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2. (4) Nothing in this Ordinance may be interpreted as implying for the Government or any authority, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights or freedoms guaranteed in the Bill of Rights or at their limitation to a greater extent than is provided for in the Bill.
In R v Sin Yau Ming the Court of Appeal held, in accordance with the international case law, that the right of a person to be presumed innocent could be limited if such limitations were "in accordance with law" as provided in article 11 (1).of the Bill of Rights. The Court also held that the concept of "law" in this phrase was not purely formal concept (so that any restriction embodied Hong Kong legislation would suffice), but that any legislation would have to satisfy the substantive requirements of "law", namely reasonableness and proportionality. In assessing whether those criteria are present, then the type of analysis suggested in R v Sin Yau Ming and R v Oakes seems entirely appropriate.
There are a number of provisions in the Bill of Rights which provide protection against "arbitrary" or "unlawful" interferences with particular rights (for example, articles 5 and 14). According to the international jurisprudence, an "arbitrary" interference is one which is unreasonable, unfair or disproportionate. To the extent that these provisions do not spell out in detail the permissible restrictions, it may be said that they embody "implied" restrictions. However, these are based on the text of the provisions; any broader doctrine of implied limitations, although accepted in some European cases, may be problematic.
Bill of Rights Bulletin
December 1991