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Press Releases 1998

Brief on the Hong Kong Bill of Rights (Amendment) Bill 1998

- The Hong Kong Bill of Rights (Amendment) Bill 1998 seeks to repeal section 3(3) and (4) of the Hong Kong Bill of Rights Ordinance (BORO) as added by the Hong Kong Bill of Rights (Amendment) Ordinance 1997 (Amendment Ordinance) currently suspended from operation.

* The Hong Kong Bill of Rights (Amendment) Ordinance 1997

- The Amendment Ordinance has added the following new section 3(3) and (4) to the BORO -

(3) It is hereby declared to be the intention of the legislature that the provisions of this Ordinance, including the guarantees contained in the Bill of Rights, apply to all legislation, whether that legislation affects legal relations between the Government, public authorities and private persons, or whether it affects only relations between private persons.

(4) For the avoidance of doubt, subsection (3) shall come into operation upon ommencement of the Hong Kong Bill of Rights (Amendment) Ordinance 1997 (107 of 1997)."

- In the Explanatory Memorandum to this Amendment Bill before it was passed on June 27, 1997, it was stated that the Bill should remove the anomaly created by a Court of Appeal ruling in 1991. As interpreted by the Court of Appeal in Tam v Wu (1991), the BORO repeals inconsistent pre-existing legislation when that legislation is relied upon by the Government, but the same legislation nonetheless remains in force when relied upon by private citizens. The Bill was meant to remove this anomaly by amending the BORO to make it applicable to all legislation, not merely to legislation invoked by Government or public authorities.

- A summary of the case and judgement in Tam v Wu is at Annex.

* Why repeal the Amendment Ordinance

- The original purpose of the BORO is to bind Government and public authorities and not to govern inter- citizen actions. Section 7 makes clear provision for this.

- Section 3(3) and (4) introduced by the Amendment Ordinance raises doubts about the scope of the BORO's application. When read with section 7, this could give rise to more than one interpretation. To tackle the uncertainty and confusion at source, the best way is to repeal the Amendment Ordinance altogether.

- More importantly, what the Amendment Ordinance sets out to do has in fact been achieved through other Government measures. There is therefore no need to further amend the law to make it clear.

- The uncertainty and confusion concern whether the Amendment Ordinance will go beyond what it has set out to do and has created new obligations on private citizens, contrary to the original legislative intent of the BORO. We are concerned that the new section 3(3), when read with section 7 of the BORO, could give rise to more than one interpretation, namely -

  1. section 7 of the BORO prevails and so the Amendment Ordinance does not reverse the Court of Appeal ruling in Tam v Wu; or
  2. the Amendment Ordinance reverses Tam v Wu such that notwithstanding section 7, as from June 30, 1997 when the Amendment Ordinance took effect, all pre-existing legislation inconsistent with the BORO is repealed, regardless of whether such legislation is invoked by Government/public authority or private citizens; or
  3. the Amendment Ordinance does more than reverse Tam v Wu. The new section 3(3) introduced under the Amendment Ordinance prevails over section 7 thereby imposing obligations on private citizens contrary to the original intent of the BORO.

- There is no need for the Amendment Ordinance at all because -

  1. Since 1991, we have been amending any legislation which appeared to be inconsistent with the ICCPR even if the legislation deals with inter-citizen relations only. To this end, the Court of Appeal ruling in Tam v Wu has little or no practical significance.
  2. Article 39 of the Basic Law provides that the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law and that such restrictions shall not contravene, inter alia, the provisions of the ICCPR as applied to Hong Kong. In other words, the minimum standard of human rights enjoyed by Hong Kong residents is already guaranteed by the Basic Law to be the ICCPR standard.
  3. Furthermore, the Hong Kong Bill of Rights, the human rights guarantees in the Basic Law, together with the Government's track record of implementing anti- discrimination and privacy protection policies through enactment of specific legislation have already adequately met the requirements under the ICCPR. They have also given clear indications to the public on how we provide safeguards for inter-citizen relations.

* Implications of the Hong Kong Bill of Rights (Amendment) Bill 1998

- The Hong Kong Bill of Rights (Amendment) Bill 1998 has done nothing to alter the protection of human rights in the Hong Kong Special Administrative Region.

- The Bill only seeks to restore the BORO to its original purpose of binding Government and public authorities only.

- There is no question of a watering down of the BORO, not to mention a setback for human rights protection.

- By repealing the Amendment Ordinance, we are doing our best to remove any unwarranted uncertainty and confusion in our statute book.

- We remain fully committed to the protection of human rights. Under Article 39 of the Basic Law, the ICCPR will continue to apply. We will be submitting reports to the UN through the CPG. Our record which speaks for itself can rival anywhere in the world.

Annex

Tam Hing-yee v Wu Tai-wai

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* Summary of the case of Tam v Wu

- On December 27, 1989, Mr Tam Hing-yee obtained judgement in the District Court against his debtor, Mr Wu Tai-wai. In February 1991, the Director of Legal Aid, on behalf of Mr Tam, sought to enforce the judgement but found that Mr Wu had left the address placed on the record without leaving any forwarding address. The Director therefore applied to the District Court for an order under section 52E(1)(a) of the District Court Ordinance to prohibit the debtor Mr Wu Tai-wai from leaving Hong Kong. The prohibition order was granted on May 9, 1991. The Director of Legal Aid applied for an extension of the prohibition order on June 4, 1991. When this application was heard on July 4, 1991, another District Court Judge dismissed the application.

* The District Court judgement in Tam v Wu

- In his judgement, the District Court Judge held that the BORO applied to all legislation and that therefore legislation which affected legal relations between private individuals could be measured against the guarantees of the BOR. He held that the restriction on movement posed by section 52E(1)(a) was an infringement of BOR Article 8(2) and was not a permissible restriction within the meaning of BOR Article 8(3).

- He therefore refused to renew or extend the prohibition order and ruled that section 52E(1)(a) of the District Court Ordinance had been repealed to the extent of inconsistency by the BORO.

* The Court of Appeal judgement

- The Court of Appeal reversed the District Court judgement and held that -

  1. First, the BORO binds only Government and public authorities and that private individuals should not be adversely affected by the BORO. As such, the BOR guarantees could not be invoked in litigation between two private parties to challenge legislation affecting the rights of those parties inter se.
  2. Secondly, section 52E(1)(a) which provides that a judgement creditor can obtain a prohibition order against a debtor, thus preventing the debtor from leaving Hong Kong, is a provision necessary to protect judgement creditors' right within the meaning of BOR Article (3) and is therefore not inconsistent with the BORO.

- The Court of Appeal ruled that the creditor could legally stop the debtor from leaving Hong Kong.

End

 

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