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CORRECTIONS AND CLARIFICATIONS
In the Matter of South Kowloon Magistracy Court Criminal Case No. K-4535 of 1991 and In the Matter of an Application for Bail pending trial, High Court, M.P. No. 1703 of 1991, Sears J, 11 July 1991
Note: Contrary to what appeared in Bill of Rights Bulletin, v. 1, n. 1, at p.
13, this decision was not the subject of an appeal.
R v Tsang Wai-chung and others, Fanling Magistracy No 3896 of 1991, Mr R. Venning, Esq, Magistrate (Bill of Rights Bulletin, v. 1, n. 1, p. 9)
The final sentence of the note of this case (which dealt with presumptions under the Gambling Ordinance) should have read:
However, the Magistrate also found that the presumption in s. 19 (1)(c) (where the presence of gambling equipment on premises is proved, those premises are presumed to be a gambling establishment, unless the contrary is proved) was consistent with the Bill of Rights.
R v Sin Yau Ming
In R v Yiu Chi Fung (District Court Case No. 397 of 1991, see p. 27 below), Judge Lugar-Mawson quoted the summary of the Court of Appeal's decision which appears in the first issue of this Bulletin (v. 1, n. 1, pp. 2-3), but added (at p. 10 of his judgment):
"One matter not summarized in the Bulletin but which I do consider of the utmost importance is Kempster J.A. and Silke V.P.'s findings in Sin's case that the rights given by the Hong Kong Bill of Rights Ordinance are not absolute but are subject to limitations analogous to those contained in Section 1 of the Canadian Charter of Rights and Freedoms contained in the Canadian Constitution Act 1982."
His Honour then went on to cite extensively from the passages in R v Sin Yau Ming in which this view was expressed by members of the Court of Appeal, who had in turn quoted from the judgment of Dickson CJC in R v Oakes (1986) 26 DLR (4th) 200 (Supreme Court of Canada). Judge Lugar-Mawson then applied those principles to the case before him (see below at p. 19).
Editors' note
The notion of implied or inherent limitations to the rights guaranteed by the ICCPR (and the European Convention) is a controversial one.' It may give rise to difficulties in light of article 5 of the ICCPR, which is incorporated in section 2 (4) of the Bill of Rights Ordinance. That sub-section provides:
See, for example, P. van Dijk and G.J.H. van Hoof, Theory and Practice of the European Convention of Human Rights (Deventer/Boston: Kluwer, 2nd ed. 1990), pp. 575-578.
Bill of Rights Bulletin
December 1991