An example is Ingham v Hie Lee.
220
In that case the statute made it an offence
by a laundry owner if
a Chinese was found working in the laundry during
certain hours. Hie Lee the owner of a laundry was charged because a Chinese,
one Ah Chook, was found ironing shirts during the prescribed hours in his
laundry. While the actions of Ah Chook came within the simple meaning of the
statute, Ah Chook had in fact been ironing his own shirts. On this basis Hie
Lee was acquitted because the court found that the purpose of the statute was
to protect other laundries from competition from cheap labour. Since Ah
Chook's actions fell outside this, they were by implication excluded from the
scope of the offence in the statute.
221
Statute Too Narrow
A statute can be too narrow
222
because it fails to include things that it really
meant to include –
and it therefore suffers from under-inclusiveness.
223
Here
the drafters have not foreseen every possibility that they want to fall within the
law, and so some items that should be within the statute are omitted.
224
An example is found in Adler v George. There the statute made it an offence
to be found "in the vicinity of" a prohibited place.
225
Somewhat inconveniently
the defendant had been found actually ‘in’ the prohibited place. On a strict
220
Ingham v Hie Lee (1912) 15 CLR 267
221
See also Stradling v Morgan
(1560) 1 Plowd 200, 75 ER 305. There is a
parallel to this in the United States in the classic case of Church of the Holy Trinity v
United States (1892) 143 US 457. There the Church of the Holy Trinity in New York
contracted with an Englishman to come to the Church as its rector and pastor.
There was, however, a Federal statute that made it unlawful for a person to "assist
or encourage the importation or migration of any alien ... under contract or
agreement ... to perform labour or service of any kind in the United States". Thus
the question arose as to whether the Church had violated this statute. The Court
found that, despite appearances to the contrary on the surface, the actions did not
breach the statute. It read down the provision so as not to include the action of the
Church because the purpose of the
statute was to ban importation of cheap
unskilled labour.
222
See for example R v Broadcasting Complaints Commission; Ex parte Owen [1985]
2 All ER 522.
223
Sunstein (1989) pp 418-423
224
Francis Bennion (1980A) at pp 1156-1157 distinguishes two types of
omission. (i) There are omitted cases on the same footing as the included case. In
the Latin phrase the two types of case are in pari materia. (ii) There are omitted
cases that are not just equal to the included cases but have a stronger claim to
inclusion. Bennion at p 1156 refers to these a fortiori cases. Adler v George [1964] 2
QB 7 is an example.
225
Adler v George [1964] 2 QB 7
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