}
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....
14.
Silke, V.-P.
also made certain observations concerning the general principles for interpretation of the
BOR. His views may be summarised as follows :
an
The interpretation of the BOR involves
entirely new jurisprudential approach. The ICCPR
as applied
to Hong Kong though brought into force
by an Ordinance, is in fact a constitutional
document entrenched by the Letters Patent. In
interpreting the BOR,
the court should no longer
be
of
-
guided by the ordinary cannons of constructions
statutes nor with the dicta of the common law.
It must look, at the aims of the Covenant and give
full recognition and effect to those fundamental
rights and freedoms to the statement which
commences that covenant.
15.
In view of the judgement, the Commissioner for
Narcotics, in consultation with AGC and the law enforcement
to presumption
agencies, is considering necessary amendments to the presumption provisions in the DDO and the Drug Trafficking (Recovery of Proceeds) Ordinance. The court's decision has
far-ranging implications in relation
provisions in other ordinances such as S 24 of the Firearms and Ammunition Ordinance (Cap 238), sections 17 and 19 of
the Summary Offence Ordinance (Cap 228) and even S 94A (2)
of
the Criminal Procedure Ordinance. They are likely to be
challenged in future cases.
Stop orders under the Inland Revenue Ordinance
16.
Section 7 (1) Of the Inland Revenue Ordinance
provides that where the Commissioner of Inland Revenue is of opinion that any person is about to or likely to leavn Hong Kong without paying all tax assessed upon him, he may issue 2 certificate containing particulars of such tax and
the name and last known
place
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· 6
thereof
Police
force as
take to
such
employment of such person to a District Judge, who shall on issue a direction to the Commissioner of
receipt
including measures
may
be
leaving Hong
Kong
necessary
without paying
to
to security payment thereof.
satisfaction
of the
prevent
the
the
the use of such
such person from
tax or furnishing
Commissioner for
17.
On 26 June
1991,
District Court
Judge Cameron
refused to sign orders sought by the Commissioner of Inland 7(1) to prevent three persons
paying
Revenue
}
from
under the Section
Hong
Kong
without
income tax. The
for
leaving judge said that he was not satisfied that it was proper him to "rubber-stamp" such orders in view of Article 8 of
concern was that there was
the BOR.
His main
judicial
input
in the
considering
the merits
to withdraw the applications.
decided to withdraw
of
granting
the
of the order.
a lack of
After
·
cases,
es,
the
Commissioner
18.
On
26.9.1991, a
case
challenging a stop order
issued under section 7 (1) was heard before the High Court. It was adjourned until January 1992 because of the limited
time
amend
slot allocated
hearing. FB has decided to
allow judicial
for the
the
provision
to
relation
to
the granting
of
in discretion
an order. They have yet to (They
decide when to introduce the amendment into LegCo.
see
some
advantage
in waiting for
amendment the
the court's decision
but this would mean some
before processing
delay.)
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7
Right to legal aid : Alick Au's case
19.
to
case (MC Alick Au)
the trial judge and Director of Legal Aid to
him as being 10 and 11(2) (d) of the BOR.
assistance
to
A defendent in a criminal
applied for legal assistance
challenged the decision of the
refuse granting legal
inconsistent with Articles
Justice Saied ruled that in view of the seriousness and
complexity of the case, even if Mr Au did not pass the means test, the government should provide legal aid to him
to ensure the interests of justice. He therefore made a declaratory order to the Registrar Supreme Court to assign counsel and solicitors for that purposes.
20.
The Crown asked the Court of Appeal to quash the order and argued that Justice Saied had no jurisdiction to
make such an order and said Au should either have filed an
action Or taken judicial review of the Director of Legal
Aid's refusal to give him legal assistance. However, Au's counsel argued that the Court of Appeal could not hear the appeal because it
was a criminal matter and the court has
no power to hear it until after the trial was completed, or possibly after arraignment.
(ref. s.13 of the Supreme
Court Ordinance which governs the jurisdiction of the Court of Appeal)
21.
On 3.13.1991, the Court of Appeal reached the conclusion that as the issue was raised during a criminal
trial, it could not hear it. AGC advises D of Adm that
the government be obliged to follow the trial judge's order in this case. The order does not set
set a binding precedent. As and when a similar case comes up, the Crown can argue the case in court.
No comments yet.
Private notes are available after approval.