LEE KWOK HUNG, EX PARTE

IN THE COURT OF APPEAL

1993, No. 7
(Civil)

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J U D G M E N T

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Litton, J.A.:

Introduction

1. This is an appeal against a judgment of Jones J given on 8 January 1993 whereby he refused to grant the reliefs sought by Mr Li Kwok Hung, the appellant, on his application for judicial review. Judicial review was sought in relation to a notice served on the appellant by the Securities and Futures Commission ("SFC") under section 33(4) of the Securities and Futures Commission Ordinance, cap. 24 ("SFC Ordinance") requiring him to attend an interview at the offices of the SFC.

Background

2. The appellant is a production executive with Truly International Holdings Ltd ("Truly"), a public listed company engaged in the manufacture of electronic calculators and components. The background facts leading to this litigation have been set out fully in Jones J's judgment and need not be repeated. The first relief sought by the appellant is in these terms:

"1. An Order of Certiorari quashing the direction given to the Applicant on 7 September, 1992 under the provisions of Section 33(4) of the Securities and Futures Commission Ordinance, ("the SFC Ordinance") by one Dennis Ho, an employee of the Securities and Futures Commission ("the Commission"), requiring that the Applicant attend at the commission's offices and answer such questions as may be put to him relating to an investigation into suspected offences contrary to Section 135 of the Securities Ordinance relating to one Truly International Limited ("the Company") and/or the dealing in shares of the Company and that he give the said Dennis Ho all assistance in connection with the said investigation".

3. Under the provisions of s. 33(1) of the SFC Ordinance, where the Commission has reason to believe that certain matters, enumerated in paras. (a) to (d) of s.33 (1), need investigation, the Commission may direct one or more of its employees to be an investigator and to report to the Commission thereon.

4. The provisions of s. 33(4) of the SFC Ordinance, where relevant, read:

" (4) The person under investigation or any person who is reasonably believed or suspected by the investigator to have in his possession or under his control any record or other document which contains, or which is likely to contain, information relevant to an investigation under this section, or who is so believed or suspected of otherwise having such information in his possession or under his control, shall -

(c) attend before the investigator at such time and place as he may require in writing, and answer truthfully and to the best of his ability such questions relating to the matters under investigation as the investigator may put to him; and

(d) give to the investigator all assistance in connection with the investigation which he is reasonably able to give."

Case for Appellant

5. The case for the appellant, in seeking the relief by way of judicial review as set out above, put at its simplest, is this: the provisions of s. 33(4) of the SFC Ordinance are inconsistent with certain Articles of the Hong Kong Bill of Rights Ordinance ("BOR Ordinance") and, by the provisions of s. 3(2) thereof, are deemed to have been repealed on 8th June 1991 when the BOR Ordinance came into operation. It follows that the notice of 7 September 1992 requiring him to attend at the offices of the SFC is of no legal effect.

6. Section 3(2) of the BOR Ordinance reads:

"3. Effect on pre-existing legislation

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

7. Before Jones J., the inconsistency was said to have arisen from three Articles of the Bill of Rights, namely, Article 5, Article 11(2)(g) and Article 14. The argument presented to us by Mr. Swaine Q.C. (who did not appear for the appellant in the court below) has changed course and is to some extent at variance with that presented in the court below, and only two Articles are now relied upon: Articles 5 and 14.

Approach to the Bill of Rights

8. Jones J., in his judgment, has analysed carefully the role of the Commission within the statutory scheme. We need only to refer to this in brief, in order to see the context in which the powers under s. 33(4) of the SFC Ordinance might be exercised.

9. As the regulatory body of the securities industry, the Commission seeks to ensure that the financial community operates with integrity, in order to protect the interests of investors, in Hong Kong and overseas. A primary objective of the Commission is to promote Hong Kong's position in the world as a major financial centre. To this end, it is plainly necessary for the Commission to have investigative powers. On this appeal, the appellant through counsel does not contend that all legislative provisions such as section 33(4) of the SFC Ordinance, empowering an investigator to require a person to attend for examination are, as such, inconsistent with the Bill of Rights. This is plainly right. If it were otherwise, then similar powers given to an inspector appointed by the Financial Secretary under s. 142 of the Companies Ordinance Cap. 32 to investigate the affairs of a company would be inconsistent, and so would the powers given to an assistant commissioner under s.51(4)(b) of the Inland Revenue Ordinance Cap. 112 to investigate the affairs of a taxpayer. There are many other similar provisions in the statute book investing persons with investigative powers. Plainly, the adoption of the International Covenant on Civil and Political Rights as part of the domestic law of Hong Kong was never intended to strike these down wholesale. The argument put to us on behalf of the appellant is in fact much more narrowly focused: more so now than when it was presented to the judge. It is, in essence, this:

(1) in the course of a s.33(4) interview, attended by a person such as the appellant, he is obliged to answer all questions put to him by the investigator: but where the answers might tend to incriminate him, and he so claims before answering the question, neither the question nor the answer shall be admissible in evidence against him in criminal proceedings: s. 33(6) of the SFC Ordinance;

(2) however, s. 33(6) specifically states that his answers shall be admissible for all the purposes of the Securities (Insider Dealing) Ordinance, Cap. 305 ("Insider Dealing Ordinance");

(3) the consequences for someone like the appellant, if identified as an insider dealer by an Insider Dealing Tribunal after an inquiry under that Ordinance, can be very serious: under s. 23(1) of the Insider Dealing Ordinance, the Tribunal may order that the person shall not be a director of a company and not be concerned, directly or indirectly, in the management of the company for a period not exceeding five years; the Tribunal has power also to impose a penalty of an amount up to three times the amount of any profit gained or loss avoided by him as a result of the insider dealing.

(4) An inquiry under the Insider Dealing Ordinance, although it might result in punitive sanctions being imposed, is plainly not a criminal proceeding: hence, the right of a person not to be compelled to testify against himself or to confess guilt, as conferred by Article 11(2)(g) of the Bill of Rights, affords him no protection, since this relates only to criminal proceedings.

(5) In these circumstances Articles 5 and 14 of the Bill of Rights must be read to give "residual protection" to a person in the position of the appellant who is required to attend an interview under s. 33(4) of the SFC Ordinance and is under pain of criminal sanctions if he fails to answer questions tending to identify him as an insider dealer.

10. I pause here to observe that, as Mr. Andrew Li Q.C. counsel for the SFC pointed out, the notice of 7 September 1992 requiring the appellant to attend at the offices of the SFC to answer questions does not suggest that he is a suspected insider dealer, or that the SFC was, in relation to the shares of Truly, investigating suspected insider dealings under the Insider Dealing Ordinance. But that is beside the point. The fact is that under the Ordinance the scope of a s.33(4) investigation could embrace suspected insider dealings, since the Insider Dealing Ordinance is among the "relevant Ordinances" referred to in s.33(1)(a) and s.33(1)(c) says, specifically, that when the Commission has reason to believe that insider dealing may have taken place the Commission can set in motion a s.33(4) investigation. The question here is not whether the appellant is actually at risk in the way apprehended, but whether someone in his position, under the existing statutory scheme, could be at risk. Only in this way can "consistency" or "inconsistency" of s.33(4) with the Bill of Rights be tested.

Construction of the Bill of Rights

11. It is important to emphasise that, at the end of the day, what we are concerned with is the proper construction of the provisions of the Bill of Rights, here Articles 5 and 14. The question for determination, ultimately, can be simply stated: Are the provisions of s. 33(4) of the SFC Ordinance inconsistent with either Article 5 or Article 14?

12. In the task of interpretation, we must have regard of course to s. 2(3) of the BOR Ordinance which states:

"2. Interpretation

(3) In interpreting and applying this Ordinance, regard shall be had to the fact that the purpose of this Ordinance is to provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong, and for ancillary and connected matters."

13. The Bill of Rights is a constitutional document. This means that its provisions must be given a "generous and purposive" construction: Lord Diplock in Attorney General of Gambia v. Jobe [1984] AC 689 at 700, cited by Kempster J.A. in Sin Yau Ming [1992] 1 HKCLR 127 at 155. Thus, in Sin Yau Ming the provision of the Bill of Rights which had to be construed was in Article 11(1) which reads:

"Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty accordance to law." (emphasis added).

The question for determination was whether certain specific presumptive sections of the Dangerous Drugs Ordinance were consistent or inconsistent with Article 11(1). Obviously, if the words "accordance to law" were to be given a narrow meaning, then the constitutional challenge must fail because the specific presumptive sections of the Dangerous Drugs Ordinance were plainly part of the statute law of Hong Kong and a presumption of guilt, based upon those sections, must be "according to law". But, having regard to the international origin of the Bill of Rights, and the requirements of s. 2(3) of the BOR Ordinance (as set out above), it follows that "law" as referred to in Article 11(1) is something wider than the domestic law of Hong Kong. A narrow construction would render the BOR Ordinance virtually self-defeating. As Kempster J.A. said in Sin Yau Ming at 159:

"... the word 'law' appearing in Article 11(1) [means] not the domestic law of Hong Kong but a universal concept of justice".

14. This does not mean, however, that the court is, willy nilly, importing foreign jurisprudence into Hong Kong; ultimately, the court is construing the words in a Hong Kong statute and, in the task of interpretation, giving it true effect.

15. I labour this point because, in the course of the interesting argument put to us by counsel for the appellant, we were taken through the five separate judgments of the Supreme Court of Canada in Thomson Newspapers v. Director of Investigation [1990] 67 DLR (4th Ed.) 161, which dealt with the provisions of the Canadian Charter of Rights and Freedoms, in order to establish the proposition that, in the circumstances of the present case, "residual protection" is given to the appellant by Articles 5 and 14 of the Hong Kong Bill of Rights.

16. In my judgment, this is to look at the case through the wrong end of the telescope. If, by the proper construction of either Article 5 or Article 14 or both, the provisions of s. 33(4) are shown to be inconsistent with those Articles, then to the extent of such inconsistency the subsection is repealed: s. 3(2) of the BOR Ordinance. The effect of such a construction would be, indeed, to give "residual protection" to the appellant. But this result is achieved by a proper construction of the Hong Kong Bill of Rights - not by a minute analysis of the Canadian Charter. At best, the judgments in Thomson Newspaper give this court a tool to the interpretation of Articles 5 and 14.

17. It is to these Articles that I now turn.

Article 5

18. Article 5 reads:

(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

(2) Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

(3) Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.

(4) Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

(5) Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation."

19. What is argued on the appellant's behalf is that the powers under s. 33(4) of the SFC Ordinance, exercisable by an investigator, to require a person to attend, perhaps for days on end, in order to give information relevant to an investigation, are inconsistent with the right to "liberty" and freedom from "arbitrary detention" conferred by para. (1) of Article 5.

20. The expressions "arrest" and "detention" are well known to the law. They are invariably used in a criminal context. If one does not simply stop at paragraph (1) of Article 5, and goes on to read paras. (2) and (3) it becomes crystal clear that the "arrest" and "detention" referred to in para. (1) is in the criminal context. Jones J. so held, at p. 35 of his judgment. I see no reason to differ from him in this regard. It would be wholly contrived and artificial to categorise the compulsion exercised by an investigator over an interviewee as an "arrest" or "detention". The investigator has no power whatever, under the SFC Ordinance, to physically detain an interviewee who chooses to walk out in the middle of an interview. Where a person, without reasonable excuse, fails to do anything which he is required to do under subs. (4), the investigator may certify such failure to the High Court: s. 33(13). The High Court is then empowered to enquire into the case and may (a) order such person to comply with the requirement or (b) if the High Court is satisfied that such person has failed without reasonable excuse to comply with such requirement, punish him in the same manner as if he had been guilty of contempt of court.

21. However broad and generous the construction of Article 5(1) might be, I cannot see how it could be remotely suggested that the provisions of this Article are in any way engaged, when an investigator exercises the powers conferred on him under section 33(4) of the SFC Ordinance.

22. In any case, the requirement to attend an interview under section 33(4) cannot possibly amount to arbitrary detention. There is nothing arbitrary about the exercise of powers under section 33(4). Before an investigation can be set out on foot, the Commission must first have reason to believe that the matters enumerated in paras (a) to (d) of section 33(1) need investigation. Further, the powers under sub-section (4) can only lawfully be exercised by the investigator if he has reason to believe that the interviewee has in his possession information relevant to an investigation under the section. It is conceivable that an investigator may exceed his powers; he may even act arbitrarily. In these circumstances an interviewee is protected by the legal procedures for judicial review under Order 53. The possibility of an investigator acting arbitrarily is no measure of the reasonableness of the law which gives him the power to act.

23. For the reasons above, I would uphold the judge's conclusion in relation to Article 5.

Article 14

24. Article 14 reads:

correspondence, honour and reputation

(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks."

In relation to Article 14, the first conclusion reached by the judge is this (p.32 of his judgment):

"Article 14 makes no reference to a person's business premises so that it is restricted, as I said in Tse [re Tse Chi Fai Ronald, Jones J., 20 November 1992, unreported] to the applicant's privacy in his personal and private affairs and does not extent to the realm of business transactions."

25. Here, I would differ from the judge. Whilst the juxtaposition of the words "privacy, family, home" tends to suggest that the "privacy" is restricted to privacy in personal affairs, I am not convinced that a distinction between personal and business affairs is in the context of Article 14 valid. Assume that an individual purchases shares in a publicly listed company, as many individuals do. Most people would say that this is a personal matter. Assume that the same individual is a director of the listed company in which the share purchase is made: Is this a "business transaction"? Where does one draw the line?

26. In my judgment, in considering the question whether a requirement to attend a s.33(4) interview breaches Article 14(1), the emphasis should not be on whether it is personal or business, but on whether it constitutes "arbitrary or unlawful interference". I leave aside the word "arbitrary", for the same reasons as I have expressed in relation to Article 5(1): in my judgment, the suggestion that the "interference" exercised by an investigator under a law, such as section 33(4) of the SFC Ordinance, is "arbitrary" is wholly untenable.

27. I come then to consider the word "unlawful" in Article 14(1), and ask myself this question: within the context in which the word "unlawful" is used in Article 14 of the Bill of Rights, can it be said that the provisions of section 33(4) offend "universal concepts of justice" (adopting the test formulated by Kempster J.A. in Sin Yau Ming at 159)?

28. In my judgment, the answer is decisively NO. The argument, put attractively on behalf of the appellant by Mr. Swaine, Q.C., runs thus :

(1) The "interference" by the investigator under section 33(4) might conceivably be to this extent : that, by the requirement to answer questions, the interviewee is made to incriminate himself as an insider dealer in relation to shares in a listed company;

(2) Where this occurs, the investigator is required to make a report to this effect to the Commission: section 33(9).

(3) The Commission can then in turn report to the Financial Secretary the occurrence of insider dealing : section 4(1)(c) of the SFC Ordinance.

(5) The Financial Secretary may then, under section 16(1) of the Insider Dealing Ordinance, require the Tribunal to inquire into the matter.

(6) The answers previously given by the interviewee can then be used for the purposes of the Tribunal inquiry : section 33(6).

(8) Accordingly, on the basis of his self-incrimination, made in the course of a section 33(4) interview, a person could ultimately suffer the opprobrium of an insider dealer with all the attendant penalties imposed by the Tribunal under section 23(1) of the Insider Dealing Ordinance.

(9) The matter, as counsel argues, goes further : where a person has, for instance, been ordered by the Tribunal not to take part in the management of a company under section 23(1)(a) of the Insider Dealing Ordinance, and that person contravenes the order, he commits a criminal offence and is liable on conviction on indictment to a fine of $1 million and to imprisonment for 2 years: section 30(a) of the Insider Dealing Ordinance. To this extent, an incriminating answer given in a section 33(4) interview can be used in criminal proceedings, because of the exception in section 33(6) which says that such answers "shall be admissible for all the purposes of the Securities (Insider Dealing) Ordinance".

29. As to the last point, it contains in my judgment a flaw. Assume that there were, ultimately, a criminal prosecution brought against an interviewee who is alleged to have breached an order made against him under section 23(1) of the Insider Dealing Ordinance. The question before the court would then simply be whether a section 23(1) order had been made against him and whether he had contravened the order. The question as to how he came to be identified as an insider dealer in the first place, in the written report prepared by the Tribunal under section 21(1) of the Insider Dealing Ordinance, would simply be irrelevant to those criminal proceedings. The court, on a section 30(a) prosecution under the Insider Dealing Ordinance against someone who had breached a s.23(1) order, cannot re-litigate the findings of the Tribunal. Assume further the "worse scenario", where, after an insider dealing inquiry has taken place, a section 33(4) investigation is then undertaken to obtain a confession, for the purpose of securing a conviction in a criminal court for breach of a section 23(1) order. The question whether such a confession is admissible as evidence in the criminal trial would be decided by the law concerning the admissibility of evidence: in this context, it is difficult to see a common law court construing the words "for all the purposes of the Securities (Insider Dealing) Ordinance" in section 33(6) so widely as to include the punishment of someone for breach of a section 23(1) order. In my view, a criminal court would construe those words more narrowly, to mean for the purposes of the regulatory scheme under the Insider Dealing Ordinance. The Judge has, in his judgment, traced the history of the insider dealing legislation in Hong Kong and I would gratefully adopt what he has said. From his analysis it is quite clear that the legislature in repealing the old Ordinance and enacting the new intended that proceedings under the Ordinance should not be criminal. Although this was challenged by counsel for the appellant in the court below, in this court this has become common ground.

30. But, assuming that the analysis above be wrong, and that the words "the purposes of the Securities (Insider Dealing Ordinance" in s.33(6) include criminal proceedings to punish for breaches of s.23(1) orders, does it necessarily mean that the investigatory scheme under s.33(4) amounts to "unlawful interferences"?

31. The only matter for consideration, in my judgment, in relation to Article 14 is this : taking the words "unlawful interference" in para (1) and the words "the protection of the law" in para (2) of Article 14 as referring to the standards of "universal concepts of justices", does the "interference" permitted by section 33(4) offend those concepts?

32. It is common ground that, here, a "balancing exercise" is involved. On the one side there is the uncontradicted evidence of Mr. G.J. McMahon, Director of the Enforcement Division of the Commission, who deposed to the importance of the investigative functions of the Commission. He stated that since the Commission was instituted on 1 May 1989, up to 20 October 1992, the Commission had investigated a total of 599 cases and, of these, 120 cases required the use of the section 33 powers. As regards the importance of the investigative powers, the judge, in his judgment (p.38) referred to Mr. G.J. McMahon's affidavit as follows :

"The power to order investigation is critical to the role of regulating the securities industry and it is no coincidence that countries with developed securities markets have found it necessary to vest investigative powers such as those contained in section 33 of the SFC Ordinance in the relevant regulatory authorities. These investigative powers are essential to adequate enforcement without which regulation would neither be effective nor taken seriously. Detection of malpractices can be extremely difficult especially when it is so easy in practice to deploy devices such as nominees, foreign intermediaries, fictitions names and offshore companies. Such offshore companies are often incorporated in such jurisdictions as Panama, Liberia and the British Virgin Islands, where no pertinent public information is available. These offshore companies often only have bearer shares so the identity of the ultimate owner is difficult, if not impossible, to establish."

33. On the other hand, what would the "interference" in general terms amount to? Normally, persons able to give information relevant to an investigation under section 33 would be persons directly involved in the securities industry: company controllers, brokers, agents and the like. Occasionally, private individuals might be involved, but they would plainly be in the small minority. As regards the former category of persons, as the judge remarked, any expectation of privacy would be minimal.

34. Mr. Swaine, in the course of his argument, put forward the proposition (perhaps prompted by a remark from the Bench) that to test the "reasonableness" of the investigative powers, the court should look at the "worst scenario": the widow investing her savings in the shares of a public listed company, who has nothing to do with the securities industry, beyond the fact that she is an investor. I do not think that this is the right approach. The question to ask, broadly, must be this : Who, in the general run of things, might be subjected to the compulsive powers of the investigators under section 33(4)? Not: who might conceivably be caught in the extremities of the net?

35. Under the statutory scheme, the possibility of a person being made to incriminate himself at a section 33(4) interview as an insider dealer does exist, and it is possible that, on the basis of his answers, he is ultimately found culpable and penalized under section 23(1)(a) of the Insider Dealing Ordinance. But it must be borne in mind that the duties of the Commission are not simply to

investigate suspicions of insider dealing; among the "relevant Ordinances" in section 33(1) are, among others, the Commodities Trading Ordinance, the Stock Exchange Unification Ordinance, suspected breaches of which could also trigger off a section 33(4) investigation. As La Forest J said in Thomson Newspaper at p.220:

"In a modern industrial society, it is generally accepted that many activities in which individuals can engage must nevertheless to a greater or lesser extent be regulated by the state to ensure that the individual's pursuit of his or her self-interest is compatible with the community's interest in the realization of collective goals and aspirations. In many cases, this regulation must necessarily involve the inspection of private premises or documents by agents of the state. The restaurateur's compliance with public health regulations, the employer's compliance with employment standards and safety legislation, and the developer's or homeowner's compliance with building codes or zoning regulations, can only be tested by inspection, and perhaps unannounced inspection, of their premises."

36. These remarks are as applicable in Hong Kong as they are in Canada, and suggest strongly that the intrusive effect of s.33 (4) into the individual's "privacy" is in no way contrary to "universal concepts of justice".

Conclusion

37. In balancing the interests of the individual on the one hand against the interests of society on the other, and in so doing remembering the broad purpose of the Bill of Rights which is the protection of the individual, I have come decisively to the same view as the judge : that the interests of society must prevail. Such "privacy" as the appellant, and persons in a similar position, might have cannot stand against society's requirements of a proper investigation under section 33(4).

38. In my judgment the provisions of s.33(4) are not inconsistent with the qualified rights of privacy guaranteed under Article 14. The appeal must therefore be dismissed.

Sir Derek Cons, V.-P.:

39. I agree with my Lord that the appeal should be dismissed, and to a large extent for the reasons he has given. But as the questions raised are of some constitutional importance, it is appropriate that I state briefly in my own words the reasons that have led me to the same conclusion.

40. As my Lord has indicated the appeal rests now solely upon Articles 5 and 14 of the Bill of Rights Ordinance ("the Bill"). As to the former, it is suggested that the deprivation of liberty lies in the fact that the appellant is compelled to attend before the Commission, being liable to criminal sanctions if he does not. Support for the suggestion is to be found in the judgment of Wilson, J., in Thomson at p. 186. But a contrary view was taken by Anderson, J., in Ontario Securities Commission v. Biscotti [1988] 40 BLR 160 at 172/3, followed by Wood, J., in British Columbia Securities Commission v. Blanch [1990] 68 DLR (4th) 347 at 373. However even the persuasive values of these decisions is considerably lessened by the fact that the two sections of the Canadian Charter on which they turn by no means fully reflect the more extended provisions of our Article 5.

41. If the appellant's suggestion is correct the citizen is equally deprived of his liberty when served with a normal writ of summons or a summons to act as a juror. But these duties, long owed by the citizen to the state, are so ingrained in our way of life that I found it difficult to believe that the man in the street would count them, inconvenient and time consuming as they may sometimes be, as threats to his personal liberty or security. Even had our Article 5 being as short and simple as the Canadian sections I would still have been inclined to give it limited application. But having regard to the article as a whole, and the aspects thereof that my Lord has emphasised, I am quite satisfied that on its true construction it has no reference to a situation such as the present and is intended to cover, and cover only, as the judge below found, physical interference with the liberty or person of the citizen, although not necessarily confined to situations that are strictly criminal.

42. As to Article 14 neither party has attempted to give meaning to the word "privacy" as such. But Mr. Li has submitted that in any event it does not extend to trading in shares publicly listed on the official market. To some extent I agree. A person who does so must know that he is entering an area of commerce that is strictly regulated for the benefit of the community as a whole and of those others who also trade therein. It seems to me therefore that vis-a-vis the authorities responsible for that regulation (but possibly not otherwise) he cannot maintain that his trading is a private matter.

43. For these reasons I have come to the conclusion that in the present situation there is no violation or threatened violation of the rights conferred by either Article 5 or 14. But in case this conclusion should prove ill founded I go on to consider what is connoted by the words "established by law" in Article 5 and "unlawful" in Article 14.

44. In Sin Yau Ming, which was concerned with Article 11(c) of the Bill, Kempster, J.A., took the word "law" in the phrase "until proved guilty according to law" to mean "not the domestic law of Hong Kong but a universal concept of justice" (p. 159), which concept required our domestic law not to restrict the right of an accused to have his guilt proved beyond reasonable doubt unless the restriction was "no more than proportionate to what is warranted by the nature of the evil against which society requires protection" (p. 163). Silke, J.A., adopted the same requirement, but appears to have based his view upon an implied inclusion in the Bill of a provision along the lines of s. 1 of the Canadian Charter (p. 142).

45. It is a common canon of construction that where a word is found to have one meaning in a particular part of an instrument, it will carry that meaning through all other parts unless the context otherwise requires. The Queen v. Lam Wan Kau & Yuen Chung Kong [1992] 1 HKCLR 272 is an illustration of where the context did so require.

46. I must consider then whether the context of Article 14 requires the word "unlawful" to be construed with reference to something more than just the common and statute law. My first difficulty in adopting that approach is that with regard to criminal process the right of an accused to have his guilt proved beyond reasonable doubt is, and has for long been, clearly defined and well established. It would probably have been known to the international framers of the covenant and certainly would have been in the minds of members of the Legislative Council when they endorsed the covenant in the present Bill. If Sin Yau Ming be correct the legislature must have intended that the courts should give effect to that right, even though it was not expressly included in the Bill. However I am not aware of any similar clearly defined or long established right with regard to privacy, which has always been a grey area of our law.

47. My second difficulty is the inclusion in para. (1) of the word "arbitrary". It is well established in our law that no power, other than the sovereign power of Parliament, may be exercised arbitrarily, i.e. at the whim or caprice of the holder. The power has to be exercised for the purposes for which it was given and in accordance with the rules of natural justice. If the word "unlawful" was intended to have a wider meaning, the members of the Legislative Council would have been aware that the first thing to be struck down by the courts would have been an arbitrary interference with privacy and would not have thought it necessary expressly to provide for the same.

48. In parenthesis I may add that I agree with what my Lord has said with regard to "arbitrary" in both articles.

49. Thirdly there is the reference to "the law" in para. (2). The purpose of that paragraph, as part of our domestic law, is not easy to understand. Nevertheless the reference therein can only be to domestic law, and unlike Lam Wan Kau, where the two provisions in Article 11 were dealing with very different parts of the criminal process, the two paragraphs of Article 14 are so closely connected that it is difficult to think that they were intended to relate to different concepts of law.

50. The construction of Article 15 is not so clearly indicated, but in the end, again taking the article as a whole, I have come to the conclusion that it too must be construed with reference only to that law which is to be found in relevant statutes or in the common law.

51. If I am wrong in this conclusion and the articles are to be subjected to a proportionality test, then I am also satisfied, for the reasons adumbrated by my Lord, that both satisfy such test. It follows that s. 33(4), the only part of the Ordinance directly challenged, has not been repealed. The question of whether, in the light of the implications it may have in regard to a prosecution under s. 30 of the Securities (Insider Dealing) Ordinance, the passage "but shall be admissible for all purposes of [that ordinance]" in s. 33(6) is still good law can be left for consideration, if necessary, on a later occasion.

Wong, J.:

52. I have the advantage of reading in draft the judgments of Sir Derek Cons, V.P. and Litton J.A. and respectfully agree with their conclusions. As all the relevant matters have been ably and adequately addressed on by my Lords, there is very little I can usefully add. I, too, would dismiss the appeal.

Sir Derek Cons, V.-P.:

53. In handing down these judgments dismissing the appeal we make an order nisi that the Respondents shall have their costs thereof.