TNAG-2553-FCO40-3728-Hong-Kong-Bill-of-Rights-review-of-legislation-1992 — Page 57

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28 January 1992 Enke 241/1

- 6 FEB 1992

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IMPACT ON THE LEGAL SYSTEM

INTRODUCTION

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a Not other things that an Information Note should be submitted in early 1992

referring on Bill of Rights related challenges heard in the Courts to-date and the to the Exco Courts' findings, together with an assessment as to how the legal system is adapting to the new jurisprudence.

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BACKGROUND

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The Hong Kong Bill of Rights Ordinance 1991 commenced operation on 8 June 1991. By section 3(2) of the Ordinance, all legislation enacted before 8 June 1991 that cannot be construed consistently with the Ordinance is, to the extent of the inconsistency, repealed. The Ordinance also enables a person to bring an action alleging that an administrative practice by the Government or a public authority is inconsistent with a provision of the Bill of Rights.

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COURT DECISIONS

3

Since 8 June 1991, there have been a number of Bill of Rights challenges to the validity of legislative provisions. A summary of the more important cases is at Annex A. Most of these challenges have been heard by magistrates and have arisen in criminal proceedings. Most have dealt with statutory presumptions by which, upon proof of a certain fact, some other fact relevant to the proof of an offence may or shall be presumed unless the defendant can prove to the contrary. These provisions are sometimes also referred to as "reverse onus" provisions because they cast a burden of proof as to certain matters on to the defendant.

Executive Council