"It is difficult to know what judges are allowed to know, though they are ridiculed if they pretend not to know."
I have not looked at the debates in the Legislative Council. Nor have I looked at the White
or Blue Bills, except for the limited references in the passages in Mr. Byrnes' paper, which
Mr McCoy referred to. Indeed, Mr McCoy was careful to ensure that I followed the advice.
and guidance to be found in Fung v. First Pacific Bank Ltd. [1989] 2 HKLR 614 at 622E.
The particular value of the passages from Mr Byrnes' paper is his succinct statement of the
several questions which arise from the words of sections 3 and 7 of the Ordinance, and the
arguments put forward to support various possible interpretations. In this way Mr McCoy
was able to place before the court arguments contrary to his own submissions and favourable
to the judgment debtor. I am much obliged for this assistance. But, at the end I must find
the answers only from the words of the enactment, after giving it a generous and purposive
construction and avoiding narrow and technical interpretations.
Mr McCoy contended that section 7 clearly confined the Ordinance to disputes
between an individual and government or public authority since only the latter are bound by
the Ordinance; section 3 and 7 were linked or interdependent and not intended to operate
separately; and, accordingly, the court's power to declare that pre-existing legislation is
repealed can only be exercised in the context of litigation brought by an individual against the
government or some public authority. It cannot be invoked in a purely civil dispute between
two private persons.
As a matter of general principle all legislation is binding on every individual or person
within the jurisdiction of the legislature. At the present time, it does not bind the Crown
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