TNAG-2327-FCO40-3371-Hong-Kong-Bill-of-Rights-implementation-and-conferences-1991 — Page 53

SƏK QABLARI, DA6 & 10 MBA simtă din da

can S.46

be

the BORO. Is it possible to limit the right under A.11(1) in a

or, it does that

not apply to S.46? way SO justified by reference to general provisions or principles which

the right of

permit restrictions

on

the

of exercise

the

In this regard, I have considered Mr..

presumption of innocence? Fung's submission on the justification of any limit which is to be put on the interpretation of the presumption of innocence. He submitted that in order to establish that a limitation on the right is justified, the Crown must bear the burden of proving that the objective to be attained by any limitation is to meet a substantial and pressing concern and that the means chosen are

In order to prove the reasonable and demonstrably justified.

tests fulfil the

of rational

latter,

the limitation must

Mr. Fung

connection, minimal impairment and proportionality. submitted that the more deleterious the effects of any given measure, the more important the objective needs to be in order Mr Dykes' argument that such measure beheld to be justified. briefly, was that there is a very real difference between the BORO and the Canadian Charter because in the latter, there is a saving section (S.1 of the Charter) which enables the Canadian Courts, after ruling that a particular provision violates the Charter, to save that provision from being declared to be of no effect. There is no such equivalent general saving section in

Hence, the case of SALABIAKU is of importance. said that his reading of SALABIAKU is different to that of Mr. Fung's and his understanding of SALABIAKU was that it dealt with similar to the a mandatory presumption which

the BORO.

therefore

is

He

presumption under S.46. He has drawn my attention in particular to paragraphs 15, 27, 28 and 29 of the judgment and further

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