TNAG-2553-FCO40-3728-Hong-Kong-Bill-of-Rights-review-of-legislation-1992 — Page 33

14

appropriate in the application of other articles of the Ordinance: c.f. R. v. Sin Yau Ming, HCA 289/90, 30th September 1991, as yet unreported. The court must instead direct its mind to factors such as what would be likely to happen if the restriction were removed or by what alternatives might the stated objectives be otherwise achieved. It may also be legitimate, we think, to consider how far the restriction impinges on the right to leave Hong Kong, for more than is necessary may not be taken.'

#

The Court went on to hold that, in view of the ease with which debtors who wished to evade their responsibility could leave Hong Kong to a jurisdictions where a Hong Kong judgment could not be enforced and the safeguards contained in section 52E, the provision was a measure necessary for the protection of the rights of others (namely creditors).

Although the Court decided that it was not necessary to decide whether the provision was also necessary for the protection of public order, it noted (at pp. 11-12 of the judgment):

"As to protection of public order, it is not uncommon to find in the criminal jurisdiction of the courts that those commonly known as 'loan sharks' do not hesitate to employ strong arm tactics to recover sums of money they allege to be due from their victims. If those with monies lawfully adjudged due to them were compelled to watch their debtors calmly pack their bags and leave, some might well succumb to the temptation to take the law into their own hands. But in view of the opinion we have just ventured to express, it is not necessary to come to a firm conclusion.'

Editors' comment

11

It is well established in the international case law that it is permissible to restrict the enjoyment of rights guaranteed by the ICCPR if it is necessary to protect rights which are not protected by that instrument. However, in deciding whether a restriction is necessary, it does appear that special weight should be given to the rights which are included in the ICCPR. (Similar reasoning applies to the Bill of Rights.)

The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights,4 a non-binding set of principles adopted by leading international lawyers, suggest that the follwoing is the correct approach to adopt:

35. The scope of the rights and freedoms of others that may act as a limitation upon rights in the Covenant extends beyond the rights and freedoms recognized in the Covenant.

36. Where a conflict exists between a right protected in the Covenant and one which is not, recognition should be given to the fact that the Covenant seeks to protect the most fundamental rights and freedoms. In this context especial weight should be afforded to rights not subject to limitations in the Covenant.

4 (1985) 7 Human Rights Quarterly 3-14.

Bill of Rights Bulletin

December 1991