}
4
jurisprudence could be "of the great assistance and should be given considerable weight" in interpreting our Bill of Rights.
Furthermore, the Court's standard for determining whether a restriction is "necessary" appears less exacting than the standard applied in many international and national decisions. Had the Court in this case considered the international material in greater depth, it may well have applied a more exacting standard or at any rate produced a judgment more persuasive in its argumentation. The relatively undemanding standard applied here could have important ramifications for the future impact of the Bill of Rights. While no doubt many in the business world will welcome the upholding of prohibition orders against debtors as valid, it may be that the present decision will have adverse consequences for them in other areas when they seek to resist regulation on the ground that it violates their freedom of expression, for example in the area of advertising.
One notable feature of the Court's analysis was the paucity of material before it on which it could base its conclusion that s. 52E (1) was a necessary measure. While the Court admitted that statistics were hard to come by, it did accept some figures from the Bar table, to the effect that an average of 20 applications a year were handled by the Director of Legal Aid. The Court's assessment seems to have turned largely on what it considered to be common experience (that everyone knows that absconding debtors are a serious problem in the peculiar circumstances of Hong Kong and that prohibition orders are a proportionate way of responding to that problem) and a consideration of the formal protections in the legislation. It may be that the Court is correct in its ultimate conclusion, but its mode of analysis is far from compelling. It would have been far preferable had the Court's conclusion been based on sociological evidence, comparative material and other relevant evidence.
It is to be hoped that in future cases the courts will follow international practice by requesting and availing themselves of comparative material and sociological evidence. While considering this type of material would bring a new, not unproblematic dimension to the judicial process in Hong Kong, it is an approach which needs to be developed if full effect is to be given to the rights guaranteed in the Bill of Rights.
If the fairly low level of scrutiny applied by the Court in this case is an indication of the standard to be applied in future, the result may be that it will be relatively easy for Government and the Legislature to justify serious encroachments on fundamental human rights. That would, in our view, be a most unfortunate result. In the early days of a Bill of Rights it may be unrealistic to expect judges to spring, Athena-like, fully armed into the fray. However, the approach adopted by a differently constituted Court of Appeal in R v Sin Yau Ming justifiably raised hopes that the Hong Kong courts would deal with the Bill of Rights in a manner which was sensitive to its goals and origin and that they would be receptive to the rich international and national jurisprudence under comparable Bills of Rights elsewhere. The decision of the Court in Tam Hing-yee v Wu Tai-wai, however, does little to reinforce that optimism.
Bill of Rights Bulletin
December 1991