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ADOPTION OF A CONSTRUCTION CONSISTENT WITH THE BILL OF RIGHTS ORDINANCE; REPEAL "TO THE EXTENT OF THE INCONSISTENCY": BILL OF RIGHTS ORDINANCE, SS. 3 (1) AND 3 (2)
In R v Lau Shiu-wah (see p. 21 below), Judge Whaley considered the meaning of section 3 of the Bill of Rights Ordinance in the context of section 29 (6)(a)(i) of the Theft Ordinance. He concluded that it was not possible for him to adopt a construction of that provision which was consistent with article 11 (1) of the Bill of Rights and held that it had been repealed.
In R v Yiu Chi Fung (see p. 27 below), Judge Lugar-Mawson made the following comments in relation to section 3 (at pp. 15-16 of his judgment):
"It is clear from Section 3 (1) of the Hong Kong Bill of Rights Ordinance that if I find that Section 17 of the Summary Offences Ordinance admits of a construction consistent with that Ordinance, it shall be given that construction. It is only if I find that it does not admit of a construction consistent with the Bill of Rights that it is repealed -- and then only to the extent of the inconsistency. That is provided for in Section 3 (2) of the Ordinance. As I read that sub-section it means that I can apply a "red pencil" test and hold that certain words and phrases are inconsistent and that only those words and phrases have been repealed by the Ordinance, but that the remainder of the provision remains in full force. Provided always that the effect of the repeal does not render it wholly nugatory."
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"PRE-EXISTING APPLICATION OF THE BILL OF RIGHTS ORDINANCE -- LEGISLATION", "LEGISLATION THAT CAN BE AMENDED BY AN ORDINANCE", EXTRADITION
Extradition Act 1989 (UK); United States of America (Extradition) Order 1976; Hong Kong (Legislative Powers) Order 1989; Application of English Law Ordinance (cap. 88)
United States of America v Johnny Eng, CMP No. 1237 of 1990, 9 September 1991, H.L. Brazier Esq
The fugitive challenged the admission of affidavit evidence in extradition proceedings on the ground that the admission of such evidence without permitting witnesses to be called for cross-examination was a violation of article 10 (right to a fair trial) and article 11 (2)(g) (right to cross-examine witnesses) of the Bill of Rights. The Magistrate considered first whether the Bill of Rights Ordinance had any application to extradition proceedings in Hong Kong at all. (For his decision on the other matters, see below, p. 16).
Magistrate Brazier held that the Bill of Rights Ordinance did not apply to extradition proceedings in Hong Kong. Extradition requests made by the U.S.A. were dealt with in accordance with the Extradition Act 1989 (UK), which had been extended to Hong Kong by section 16 of that Act and United States of America (Extradition) Order 1976. Section 3 of the Bill of Rights Ordinance applied only to "pre-existing legislation", "legislation" being defined in section 2 (1) of the Ordinance as meaning "legislation that can be amended by an Ordinance".
The Magistrate held that neither the 1989 Act nor the 1976 Order in Council could be amended by a Hong Kong Ordinance. Nor did he consider that the position in this case was affected by section 2 of the Hong Kong (Legislative Powers) Order 1989, which
Bill of Rights Bulletin
December 1991