Hong Kong Case Law: Decisions & Judgments

Topic

Prospective overruling

Legal area

Court

31 Aug 2006

HKSAR v. HUNG CHAN WA AND ANOTHER

Citation

HKSAR v. HUNG CHAN WA AND ANOTHER
Court

Court of Final Appeal
Case number

FACC1/2006

Section 47(1) and 47(2) of the Dangerous Drugs Ordinance, properly interpreted, each impose only an evidential burden; the persuasive reverse onus as read literally derogates from the presumption of innocence and fails proportionality. The correct remedy is to read down the statutory presumptions to evidential burdens, thereby preserving the provisions as constitutionally valid; prospective overruling limiting retrospective effect is not justified and art.160(1) does not require limiting judicial retrospective effect.
31 Aug 2006

HKSAR v. LAM KWONG WAI AND ANOTHER

Citation

HKSAR v. LAM KWONG WAI AND ANOTHER
Court

Court of Final Appeal
Case number

FACC4/2005

The persuasive reverse onus in s.20(3)(c) is disproportionate and infringes the presumption of innocence and right to a fair trial; the proper remedial course under the Basic Law is to interpret s.20(1) read with s.20(3)(c) as imposing an evidential burden only; appeals by the prosecution are allowed, the Court of Appeal's orders are set aside and the matter is remitted to the Court of Appeal to consider application of the proviso to s.83(1) CPO.
28 Apr 2006

HKSAR v. HUNG CHAN WA

Citation

HKSAR v. HUNG CHAN WA
Court

Court of Appeal
Case number

CACC411/2003

Because the court itself appointed the amicus curiae, it would be inappropriate to penalize the Respondent by ordering it to pay the amicus's costs; accordingly the order nisi was varied to provide that there be no order as to costs for the prospective overruling hearing, appellants' costs for that hearing remain to be taxed under the Legal Aid Regulations, and there will be no order as to costs for the Respondent's application to vary.
28 Apr 2006

HKSAR v. ASANO ATSUSHI

Citation

HKSAR v. ASANO ATSUSHI
Court

Court of Appeal
Case number

CACC61/2004

The Court varied the order nisi and held that there should be no order as to costs for the prospective overruling hearing because it would be inappropriate to penalise the Respondent with the costs of an amicus appointed by the Court; appellants' costs for that hearing remain to be taxed under the Legal Aid Regulations; and there should be no order as to costs for the Respondent's application to vary.
26 Jan 2006

HKSAR v. ASANO ATSUSHI

Citation

HKSAR v. ASANO ATSUSHI
Court

Court of Appeal
Case number

CACC61/2004

The Court construed s.47(1) and (2) of the Dangerous Drugs Ordinance as creating only an evidential burden rather than a persuasive reverse onus; article 160 does not mandate purely prospective judicial declarations; absent clear statutory or constitutional authority and absent exceptional circumstances the Court will not limit the temporal effect of its statutory interpretation or declaration, particularly in criminal cases affecting liberty; accordingly the respondent's application for a temporally limited declaration was refused.
26 Jan 2006

HKSAR v. HUNG CHAN WA

Citation

HKSAR v. HUNG CHAN WA
Court

Court of Appeal
Case number

CACC411/2003

Article 160 of the Basic Law does not mandate temporal limitation of judicial interpretations; the Court construed sections 47(1) and (2) of the Dangerous Drugs Ordinance as creating only an evidential burden rather than a persuasive reverse onus; even if judicial power to limit temporal effect existed it is exceptional and not justified here; accordingly the respondent's application for a prospective or temporally limited declaration was rejected.

Hong Kong Case Law

HKSAR v. HUNG CHAN WA AND ANOTHER

HKSAR v. LAM KWONG WAI AND ANOTHER

HKSAR v. HUNG CHAN WA

HKSAR v. ASANO ATSUSHI

HKSAR v. ASANO ATSUSHI

HKSAR v. HUNG CHAN WA