To what extent is statutory interpretation aided by an

understanding of how statutes are made? (A talk by Kemal

Much of the law is now in statutory form. Statutory interpretation

• the manifestation of some desire on the part of the public;

• suggestions or campaigning by various interest groups;

• possibly the input of a law reform commission or some such

• deliberation within the executive branch of government;

• the sending of drafting instructions to legislative drafters;

• legislative drafting by them;

• some public consultation;

• debate and amendment by the legislative branch of

• enactment.
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Of those stages, the drafting process is probably the least
understood.
Is statutory interpretation aided by an understanding of how
statutes are made? The answer must be: yes, at least in general.
So the question becomes: to what extent is statutory
interpretation aided by an understanding of how statutes are made?
Such extent will depend on the circumstances. And it ranges from
marginal at one end of the spectrum to vital at the other end of the
spectrum.
In seeking to demonstrate that, I will speak both of drafting and
of interpretation, moving back and forth between the two.
Judges in medieval England had a hand in the drafting statutes.
In 1305 Chief Justice Hengham (as can be seen in YB 33-35 Edw I
(RS) 83) intervened in the course of counsel’s argument to tell him
not to put a gloss on the statute, which the judges knew better than
him, for it was their work.
Nowadays we no longer draft statutes. We interpret them.
How we do that is something which I dealt with in Medical
Council v Chow (2000) 3 HKCFAR 144. With the concurrence of
all the other members of the Court of Final Appeal hearing that
appeal, I said (at p154B-C) that “it is necessary to read all the
relevant provisions together and in the context of the whole statute
as a purposive unity in its appropriate legal and social setting [and]
to identify the interpretative considerations involved and then, if
they conflict, to weigh and balance them.”
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Certainly legislation is always to be interpreted purposively.
But how statutes are made can render a statute’s purpose difficult
to ascertain.
Sir James Stephen is quoted (in Sir Alison Russell: Legislative
Drafting and Forms, 4th ed (1939) (Butterworths) at p 23n) as
saying this: “[E]very now and then Parliament arrives at a
conclusion which is designedly left in obscurity, and if you send
that to your draftsman, and the draftsman says, does this mean A or
does this mean B, it is rather uncomfortable for Parliament to say
some of us wanted A and some of us wanted B; and we should like
it capable of interpretation in either way. That is the truth with
regard to a great many Acts of Parliament, but it is one of those
kinds of truth which you cannot tell bluntly and in plain language.”
Such desire for imprecision is rendered particularly ironic by
how difficult it is to achieve precision when you want to. In the
extradition case of Re Castioni [1891] 1 QB 149 Mr Justice
Stephen, speaking of his time as a legislative drafter, said (at p 67)
that he had often drafted statutes which “although they may be
easy to understand, people continually try to misunderstand, and in
which therefore it is not enough to attain to a degree of precision
which a person reading in good faith can understand, but it is
necessary to attain if possible to a degree of precision which a
person reading in bad faith cannot misunderstand.”
Long ago, there used to be a club much frequented by some
legislative drafters as a place to have a few drinks after work. And
unhappily drafted Ordinances were classified either as having been
“drafted by someone in a hurry to get to the club” or as having
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been “drafted in the club”. After those days had long gone, I told
Sir Anthony Mason about them. Subsequently, we had to deal with
a piece of drafting from those days. As were leaving the courtroom,
Tony said to me: “This was definitely drafted in the club”.
There is one difficulty, arising out of the very nature of
language, which both those who draft statutes and those who
interpret them constantly face. This difficulty was explained by
Lord Nicholls of Birkenhead when he said (in his lecture “My
Kingdom for a Horse: The Meaning of Words” (2005) 121 LQR
577 at p 577) that “[l]anguage is an imperfect means of
communication. So the law must find some way to ascribe to
language when used as the source of legal right or obligation a
certainty of meaning it inherently lacks.”
Context always matters. In Kidston v Empire Insurance Co
(1865-66) 1 LRCP 535 the Court of Common Pleas was concerned
with the with the insurance term “average”. Giving the judgment
of the court, Mr Justice Willes said that the question was “not as to
the extensions of which the term ‘average’ is capable, but of the
sense in which it ought to be understood in the particular context in
which it is to be reconciled.”
That is as true of statutes as of commercial documents or,
indeed, of any document or utterance.
Even in everyday life we are constantly engaged, sometimes
consciously and sometimes subconsciously, in taking things in
their context. Suppose I said “Today a cellist got onto the bus
ahead of me”. You would naturally picture in your mind someone
carry a cello. Now suppose instead that I said “At a meeting of the
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steering committee for next year’s arts festival a cellist said that
the acoustics at some of the venues needed upgrading”. I do not
think that you would then picture someone carrying a cello. You
see, it is a matter of context.
You will no doubt be familiar with the case of Pepper v Hart
[1993] AC 593. The House of Lords had to interpret a tax Act.
Hansard contained a statement made by the Financial Secretary to
the Treasury when the bill which became that Act was at the
Committee Stage in the House of Commons. That statement
supported the interpretation which the taxpayer proposed and the
revenue opposed. The law lords were unanimous in concluding
that the taxpayer’s interpretation was correct. In coming to that
conclusion, the majority took into account the statement made by
the Financial Secretary to the Treasury. Lord Mackay of Clashfern
dissented from the view that such a statement can be taken into
account for the purpose of interpreting a statute. Opinion seems to
have swung in favour of Lord Mackay’s thinking. The Court of
Final Appeal’s reservations on Pepper v Hart include what I said
(with the concurrence of all the other judges) in PCCW-HKT
Telephone Ltd v Telecommunications Authority (2005) 8 HKCFAR
307 at para 21. Our latest such reservation was voiced by Mr
Justice Spigelman in Lee Kwok Wa v Securities and Futures
Commission (2018) 21 HKCFAR 537 at para 52.
It is worth observing that of the law lords who heard Pepper v
Hart, the one most familiar with how statutes are made was Lord
Mackay. He had been Lord Advocate, as Scotland’s senior law
officer is called. Of his own time as Lord Advocate, Lord
Wheatley speaks in his memoirs (One Man’s Judgment (1987)
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(Butterworths) at p 126) of daily discussions with legislative
drafters on current and prospective bills.
Lord Hoffmann put it mildly in his article “Language and
Lawyers” (2018)134 LQR 553. He spoke (at p 559) of Hansard’s
reports being made admissible “for what they are worth, which
usually is not much”. Is the game, I venture to ask, worth the
candle?
Let us turn now to the case of Elson-Vernon Knitters Ltd v
Sino-Indo-American Spinners Ltd [1972] HKLR 468. I should
disclose my affection for this case decided by the Court of
Appeal’s predecessor the Full Court in 1972. It happens to be one
of my earliest reported successes as counsel. But there are other
and better reasons for referring to it in this talk.
As a feature of how statutes are made in Hong Kong, Objects
and Reasons (nowadays called Explanatory Memoranda) are
regularly annexed to bills. It was held in the Elson-Vernon case (at
pp 474-476) that when a court interprets an Ordinance which a bill
has become, it may look at such an annexure to that bill for the
purpose of ascertaining the mischief which the legislation was
introduced to remedy.
The Elson-Vernon case was applied by the Court of Final
Appeal in Director of Lands v Yin Shuen Enterprises Ltd (2003) 6
HKCFAR 1 at p15B and in Secretary for Transport v Delight
World Ltd (2006) 9 HKCFAR 720 at pp730J-731B. If you suspect
that it was by my judgments that the Court of Final Appeal did that,
then you would only be half right. I spoke for the Court in the
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Delight World case, but it was Lord Millett who spoke for the
Court in the Yin Shuen Enterprises case. By the way, Lord Millett
happens to be one of the severest critics of the majority’s
proposition in Pepper v Hart.
Let us turn now to how statutes are expressed, which is central
to how they are made. Statutes tend to be couched in language
meant to cover all eventualities. It is a laudable aim, but apt to
generate a degree of elaboration unconducive to intelligibility.
And it is in any event an unachievable aim. As Professors Derk
Bodde and Clarence Morris observe (in Law in Imperial China
(1967) (Harvard University Press) at p 496) the criminal statutes of
traditional China always sought to foresee all the possible
variations of any given offence and lay down a specific penalty for
such variation, leaving no discretion in sentencing.
But that aim could not be achieved. There is (published in 1810
by T Cadell and W Davies of London and reprinted in 1966 by
Ch,eng-wen Publishing Co of Taipei) a translation into English by
Sir George Thomas Staunton of the 44th section of Book I of the
First Division of the Ta Tsing Leu Lee.
It is there provided that: “From the impracticability of
providing for every possible contingency, there may be cases to
which no laws or statutes are precisely applicable; such cases may
then be determined by an accurate comparison with others which
are already provided for, and which approach most nearly to those
under investigation, in order to ascertain afterwards to what extent
an aggravation or mitigation of the punishment would be equitable.
A provisional sentence conformable thereto shall be laid before the
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superior magistrates, and after receiving their approbation, be
submitted to the Emperor’s final decision. Any erroneous
judgment which may be pronounced in consequence of adopting a
more summary mode of proceeding, in cases of a doubtful nature,
shall be punished as a willful deviation from justice.”
How did this method operate in practice? For that we revert to
Professors Bodde and Morris’s book.
It tells us (at p 497 n 69) in effect this. If a literal interpretation
of a statute carrying a drastic penalty would include some less
serious wrongs, then that statute would be interpreted to exclude
those less serious wrongs, and a more lenient way of punishing
them would be found. Equally, if a literal interpretation of a statute
calling for a mild punishment would include some more serious
wrongs, then that statute would be interpreted to exclude those
more serious wrongs, and a more severe way of punishing them
would be found.
Should statutes, or at least certain types of statute, be drafted in
a new style: expressing purposes and leaving the judges to fill in
any gaps in the details? Lord Denning (as appears in chapter 2 of
The Discipline of Law (1979) (Butterworths) favoured such a move.
His predecessor as Master of the Rolls, Lord Evershed, had (as
appears at p 97 of the 1964 Essays on Jurisprudence from the
Columbia Law Review (Columbia University Press) proposed “a
recession from ... extreme elaboration”. Lord Radcliffe (as appears
at p 272 of Not in Feather Beds: The Lawyer and His Times (1968)
(H Hamilton) went so far as to say that ‘[s]tatutes should be ideas
of law, not law itself”.
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I leave it to you and my grandchildren to find the right way in
all of this. For the present, I conclude by telling you about how the
courts deal with plain cases of drafting mistakes. The intention of
the legislature to which the courts give effect is the intention which
they reasonably impute to the legislature in respect of the language
used.
In Inco Europe Ltd v First Choice Distribution [2000] 1 WLR
586 Lord Nicholls explained that in plain cases of drafting
mistakes the interpretative role of the courts properly includes,
under certain conditions, the power of adding words to, omitting
words from or substituting words in a statute so as to preserve the
obvious purpose of the statute.
Lord Nicholls was sitting with us in Chan Pun Chung v
HKSAR (2000) 3 HKCFAR 392 in which we treated the product of
an obvious drafting mistake as otiose and thus preserved the
intention obviously to be attributed to the legislature.