Judiciary in the legal system

A judge facing with a statutory provision that seems to produce an absurd or unjust result is usually means the literal meaning of the statute has created some problems due to various reasons. Since the main role of the judiciary in the legal system is to apply the law, judges bear the duty to use the recognized methods to interpret the statute in conducting court cases. If judges simply say the legislature has made a mistake and making their own decisions when they faced with statutory provision that seems to produce an absurd or unjust result.

This is not only judiciary stepping in the prerogative of the legislature, but also creating uncertainties to law because statute may be interpreted differently from time to time. Under normal circumstances, where the literal rule result in absurdity or inconsistency the judge may attempt to extend the meaning of the words used to reach a reasonable result. The court will avoid manifest absurdity in the construction of the statute by ascertaining the intention of a statute and varying or modifying its language.

In those circumstances the court may select a secondary meaning but it must be a meaning that can be linguistically sustained by the words in dispute. The courts have been moving away from the literal rule to the Golden Rule type of construction in solving the absurdities in provisions encountered1. Apart from the simple literalism, Mischief Rule is another approach to statutory interpretation when absurdities were found. In order to ascertain the meaning of the statute, Heydon's case set out four questions to be asked. 1) What was the common law before the passing of the act?

2) What was the mischief and defect for which the common law did not provide? 3) What remedy has parliament resolved and appointed to cure the disease? 4) What is the true reason of the remedy? In the case, Jones v Wrotham Park Settled Estates (1980)2, the modern formulation of the mischief rule was laid down. It further requires the determination of the mischief the legislation sought to remedy by considering the statute as a whole. Secondly, it must be apparent that the drafter and parliament had by inadvertence overlooked and so had failed to deal with the mischief eventually.

Thirdly, the most important requirement is to ascertain the words that could have been used by drafter and approved by legislature. Otherwise, courts are making law instead of determining the meaning of the statutes. Purposive approach is the widest way of statutory interpretation which can be applied by the court in looking to the purpose of a statute even the words used are not ambiguous. In applying the purposive approach in statutory interpretation, judges are not confined by the words used in the ordinance but can consult the extrinsic materials in finding out the meaning intended by the legislators.

Therefore, this approach involves a certain degree of judiciary creativity. The purposive approach is quite different from the Golden and Mischief Rules, which does not require any absurdity on the face of the statute. To such extend, the court could most properly able to find out purpose of the legislation. If the absurdity of the statute is still unable to be solved by the flexible purposive approach of interpretation, judges have to apply the rule.

It is very unusual for courts to say that the legislature has made a mistake because courts should acknowledge the supremacy of legislature. (b) Advise Bert, Chan and Danny. (i) Possible liability of Bert under s 11 of the Inshore Fishing Ordinance Bert may have committed an offence under s11 of the Inshore Fishing Ordinance. This section prohibits any person who for consideration supplies fish caught within the controlled area to any other person, being a person carrying on a business of fishing for sea fish but not a licensee under the Ordinance.

Since Au is not a licensee and operates a 1,000 ton ocean-going trawler, there is reasonable believe that he/she is in the business of fishing for sea fish. Au paid Bert, a licensee, $50,000 on the unspoken understanding that Bert would gave him 'first refusal' of all Bert's catches. The first issue to be considered is whether 'first refusal' takes the same meaning as supply. If there is no clear interpretation of 'first refusal' can be found in the interpretation section and any other section of the Ordinance, it is necessary to refer to reliable extrinsic aids.

In Oxford English Dictionary, the 'first refusal' stands for an agreement with a prospective customer that goods, etc. , will not be sale to others until he has refused them. Under s3 of the Sales of Goods Ordinance3, the 'first refusal' understanding between Bert and Au can only be taken as an agreement to sell. Their agreement to sell will only become sale if Bert transfers his catches to Au4. Therefore, it is critical to determine whether 'agreement to sell' is covered by the meaning of 'supply', the word used in s11 of the Ordinance.

It is assumed that the word 'supply' in s11 cannot be found from the interpretation section and any other sections of the Ordinance, extrinsic aids have to use to find out the literal meaning. If the Inshore Fishing Ordinance is part of the Hong Kong law, the meaning of 'supply' can be referred to the s3 of the Interpretation and General Clause Ordinance5. Unfortunately, the expression 'supply' is not in the list under this section then another extrinsic source should be used.

In the case, Regina Appellant v Maginnis Respondent6, Lord Keith said that the word 'supply', in its ordinary natural meaning, conveys the idea of furnishing or providing to another, something which wanted or required in order to meet the wants or requirements of that order. It connotes more than the mere transfer of physical control of some chattel of object from one person to another. By giving someone a 'first refusal' of something that he required but without actual transaction may not under the natural meaning of 'supply' which requires transferring of goods.

Therefore, Bert may not be liable for s11 of the Ordinance by simply gave Au 'first refusal' of all his catches but without actual transaction. The outcome simply based on literal meanings of the Ordinance, an absurd result was obtained. It may not be reasonable for someone set up an agreement to sell or 'first refusal' with consideration but without actual intention to conclude the sale. Therefore, under the Golden Rule, it is reasonable for judges to apply another meaning for 'supply' which covers the 'agreement to sell' stage. Bert may be liable for the offence under s11 of the Inshore Fishing Ordinance.