Hong Kong Case Law: Decisions & Judgments | LexChat

Topic

Legislative council ordinance s39

Legal area

Court

21 Jun 2012

WONG HIN WAI v. SECRETARY FOR JUSTICE

Citation

WONG HIN WAI v. SECRETARY FOR JUSTICE
Court

Court of First Instance
Case number

HCAL51/2012

Section 39(1)(b) (absolute disqualification for any unserved sentence) is not a proportionate or reasonable restriction on the right to stand for election in light of legislative history, the prior three-month threshold, Article 79 Basic Law provisions and the limited legitimate aims advanced; accordingly s39(1)(b) is inconsistent with Article 26 and Article 39 Basic Law and Article 21 BoR and a declaration was granted. The constitutionality of s39(1)(d) was left undecided for future consideration.
21 Jun 2012

LEUNG KWOK HUNG v. SECRETARY FOR JUSTICE

Citation

LEUNG KWOK HUNG v. SECRETARY FOR JUSTICE
Court

Court of First Instance
Case number

HCAL54/2012

Applying a proportionality test the court found s39(1)(b)(i) disproportionate as applied to persons who have been sentenced to terms of imprisonment of 3 months or less and are on bail pending appeal; the provision lacks a rational connection and is not proportionate to the legitimate aims relied upon and is therefore inconsistent with Article 26 and 39 of the Basic Law and Article 21 of the BoR, and a declaration to that effect was granted.