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Counsel: S.R. Bailey for the Crown; Keith Oderberg, for the defendant.
Note: This decision is the subject of an appeal by way of case stated.
Editors' comment
The defendant first appeared before the court on 13 April 1991, that is, before the commencement date of the Hong Kong Bill of Rights Ordinance. The trial was subsequently adjourned to 2 September 1991. It could be argued that the Bill of Rights does not apply to this case, since the Bill of Rights does not have retrospective effect insofar as it affects substantive offences. There was no argument on this point. The Magistrate ruled, without the benefit of argument from counsel, that "s. 30 is a hybrid provision in that it both defines the offence and the procedure under which the offence can be proved." (at p. 8) This analysis does not seem particularly persuasive and a better argument may be that the offence is not committed until the defendant fails to give a satisfactory account to the magistrate, that is, the relevant date is the time of the trial. At that stage the Bill of Rights is operative and applicable.
R v Lai Kwok-sin, TM No 4687 of 1991 .
This case involves a challenge to section 30 of the Summary Offences Ordinance (cap. 228) on the same ground as in the case above. The case has been adjourned pending the outcome of the appeal in R v Lee Kwong-yut.
Theft Ordinance (cap. 210), section 29 (6)(a)(i)
R v Lau Shiu-wah, District Court, Judge Whaley, 1 November 1991
In this case Judge Whaley held that section 29 (6)(a)(i) of the Theft Ordinance (cap. 210) violated article 11 (1) of the Bill of Rights and had therefore been repealed. Section 29 (6)(a)(i) provides:
29. (6) In any proceedings for an offence under section 17, 18, 18A or 18B
(a) any person who --
(i) obtains property, pecuniary advantage or services by means of a cheque or other bill of exchange which is dishonoured upon presentation or after becoming due shall, until the contrary is proved, be deemed to have obtained the property, pecuniary advantage or services with the knowledge that such cheque or other bill of exchange would not be honoured.
In this case the Crown conceded that the presumption did not pass the test of rationality and proportionality endorsed by the Court of Appeal in R v Sin Yau Ming (Bill of Rights Bulletin, vol. 1, no. 1, p. 2). However, the Crown argued that the provision could be construed consistently with the Bill of Rights and, pursuant to section 3 (1) of the Bill of Rights Ordinance, should be so construed. The Crown argued that it was possible to read section 29 (6)(a)(i) as imposing on the defendant only an evidential burden rather than a legal burden and that such a construction would be consistent with article 11 (1) of the Bill of Rights and should therefore be adopted.
Bill of Rights Bulletin
December 1991