TNAG-2553-FCO40-3728-Hong-Kong-Bill-of-Rights-review-of-legislation-1992 — Page 37

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The application was dismissed. It was held that articles 10 and 11 did not apply in these circumstances for they were only related to the trial procedure and not to the preliminary procedure of evidence gathering.

Jones J stated (at pp. 11-12 of his judgment):

"Having regard to the authorities and upon a construction of the provisions of the Bill of Rights Ordinance, I am quite satisfied that Articles 10 and 11 cannot be invoked for the purposes of s. 77E of the Evidence Ordinance for they relate to the determination of a criminal trial. The issue of evidence gathering does not form part of the trial, but is part of the machinery that leads to the collection of evidence. At this stage the Bill of Rights Ordinance will not apply for the rights and liberty of a suspected person are not at stake or in jeopardy. Upon the execution of the letter of request, the rights of the suspected person may come under attack if, for instance, depositions are taken without affording him an opportunity to be present for cross- examination of the witnesses. Further, the suspected person will have an opportunity to challenge the evidence obtained and object to its admissibility at the trial under s. 77F of the Evidence Ordinance. In this case, Osman has not yet been charged for he cannot be charged until he comes to Hong Kong. As a result, I accept the submission of Mr. Nicholls that Articles 10 and 11 do not apply for they only relate to the trial procedure and not to the preliminary issue of evidence gathering.

Jones J further held that the Bill of Rights did not have retrospective or extraterritorial effect (see p. 5 above). In his view, since the applicant was not in Hong Kong, he could not invoke the rights in personam under the Bill of Rights (at p. 12 of his judgment).

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.

PRESUMPTION OF INNOCENCE (ARTICLE 11 (1))

Firearms and Ammunition Ordinance (cap. 238), section 24

R v Lau Ting-man, District Court, Deputy Judge Eccleton

This case involved a challenge to presumptions contained in section 24 of the Firearms and Ammunition Ordinance (cap. 238), as well as to the negative averment provision contained in section 94A of the Criminal Procedure Ordinance (cap. 221) on the ground they violated the presumption of innocence in article 11 (1) of the Bill of Rights.

On 15 November 1991 the Court held that section 24 of the Firearms and Ammunition Ordinance was inconsistent with the Bill of Rights and had been repealed, but that section 94A was not inconsistent with the Bill of Rights. As of 29 November 1991, written reasons had not yet been made available.

Counsel: S.R. Bailey and Maria Ip, for the Crown; Rodney Griffiths, for the defendant.

Bill of Rights Bulletin

December 1991