11
The plaintiff argued that the Bill of Rights has no application to civil proceedings between private parties, that section 9 in any event did not violate either article 10 or 11 (1) in the context of criminal proceedings, and that if it did the section could be interpreted as applying only to civil proceedings. The plaintiff further argued that section 9 did not violate the defendant's right to a fair hearing in the determination of its rights and obligations in a suit at law.
Even though there were two and a half days of argument on the Bill of Rights issue, Mayo J eventually found that he could decide the application without deciding the Bill of Rights issues. He wrote (at p. 14 of his judgment):
"The interpretation of the law relating to the Bill of Rights is still in a formative stage. This is particularly the case on the subject of its application between private individuals. I have been informed that the decision of Downey DJ [on] which Mr. Rogers placed particular reliance is shortly to be considered by the Court of Appeal.
I am doubtful whether much useful purpose is likely to be served by any observations I may make having regard to the fact that they will be obiter dicta.
It is also overwhelmingly the case that s. 9 will be called in aid of criminal proceedings and any comments I make in a civil context are not likely to be helpful.
Accordingly, I have chosen not to express a view on this subject."
Counsel: Andrew Liao QC and Priscilla Wong (instructed by Wilkinson & Grist), for the plaintiff; Anthony Rogers QC, Peter Garland, Winnie Tam and Johnny Mok (instructed by Henry C.K. Tung & Co.), for the defendants.
GUARANTEE OF FREEDOM FROM TORTURE AND OTHER ILL TREATMENT (ARTICLE 3) AND HUMANE TREATMENT OF PERSONS DEPRIVED OF THEIR LIBERTY (ARTICLE 6);
REMEDIES
Extradition Act 1989 (UK); United States of America (Extradition) Order 1976; Hong Kong (Legislative) Powers Order 1989; Application of English Law Ordinance (cap. 88)
United States of America v Johnny Eng, CMP No. 1274 of 1990, 27 September 1991, H.L. Brazier Esq
In this case the fugitive argued that, because one of the crimes for which his extradition was sought carried a mandatory minimum sentence of life imprisonment, permitting his extradition to face the possibility of such a penalty would involve a violation of articles 3 and 6 of the Bill of Rights.
The Magistrate rejected this argument. He noted that there was no evidence before him that imprisonment in the U.S.A. was inhuman or degrading or infringed the inherent dignity of the human person, and that more severe penalties for similar offences could be imposed under the law of Hong Kong (although they were not mandatory).
Bill of Rights Bulletin
December 1991
Page 30Page 31
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