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8.
In the Mags. Appeal R v MAK Siu-shing MA 724/91, appeal counsel will mount a BOR challenge to the Obscene Articles Tribunal's power to conclusively determine the issue of obscenity outside a criminal trial. The appeal was adjourned on 8.1.92 for various enquiries regarding the proceedings in the Mags. Court and is yet to be re-listed.
Import and Export Ordinance, Cap. 60
9.
In R v MA Man-ho (SK 5472/91) Magistrate Mr R Day ruled (9.10.91) that:-
10.
(i)
(ii)
the evidential presumptions in Sections 18A and
35A of Cap. 60 were not inconsistent with the
BOR (since unlike the presumptions in the DD Ordinance the legal burden did not shift to the
defendant and rebuttal required no more than the raising of a reasonable doubt);
the presumption
does shift the
in Section 34 of Cap. 60 (which legal burden) while prima facie in breach of the BOR's presumption of innocence,
was nevertheless a reasonable and justified limitation on a BOR guarantee and accordingly of continuing validity.
Magistrate Mr De Souza ruled in R v TSUI
Shek-law (SK 5817/91) that Section 35A(2) of Cap. 60 (a
presumption imposing an evidential burden on an accused)
was not inconsistent with the BOR. The defendants were
subsequently convicted and have appealed. The grounds of appeal filed include the BOR issue, The appeal is expected to come on in the late February/early March.
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