Professional Documents
Culture Documents
Hcal000753 2017
Hcal000753 2017
Hcal000753 2017
HCAL 753/2017 B
B
[2019] HKCFI 1431
C
C IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION D
D COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST E
E
NO 753 OF 2017
F
_______________ F
BETWEEN G
G
P
P
Q
JUDGMENT Q
R
R A. INTRODUCTION
S
S 1 This is the applicant’s judicial review asking the court to
declare seven provisions (collectively “the Provisions”) in the Crimes T
T
U
U
V
V
A
A
V
V
A
A
B
B (2) Even though sections 118C, 118I and 141(c) (collectively
“the Contested Provisions”) are prima facie in their present C
C
form also inconsistent with BL25 and BOR22, the SJ asks
the court to adopt respective remedial interpretations of these D
D
provisions to preserve their validity, and hence the
E
E declarations sought should not be granted.
F
F
4 Given the SJ’s said position, the real issues arising in this
G
G application are a narrower one: whether the court could and should make
the remedial interpretations as submitted by the SJ respectively of H
H
sections118C, 118I and 141(c).
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I
O
O
B. THE UNCONTESTED PROVISIONS
P
P
7 The Uncontested Provisions respectively provide as follows:
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Q
“118G. Procuring others to commit homosexual buggery
R
R A person who procures a man to commit an act of
buggery with a third person, who is another man, shall
be guilty of an offence and shall be liable on S
S conviction on indictment to imprisonment for 2
years.”
T
T
“118H. Gross indecency with or by man under 16
U
U
V
V
A
A
A man who— B
B
(a) commits an act of gross indecency with a man
C
C under the age of 16; or
M
M 8 For the following reasons, in the court’s view, the SJ is right
in accepting that these provisions are unconstitutional as they are N
N
discriminatory against male homosexuals.
O
O
P
9 The principles in relation to the constitutional protection P
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V
V
A
A
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A
A
I
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11 Recently in Director of Immigration v QT (2018) 21
J
J HKCFAR 150, the Court of Final Appeal affirmed (at paragraph 86) the
addition to the justification test of “the fourth step involving K
K
consideration of whether a reasonable balance had been struck between
L
L the societal benefits of the encroachment on the one hand, and the inroads
made into the constitutionally protected rights of the individual on the M
M
other, asking in particular whether pursuit of the societal interest results
N
N in an unacceptably harsh burden on the individual”.
O
O
12 In QT, the Court of Final Appeal also re-iterated the need for
P
P
scrutiny and that “the correct approach is to examine every alleged case
of discrimination to see if the difference in treatment can be justified” at Q
Q
paragraphs 81 - 83 (footnotes omitted):
R
R
“81. Where an issue of equality before the law arises, the
question of whether a measure is discriminatory is necessarily S
S
bound up with whether the differential treatment which the
measure entails can be justified. Thus, in Secretary for Justice v T
T Yau Yuk Lung, Li CJ pointed out that a difference in treatment
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U
V
V
A
A
V
V
A
A
N
N
4
The then section 118C provides that:
“A man who: O
O (a) commits buggery with a man under the age of 21; or
(b) being under the age of 21 commits buggery with another man,
shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment P
P for life.”
5
The then section 118H provides that:
“A man who: Q
Q (a) commits an act of gross indecency with a man under the age of 21; or
(b) being under the age of 21 commits an act of gross indecency with another man,
shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment R
R for two years.”
6
The then section118F(1) provides that:
“A man who commits buggery with another man otherwise than in private shall be guilty of S
S an offence and shall be liable on conviction on indictment to imprisonment for five years.”
7
Leung v Secretary for Justice [2006] 4 HKLRD 211 (CA) at paragraph 47 per Ma
CJHC (as the learned CJ then was).
8 T
T [2005] 3 HKLRD 657.
9
Agreed by MaCJHC at paragraph 49 of the Court of Appeal judgment.
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A
A
Q
with a heavier penalty which could deal with the same Q
V
V
A
A
B
B (3) Section 118J(1) only targets male homosexuals but no
comparable offences exist for heterosexuals. Given that C
C
section 118J(1) mirrors section 118F(1) which has been
struck down in Yau Yuk Lung and the fact that the scenarios D
D
pertinent to section 118J(1) can be covered by the common
E
E law offence of outraging public decency or section 148,
section 118J(1) should be declared unconstitutional in the F
F
absence of any justification.
G
G
V
V
A
A
E
E
20 The court in adopting remedial interpretation may make use
F
F of the well-known techniques of severance, reading in, reading down and
striking out: see Lam Kwong Wai at paragraph 71. G
G
H
H 21 It is indeed a matter of judicial duty to adopt a remedial
interpretation of an infringing provision, although it could only do so as I
I
far as it is possible: Lam Kwong Wai at 611B - D, per Sir AnthonyMason
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J NPJ.
K
K
22 In this respect, the court should not make decisions for
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which they are not equipped such as where their choice amongst several
ways of making a provision Basic Law or BOR compliant may involve M
M
issues that should be deliberated by the legislature: Ghaidan at paragraph
N
N
33, perLord Nicholls. Further, it is not permissible for the court to reach
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23 The tool of remedial interpretation therefore has its limits at
D
D least to the extent that the court should not make decisions on matters that
should be deliberated and determined by the legislature, in particular E
E
where, as Lord Nicholls stressed in Ghaidan at paragraph 33, there is a
F
F number of ways to make the infringing provision constitutional.
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G
24 The court must and can only exercise that power in
H
H accordance with the established principles.
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(1) Subject to limitations in (3) and (4) below, the court can C
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deliberation or adopting a meaning which has important N
U
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A
A
B
B section 40 of the Marriage Ordinance (Cap 181) and the
word “female” in section 20(l)(d) of the Matrimonial Causes C
C
Ordinance (Cap 179) must be read and given effect so as to
include within the meaning of those words a post-operative D
D
male-to-female transsexual person whose gender has been
E
E certified by an appropriate medical authority to have
changed as a result of sex reassignment surgery; and F
F
(2) In Keen Lloyd Holdings Ltd, supra, the Court of Appeal
G
G applied a remedial interpretation to expand “domestic
premises” in section 22 of the Import and Export Ordinance H
H
(Cap 60) to mean “premises or place” and therefore non-
I
I domestic premises were also covered.
J
J
27 Further, in Independent Thought v Union of India WP(C)
K
K No.382 of 2013 (11October 2017), the Supreme Court of India adopted a
“purposive” interpretation to read down Exception 2 to Section 375 of the L
L
Indian Penal Code (which provides that it is not rape if a man has sexual
M
M intercourse with a girl, being his wife, who is above 15 of age) as “sexual
intercourse or sexual acts by a man with his own wife, the wife not being N
N
under eighteen years of age, is not rape” in order to make it consonance
O
O with the Protection of Children from Sexual Offences Act, the spirit of
other pro-child legislations and the human rights of a married girl child P
P
(see paragraph 105).
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Q
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V
A
A
F
F 29 For that purpose:
G
G (1) Mr Pun indeed agrees (subject to the court’s own view) to
the use of the technique of remedial interpretation as H
H
proposed by the SJ for section 118C.
I
I (2) Mr Pun however observes that the proposed respective
remedial interpretations in relation to sections 118I and J
J
141(c) may be regarded as creating new offences, as persons
K
who previously would not be caught under those provisions K
N
N 30 In my view, properly considered, the question of “new
offences” are effectively part of the limitations as summarized by the O
O
Court of Appeal in Keen Lloyd, in that the court cannot adopt remedial
P
P interpretations which (a) will go beyond or are inconsistent with a
fundamental feature of the legislative scheme or its essential principles, Q
Q
and (b) amount to the courts making decisions for which they are not
R
R equipped, such as choosing between various options which requires
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S
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V
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A
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31 Bearing these principles in mind, I now turn to look at the
D
D Contested Provisions and consider the respective specific remedial
interpretations suggested by the SJ. E
E
F
F 32 Section118C provides as follows:
G
G “118C. Homosexual buggery with or by man under 16
A man who— H
H
(a) commits buggery with a man under the age of
16; or I
I
(b) being under the age of 16 commits buggery with
J
J another man,
L
L
33 Section 118C covers homosexual buggery with or by a boy
M
M under the age of 16, which includes buggery with a boy under the age of
13. The SJ accepts that as it is, the provision amounts to differential N
N
treatment against male homosexuals to the extent that:
O
O
(1) It criminalizes a man aged under 16 for committing buggery
with another man whereas for the same or similar act P
P
between heterosexuals (eg, sections 118D, 122, 123 and
Q
Q 124), the participants under the age of 16 would not be held
criminally liable. In Leung v Secretary for Justice, the Court R
R
of Appeal held at paragraph 128 that such direct inequality
S
S of treatment in section 118C was discriminatory.
T
T
U
U
V
V
A
A
B
B (2) Upon conviction under section 118C, the man who commits
buggery with a man under 16 is liable to imprisonment for C
C
life whereas under section 124 a man who has unlawful
sexual intercourse with a girl under 16 shall be liable to D
D
imprisonment for five years only. As mentioned above, the
E
E Court of Appeal in Leung v Secretary for Justice has held at
paragraph 7 that buggery and sexual intercourse between a F
F
man and woman are regarded as being similar. Accordingly,
G
G the maximum sentence should be the same.
H
H
34 However, Mr Leung proposes that section 118C should be
remedially interpreted by reading it down as follows to make it Basic I
I
Law-compliant: J
J
“A man who—
K
K
(a) commits buggery with a man under the age of 16; or
L
L (b) being under the age of 16 commits buggery with another
man,
M
M shall be guilty of an offence and shall be liable on conviction
on indictment to (a) imprisonment for life if the buggery is
committed with a boy under the age of 13; or (b) imprisonment N
N
for 5 years if the buggery is committed with a boy under the
age of 16 but is of or above the age of 13.” O
O
P
35 Mr Leung submits that, by: (1)striking out the words “or (b) P
being under the age of 16 commits buggery with another man”, the man
Q
Q
under 16 is no longer criminally liable if the other man with whom he
commits buggery is above 16; and (2) reading down the maximum R
R
sentence for buggery for imprisonment to five years if committed with a
S
S
boy under the age of 16 but is or above the age of 13 brings it in line with
T
T
U
U
V
V
A
A
the sentence for unlawful sexual intercourse with a girl under section 124; B
B
section 118C will be Basic Law-compliant.
C
C
D
D 36 I agree with Mr Leung that the court should adopt this
remedial interpretation for section 118C. E
E
F
F 37 The clear objective fundamental feature and essential
principle of the legislative scheme of this provision is to protect a man G
G
under 16 from buggery. The remedial interpretation, even though having
H
H the effect of reducing the maximum sentence if the buggery is committed
with a boy under 16 but above 13 from life to five years, it is still I
I
consistent with this principle. The interpretation also will not have any
J
J effect of creating new offence. Quite to the contrary, if anything, it has
the effect of making a man under 16 no longer being criminally liable if K
K
he commits buggery with another man above 16, as he would have been
L
L under the originally worded section 118C.
M
M
38 In the premises, as submitted by Mr Leung, this remedial
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N
interpretation does not go beyond the limits set out in paragraphs 25(3)
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P
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Q
R
R
S
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T
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V
A
A
and (4) above16. The legislature would have intended its legislative B
B
provision to have a valid, even if reduced, operation than to have no
C
C
operation at all and it is not fundamentally different from what was
D
D enacted. It is the court’s judicial duty to remedially interpret section
118C as proposed instead of striking it down. E
E
F
F 39 Section 118I provides as follows:
G
G “1181. Gross indecency by man with male mentally
incapacitated person
H
H (1) Subject to subsection (2), a man who commits an
act of gross indecency with another man who is a
mentally incapacitated person shall be guilty of an I
I
offence and shall be liable on conviction on
indictment to imprisonment for 2 years. J
J
(2) A man who commits an act of gross indecency
with another man is not guilty of an offence under K
K this section if he does not know and has no reason
to suspect the other to be a mentally incapacitated
person.” L
L
M
M 40 Mr Leung accepts that section 118I only targets male
homosexuals but no comparable offences exist for heterosexuals or N
N
female homosexuals.
O
O
U
U
V
V
A
A
B
B (1) In Fairclough v Whipp (1951) 35 Cr App R 138, the
defendant exposed himself in the presence of a 9-year old C
C
girl and invited her to touch his penis. It was held that an
invitation to another to touch the person making the D
D
invitation could not amount to an assault on the person
E
E receiving the invitation, and therefore there was no indecent
assault by the defendant. F
F
(2) In R v Burrows (1951) 35 Cr App R 180, the appellant was
G
G charged with committing an indecent assault on a boy. The
boy’s evidence was that the appellant exposed himself to H
H
him and asked the boy to masturbate him. The boy further
I
I said that the appellant did attempt to touch his private parts.
The trial judge directed the jury that the question for them to J
J
consider was whether the appellant had done either of the
things alleged by the boy, and the jury convicted the K
K
appellant of indecent assault. The English Court of Appeal
L
L held that the direction was wrong in law, as the former act
could not amount to an indecent assault, because there had M
M
been no threat or hostile act by the appellant towards the
boy, and consequently assault. The Court of Appeal at 182 N
N
observed that if the appellant had been charged with an act
O
O of gross indecency, he would have been properly convicted.
P
P
42 In the premises, to avoid leaving no protection for vulnerable
Q
Q male MIPs from acts of gross indecency being committed on them by
striking down the entire section 118I, Mr Leung proposes that section R
R
118I should be remedially interpreted as follows:
S
S
“(1) Subject to subsection (2), a man person who commits an
act of gross indecency with another man person who is a T
T
mentally incapacitated person shall be guilty of an offence and
U
U
V
V
A
A
H
H 44 As pointed out by the SJ, section 118I was one of the new
sections incorporated in the CO by the Crimes (Amendment) Bill 1991 I
I
(“the 1991 Bill”) which followed closely the main commendations of the
J
J 1983 Law Reform Commission Report on Laws Governing Homosexual
Conduct. In introducing the 1991 Bill, Legislative Council Brief SCR K
K
2/2801/83 at paragraphs 2, 5 and 21 state as follows:
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M
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N
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- 25 - A
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B
B
“BACKGROUND
… G
G
5 The provisions of the Bill implement the main
recommendations of the 1983 Law Reform Commission Report H
H
on Laws Governing Homosexual Conduct. A clause-by-clause
description of the Bill can be found in the explanatory
I
I memorandum attached to the Bill. The following paragraphs
give a description and analysis of the provisions of the Bill by
subject. J
J
…
K
K
21 At Annex B is a list of all the existing protective
measures for females found in the Crimes Ordinance; against
L
L this list are the proposals to extend the offence to protect males
12
Section 146(1) provides: “…a person who commits an act of gross indecency with or M
M towards a child under the age of 16, or who incites a child under the age of 16 to commit such
an act with or towards him or her or another, shall be guilty of an offence and shall be liable
on conviction on indictment to imprisonment for 10 years.”
13 N
N See also Wong Chi Fung v Secretary for Justice [2016] 3 HKLRD 835 at paragraph
72 and the authorities cited therein.
14
Derived from Ghaidan v Godin-Mendoza, supra.
15
O
O In the premises, I do not find it necessary to go into the various authorities and article
cited by MrLeung and MrPun in their respective supplemental submissions dealing with the
point of whether an interpretation to extend the coverage of the subject statute would amount P
P to creating a new offence. Suffice also for me to say that these authorities should also be read
and understood in the wording of the particular statutes concerned, and do not materially or
substantially add anything to the principles that have been summarized in Keen Lloyd. In any
Q
Q event, this court is bound by the principles set out in Keen Lloyd and Lam Kwong Wai
regarding the exercise of the power of remedial interpretation. Notwithstanding this, I must
register my gratitude to counsel and their legal teams on both side for their industry in
researching on these materials in order to assist the court. As a matter of record, the R
R
authorities cited are: People v Liberta, 474 N.E.2d 567 (N.Y, 1984); Plas v State, 598 P.2d
966 (Alaska); State v George, 602 A.2d 593 (Vt. 1991); Hernandez v Robles, 7 Misc 3d 459
(2005), 26 A.D. 3d 98 (2005), 855 N.E.2d 1 (N.Y. 2006); Williams v State, 494 So2d 819 S
S
(AlaCrApp 1986); Skinner v Oklahoma, 316 US 535 (1942), 155 P2d 715 (1945). The article
cited is: Extension versus Invalidation of Underinclusive Statutes: A Remedial Alternative
(1975) Colum JL & Soc Probs 115. T
T 16
As I mentioned above, Mr Pun for the applicant indeed agrees that the proposed
interpretation of section 118C falls within the principles governing remedial interpretation.
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45 Similarly, the Extracts of Hansard Records17 provides D
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- 27 - A
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F
F 47 The remedial interpretation, in reading “man” expansively to
mean “person”, means that both female and male MIPs will be equally G
G
protected, while male homosexuals will no longer be targeted as it would
H
H cover female homosexuals and heterosexuals. Such protection offered
under the remedial interpretation is therefore consistent with the above- I
I
said fundamental feature and principle of the legislative scheme.
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J
T
T
18
See also Affirmation of Chiu ManHin at paragraph 20(ii).
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- 28 - A
A
D
D 51 Section 141 provides as follows:
E
E “141. Permitting young person to resort to or be on
premises or vessel for intercourse, prostitution,
buggery or homosexual act F
F
An owner or occupier of any premises or vessel, and
any person who manages or assists in the management G
G
or control of any premises or vessel, who induces or
knowingly suffers—
H
H
(a) a girl under the age of 16 to resort to or be on such
premises or vessel for the purpose of having I
I unlawful sexual intercourse with a man or for the
purpose of prostitution;
J
J
(b) a girl or boy under the age of 21 to resort to or be
on such premises or vessel for the purpose of
K
K committing buggery with a man; or
O
O
52 Section 141(c) only criminalizes an owner or occupier who
P
induces or knowingly suffers a boy under 21 to be on the premises or P
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T
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V
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- 29 - A
A
I
I
54 Mr Leung therefore submits that the court should remedially
J
J interpret section141(c) as follows:
K
K “An owner or occupier of any premises or vessel, and any
person who manages or assists in the management or control of
any premises or vessel, who induces or knowingly suffers— L
L
…
M
M
(c) a boy person under the age of 21 16 to resort to or be on
such premises or vessel for the purpose of committing an N
N act of gross indecency with a man another person,
V
V
- 30 - A
A
E
E
56 For the following reasons, I agree with Mr Leung that the
F
F proposed interpretation does not go beyond the limitations of remedial
interpretation. G
G
H
H 57 Section 141 was added to substitute a previous offence (“As
owner or occupier knowingly permitting a girl under the age of 16 to I
I
resort to or be on premises or vessel for prostitution or unlawful sexual
J
J intercourse”21) such that both buggery and gross indecency with a man
was covered: see Legislative Council Brief SCR 2/2801/83, paragraphs 2, K
K
21 (as quoted above) and Annex B, which relevantly provides that “the
L
L protection” at the present section 141(b) and (c) “overs both homosexual
and heterosexual buggery[,] boys are additionally protected in respect of M
M
gross indecency with a man”.
N
N
S
S 59 With the remedial interpretation in reading “boy”
expansively to mean “person”, both boy and girl will be equally T
T
21
This original offence has come under section 141(a) after the amendment.
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U
V
V
- 31 - A
A
E
E
60 For the same analysis I have made at paragraphs 48 and 49
F
F above, the remedial interpretation does not:
G
G (1) change in any aspect the way to protect the subject young
individuals by criminalizing a premises or vessel owner or H
H
occupier to induce or allow protected individuals to be
subjected to gross indecency on the said premises or vessel. I
I
It therefore does not involve the court choosing alternative
J
J options to protect them.
K
(2) amount to creating a new offence. Considered under its K
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V
- 32 - A
A
I
I
63 For all the above reasons, I will adopt the respective
J
J remedial interpretation as set out above in relation to the Contested
Provisions. Once so interpreted, they are not inconsistent with BL25 or K
K
BOR22.
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L
R
R
65 In light of this, Mr Pun has submitted that the court should
perhaps be cautious in adopting the proposed remedial interpretation to S
S
“rescue” these provisions in a piece-meal manner, since it should and
T
T
22
On 16 May 2018.
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U
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- 33 - A
A
D
D 66 For this, I agree with Mr Leung that I should still adopt the
proposed interpretations once I am satisfied that they do fall within the E
E
limitations concerning the technique of remedial interpretations. I will
F
F explain why.
G
G
67 First, as mentioned above, it is indeed a judicial duty for the
H
H court to adopt remedial interpretation (when it can do so) to make a
statutory provision to be constitutionally compliant instead of striking it I
I
down.
J
J
K
68 Second, insofar as permissible under the established legal K
S
S
23
Mr Pun has drawn my attention to the fact that the Sub-Committee in its consultation
papers respectively dated November 2016 and May 2018 recommended that offences created T
T
by, among others, sections 118C, 118G, 118H, 118I, 118J, 118K and 124 “should be
abolished upon the enactment of the new legislation” (my emphasis).
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A
F
F D. DISPOSITION
G
G 70 The applicant succeeds in the present application in relation
to the Uncontested Provisions. I will declare that the sections 118G, H
H
118H, 118J(1) and 118K are inconsistent with BL25 and BOR22 and are
I
I unconstitutional.
J
J
71 In relation to the Contested Provisions, the court will adopt
K
K the respective remedial interpretations for section 118C (as set out at
paragraph 34 above), section 118I (as set out at paragraph 42 above) and L
L
section 141(c) (as set out at paragraph 62 above). In light of the remedial
M
M interpretations, they are consistent with BL25 and BOR22 and thus
constitutional. The applicant’s challenge against them in this application N
N
fails.
O
O
P
72 Given my above reasons, the applicant is essentially P
successful in this application. I will therefore make a costs order nisi that
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Q
the costs of this application be to the applicant, to be taxed if not agreed,
with certificate for two counsel. The applicant’s own costs is be taxed in R
R
accordance with the legal aid regulations.
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D
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(Thomas Au) F
F
Judge of the Court of First Instance
High Court G
G Mr Hectar Pun SC and Mr Anson Wong Yu Yat, instructed by Vidler &
Co, assigned by Director of Legal Aid, for the applicant H
H
Mr Raymond Leung SC and Ms Grace Chow, instructed by Department
I
I of Justice, for the respondent
J
The interested party acting in person and absent J
K
K
L
L
M
M
N
N
O
O
P
P
Q
Q
R
R
S
S
T
T
U
U
V
V