Virtually the same approach has been adopted by the European Court of Human Rights when
considering the meaning of the phrase "necessary in a democratic society" in Article 10(2)
of the Convention. See Handyside v. United Kingdom [1976] 1 EHRR 737, at 754-5. Two
passages from the judgment in Sunday Times v. United Kingdom, supra, are, in my respectful
view, of special assistance. At para. 59 it was said:-
"59.
The Court has already had the occasion in its above-mentioned HANDYSIDE judgment to state its understanding of the phrase 'necessary in a democratic society', the nature of its functions in the examination of issues turning on that phrase and the manner in which it will perform those functions.
The Court has noted that, whilst the adjective 'necessary', within the meaning of Article 10(2), is not synonymous with 'indispensable', neither has it the flexibility of such expressions as ‘admissible', 'ordinary', 'useful', 'reasonable' or 'desirable' and that it implies the existence of a 'pressing social need'.
Again at para. 62 it was said:
"62.
It must now be decided whether the 'interference' complained of corresponded to a 'pressing social need', whether it was 'proportionate to the legitimate aim pursued', whether the reasons given by the national authorities to justify it are *relevant and sufficient under Article 10(2).'
The words "in a democratic society" are omitted from Article 8, but I do not think that this
reduces the burden on the person seeking to uphold the limitation.
In order to persuade me that there was "pressing social need" for the power to make
prohibition orders in Hong Kong, Mr McCoy took me through some of the decided cases illustrating the difficulties experienced in enforcing judgments and ordinary debts. Cf.
Columbia Export Packers (HK) Ltd. v. Mc Culloch [1976] HKDCLR 108; Supreme Finance
Ltd. v. Wan Hang Trading Ltd. [1983] HKLR 314. He submitted, and I would respectfully agree, that the legislature responded to the legitimate interests of creditors by enacting section 52E of cap. 336 and section 21B of cap. 4 in 1984. No court can be insensitive to the plight
15
No comments yet.
Private notes are available after approval.