Hong Kong Human Rights Monitor

Setting a Precedent in Retrospect

(The following article was written by Margaret Ng before the handover.) It is universally accepted among communities in which the rule of law prevails that no criminal offence can be retrospective. No one can be found guilty of a criminal offence passed into law after the event on which he was charged.

This is enshrined in article 15 of the International Covenant on Civil and Political Rights (ICCPR), which is incorporated as article 12 of section 8 of the Hong Kong Bill of Rights Ordinance (BORO), Cap 383. Under the Letters Patent, the present "constitution" of Hong Kong, no law contravening the ICCPR is to be enacted. Under article 39 of the Basic Law, the ICCPR remains in force, and no law may make restrictions to the rights and freedoms of Hong Kong residents contravening the ICCPR.

It is therefore clear that any provisions for criminal offences in the Reunification Bill to be passed in the small hours of July 1, can have no retrospective effect. A person cannot be found guilty of something he did in the hours before the bill is passed, on the strength of the legal effect of that bill after it is made law.

It is said that nevertheless the Reunification Bill may have retrospective effect by operation of Hong Kong law. Section 20(2) of the Interpretation and General Clauses Ordinance says: "An ordinance comes into operation (a) at the beginning of the day on which it is published."

A bill passed by Legco has to be assented to first by the Governor before it can be published in the Government Gazette. The preparation for publication will need some time. In the normal course of events, publication will not be on the same day.

Supposing the Reunification Bill is assented to by Chief Executive Tung Chee-hwa as soon as it is passed by the provisional legislature, and then immediately published in the SAR Gazette later that day, on the face of section 20(2), it may appear that the criminal provisions contained in that bill or ordinance will have effect from the beginning of July 1. It will, therefore, have retrospective effect.

However, this argument is fallacious. There are a number of ways to attack the argument. First, it appears there is a conflict between section 20(2) of the Interpretation and General Clauses Ordinance on one hand, and article 12 of the Bill of Rights, which is identical with article 15 of the ICCPR, on the other hand. If section 20(2) was enacted before BORO, then by ordinary operation of the common law or section three of the Bill of Rights, the former must be given a construction consistent with BORO, otherwise it is impliedly repealed. Section 20(2) must be interpreted so as to refer to publication on a day other than the day on which it was enacted.

If section 20(2) was enacted after the BORO, then the effect of the Letters Patent, and after July 1, article 39 of the Basic Law, is that the section must be interpreted in a way compatible with the ICCPR.

Putting the argument slightly differently, where a statutory provision conflicts with an article of the constitution, the latter must prevail. Any Hong Kong law or interpretation which conflicts with the Basic Law, must give way to the principle in the Basic Law. This means, article 15 of the ICCPR must be given effect, and it says: "No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed."

A second way to expose the fallacy is this. Section 20(2) merely refers to the coming into operation of an ordinance. Even if the ordinance technically comes into operation after midnight on June 30, the fact remains the offence created by the Reunification Bill would be passed several hours after midnight. If a person is charged with that offence created by the Reunification Bill would be passed several hours after midnight. If a person is charged with that offence on the grounds that what he did between midnight and the time at which the bill was passed, he will still be charged with an offence created after his act.

In other words, charging that person with that offence will still be to give the offence retrospective effect, and therefore contravene article 15 of the ICCPR, and thereby is inconsistent with article 39 of the Basic Law. That is, the interpretation of section 20(2) and determination of its effect is wholly irrelevant to the question of retrospectiveness. It is a mere red herring.

What is far more important than these legal arguments, is the principle behind them, which one expects a government with any respect for the rule of law to take seriously. The reason for all this gazettal of bills and allowing time for publication is not just a meaningless bureaucratic arrangement. It is to give effect to the principle that a person must have prior warning of exactly what would constitute an offence. He can be held criminally responsible only for any action he does after warning is given, by publication to the world.

A government which equates a bill not yet enacted as law as the same as law shows utter contempt for due legislative process. Moreover, it shows utter contempt for its legislature, since it assumes that what the executive pronounces is already law or as good as law.

But, even if the incoming government had no respect for the rule of law, how can it be so arrogant and politically unwise as to disregard the public's concern and risk its anger, by insisting on using criminal provisions which have to be given retrospective effect, when it can just as easily use well-established laws or, dare one hope, even act with a degree of tolerance and understanding on a day it regards as so very auspicious?

Margaret Ng

1997 (c) Hong Kong Human Rights Monitor