Hong Kong Case Law: Decisions & Judgments | LexChat

Hong Kong Case Law

Reading down statute
  • 30 Mar 2012

    LAU HOK TUNG AND OTHERS v. HKSAR

    Citation
    LAU HOK TUNG AND OTHERS v. HKSAR
    Court
    Court of Final Appeal
    Case number
    FACC7/2011

    Section 26(4) of the Trade Descriptions Ordinance, as worded, reverses the burden by requiring the accused to prove on the balance of probabilities the absence of knowledge, reason to suspect and the ability to discover falsity by reasonable diligence; that reversal derogates from the constitutional presumption of innocence; but because the third limb (could not with reasonable diligence have ascertained) is an objective test materially different from the English defence, there is no compelling justification for a persuasive burden in Hong Kong; accordingly section 26(4) must be read down to…