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HONG KONG LEGISLATIVE COUNCIL 14 July 1988
the common objective of members of the BLDC which has always been that what the courts can try today, the courts of the HKSAR can also try after 1997.
This article also excludes from the jurisdiction of the courts of the HKSAR 'cases relating to the executive acts of the Central People's Government'. Therefore, after 1997 a resident of the future HKSAR may not bring pro- ceedings in a court of the HKSAR for any civil wrong done to him by the CPG in the HKSAR. The rationale stems from the fact that under the Crown Proceedings Ordinance, Cap. 300 of the Laws of Hong Kong although any person who has suffered damage as a result of a civil wrong done by the Hong Kong Government may being an action in Hong Kong against the Hong Kong Government, no such proceedings may be brought in Hong Kong against the British Government in respect of any act, neglect or default of any of its officers or agents. And in such cases, the aggrieved party will have to institute his action against the British Government in an English court. But the analogy is not apposite because the English legal system is almost the same as ours, and their legal procedures are also similar. So even if an aggrieved citizen in Hong Kong has to bring his action in an English court, he will not suffer any significant disadvantage apart from having to bring his action in the United Kingdom. But under article 18, if the CPG has done a civil wrong in the HKSAR and if such a wrong cannot be redressed in the court of the HKSAR under the laws which apply to the HKSAR, then the aggrieved party will suffer the following disadvantages:
(a) it is not even clear whether a Hong Kong resident can bring proceedings
against the CPG in the People's Supreme Court in Mainland China;
(b) even if he can, it is doubtful whether he can enforce legal rights which are
only recognised in the HKSAR and not in Mainland China;
(c) the legal procedures in Mainland China are totally different from those
in the HKSAR;
(d) although it appears now that Chinese nationals may in theory bring
certain types of proceedings against certain government departments in various courts in Mainland China, the legal remedies available and the procedure, to say the least, are unclear; and
(e) it is common knowledge that in Mainland China, it is difficult for an aggrieved party to have effective redress against any state organ or quasi-state organ or party cadres, for all judges are under the influence of the Chinese Communist Party and will, if in doubt, take the advice of the Chinese Communist Party before pronouncing judgment.
For these reasons, we are not really comparing like with like here.
Sir, let me now give an illustration of how this article can work in practice. A person is arrested in the HKSAR on behalf of the CPG on the ground that he is suspected to be a spy. His wife goes to a lawyer who institutes an action in the High Court for a writ of habeas corpus so that he could be brought before the court and dealt with according to law. But under article. 18, the court will have