8
provides that the Hong Kong Legislature "may, to the extent required in order to give effect to an international agreement which applies to Hong Kong and for related purposes.
. (a) repeal or amend any enactment so far as it is part of the law of Hong Kong . He commented (at p. 14 of the judgment):
"Whilst on the face of it this does give Hong Kong 'rights' with regard to international agreements, it falls well short of giving power to the Hong Kong Legislature to amend an existing Treaty or imperial enactment. "3
+
The Magistrate also rejected an argument to the effect that the Application of English Law Ordinance (cap. 88) granted the Hong Kong Legislature power to amend or repeal extradition legislation. Nonetheless, he then went on to consider whether the legislation did conflict with any of the substantive guarantees of the Bill of Rights and concluded that they did not (see below at p. 16).
APPLICATION TO PROCEEDINGS BETWEEN PRIVATE INDIVIDUALS (SECTIONS 3 AND 7)
Tam Hing-yee v Wu Tai-wai, Court of Appeal, Civ App No. 118 of 1991, 28 November 1991 (Cons VP, Clough and MacDougall JJA)
This was an appeal from the judgment of Judge Downey, who had held on 8 July 1991 that section 52E (1)(a) of the District Court Ordinance had been repealed by the Bill of Rights Ordinance. The case involved an application by a creditor for the extension or renewal of a prohibition order made against his debtor prior to the commencement of the Bill of Rights Ordinance. In his judgment Judge Downey had held that the Bill of Rights Ordinance applied to all legislation and that therefore legislation which affected legal relations between private individuals could be measured against the guarantees of the Bill of Rights. He also held that the restriction on the guarantee of freedom of movement was an infringement of article 8 (2) of the Bill of Rights and was not a permissible restriction within the meaning of article 8 (3). (See the summary in the Bill of Rights Bulletin, v. 1, n. 1, pp. 7-8).
The Court of Appeal reversed the judgment of Judge Downey on both grounds.
Held: 1. The Bill of Rights Ordinance binds only the Government and public authorities and therefore the guarantees of the Bill of Rights could not be invoked in litigation between two private parties to impugn legislation affecting the rights of those parties inter se.
2. Section 52E (1)(a) is a provision necessary for the protection of the rights of others within the meaning of article 8 (3) of the Bill of Rights, namely judgment creditors. (Further discussion of the Court's holdings on this ground appears at p. 13 below.)
On the question whether the Bill of Rights Ordinance applied to legislation which was being invoked or relied on by one private individual in litigation against another private individual, Judge Downey had held that a negative conclusion would defeat a major purpose of the Ordinance, namely judicial scrutiny of all legislation inconsistent with the Ordinance" and would produce "bizarre and irrational" results. The Court of Appeal
3 Editors: It is not entirely clear whether this conclusion takes fully into account the fact that the Bill of Rights Ordinance itself is giving effect to a treaty and can therefore be viewed as having drawn on the power conferred by s. 2 of the Hong Kong (Legislative Powers) Order 1989.
Bill of Rights Bulletin
December 1991
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