and the appellant was arrested for theft. There was no evidence to support a charge of theft. The phone was not found on the appellant and there was no evidence that he had taken the phone, but the Prosecution proceeded with the s.49 charge.

The Holding

In delivering the judgment of the Court, Mr. Justice Fok PJ noted that the word “tampers” had not been considered by the Hong Kong courts previously, nor had it been considered by the UK courts, on whose legislation the Hong Kong provision is based. Using the dictionary definition, which reads as follows:

“2. … [M]eddle or interfere with so as to cause alteration or harm; make unauthorized changes in. …

3. … Bias, influence, corrupt; meddle with, alter improperly.”

Mr. Justice Fok concluded that tampers “connotes something more than the mere interference or meddling with, or touching of, that part and implies that there is something improper in the act done. The quality of that impropriety, again following the dictionary definition of the word “tamper”, should be such as to cause alteration or harm to, or to bring about unauthorised change in, the thing tampered with. Therefore, tampering within [s.] 49 means an act constituting either interference or meddling with part of a vehicle so as to cause alteration or harm to it, or the making of an unauthorised change to it.” Also citing the decision of the Supreme Court of Victoria in Harris v Sumner [1979] VR 343, the Court of Final Appeal concluded that the evidence did not support the offence charged, allowed the appeal and quashed the conviction.

Key Take-Aways

  • The Court of Final Appeal will rarely entertain a new point of law to be argued on appeal but allowed this in accordance with the principles in Archer v Hong Kong Channel Ltd (1997-98) 1 HKCFAR 298.

  • The appeal was decided on the papers on a joint case from the appellant and the Department of Justice without the need for an oral hearing.

  • The appellant was assisted and represented pro bono by the Clinical Legal Education Programme of the Faculty of Law of the University of Hong Kong.

This article by MCS originally appeared in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: STATUTORY INTERPRETATION: WHAT CONSTITUTES “TAMPERING WITH A MOTOR VEHICLE”?