TAM HING YEE v. WU TAI WAI

HEADNOTE

                    Relationship of Sections 3 and 7 and Article 8(2) of the Bill of Rights Ordinance to Section 52E(1)(a) of the District Court Ordinance.

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JUDGMENT

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Sir Derek Cons, V.P., delivered the judgment of the court:

1. This is an appeal from the decision of Judge Downey, given on the 8th of July this year, that s. 52E(1)(a) of the District Court Ordinance, Cap. 336, is inconsistent with the Hong Kong Bill of Rights Ordinance 1991, Ordinance 59 of 1991 ("the Ordinance") and therefore stands repealed by reason of s. 3(2) of the Ordinance:

"(2)    All pre-existing legislation that does not admit of a construction consistent with this Ordinance is, to the extent of the inconsistency, repealed".

 

Section 52E(1) (a) reads:

"(1)    The Court shall have jurisdiction to make an order prohibiting a person from leaving Hong Kong (a prohibition order) to facilitate the enforcement, securing or pursuance of -

Paragraphs (b) and (c) maze provision for similar orders where the judgment still requires something to or done under it or where the plaintiff has as yet no more than a civil claim.

2. The principal object of the legislation is to ensure the attendance of the judgment debtor for examination as to his means, as is demonstrated by the subsequent sub-s. (7) and (8) (a) (i) :

 

"(7)     Where the Court makes an order under sub-section (1) prohibiting a person from leaving Hong Kong, any person who, having been served with a copy of the order or otherwise informed of its effect, attempts to leave Hong Kong in contravention of that order may be arrested by any immigration officer, police officer or bailiff.

 

(8)      (a)     A person arrested under sub-section (7) shall be brought before the court before the expiry the day after the day of arrest and the Court may -

 

(i)

in the case mentioned in sub-section (1) (a), make such order, for the examination or imprisonment of that person under the Rules of the Supreme Court, as is appropriate;".

3. There are almost identical provisions with regard to the High Court in s. 21B of the Supreme Court Ordinance, Cap. 4, with supporting rules of court, applicable also to the District Court by virture of rule 9 of the District Court Civil procedure (General) Rules , in Orders 44A and 49B.  

4. The background to the appeal, which needs to be set out for reasons which will appear later, stems from an action for $26,500 being the balance of monies lent but not repaid. The writ was issued in tae District Court on the 24th of July 1989. Following an unsuccessful attempt to obtain legal aid the defendant allowed judgment to be entered in default of defence oh the 27th of December, for the said sum and $1,110 fixed costs.

5. In February this year the director of Legal Aid entered the lists on behalf of the plaintiff to enforce the lodgment. It was found that the defendant had left the address placed on the record without leaving any forwarding address. The Director therefore applied for, and was granted on the 9th of May, an order under s. 52E(1) (a) by Judge Beeson. By reason of sub-s. (5) (a) (i), and the express terms of the order itself, the order was to lapse one month later, i.e. the 9th of June.

6. Five days prior to that date the Director, through counsel, applied by way of affidavit for an extension of the order "for a further period of two months with effect from the 9th of June 1991". By sub-s. (5) (a) (i):

"...the court may ... extend or renew the order for a period which does not exceed, with the initial period of one month and any other period of extension or renewal three months;".

 

7. For some reason which is not apparent from the record the application was not put before a judge until the 25th of June when Judge Downey, being concerned that s. 52E might be in conflict with the Ordinance, which had come into operation on the 8th day of the same month invited the Director to attend before him. The Director, by counsel, did so on the 1st of July, the judge then adjourning the proceedings to open court on the 4th of July, and further ordering that notice thereof be served on the defendant and that " the pronibition order anted the 9th of May 1991 be extended until the 4th of July 1991".

8. When the matter came on for hearing that day the judgment creditor was represented by Mr. McCoy of counsel, instructed by the Director of Legal Aid. The judgment debtor did not appear. The hearing lasted two days, the judge reserving his decision over the weekend. In the meantime he again extended "the prohibition order dated the 9th of May".On the following Monday, at the conclusion of the reasons given for his decision, the judge formally dismissed an application for extension of the order and "for the avoidance of doubt" discharged "the interim prohibition order ... made at the last hearing". He refused an application for further extension, but gave leave to appeal generally. An order for substituted service of the notice of appeal was made and complied with, but the judgment debtor has again not appeared. However we nave had the benefit of assistance from Mr. Rodney Pritchard in the form of amicus curiae.

9. Mr. Oderberg, for the judgment creditor, takes as his first ground of appeal, consistent with the approach of Mr. McCoy below, that the Ordinance has no application in circumstances such as the present, categorised in the notice of appeal as an "inter citizen dispute." Reliance is placed on s. 7 of the ordinance, which we are told has no counterpart in similar legislation or international Covenants:

                "7.        Binding effect of Ordinance

(1)         This ordinance binds only -

10. The judge below was not amenable to that approach. It was his opinion that:

 

"... Section 3 and 7 are to be read and construed as expressing entirely separate intentions on the part of the legislature".

In his view:

 

"judicial review of pre-existing legislation(section 3) is a separate and distinct power conferred upon the courts, and intended to be exercised in every case irrespective of the status or identity of the parties".

11. He appears to have been principally influenced to this end by feeling that to hold otherwise

(1)	would defeat a major purpose of the Ordinance, namely judicial scrutiny of all legislation inconsistent with the ordinance, and
(2)	would produce "bizarre and irrational results".

 

(He instanced, as an example thereof, what he saw as the possibility of a judgment debtor being properly detained at Kai Tak at the instance of a private judgment Creditor, yet successfully maintaining an action against the Attorney General as representing the arresting officer.) He foresaw also that the question of inconsistency might well arise in proceedings which in ho way concerned the Government or a public authority.

12. We are unable to accept the construction adopted by the judge. It requires words to be inserted into s. 7(1), so that it reads:

"(1) This order, save as to section 3, binds only etc.".

 

For that we find no justification. We accept that the Ordinance, being in the nature of a constitution, must be given "a generous interpretation" (per Lord Wilberforce in Ministry of Home Affairs v. Fisher [1980] AC 319 at 328), or "a generous and purposive construction" (per Lori Diplock in Attorney General for Gambla v. Jobe [1984] AC 689 at 700),but that does not entitle a court to override the clear intention of the legislature, which we take to be, from the words ''binds only the government etc." that private individuals should not be adversely affected by the Ordinance, as the judgment creditor would in the present instance be if, assuming for the moment that s. 52E is in fact inconsistent with the Ordinance, the judge's construction be correct.

13. We derive no assistance from s. 2(4) of the Ordinance, which is in effect taken verbatim from Article 5 of the International Covenant on Civil and Political Rights and provides:

"Nothing in this Ordinance shall be interpreted as implying for the Government or any authority, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognised in the Bill of Rights or at their limitation to a greater extent than is provided for in the Bill".

If the seeking out of a prohibition order is thought to be "an act aimed at the destruction of a right recognised in the Ordinance", the justification for that act is not derived by implication from the Ordinance itself, but by the direct authority of another, i.e. the District Court, Ordinance.

14. Nor do we find any conceptual difficulty in the repeal of an ordinance with regard to one section of the Community but not with regard to the rest. Many statutes are specifically enacted to apply disjunctively in that way. The judge appears to assume that it was an "all or nothing" situation. With respect to him he overlooked that s. 3 repeals the offending legislation only "to the extent of the inconsistency".

15. We accept that the inevitable result of the interpretation which we find unavoidable is that the Ordinance does not fully comply with the intention expressed in its preamble, namely:

"to provide for the incorporation into the law of Hong Kong of provisions of the international Covenant on Civil and Political Rights"

for the convention itself has no similar restrictive provision, unless perhaps this aspect is covered by the qualification that follows the words quoted:

 

"as applied to Hong Kong".

But we foresee no bizarre or irrational results. We are not persuaded that in the context of s. 7 an immigration officer, police officer or bailiff exercising the power of arrest given by s. 52E(7) is, as Mr. Pritchard also suggests, acting on behalf of the Government or a public authority. He is acting under a statutory power granted to him personally by reason of his office and which is triggered off by a Court order made at the instigation of a private individual.

16. Being so satisfied that the Ordinance is not applicable in the present instance it is not necessary to express a firm opinion on Mr. Oderberg's alternative argument which, if we understand it correctly, is that although s. 3 once- invoked is effective to repeal the offending legislation absolutely, and with effect from the  8th of June this year, such legislation nevertheless remains in force and may be prayed in aid against non-official bodies or persons until such time as it has actually been found to be otherwise in proceedings against the Government or a public authority or person acting on behalf of either. It is an approach that at first glance we find difficult to accept.

17. The second argument of Mr. Oderberg is that in any event s. 52E (1) (a) is not inconsistent with the Ordinance. The relevant article is Article 8 which reads:

"   (1) Everyone lawfully within Hong Kong shall, within Hong Kong, have the right to liberty of movement and freedom to choose his residence.

 

The questions which then arise for our consideration are whether the provision is necessary to protect public order, which in the context we take to be something wider than the public order which is, for example, sought to be maintained by the Public Order Ordinance, Cap. 245 or to protect the rights and freedoms of others, in this instance those of a judgment creditor.

18. The judge below considered that it was not necessary in either case. He appears to have been strongly influenced by what he termed "the powers of arrest and imprisonment in the rest of the section". With every respect to him, we think he seriously misapprehended the position with regard to imprisonment. Sub-section (8) of s. 52E does indeed provide for a short period of detention, albeit only if the debtor persists in defiance of a court order. But any imprisonment that follows would hot be the direct result of that order, but because the judge had been satisfied, when adjourning the subsequent examination of the judgment debtor:

"that there (was) reasonable cause ... to believe that he may not appear at the resumption of the examination"

 

in which case the judge jay order aim to be imprisoned until the resumption of the hearing: Order 49B rule 1A(3) (b); or because the judge had been satisfied, at the conclusion of the examination that he:

"(a) is able to satisfy the judgment, wholly or partly; or

 

(b)	has disposed of assets with a view to avoiding satisfaction of the judgment or the liability which is the subject of the judgment, wholly or partly; or
(c)	has wilfully failed to make a full disclosure as required under rule 1A(2) or at the  examination under Order 48 or to answer any question as provided under that rule or order,"

in which case the judge may order him to be imprisoned for a period not exceeding three months: Order 49B rule 1B. In other words the prohibition order itself is not the causa causans of any significant imprisonment, merely the causa sine qua non.

19. The judge approached the question of necessity as though it were a balancing exercise between the personal liberty and freedom of the judgment debtor on the one hand and the legitimate interest in the satisfaction of his debt by the judgment creditor on the other. We do not see it that way at all.Firstly it is not a question of general liberty or freedom. It is a question of the particular right of an individual to leave Hong Kong if he wishes. Secondly it is not for the courts to put a value upon that right. Worth little or much, that right is confirmed to the individual by the Ordinance which provides that it shall only be taken away or restricted if that is necessary to achieve one of the stated objectives. In assessing whether or not that is so we do not, with the very greatest respect, feel that the court is assisted by substituting for necessity some phrase such as "pressing social need ''(see The Sunday Times v. The United Kingdom 1979 2 EHRR 245 at paras. 59 and 62) or considering whether the restriction in question is reasonable and demonstrably justified in a free and democratic society, as may be appropriate in the application of other articles of the Ordinance: c.f. R. v. Sin Yau Ming, HC 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.

20. There are many jurisdictions with which Hong Kong has no reciprocal arrangement for the enforcement of judgments, which may thus provide a safe haven for the judgment debtor who wishes to evade his responsibility, even if the creditor knows where he is, which may often not be the case. With modern means of travel these havens are easily and quickly attained as was graphically expressed by Blair-Kerr, J., in his often quoted judgment - Lincoln International Ltd v. Feldstein [1973] HKLR 299 at 323. However it is not always a matter of commercial interest. Although no actual evidence has peen put forward, - we are told statistics are difficult to come by, - we understand from the Bar that the Director of Legal Aid alone handles an average of 20 applications each year, mostly for the benefit of deserted wives, whose defaulting husbands would, in many instances, be otherwise likely to disappear across the border with the Peoples' Republic of China.

21. The restriction imposed by the order is absolute in the sense that it completely sets at nought the right to leave Hong Kong, and despite the time limit imposed by sub-s. (5), may in effect be extended indefinitely by further orders. However each extension is, like the original order, a matter of discretion so that throughout there is regular judicial supervision. Furthermore if any order or extension is found to have been applied for on insufficient grounds or allowed to remain in force longer than was reasonably necessary, the judgment debtor is entitled to reasonable compensation for any injury or loss sustained: Order 44A rule 5.

22. Having regard to all these factors we have no doubt that s. 52E(1)(a) is a necessary protection for the rights of others. As to protection of the 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 likewise 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.

23. Finally we have to deal with the point raised at the outset of the appeal, that the order having lapsed by the time the judge came to deal with it, and there being before him only an application to extend, he was wrong to deal with it at all. It was observed that there is no provision for any "late" application, - as there is for example in Order 8 rule 8 with regard to the extension of the valiaity of a writ, - and that in the absence thereof the idea of retrospective extension is a contradiction in terms.

24. We do not find the objection fatal.The, judge clearly had jurisdiction to make a fresh order: see Hong Kong Industrial and Commercial a sank v. Tommy Wont Shu Leuny and Others, Civ. App. 22 of 1986, unreported, 24th February 1986 and Bank of India v. Hurjani Industries (HK) Ltd and Another, Civ. App. 86 of 1989, unreported,22nd June 1989. If the point had been raised below we are confident that the judge would undoubtedly have approached the application on at least that basis, which in our view is how we should approach it now. We say "at least" because it may be arguable that he had jurisdiction as well to renew the order, despite the fact that it had already lapsed, on the ground that "renewal" is something different from "extension": see the dictum of Kempster, J.A., @ p. 4 of the latter case. It would appear that no formal application is necessary on these occasions,so no need for formal amendment arises.

25. For these reasons we allow the appeal on either or both of the grounds put forward and remit the proceedings to the judge below to reconsider the application and decide whether any, and if so what, order should now be made.