Pages

Wednesday 30 May 2012

Rules of statutory interpretation : Ejusdem Generis, Literal, Mischief Rule

Study Guide
Explain the rules and presumptions used by the courts in interpreting statutes.

Past Year Questions
Dec 2006 Q1, June 2010 Q1
In relation to the Malaysian legal system, explain the following rules of statutory interpretation adopted by the courts:
a.The ejusdem generis rule;
b.The literal rule; 
c.The mischief rule. 


Suggested Answer
This question tests the candidates’ knowledge on three specific rules of statutory interpretation, viz, the literal rule, the ejusdem generis rule and the mischief rule.

a.The literal rule
  • This is a rule by which a word or phrase is given its literal or ordinary grammatical meaning. According to this rule, if the words of the statute are in themselves precise and unambiguous they must be expounded in their natural and ordinary sense. This rule is very commonly used and sometimes appears to give a result contrary to the intention of Parliament. 
  • The case Fisher v Bell (1961) is a good illustration of the application of this rule. In this case a shopkeeper was charged under the Restriction of Offensive Weapons Act 1959 for offering for sale certain weapons, including ‘flick knives’, by displaying these knives in a shop window. The court held, applying the literal rule, that the display was not an offer for sale but merely an invitation to treat. Thus, the shopkeeper was held not guilty. 
  • The courts in Malaysia have also adopted this rule. This may be illustrated by the case of Kon Fatt Kiew v PP (1935), where the court held, applying the literal rule, that ‘rubber’ includes ‘scrap rubber’. Another relevant case is Foo Yoke Ling & Anor v Television & Ors (1985), where the provisions of the Copyright Act 1969 were interpreted by applying the literal rule.
(b) The ejusdem generis rule
This is the rule by which, where a general word follows a class of specific words, the general word is interpreted to refer to words of that class only. This rule was adopted by the High Court in the case of Public Prosecutor v Pengurus Hong Trading & Co (1985), where the relevant part of the statute referred to a prohibition on tea containing any ‘Prussian blue, or lead or any compounds of lead or other matter …’. The question was as to the interpretation of ‘other matter’. The court applied the ejusdem generis rule and held that ‘other matter’ referred to things of the same category as ‘Prussian blue, lead or compounds of lead’.

(c) The mischief rule
This rule facilitates the court to interpret words or phrases which are unclear and ambiguous in the light of the statute as a whole. In such cases the courts will enquire into the ‘mischief’ behind the statute. i.e. the court will look into the overall intention of the legislature as discovered from a reading of the statute as a whole. The matters that the court must consider were laid down in Heydon’s Case (1584) as follows:
(i) What was the common law prior to the Act?
(ii) What was the mischief and deficiency for which the common law did not provide?
(iii) What was the remedy that Parliament had provided for?
(iv) What was the true reason for the remedy?
This rule has been applied by the Malaysian courts in Lim Moh Joo v PP (1970).
In this case the Criminal Procedure Code required the Public Prosecutor (PP) to deliver a copy of a report to the accused not less than ten clear days before the commencement of the trial. The issue was whether the same procedure applied when the prosecution was by a private person. The court held that it did, saying that this was a case where the court must modify the language of the law to meet what must have been the intention of the legislature.

No comments:

Post a Comment