Hong Kong Case Law: Decisions & Judgments | LexChat

Hong Kong Case Law

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  • 15 Jul 2019

    FH AND ANOTHER v. WB AND OTHERS

    Citation
    [2019] HKCFI 1748
    Court
    Court of First Instance
    Case number
    HCMP1313/2018

    The court held that the welfare of the child is paramount in s.12 PCO applications and on that basis the court has power to extend the 6-month limit in s.12(2) by reading it down where necessary except in the clearest abuse of public policy; applying statutory interpretation, rights protection and precedents the court extended time by 22 months, granted a parental order, authorized retrospective approval of specified payments (USD 62,500) under s.12(7) PCO because applicants acted in good faith and no public policy abuse was shown, and declined to read down HRTO ss.17/39 in this case without…

  • 21 Jul 2010

    HKSAR v. GURUNG KRISHNA

    Citation
    HKSAR v. GURUNG KRISHNA
    Court
    Court of Appeal
    Case number
    CACC203/2009

    Section 125(2) read with s.150 as enacted imposes a persuasive reverse burden on the accused to prove on the balance of probabilities that he did not know and had no reason to suspect the woman was mentally incapacitated; that persuasive burden is not sufficiently justified and therefore incompatible with the presumption of innocence; the proper remedial interpretation is to read down the provision so it imposes only an evidential burden on the accused, after which the prosecution must prove beyond reasonable doubt that the accused knew or had reason to suspect the incapacity; appeal allowed…

  • 7 Mar 2008

    HKSAR v. NG PO ON AND ANOTHER

    Citation
    HKSAR v. NG PO ON AND ANOTHER
    Court
    Court of Final Appeal
    Case number
    FACC6/2007

    Sections 14(4) and 24 read together, as drafted, impose a persuasive reverse burden on the accused to prove reasonable excuse and thereby derogate from the constitutionally protected presumption of innocence; that derogation is not justified on proportionality grounds and the proper remedy is to read down section 24 (in conjunction with section 14(4)) so that the accused bears only an evidential burden while the prosecution retains the persuasive burden of proof.

  • 23 Jun 2005

    HKSAR v. ASANO ATSUSHI

    Citation
    HKSAR v. ASANO ATSUSHI
    Court
    Court of Appeal
    Case number
    CACC61/2004

    The Court held that read as imposing a persuasive (legal) burden upon an accused to disprove knowledge under section 47(1) or 47(2) of the Dangerous Drugs Ordinance, the provisions are incompatible with the presumption of innocence under the Basic Law, ICCPR and the Hong Kong Bill of Rights because the respondent failed to prove such an incursion was necessary and proportionate; however the section can reasonably be read down to impose only an evidential burden (an evidential onus to raise an issue fit for the jury), and accordingly the persuasive burden interpretation is rejected and convict…

  • 23 Jun 2005

    HKSAR v. HUNG CHAN WA

    Citation
    HKSAR v. HUNG CHAN WA
    Court
    Court of Appeal
    Case number
    CACC411/2003

    The court held that s47(1) and s47(2) read as imposing a persuasive legal burden on the essential element of knowledge infringed the presumption of innocence under the Basic Law/ICCPR and the Bill of Rights and were not shown to be proportionate or necessary; the proper construction is to read the presumptions as creating an evidential burden only, not a persuasive burden; accordingly the applicants' convictions were set aside and retrials ordered.