Hksar v Hung Chan Wa And Another

CourtCourt of Final Appeal (Hong Kong)
Judgment Date31 Aug 2006
Citation[2006] 3 HKLRD 841; (2006) 9 HKCFAR 614
Judgement NumberFACC1/2006
SubjectFinal Appeal (Criminal)
FACC000001/2006 HKSAR v. HUNG CHAN WA AND ANOTHER

FACC No. 1 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2006 (CRIMINAL)

(ON APPEAL FROM CACC NOS. 411 OF 2003 AND 61 OF 2004)

_____________________

Between :

HKSAR

Appellant

and

HUNG CHAN WA

1st Respondent

ATSUSHI ASANO 2nd Respondent

_____________________

Court : Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ

Dates of Hearing : 13, 14, 17, 19 and 20 July 2006

Date of Judgment : 31 August 2006

_____________________

J U D G M E N T

_____________________

Chief Justice Li:

1. I agree with the judgment of Sir Anthony Mason NPJ and I note that the other members of the Court also agree with his judgment. For reasons given in his judgment, the Court holds that ss 47(1) and 47(2) (“the relevant provisions”) properly interpreted by a process of remedial interpretation impose only evidential burdens on the defendant. That being so, the relevant provisions are constitutionally valid.

2. In its judgment delivered on 23 June 2005, the Court of Appeal had reached the same conclusion. After that date, all trials and appeals have to be conducted on the basis that the relevant provisions impose only evidential burdens.

Previous view

3. Before the Court of Appeal’s judgment on 23 June 2005, the widely held view was that the relevant provisions validly imposed legal or persuasive burdens on the defendant who had to discharge the burden engaged in the particular case on the balance of probabilities. It will be convenient to refer to it as “the previous view”. The previous view was shared by prosecutors, defence lawyers and the courts. See for example, Chan Chun Ho v. HKSAR (1999) 2 HKCFAR 198 at 201A-B where the Court assumed the previous view to be correct. Although the previous view could have been questioned earlier, it was only challenged for the first time in the present case. That view was held to be incorrect by the Court of Appeal and now by the Court.

The proposed order

4. Mr McCoy SC for the appellant, the HKSAR, submits that the Court should make an order limiting the retrospective effect of its judgment so that only the following persons may benefit from it :

(1) The two defendants in the present appeals.

(2) In addition the following persons :

(i) defendants who had already appealed within time by 23 June 2005 when the Court of Appeal delivered its judgment and those who appeal within time after that date; and

(ii) defendants who are able to obtain extension of time for appeal after 23 June 2005 on grounds apart from the ground that the relevant provisions only impose evidential burdens.

Mr McCoy SC suggests that the persons in (1) and (2) should be treated as, to use his expression, “within the judicial system”. It will be convenient to refer to the above as “the proposed order”.

5. The Court is invited to engage in what is generally known as “prospective overruling”. As was pointed out by Stock JA delivering the judgment of the Court of Appeal on prospective overruling on 26 January 2006 (at para.10), this term is an imprecise one. A court may be invited to engage in prospective overruling where a judgment holds a previous view on a legal question to be incorrect, whether or not the previous view had been the subject of judicial determination. See In re Spectrum Plus Ltd (Spectrum”) [2005] 2 AC 680 at para.6. If it had been, the previous authority would have been overruled by the subsequent judgment. In essence, the court is asked to impose a temporal limitation on its judgment so that its retrospective effect would be limited to the extent specified. The proposed order represents a modified form of prospective overruling since it accepts that the judgment would have retrospective effect to the extent of covering the persons referred to therein.

6. In seeking the proposed order, Mr McCoy SC for the appellant submits that :

(1) Article 160(1) applies to a court judgment holding a law previously in force to be in contravention of the Basic Law and establishes the norm that such a judgment only has prospective effect. The norm is a variable one and the courts may vary it and specify the extent of the retrospective effect of a judgment.

(2) In any event, judicial power includes the power to engage in prospective overruling and the circumstances justify its exercise in the present case.

Article 160

7. Article 160 of the Basic Law provides:

“Upon the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong shall be adopted as laws of the Region except for those which the Standing Committee of the National People’s Congress declares to be in contravention of this Law. If any laws are later discovered to be in contravention of this Law, they shall be amended or cease to have force in accordance with the procedure as prescribed by this Law.

Documents, certificates, contracts, and rights and obligations valid under the laws previously in force in Hong Kong shall continue to be valid and be recognized and protected by the Hong Kong Special Administrative Region, provided that they do not contravene this Law.”

8. On 23 February 1997, the Standing Committee adopted its Decision on treatment of the laws previously in force in Hong Kong in accordance with art.160 (“the Decision”). This declared that the statutes and statutory provisions set out therein are in contravention of the Basic Law and are not adopted as the laws of the HKSAR.

9. Article 160 is the last article of the Basic Law. It is the only article in Chapter IX, the last Chapter, which is headed “Supplementary Provisions”. It has two parts. Article 160(1) deals with the continuation of laws whilst art.160(2) relates to the continuation of documents, certificates, contracts, and rights and obligations. The latter provides that the specified matters valid under the laws previously in force in Hong Kong shall continue to be valid and be recognised and protected by the HKSAR provided that they do not contravene the Basic Law. Article 160(1) supplements articles such as arts 8 and 18 in making it clear that laws previously in force shall be adopted except for those which the Standing Committee declares to be in contravention of the Basic Law. Apart from the laws so declared to be in contravention, the article recognises that there may be laws which are discovered after 1 July 1997 to be in contravention. In relation to them, art.160(1) provides that “they shall be amended or cease to have force in accordance with the procedure as prescribed by this Law”.

10. The context of art.160 of course includes the continuation of a common law system in Hong Kong as provided by the Basic Law. Under the common law, the well-established position is that a judgment determining a legal question operates retrospectively as well as prospectively. See Spectrum at paras 4 to 7.

11. The crucial question is whether on its proper interpretation, the phrase “the procedure as prescribed by this Law” at the end of art.160(1) covers judicial procedure. If it does, judgments of the courts determining pre-1 July 1997 laws to be in contravention of the Basic Law would only have prospective effect, since the article provides that the law in question “shall cease to have effect” in accordance with the procedure prescribed. Such a result would be extraordinary. Article 160 would be according to such judgments a treatment which represents a radical departure from the established common law position. Further, a sharp distinction would have to be drawn between pre-1 July 1997 laws and post-1 July 1997 laws. Whereas a court judgment determining a post-1 July 1997 law to be in contravention of the Basic Law would operate retrospectively as well as prospectively in accordance with the common law position, a wholly different rule would prevail in relation to a judicial declaration of contravention in relation to a pre-1 July 1997 law. Article 160 should not be interpreted to lead to such an extraordinary result in the absence of clear words.

12. An examination of the language of art.160(1) lends no support to the appellant’s argument that judicial procedure is included within its purview. On the contrary, its language indicates that the judicial process is not included and that it is only the legislative procedure which is contemplated by the article. The article refers to the situation where a pre-1 July 1997 law is discovered after that date to be in contravention of the Basic Law. Discovery marks the commencement of the process. It is by the operation of the procedure as prescribed by the Basic Law that the relevant law “shall be amended or cease to have force” in accordance with that procedure.

13. As to the first limb, “shall be amended”, this phrase connotes a legislative procedure. A law is amended by the enactment by the legislature of a subsequent statute to amend it. The courts do not amend laws. That “amend” should be interpreted in this way is supported by the use of the word in other articles of the Basic Law where it is plain that the reference is to a legislative act. For example, art.8 refers to laws being subject to amendment by the legislature of the HKSAR. And art.73(1) provides that the legislature’s powers and functions include the amendment of laws. As to the second limb, “shall cease to have force”, the phrase also suggests a legislative procedure. It is when the legislature repeals a law that it ceases to have effect so that the phrase “shall cease to have effect” connotes the legislative context.

14. Thus, both limbs in “shall be amended or cease to have force” indicate that the procedure giving rise to these consequences is the enactment of legislation through the...

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