Hong Kong Court of Final Appeal grants leave to appeal in two landmark constitutional cases

03/11/11

The Hong Kong Court of Final Appeal (‘CFA') has granted leave to appeal in two significant constitutional cases.

On 25/10/11 in ‘A' v. Independent Commission against Corruption FAMC 34/2011 the CFA gave leave to the Applicant ‘A' to appeal against the dismissal of his application by the Court of First Instance to set aside a Notice compelling him to answer questions that, he argued, tended to incriminate him. The appeal engages the question of the development of the common law principle of legality in Hong Kong and whether, because of the Hong Kong Constitution, its scope differs in Hong Kong from the United Kingdom. The case also involves consideration of whether or not the principle of derivative immunity (accepted as a common law right in Australia and Canada) but thus far not recognised in Hong Kong should be revisited in the light of recent case-law in Australia.

On 27/10/11 in Ubamaka Edward Wilson v. Secretary for Security and Director of Immigration FAMC 26/2011 the CFA gave leave to the Applicant to appeal against the dismissal of his application for judicial review of a decision to deport him to Nigeria. The appeal raises the key constitutional issue of the scope of the UK Immigration Reservation to the ICCPR in 1976 and the proper construction, in the light of that reservation, of Article 39 of the Basic Law and s. 11 of the Hong Kong Bill of Rights Ordinance. The appeal has far-reaching implications for the protection of fundamental rights throughout the HKSAR and will, if successful, ensure that those with no right of abode in the HKSAR would, nonetheless, be provided with safeguards against the imposition of cruel and unusual treatment by the application of the HKSAR immigration regime.