6
Editors' comment
While the statement of Jones J that the Bill of Rights Ordinance does not operate "retrospectively" reflects the general rule, it should also be noted that the presumption against retrospective operation of a statute does not apply to procedural rights.
The issue of retrospectivity was in fact argued before the Court of Appeal in R v Sin Yau Ming, in which the alleged offence had been committed before 8 June 1991. The defence argued that article 11 (1) of the Bill of Rights was, in relation to the reverse onus provisions in question, a procedural protection and could therefore be relied on although the alleged offence had taken place before the entry into force of the Bill of Rights Ordinance. The Crown supported this position. The Court of Appeal did not advert to the question in its otherwise comprehensive judgment, but since it went on to hold the provisions repealed, presumably it accepted the point. In a number of cases in the High Court, Duffy J has also ruled to the same effect.
It may be arguable that procedural disadvantages which arise after 8 June 1991 as a result of evidence gathering prior to that date could be scrutinised under the Bill of Rights prior to trial (perhaps as a propsective denial of the right to a "fair" hearing in article 10), and in any event at the trial. However, the matter is unclear.
However, it should be noted that, where the Bill of Rights is relied on to challenge substantive provisions of an Ordinance, actions taken before 8 June 1991 under an impugned Ordinance will in general not be subject to review against the guarantees of the Bill of Rights.
In relation to the judge's comment that the applicant could not avail himself of any rights under the Bill of Rights until he returned to Hong Kong, see the note on Eng's case at p. 12 below.
INTERPRETATION OF THE BILL OF RIGHTS
R v Yiu Chi Fung, District Court, Case No. 397 of 1991, Judge Lugar- Mawson, 25 October 19912
In this case, which involved a challenge to section 17 of the Summary Offences Ordinance, Judge Lugar-Mawson made a number of comments on the interpretation of the Bill of Rights Ordinance. He accepted (at pp. 13-14 of his judgment) the following submission by counsel for the Crown:
"The Court of Appeal [in R v Sin Yau Ming], while affording considerable weight to international jurisprudence and particularly that of common law countries with a constitutionally entrenched Bill of Rights, did not suggest the wholesale importation of Canadian and American precedents...
This [comments made by Silke VP in Sin Yau Ming] indicates that the Hong Kong Courts will not necessarily follow the route taken by the Canadian and United States Courts when interpreting their constitutional documents which contain provisions analogous to the Hong Kong Bill of Rights."
2 We are grateful to Philip Wong, who kindly supplied us with information about this case.
Bill of Rights Bulletin
December 1991