TNAG-2327-FCO40-3371-Hong-Kong-Bill-of-Rights-implementation-and-conferences-1991 — Page 24

the delivery up of any property [sub-section 1 (a) (ii)]. The fact that, in a case like the

one now before me, the statute does not require the presence of probable cause for believing

that the debtor's departure from Hong Kong may obstruct or delay the creditor indicates the

nakedness of the power to interfere with the freedom of movement guaranteed under Article

8. I note that the granting of the order is a matter for judicial discretion and that it cannot

endure for more than 3 months. I do not regard these features as adequate safeguards,

especially when one takes into account the powers of arrest and imprisonment in the rest of

the section. The limitation must "impair the right as little as possible." After an anxious

consideration of all the factors involved in this balancing of interests, I am satisfied that the

impairment of the right goes beyond that permitted limit. I find that section 53E (1) (a) does

not admit of a construction consistent with the Ordinance, and is repealed by virtue of section

3 of the Ordinance.

I have not dealt in any detail with Mr McCoy's alternative argument that the

legislation can be upheld as necessary to protect public order or ordre public. With respect

I do not consider that the burden on the judgment creditor in this case is in any way reduced

by relying on that rather vague concept. In reality, the arguments are basically the same but

dressed in different raiment.

I do not propose to express any further view on the rest of the provisions of section

52E or how my finding that sub-section 1(a) is repealed affects the other provisions.

Different considerations may apply to them, and they have not been fully canvassed before

me. I will only say that I doubt whether the test of severability laid down by Viscount Simon

in A.G. for Alberta v. A.G. for Canada [947] Ac 503 at 518 can be satisfied. Being satisfied

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