TNAG-2553-FCO40-3728-Hong-Kong-Bill-of-Rights-review-of-legislation-1992 — Page 24

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5

APPLICATION OF THE BILL OF RIGHTS

COMMENCEMENT, "RETROSPECTIVE" OPERATION AND "EXTRA- TERRITORIAL" OPERATION OF THE BILL OF RIGHTS

Evidence Ordinance (cap. 8), section 77E

Attorney General v Lorrain Osman, (1991) HCt, MP 2793 of 1985, Jones J, 28 October 1991

This was an application to set aside an order of Master Betts dated 11 December 1985 for the issue of a letter of request to the High Court of Malaya for the purpose of obtaining evidence in Malaysia to be used in extradition proceedings against the applicant in London. The background to this application is summarized in In the Matter of Lorrain Osman (see p. 16 below). A preliminary issue as to locus standi was raised. It was argued that the Bill of Rights Ordinance gave a person under suspicion locus standi to challenge the making of an order under section 77E of the Evidence Ordinance, at least when criminal proceedings had already been commenced against that person. It was further argued that article 10 of the Bill of Rights included a right of access to a court during the early stages of the criminal process. As the applicant was denied his right to contest the subpoenas prior to the depositions and to participate and cross examine witnesses in their depositions, there was a violation of articles 10 and 11 of the Bill of Rights.

Jones J held that the Bill of Rights did not have retrospective or extraterritorial effect. In his view, since the applicant was not in Hong Kong, he could not invoke the rights in personam under the Bill of Rights (p. 12 of his judgment):

"It is trite law that a statute does not operate retrospectively unless there is a provision to the contrary. As there is no provision to this effect in the Bill of Rights Ordinance, the Ordinance does not, in any event, apply. Further, until Osman returns to Hong Kong, he is not entitled to avail himself of any rights in personam under the Bill of Rights.'

He also dismissed the application insofar as it relied on articles 10 and 11 of the Bill of Rights (see p. 17 below).

Counsel: Martin Thomas QC and Johnny Mok (instructed by Boase &

Cohen) for the applicant; Clive Nicholls QC and Graham Harris (instructed by Clifford Chance), for the Attorney General.

R v Li Kwok Wa, Crim App No. 350 of 1991, Court of Appeal

In this case the Court of Appeal has requested argument on the issue of whether the guarantee of the presumption of innocence in article 11 (1) of the Bill of Rights can be invoked in a prosecution for an offence which was committed before the entry into force of the Bill of Rights Ordinance on 8 June 1991.

Counsel: Gerry Forlin, for the Crown; John Mullick, for the defence.

Bill of Rights Bulletin

December 1991