TNAG-2174-FCO40-3111-Hong-Kong-Bill-of-Rights-1990 — Page 113

CODE 18-77

Ms Major HKD

Reference

From: Jill Barrett

(...1..26...

Letter to near Stock

fa Du3115.

Assistant Legal Adviser

K166 270 3381

HKD241

RECE

GISTRY

31 MAY 1990

Date: 30 May 1990

INDLA

CC: Mr Fifoot

HONG KONG BILL OF RIGHTS

1. I have just noticed another defect in the Bill which we have so far overlooked. It is unclear who is entitled to bring a B/R action as plaintiff; ie whether the right is limited to natural persons (as it should be) or whether legal persons such as companies are also included. confer rights under the B/R to legal persons would go beyond the scope of the Covenant and without doubt increase the volume of B/R litigation considerably. My guess is that the broader meaning was not intended here and that the ambiguity is simply due to a drafting error. If the error goes uncorrected, however, the consequences could be far-reaching.

2. Clause 6(1) of the Bill states that "A violation of the Bill of Rights in relation to any person is actionable as a tort". This means that "any person" can sue, but "person" is not defined. Clause 7(2) says "In this section, "person" (1) includes any body of persons, corporate or unincorporate". This leaves the meaning of "person" in Clause 6 undefined. There are at least two different approaches which a court might take to construing the ambiguity in clause 6:

(a) The fact that the definition in Clause 7(2) is confined to Clause 7 implies that in other sections "persons" has a different meaning. The most obvious way to give it a different meaning is to interpret it as a reference to natural persons only.

3.

or

(b) The meaning of "persons" is to be defined by reference to the Interpretation and General Clauses Ordinance, Section 3 of which defines "person" in the same way as Clause 7(2) of the Bill; therefore legal persons are included.

The rights in the ICCPR clearly only apply to natural persons. The words "to all individuals" in Article 2(1) of

K11ACW