EDITORIAL
In response to a number of suggestions (for which we are most grateful), we have restructured the way in which cases are presented, arranging them according to topic and relevant article of the Bill of Rights Ordinance rather than according to the court in which they were decided. Where a case deals with one or more issues, we have noted the relevant holdings of the case under the appropriate subject headings.
In this issue we have included (sometimes lengthy) extracts from the judgments. Since many of the decisions are difficult to obtain and are not likely to be reported for some time, we hope that this will make the Bulletin more useful for readers.
We have also included notes or editorial comments where we think that these might be of interest to readers. The Editors (Andrew Byrnes and Johannes Chan) are solely responsible for any views expressed in those comments.
A number of readers have asked where they can obtain European Convention case law. The best source is the European Human Rights Reports (held by the Legal Department Library, HKU Law Library and available on LEXIS) and for older decisions of the Court, the International Law Reports (held by both those libraries as well as the Supreme Court library).
RECENT DEVELOPMENTS
There has been an increasing number of cases in which Bill of Rights points are being taken. Influenced by the Court of Appeal decision in R v Sin Yau Ming, the great majority of these cases have involved challenges to statutory presumptions. There have also been a number of cases in which the defendants have sought to rely on the detailed protections in articles 5 (1) and 11(2). While Bill of Rights issues have also been taken in some civil cases, the number of such cases has been relatively few so far.
THE COURT OF APPEAL'S DECISION IN TAM HING-YEE V WU TAI-WAI
The most significant development since the last issue of the Bulletin is the Court of Appeal's judgment of 28 November 1991 in Tam Hing-yee v Wu Tai-wai (see p. 8 below). In that decision the Court of Appeal reversed the decision of Judge Downey below and held that the Bill of Rights Ordinance did not permit a review under the Bill of Rights of s section 52E (1)(a) of the District Court Ordinance, which permits a judgment creditor to
obtain a stop order against a debtor, thus preventing the debtor from leaving Hong Kong. >
Judge Downey had held that sections 3 and 7 of the Bill of Rights Ordinance operate independently of one another. In his view, legislation could be challenged for inconsistency with the Bill of Rights whether it affected the rights of the citizen against the State or the legal relations between two private individuals (the situation in Tam Hing-yee). By its decision the Court of Appeal appears to have ruled out the possibility of application of the Bill of Rights to legislation which regulates the legal rights of private individuals inter se. This conclusion is a controversial one and will no doubt be the subject of much discussion. With the greatest respect to the Court of Appeal, in our view the judgment is flawed in a number of critical respects, both substantive and methodological.1
1
A summary of the decision and extracts from the judgment appear below at pp. 8 and 13.
Bill of Rights Bulletin
December 1991
No comments yet.
Private notes are available after approval.