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11. (2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality --
(g) not to be compelled to testify against himself or to confess guilt.
Jones J held that the guarantee did not apply to the proceedings in question, since they were not criminal proceedings.
R v Yiu Chi Fung, District Court, Case No. 397 of 1991, Judge Lugar- Mawson, 25 October 1991
In this case, section 17 of the Summary Offences Ordinance was challenged on various ground (see p. 27 above), including the ground that it violated article 11 (2)(g) of the Bill of Rights.
Judge Lugar-Mawson held that article 11 (2)(g) did not embody a general right to silence, but was limited to applied protection in criminal proceedings. He also held that the compulsion referred to in article 11 (2)(g) was a legal obligation to testify in such proceedings. While the defendant may feel a tactical need to testify in proceedings under section 17, nothing in that section legally compelled the defendant to enter the witness box. There was therefore no violation of article 11 (2)(g).
DOUBLE PUNISHMENT (ARTICLE 11 (6))
Road Traffic (Driving Offence) Points Ordinance (cap. 375), section 8
R v Wan Kit-man, Mr I. Tanzer, Esq., 28 November 1991
This case involved a challenge to section 8 of the Road Traffic (Driving Offence) Points Ordinance (cap. 375) on the ground that it violated the protection in article 11 (6) of the Bill of Rights against double punishment for the same offence.
Article 11 (6) of the Bill of Rights provides:
11. (6) No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong.
The defendant had been disqualified under section 8 of the Road Traffic (Driving Offence) Points Ordinance from holding or obtaining a driving licence on the basis that he had accumulated 15 points within 2 years. He argued that this disqualification amounted to double punishment, since he had already paid fixed penalty tickets (FPT) in respect of the incidents. Although payment of a FPT was not a "conviction", he argued that a person who paid a penalty should not be in any worse position than a defendant who was convicted by a court for a similar offence. Accordingly, he argued that the payment of a FPT discharged his liability for punishment and that cap. 375 was inconsistent with article 11 (6).
The Magistrate rejected the defendant's arguemnts, stating that he accepted the submissions made by the Crown. These were that:
Bill of Rights Bulletin
December 1991