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The Act of 1679 was passed after an individual was arrested for delivering a speech urging the summoning of Parliament, and was kept in prison for several months without bail. Under that Act, if the applicant showed that there was any ground for supposing that the prisoner was wrongfully detained, the writ would be issued requiring the person detaining the prisoner to bring him before the court and to explain the grounds of detention. If it appeared that the prisoner was confined without lawful authority, the court would release him; otherwise it would release him on bail, or make provision for his speedy trial. The Act also included provisions designed to prevent evasion of the writ, but it only applied to persons imprisoned for alleged criminal activities.

The 1816 Act improved upon the 1679 Act and extended it to detention otherwise than in respect of alleged criminal activities. The later Act has been described as the beginning of the modern jurisprudence, the effect of which is that it is the court, in civil cases, will determine for themselves the existence of the facts upon which the executive cites as justifying the detention.

The two English Acts are currently applied in Hong Kong by virtue of being listed in the Schedule to the Application of English Law Ordinance, The Administration is now conducting an exercise that involves identifying those Acts in the Schedule that are still of importance, and re-enacting them in an updated form.

If the provisions in the two English Acts that are relevant to Hong Kong were not re-enacted, and ceased to apply in Hong Kong, this would create great uncertainty as to what the common law position would be. Mr President, given that Habeas Corpus is one of the most fundamental remedies known to our law, the Administration considers it essential that these provisions be re-enacted in an updated form and that is what this Bill proposes to do.

The Bill contains two main provisions. First, clause 3 adds a new section 22A to the Supreme Court Ordinance to provide for applications for, and the issue of, writs of habeas corpus. Secondly, clause 6 amends the Schedule to the Application of English Law Ordinance by repealing items 18 and 50, which are references to the two English Acts.

Mr President, I commend the short but vitally important Bill to this Council for early passage into law.

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