LLAW6259 Chap.6 Statutory Interpretation: Rules, Aids and Presumptions
Statutory Interpretation: Rules, Aids and Presumptions
Two statutory layers come before any common law approach
Ordinances are made by the Legislative Council and applied to the facts of a case by judges, so interpretation is unavoidable, and the course gives two reasons it now matters more.
The volume of statute law has greatly increased, and even areas that remain mainly case based, such as contract and tort, are significantly affected by statute, while others such as company law are essentially creatures of it. Before reaching for any common law approach, two statutory sources of meaning must be checked.
The Ordinance's own interpretation section defines words for its own purposes and displaces ordinary usage completely.
The Interpretation and General Clauses Ordinance supplies definitions and rules across the statute book.
Three provisions of that Ordinance do work in almost every problem: that words importing the masculine gender include the feminine and neuter, that the singular includes the plural and the plural the singular, and that an Ordinance is deemed remedial and receives such fair, large and liberal construction and interpretation as will best ensure the attainment of its object according to its true intent, meaning and spirit.
Four approaches, each answering a different question about the text
The literal rule gives the words their ordinary and natural meaning even where that produces a harsh result.
The golden rule applies where the meaning is ambiguous and takes the reading that avoids the absurdity. The mischief rule applies where the meaning is not clear and reads the statute in light of the mischief it was intended to remedy. The purposive approach asks what the legislature meant, as that meaning shows itself in the enacted words, and reads those words with their setting and their object in view.
Underneath all four sit two specific rules: the statute must be read as a whole, and the eiusdem generis rule, under which a broad catch-all that follows a list of named things reaches only things of the same kind.
The purposive approach, and the proposition that changed practice
The approach in Hong Kong has been stated in three propositions.
First, a word carries the meaning it ordinarily bears, and moves off that meaning only where the setting or the object of the provision pushes it elsewhere. Second, setting and object are part of reading the enacted words in every case, not something a court reaches for once it has decided the words are unclear.
Third, setting is understood broadly: it takes in the rest of the Ordinance, and the law as it already stood when the provision was made. The middle proposition is the one that changes how an answer is written.
On the older view purpose was a last resort reached only once ambiguity was established, which made ambiguity a gateway worth arguing about; the proposition removes the gateway, so you may go to the long title and the scheme of the Ordinance directly.
Extrinsic aids for purpose, and presumptions that can be displaced
Where an Ordinance enacts what a Law Reform Commission report recommended, counsel may put that report before the court to establish what the legislation was for, and an explanatory memorandum, or a statement by the responsible government official in the Legislative Council, may be used for the same job.
Using such material for the different job of fixing what the enacted words mean sits on quite another footing, and how far that approach runs here has deliberately been left undecided. Three presumptions are named: against retrospective operation, against strict liability, and against exclusion of natural justice.
All three can be displaced by express statutory language, so a presumption is an argument about where the burden of clarity lies rather than a rule about what a legislature may do.
What this chapter covers
- 01
Why the Ordinance's own interpretation section is read first
- 02
What the Interpretation and General Clauses Ordinance supplies across the statute book
- 03
Literal, golden, mischief and purposive, and when each is available
- 04
The statute read as a whole, and the eiusdem generis rule
- 05
The three propositions of the purposive approach
- 06
Why purpose is no longer reached only after ambiguity
- 07
Extrinsic aids: admissible for purpose, a different question for meaning
- 08
Three presumptions, and what displaces them
Construe a penal provision that borrows a contract law term
- 2State the approach to the words and the principle about the general law.
- 2Apply the general law meaning of offer for sale to a window display.
- 1Deal with the argument that the result is absurd.
- 2Name the two things that would change the answer.
Key terms
- Literal Rule
- The approach giving the words of a statute their ordinary and natural meaning, even where the result is harsh.
- Golden Rule
- The approach taken where the meaning is ambiguous, taking whichever reading avoids an absurd result.
- Mischief Rule
- The approach taken where the meaning is not clear, reading the statute in light of the mischief it was intended to remedy.
- Purposive Approach
- Reading a provision for what the legislature meant, as that meaning shows itself in the enacted words, with the setting and the object in view from the start rather than only once an ambiguity appears.
- Extrinsic Aid
- Material outside the statute, such as a law reform report or a statement in the legislature, admissible to establish what a provision was for.
- Casus Omissus
- A case the legislature did not provide for. A court may notice one and decline to supply the omission, which is a limit on interpretation rather than a failure of it.
- Presumption
- A starting position a court adopts unless the statute says otherwise, such as against retrospective operation, and capable of being displaced by express language.
Statutory Interpretation: Rules, Aids and Presumptions FAQ
Which interpretation rule should I use in an answer?
Start by saying why an approach is available rather than which one you prefer. The literal rule operates where the words are clear, the golden rule where the meaning is ambiguous, the mischief rule where it is not clear, and the purposive approach throughout.
In practice a strong answer works through the Ordinance's own interpretation section, then the general interpretation Ordinance, then the words in their natural meaning read in the context of the whole statute and its purpose, and reaches the presumptions last.
Can I use what a minister said in the legislature to show what a word means?
Not for that purpose. A statement of that kind, like an explanatory memorandum or a law reform report that the legislation enacts, is admissible to establish what the provision was for.
Turning it into evidence of what the enacted words mean sits on quite another footing, and how far that approach runs in Hong Kong has been left undecided, the Court having used it on a handful of occasions without deciding that it is available. Reframe the submission as one about purpose.
What does eiusdem generis actually do to a provision?
It narrows general words that follow a list. Where a provision refers to a solicitor, banker, stockbroker or other person, the general phrase is read as covering another person of the same class as the three named, which here means someone holding money professionally.
It is a rule of construction rather than a rule of law, so it gives way if the Ordinance defines the term for itself or if its purpose plainly reaches more widely.
Assessment move
Take one section from an Ordinance you are using in another course and write out, in order, its definitions, its purpose from the long title, and any case that has construed it. Then write the sentence you would use in an answer. The order is the point; most interpretation errors come from starting in the middle of it.
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