TAM HING YEE v. WU TAI WAI

HEADNOTE

CONSTITUTIONAL LAW - Hong Kong Bill of Rights Ordinance (Ord. No. 59 of 1991) sections 3 and 7 - whether separate or interdependent - court's power to declare repeal of pre-existing legislation - whether power to make prohibition order under section 52E of District Court Ordinance (cap. 336) consistent with Article 8 of Bill of Rights - test of proportionality.

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

ACTION NO. 6250 OF 1989

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BETWEEN

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JUDGMENT

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1. On the 27th December 1989, the plaintiff ("the judgment creditor") obtained judgment in default of defence against the defendant ("the judgment debtor") for the sum of $26,500 together with interest and fixed costs of $1,110. That judgment remains/unsatisfied. From the evidence now before me it seems that no steps to enforce this judgment were taken by the judgment creditor, although he has been legally represented continuously since May 1989, until the 6th May 1991, apparently because the debtor could not be found at the address where he was served personally with the writ on the 24th July 1989. On the 6th May 1991 the Director of Legal Aid ("the Director"), acting on behalf of the judgment creditor, applied to the District Court, under section 52E of the District Court Ordinance (cap. 336), for an order prohibiting the judgment debtor from leaving Hong Kong ("the prohibition order"); and that application was granted on the 9th May 1991.

2. The prohibition order lapsed on the expiry of one month, in accordance with section 52E (5)(a)(i) of cap. 336. The precise date of its expiry is somewhat uncertain because of the wording of the statute; but it must have happened shortly after the Hong Kong Bill of Rights Ordinance 1991 (Ord. No. 59 of 1991) ("the Ordinance") came into operation on the 8th June 1991. On the 4th June 1991, the Director had filed a further affidavit seeking an extension of the prohibition order for a further period of two months from the 9th June 1991. That application did not come before me until the 25th June 1991. The unexplained delay is regretted, but I do not think that it has caused any prejudice to the judgment creditor, since the application for an extension lacked supporting evidence in certain respects. As it appeared to me that the Court's jurisdiction to make a prohibition order may have been taken away by the entire or partial repeal of section 52E of can 336 in consequence of section 3(2) of the Ordinance, I invited the Director to satisfy me that I still had jurisdiction to make the order sought. The Director's application for extension, like the original application, was made ex parte, in accordance with Order 44A r. 2 of the Rules of the Supreme Court, which apply to proceedings in the District Court by virtue of rule 9 of the District Court Civil Procedure (General) Rules. In view of the the importance of the issues involved and the fact that there was then no evidence before the court that the judgment creditor had taken any steps to serve the prohibition order on the judgment debtor, the Director of Immigration, or the Commissioner of Police (as required by section 52E(6) of cap. 336), I directed that short notice of the application for the extension should be served on the judgment debtor by ordinary post addressed to his last known address, gave leave to the judgment creditor to file a further affidavit in support of the application, and granted an extension of the prohibition order until the hearing of the inter partes application fixed for the 4th July 1991. Those directions were given in open court in the presence of members of the press.

3. Not surprisingly the judgment debtor did not appear on the 4th July 1991; nor was be represented. He has taken no part in these preceedings. Fortunately, the Director instructed counsel on behalf of the judgment creditor, and I have had the immense advantage of comprehensive and cogent submissions from Mr McCoy spread over two days. I am more than usually grateful to him for his assistance, which has been rendered at short notice and despite very practical difficulties of locating some of the authorities and source materials in this novel area of jurisprudence. He has pressed the arguments on behalf of his client with his usual vigour; but, in the best traditions of the Bar, he has also taken on something of the role of amicus curiae by bringing to the attention of the court points and authorities favourable to the absent judgment debtor.

4. Mr McCoy took me on a world tour of the jurisprudence on various measures adopted for the greater recognition and better enforcement of human rights. In support of his basic submission that section 52E of cap. 336 is not inconsistent with or repealed by the Ordinance he introduced me directly and indirectly to judicial decisions and other legal sources from Canada, the Pacific region, Africa, India and Europe. Our journey began and ended in Hong Kong. These materials are mostly relevant to Mr McCoy's second contention that the legislation enabling a court to make a prohibition order against a judgment debtor is not inconsistent with the Ordinance, since it is covered by the limitations contained in Article 8(3) of the Hong Kong Bill of Rights ("the Bill of Rights"), set cut in Part II of the Ordinance. However, some of these sources are marginally relevant to his primary argument that nothing in the Ordinance applies to the present application because it arises out of litigation between private individuals. Prima facie, the answers to the various questions which arise from the primary argument depend upon the proper construction of the Ordinance.

5. For the purpose of this judgment, I do not think that it is necessary to set out all the provisions of the Ordinance. I am not concerned with the exceptions and savings set out in Part III, which does not offer any guidance on interpretation : Mr McCoy's primary argument is based on section 7 and its relationship with sections 3 and 6 of the Ordinance. It will be necessary to refer to some of the Articles of the Bill of Rights. But, only the following provisions are relevant to the primary issue :-

6. Although this issue turns upon the proper construction of section 7, it is useful to bear in mind the material provisions of the statute which is under scrutiny in this case. They are :-

"        52E. (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 -

 

(2)    The Court shall not make an order under subsection (1)(b) unless it is satisfied that there is probable cause for believing that -

 

(3)    The Court shall not make an order under subsection 1)(c) unless it is satisfied that there is probable cause for believing that -

 

7. These provisions are identical to these of section 21B (1) to (8) of the Supreme Court Ordinance (cap. 4).

8. It is clear that the purpose of the Ordinance is to incorporate into the domestic law of Hong Kong certain of the provisions of the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong. Speaking of the Bermudan Constitution, which incorporates a Bill of Rights, Lord Wilberforce said that it should be given :

"A generous interpretation, avoiding what has been called the 'austerity of tabulated legalism', suitable to give to individuals the full measure fundamental rights and freedoms referred to." (Minister for Home Affairs v. Fisher [1980] AC 319 at 328.

9. In Attorney General of the Cambia v. Jobe [1984] AIC 689, Lord Diplock said (at 700) :

"A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction."

10. The same approach has been adopted in Canada with regard to the provisions of the Canadian Charter (cf. R.v. Big M Drug Mart Ltd. [1985] 18 DLR (4th) 321,360.) It is true that the Ordinance is not entrenched. It can be repealed or amended at any time. But it was enacted against the background of the Joint Declaration on the Question of Hong Kong, signed in 1984, and the Basic Law of the Hong Kong Special Administrative Region, adopted at the Seventh National People's Congress of the People's Republic of China in 1990, both of which contemplate the continuance of the application of provisions of ICCPR after the 30th June 1997. It is not, I think, unreasonable to infer that the legislature had these hopes and expectations in mind when it adopted the words of the enactment.

11. In the course of developing his argument that the Ordinance does not apply to litigation or relations between private individuals or legal persons, Mr McCoy referred me to certain passages in a paper presented by Mr Andrew Byrnes at the recent Hong Kong's Bill of Rights Conference, organised by the Faculty of Law of the University of Hong Kong. The learned author makes reference to the history of the Ordinance and the changes made as a result of opposition to what he describes as "inter-citizen rights" from certain sections of the community during the consultation period. As Scrutton L.J. observed in Tolley v. Fry & Sons Ltd. [1930] IKB 473 at 425 :-

"It is difficult to know what judges are allowed to know though they are ridiculed if they pretend not to know."

12. I have not looked at the debates in the Legislative Council. Nor have I looked at the White or Blue Bills, except for the limited references in the passages in Mr Byrnes' paper, which Mr McCoy referred to. Indeed, Mr McCoy was careful to ensure that I followed the advice and guidance to be found in Fung v. First Pacific Bank Ltd. [1989] 2HKLR 614 at 622E. The particular value of the passages from Mr Byrne's paper is his succinct statement of the several questions which arise from the words of sections 3 and 7 of the Ordinance, and the arguments put forward to support various possible interpretations. In this way Mr McCoy was able to place before the court arguments contrary to his own submissions and favourable to the judgment debtor. I am much obliged for this assistance. But, at the end I must find the answers only from the words of the enactment, after giving it a generous and purposive construction and avoiding narrow and technical interpretations.

13. Mr McCoy contended that section 7 clearly confined the Ordinance to disputes between an individual and government or public authority since only the latter are bound by the Ordinance; section 3 and 7 were linked or interdependent and not intended to operate separately; and, accordingly, the court's power to declare that pre-existing legislation is repealed can only be exercised in the context of litigation brought by an individual against the government or some public authority. It cannot be invoked in a purely civil dispute between two private persons.

14. As a matter of general principle all legislation is binding on every individual or person within the jurisdiciton of the legislature. At the present time, it does not bind the Crown unless the statute says so expressly; although the Crown and its agents can take the benefit of any statute. Having regard to the background to the Ordinance, it might be said that section 7 merely puts into more appropriate language what is already encompassed by the conventional words : "This ordinance binds the Crown" and clarifies the law by making all public authorities subject to liability under the Ordinance, even though they are not agents of the Crown. However, I agree with Mr McCoy that it is difficult to accept that this is all that section 7 was intended to achieve because of the inclusion of the word "only" in the section.

15. I am unable to accept the argument that sections 3 and 7 are limited in the way suggested by counsel. When the legislature used the words "is repealed" in section 3 it must have intended that the previous statutory provision is repealed, if and to the extent that it does not admit of a construction consistent with the Ordinance. It must have meant that the previous rule no longer exists because it has effectively been deleted from the statute. It is, in my view, important to remember that the Ordinance only gives to the courts the power to declare that a statutory provision is repealed. It does not give the courts any power to re-write the legislation so as to make it conform with the Ordinance. That is a function which is rightly retained and reserved as the sole prerogative of the legislature. If a court were to declare that a particular statutory provision, wholly and indefensibly repugnant to the Bill of Rights, was only repealed in cases where the Government or some public body is the defendant, but remains in force as between private individuals, I respectfully venture to suggest that the court would be usurping a function of the legislature, and failing in its duty to take notice of, and apply, the law as laid down by the legislature. To construe section 3 as wholly dependent on, or connected with, section 7 would, in my view, rob the section of all reasonable meaning and defeat one of the major purposes of the Ordinance, i.e., judicial scrutiny of all legislation inconsistent with theBill of Rights.

16. The question whether sections 3 and 7 are intended to operate as basically independent provisions or whether they are mutually dependent can be tested by a hypothetical but not wholly unrealistic scenario. Mr Chan is the sole proprietor of a prosperous business, conducted from offices in Hong Kong, based on a factory in Shenzhen and dependent upon raw materials supplied from various countries. Mr Chan spends much of his time travelling between his home and offices in Hong Kong and his factory, as well as his customers overseas. Due to an oversight, he fails to deal with a disputed claim for $5,000 by one of his customers ("Mr Wong"), who duly obtains an award from the Small Claims Tribunal, and a Prohibition Order from a District Judge, because awards of the Small Claims Tribunal are enforceable in the District Court. Totally ignorant of all these forensic steps, Mr Chan proceeds to Kai Tak airport. He checks in for a flight to Europe; pays his departure tax; says farewell to his friends and family; and proceeds to one of the counters manned by immigration officers. It is then 11:00 p.m. For the first time, he learns of the existence of the Prohibition Order, but he is unable to comply with the conditions attached to the order because they require cash payment of the judgment debt plus interest plus costs. His personal cheque on an account with a substantial balance is unacceptable. His gold watch, worth $25,000, is not regarded as sufficient security for the judgment debt because the immigration officer has no means of knowing its real value. It could be a fake obtained in sore bazaar. Mr Chan insists upon being allowed to board the aircraft. He is then arrested, and forced to spend a night in a hotel with the court's bailiff until he is brought before a District Judge. He complains bitterly about his treatment and his substantial economic loss. The judge explains that the prohibition order was validly made because it was sought by Mr Wong, who is not a person mentioned in section 7 of the Ordinance. Mr Chan immediately issues a writ against the Attorney-General, representing the arresting officer, and seeks judgment on the grounds of no reasonable defence. The same District Judge grants his request, telling Mr Chan that the statutory authority for making the order which lead to his arrest was previously repealed on the 8th June 1991.

17. I cannot, and do not, believe that the legislature intended that the Ordinance should or could produce such a bizarre and irrational result. In my 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. Section 7 merely indicates that government and public bodies are or may be held liable for the undoubted uncertainties associated with infringements of the Bill of Rights. In my view, the terms of section 7, and the use of the word "only", merely serve to emphasise that private persons are to be spared the uncertain or unforeseeable consequences of being obliged to comply with the Bill of Rights, especially those dealing with equality and discrimination. For them the Bill of Rights was feared as a modern Pandora's box, releasing all the worldly evils and retaining, perhaps, a mere hope of better things. On the other hand, no-one can reasonably complain of the repeal of pre-existing legislation. It may result in new liabilities because previous defenses or limitations are removed. But, this process will, in practice, take place in a manner which enables citizens to regulate their conduct with reasonable foresight of the consequences of the changes.

18. Accordingly, I conclude that section 3 and 7 are to be read and construed as expressing entirely separate intentions on the part of the legislature. The powers of the courts to grant relief or fashion new remedies for contraventions of the Bill of Rights (section 6) may only be exercisable against the government or public authorities. But the power to declare legislation to be repealed is a power which can be exercised in any proceedings. It is likely that most cases involving alleged infringements of the Bill of Rights will involve the acts or practices of some department of government or public authority. But that does not mean that legislation which is inconsistent with the Bill of Rights can only be declared repealed if the government or a public authority is a party to the litigation. Indeed, it is not difficult to envisage possible conflicts between legislation and the Bill of Rights which could only arise in the context of litigation between private persons. See Articles 10, 19 (3) & (4) and 20. 

19. I turn now to the very difficult balancing exercise involved in determining whether the clear infringement of Article 8(2) can be justified by the restrictions or limitations contained in Article 8(3). They read as follows :-

20. The main thrust of Mr McCoy's submission has been to show that the jurisdiction to make prohibition orders is necessary to protect the rights and freedoms of others, viz, judgment creditors; but he has also contendedthat it is necessary to protect ordre public. I am satisfied that the restriction of the judgment debtor's freedom to leave Hong Kong meets the first requirement of Art. 8(3) i.e. it is prescribed by law as that expression has been interpreted in this field. Cf. The Sunday Times v. United Kingdom [1979] 2EHRR 245 at pare. 49. Hogg : Constitutional Law of Canada (2nd ed. : 1985) pp. 684-686. There is a somewhat remote possibility that the restriction may not meet the third requirement of being consistent with other rights because of the risk of the judgment debtor being imprisoned because of inability to fulfil a contractual obligation (Art. 7). This might arise because the statute does not require the court to be satisfied that the judgment debtor has the means to satisfy the judgment or even to be aware of it before making a prohibition order; and the almost inevitable first step to enforce the prohibition order will be arrest and detention in accordance with section 52E (7) & (8) of Cap. 336. It does not follow from the mere fact that the judgment debtor is attempting to leave Hong Kong that he has the ability to satisfy the judgement debt. His intended departure may be in the course of his employment as a coach-driver, tour guide or member of the crew of a vessel travelling between Hong Kong and Macau. However, I do not base my decision in this case on the possibility of infringing Article 7 of the Bill of Rights.

21. Under the Canadian Charter it has to be shown that the limitation on a Charter right is reasonable and demonstrably justified in a free and democratic society. The position was clearly explained by Dickson C.J.C. in Edwards Books and Art Ltd. v. The Queen [1986] 35 DLR 94th) 1 at 41 :

"      Two requirements must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. First, the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right. It must bear on a "pressing and substantial concern". Secondly, the means chosen to attain those objectives must be proportional or appropriate to the ends. The proportionality requirement, in turn, normally has three aspects : the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is, nevertheless, outweighed by the abridgement of rights. The court stated that the nature of the proportionality test would vary depending on the circumstances. Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the court has been careful to avoid rigid and inflexible standards."

22. Virtually the same approach has been adopted by the European Court of Human Rights when considering the meaning of the phrase "necessary in a democratic society" in Article 10(2) of the Convention. See Handyside v. United Kingdom [1976] IEHPR 737, at 754-5. Two passages from the judgment in Sunday Times v. United Kingdom, supra, are, in my respectful view, of special assistance. At para. 59 it was said :-

23. Again at para. 62 it was said :

24. The words "in a democratic society" are omitted from Article 3, but I do not think that this reduces the burden on the person seeking to uphold the limitation.

25. In order to persuade me that there was a "pressing social need" for the power to make prohibition orders in Hong Kong, Mr McCoy took me through some of the decided cases illustrating the difficulties experienced in enforcing judgments and ordinary debts. Cf. Columbia Export Packers (HK) Ltd. v. Mc Culloch [1976] HKDCLR 108; Supreme Finance Ltd. v. Wan Hang Trading Ltd. [1983] HKLR 314. He submitted, and I would respectfully agree, that the legislature responded to the legitimate interests of creditors by enacting section 52E of Cap. 336 and section 21B of cap. 4 in 1984. No court can be insensitive to the plight of creditors seeking to obtain their just deserts from recalcitrant debtors, or the serious consequences which may flow from non-compliance with orders and judgments lawfully obtained. The ease with which people can come and go and move their assets out of Hong Kong is well known, and adds to a creditor's difficulties. I have not overlooked these or other features of Hong Kong's society of which Mr McCoy reminded me in the course of his submissions. Borrowing from the verse of a fellow-countryman (ARD Fairbairn : Arrowtown) he likened Hong Kong to a place where

" ..... gold pollinated the town."

26. I am not convinced that his dire forecasts of the consequences of striking down the legislation in this case would come to pass. But I do recognise the fears and Concerns of the business community and any creditor, if what is and has been a very effective and useful method of securing the payment of judgment debts is removed from the legal armoury. In Lincoln International Ltd. v. Feldstein [1973] HKLR 299, Blair-Kerr SPJ had this to say(at 323-4) :-

"Hong Kong lives by its export trade. Hundreds, if not thousands, of manufacturers here deal, and deal only, with purchasers who reside in other parts of the world - men who visit Hong Kong every day for the purpose of inspecting the products they intend to purchase and in order to sign contracts for the purpose of goods manufactured by Hong Kong companies. With improved methods of travel, the world is "shrinking". The jumbo jet to San Francisco is a much more effective way of evading one's creditors than "the night boat to Canton". Time and again during the last 27 years there have been suggestions from that over-sensitive minority in our midst [to whom such catch phrases as "the liberty of the subject" mean so much] that the provisions of O. 44A should be repealed. Such suggestions have found little favour with the business community in Hong Kong who are all too familiar with overseas debtors who refuse to pay their debts "as well as the "fly-by-night" type of business man who has no real roots in Hong Kong."

27. I am sure that these sentiments are shared by the vast majority, if not all, in Hong Kong. They are still valid today, subject to one qualification. The size of the "oversensitive minority" has probably grown appreciably since 1973. The single-minded drive of men and women to acquire and enjoy wealth has, perhaps, given way slightly to a greater appreciation of fundamental human rights especially in recent times. In my view, the Ordinance should be regarded as an unique expression of the legislature's decision to respond to that appreciation and concern for human rights, perhaps at the expense of extinguishing or modifying other cherished rights.

28. The legitimate interest of a judgment creditor is to have the judgment satisfied by payment according to the terms imposed by the court. There is also a legitimate interest in preventing the dissipation of assets by the debtor. In the past two decades the ingenuity of lawyers has seen the addition of a powerful 'nuclear' weapon designed to meet those interests in the form of the Mareva injunction. Other methods of securing payment, without interfering with the personal liberty of the debtor, have long existed and are improved. Looking at the Bill of Rights there is, in my view, overwhelming evidence of tipping the scales in favour of personal liberty and freedom. Unlike the American Constitution economic and property rights are scarcely mentioned. The legislature has not seen fit to incorporate into domestic law the provisions of the International Covenant on Ecomonic, Social and Cultural Rights (IC ESCR).

29. In coming to my conclusions on the question whether the power to make a prohibition order is proportionate to the legitimate aim pursued, I have taken into account all of the considerations above and the arguments of counsel, as well as certain features of the legislation. I am unable to find any sufficient justification for the distinction between a judgment for the payment of a specified sum of money (sub-section (1)(a)) and a judgment for the delivery up of any property (sub-section 1 (a)(ii)). The fact that, in a case like the one now before me, the statute does not require the presence of probable cause for believing that the debtor's departure from Hong Kong may obstruct or delay the creditor, indicates the nakedness of the power to interfere with the freedom of movement guaranteed under Article 8. I note that the granting of the order is a matter for judicial discretion and that it cannot endure for more than 3 months. I do not regard these features as adequate safeguards, especially when one takes into account the powers of arrest and imprisonment in the rest of the section. The limitation must "impair the right as little as possible." After an anxious consideration of all the factors involved in this balancing of interests, I am satisfied that the impairment of the right goes beyond that permitted limit. I find that section 53E (1)(a) does not admit of a construction consistent with the Ordinance, and is repealed by virtue of section 3 of the Ordinance.

30. I have not dealt in any detail with Mr McCoy's alternative argument that the legislation can be upheld as necessary to protect public order or order public. With respect I do not consider that the burden on the judgment creditor in this case is in any way reduced by relying on that rather vague concept. In reality, the arguments are basically the same but dressed in different raiment.

31. I do not propose to express any further view on the rest of the provisions of section 52E or how my finding that sub-section 1(a) is repealed affects the other provisions. Different considerations may apply to them, and they have not been fully canvassed before me. I will only say that I doubt whether the test of severability laid down by Viscount Simon in A.G. for Alberta v. A.G. for Canada [1947] AC 503 at 518 can be satisfied. Being satisfied that this court no longer has the jurisdiction to make the order sought in this case, I formally dismiss the application dated the 4th June 1991, and for the avoidance of doubt I discharge the interim prohibition order I made at the last hearing.

32. I hope I may be permitted to finish my task by quoting the words of Winston Churchill uttered almost 50 years ago in London :-

"This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."