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It is noted that challenges under the BORO have been primarily concerned with provisions of the criminal law relating to the principle that it is for the prosecution to prove the accused's guilt beyond reasonable doubt. Through decisions of the Court of Appeal and Privy Council, the principles applied to such provisions are now well established. In reaching these decisions, the courts have taken care to balance individual freedoms with the public interest.
The BORO enjoys widespread support within the community. It has made the rights protected by the ICCPR justiciable in the courts of Hong Kong. It is a vital component in the protection of civil liberties and enhances the rule of law in Hong Kong. There is absolutely no reason to tamper with the Ordinance.
Attachment
The specific points made by the Chief Justice, and our comment on them, are as follows:
(1) "The power to repeal is a legislative function and not a judicial function. Section 3(2) in effect gives the courts a legislative function though it does not specifically say so. A practical difficulty is that Magistrate A and Magistrate B may hold different views on the same issue in different cases. The resulting chaos need not be specified."
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Comment: The role of the courts under s.3 is to decide whether or not challenged legislation is or is not inconsistent with the Ordinance. If a court decides that there is inconsistency, it will go on to declare that the relevant provision has been repealed by s.3(2) to the extent of the inconsistency. The repeal of inconsistent earlier provisions is effected not by a judge in the course of deciding a particular case, but rather by the legislature through s.3(2) of the Ordinance. This is made plain by Silke V.P. in R v Sin Yau-ming [1992] 1 HKCLR 127, 138 when he said this:
"It needs to be emphasised that the only duty of this, or any other court, considering legislation is to decide whether that legislation is or is not inconsistent with the Hong Kong Bill. This, or any other court, does not repeal legislation. That is done by the Hong Kong Bill itself. This, or any other court, does not redraft legislation or for that matter make suggestions for the form of future legislation."