CONFIDENTIAL
XCCI(92)7
11
One aspect that is of particular concern to the Crown in the criminal field is the handling of bail applications in the light of the Bill of Rights. The attitude of judges varies enormously, with some adhering to the previous practice of not requiring the Crown to adduce evidence in bail hearings, while others are being persuaded to demand such evidence in order to rebut what they see as a "presumption" under the Bill of Rights in favour of bail. This is a disturbing development given the extra work generated and the very short notice of such applications given to the Crown. There is no doubt that at least some (probably a majority) of judges more readily grant bail since the enactment of the Bill of Rights.
12
Legislation dealing with bail is now being drafted. The legislation, which closely follows recommendations made by the Law Reform Commission in 1989, will create a right to bail subject to exceptions. The grounds on which a person may be refused bail and the conditions that may be imposed will be defined. The courts will be empowered to have regard to any relevant "material" but there will no requirement for the taking of formal evidence.
13
At another level, the repeal by the Bill of Rights Ordinance of some statutory presumptions means that the prosecution must now prove by affirmative evidence or by way of reasonable inference those matters previously covered by the repealed presumption. The task of obtaining such affirmative evidence falls to the Police.
14
So far as civil cases are concerned, the impact of the Bill of Rights Ordinance has been minimal. This is partly because inter-citizen rights are excluded from the scope of the Ordinance and also because of the cost involved in pursuing a Bill of Rights issue. Availability of legal aid for civil cases is much more limited than it is for criminal cases. The Court of Appeal's decision in Tam Hing Yee, noted above, reinforces the exclusion of inter-citizen rights from the scope of the Bill of Rights by holding that even legislation which is inconsistent with the Bill cannot be repealed where to do so would adversely affect private individuals.
15
The courts are gradually developing a body of Bill of Rights jurisprudence. The Court of Appeal's decision in Sin Yau Ming referred to an entirely new jurisprudential approach necessitated by the Bill of Rights Ordinance, "no longer guided by the ordinary cannons of construction of statutes nor with the dicta of the common law inherent in our training".