(ose judgment was delivered by Cons VP) was not persuaded by Judge Downey's cclusions:
"We accept that the Ordinance, being in the nature of a constitution, must be given a 'generous interpretation' (per Lord Wilberforce in Ministry of Home Affairs v Fisher [1980] AC 319 at 328) or 'a generous and purposive interpretation' (per Lord Diplock in Attorney-General of the Gambia v Jobe [1984] AC 689 at 700), but that does not entitle a court to override the clear intention of the legislature, which we take to be, from the words 'binds only the government, etc.' [section 7] that private individuals should not be adversely affected by the Ordinance, as the judgment creditor in the present instance would be if, assuming for the moment that s. 52E is in fact inconsistent with the Ordinance, the judge's construction be correct." (p. 6)
"Nor do we find any conceptual difficulty in the repeal of an ordinance with regard to one section of the community but not with regard to the rest. Many statutes are specifically enacted to apply disjunctively in that way. The judge appears to assume that it was an 'all or nothing' situation. With respect to him he overlooked that s. 3 repeals the offending legislation only 'to the extent of the inconsistency'.
We accept that the inevitable result of the interpretation which we find unavoidable is that the Ordinance does not fully comply with the intention expressed in its preamble, namely:
'to provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights'
for the convention itself has no similar restrictive provision, unless perhaps this aspect is covered by the qualification that follows the words quoted:
'as applied to Hong Kong'
But we foresee no bizarre or irrational results." (p. 7)
Sun Ching-yee v Wong Shum, Action No 5808 of 1986, Hooper J (in chambers)
This case involves an application for a prohibition order under s. 21B of the Supreme Court Ordinance (cap. 4). The Bill of Rights issues it raises are the same as those considered by Judge Downey in Tam Hing-yee v Wu Tai-wai (presently before the Court of Appeal). The case before Hooper J was adjourned pending the outcome of the appeal in Tam Hing-yee v Wu Tai-wai.
Theft Ordinance (cap. 210), section 33
Duty Free Shoppers HK Ltd v. Wong Kwok Pong et al, Civ App 169 of 1991, HCA No. A6091 of 1991
This case involved interlocutory proceedings in an action by the plaintiff for sums allegedly misappropriated by the defendants. The first to fourth defendants were former employees of the plaintiff. It was alleged that during their employment with the plaintiff
Bill of Rights Bulletin
December 1991