10
they had drawn a total of 48 cheques on the plaintiff's account in favour of a fictitious company. These cheques were eventually paid into the bank account of the fifth defendant's company. The defendants were charged with five counts of theft. On 13 August 1991 the plaintiff obtained an ex parte Mareva injunction against the defendants. On 28 August 1991 an order of disclosure was made by Deputy Judge Wong against the first, second, third and fifth defendants, who had complied with the order with the exception of one paragraph, which required them to disclose the whereabouts of the proceeds of the cheques in question. The defendants refused to answer the question on the ground that such disclosure would incriminate them in the criminal proceedings and that the order violated article 11(2)(g) of the Bill of Rights.
Section 33 of the Theft Ordinance provides that no person shall refuse to answer any question put to him in proceedings for the recovery or administration of any property on the ground that to do so may incriminate a person or the person's spouse of an offence under the Ordinance. It further provides that such answers shall not be admissible in evidence against the person or the person's spouse in proceedings under that Ordinance.
On 10 October 1991 Jones J rejected the Bill of Rights argument, holding that "Article 11 is irrelevant for it is concerned with criminal proceedings." (p. 4 of the judgment) He further held, though without supporting reasoning or reference to Tam Hing yee or other materials, that the Bill of Rights did not apply to proceedings between private parties (pp. 4-5 of the judgment):
"However, Mr Beach contended that the Bill of Rights does not apply to private proceedings having regard to s. 7 which reads. . .[text of s. 7]
I accept this submission for it is clear that the Bill of Rights is not applicable to proceedings between private parties so that the defendants are not entitled to a stay . .
+
"
A further application for a stay pending appeal was dismissed by the judge on 24 October 1991. The defendants appealed against the order of Jones J and sought from the Court of Appeal a stay of the original order of disclosure pending appeal. It was argued that the Bill of Rights could apply to this particular case, relying on Tam Hing-yee v Wu Tai-wai and other materials, and that section 33 of the Theft Ordinance is inconsistent with, inter alia, article 5 of the Bill of Rights (liberty and security of person). On 11 November 1991 Fuad V-P dismissed the appeal on procedural grounds, holding that the defendants had appealed against the wrong order, and did not rule on the merits of the Bill of Rights issues.
Counsel: John Bleach (instructed by Deacons) for the plaintiff; Anthony Neoh QC, Johannes Chan and Michael Ko (instructed by Raymond Tang & Co.), for the defendants.
Copyright Ordinance (cap. 39), section 9
Hong Kong Stationery Manufacturing Co. Ltd v Worldwide Stationery Manufacturing Co., High Court, Action No. 434 of 1990, Mayo J
This case involved an application for summary judgment under Order 14 in an action for breach of copyright. The defendant argued that s. 9 of the Copyright Ordinance (cap. 39) violates the right to a fair trial in article 10 of the Bill of Rights, as well as the presumption of innocence in article 11 (1). Section 9 permits affidavits containing assertions as to the subsistence of copyright or the identity of the owner to be received in evidence and requires a court to presume that the facts contained in them are correct until the contrary is proved.
Bill of Rights Bulletin
December 1991