1. Cap.383, Laws of Hong Kong. For its origin and drafting history see Dykes, P., “The Hong Kong Bill of Rights 1991: Its Origin, Content and Impact”, in Chan, J. and Ghai, Y. (Eds), The Hong Kong Bill of Rights: A Comparative Approach (1993), pp.39–50Google Scholar; Byrnes, A., “And Some Have Bills of Them; The Rights Thrust Upon Experience of Hong Kong's Bill of Rights”, in Alston, P. (Ed.), Promoting Human Rights Through Bills of Rights: Comparative Perspectives (forthcoming).Google Scholar

2. S.2(3). The ICCPR was ratified by the UK in 1976 and extended to Hong Kong in the same year.

3. The only other common law jurisdiction in which the ICCPR has the force of law is Cyprus, but there are relatively few relevant cases from that jurisdiction.

4. Opsahl, T., “The Practice of the Human Rights Committee under the ICCPR: The Potential Impact of International Human Rights Law: A Presentation and Assessment”, in Chan and Ghai, op. cit. supra n.1, p.429 at p.431.Google Scholar

5. idem, p.447.

6. S.14. The freeze period expired on 7 June 1992 and was not extended by the Legislative Council The six specified ordinances were the Immigration Ordinance, the Societies Ordinance, the Crimes Ordinance, the Prevention of Bribery Ordinance, the Independent Commission Against Corruption Ordinance and the Police Force Ordinance. The reason for the freeze was that the government needed time to amend these ordinances in order to bring them in line with the requirements of the Bill.

7. Art. VII(5), formerly Art.VII(3). This clause came into effect at the same time as the Bill of Rights Ordinance. See also R. v. Lum Wai-ming (1992) 2 H.K.P.L.R. 182.Google Scholar

8. In R. v. Sin Yan Ming (1991) 1 H.K.P.L.R. 88, 106Google Scholar Silke VP described the effect of ss.3 and 4 of the Ordinance as being that “all existing and all new legislation is required to be consistent with the Covenant. Therefore the Covenant becomes supreme. Not the legislature.” It is thus clear that it is the ICCPR, and not the Bill, which is entrenched. The entrenchment of the ICCPR (and hence indirectly the Bill) is effected by the Letters Patent. Once the Letters Patent is removed, the Bill will be impotent against subsequent legislative encroachment The scheme, however, envisaged that the Bill would, after the change of sovereignty over Hong Kong in 1997, still enjoy the same “entrenched” status by virtue of Art.39 of the Bask Law, which provides that no rights and freedoms shall be restricted in a manner inconsistent with the ICCPR as applied to Hong Kong.

9. idem, p.113.

10. idem, p.107; [1992] 1 H K.C.L.R. 127, 141.Google Scholar This is the first Court of Appeal judgment on the Bill of Rights. As Byrnes pointed out (op. cit. supra n.1, at p.53)Google Scholar, this case set the tone for the period between 8 June 1991 and the end of May 1993 when the courts appeared more open to new ideas and usually scrutinised closely the justification for legislative measures. Since May 1993 the Privy Council's decision in Lee Kwong-Kut (see infra) became the dominant approach, stressing the need for “realism”, “common sense” and the pre-eminent role of the legislature in formulating policy.

11. Ibid (both reports).

12. idem, pp.107–108.

13. In its Consultation Paper “Extrinsic Materials as an Aid to Statutory Interpretation” (1996), the Law Reform Commission of Hong Kong stated that, while practitioners and judges had adapted relatively quickly to accessing and understanding international materials, “it would seem that only a small number of lawyers have familiarised themselves adequately with the materials”: para.10.22.

14. (1993) 3 H.K.P.L.R. 253.Google Scholar

15. (1994) 4 H.K.P.L.R. 75, 93.Google ScholarSee also Lee Miu Ling v. Attorney General (No.2) (1995) 5 H.K.P.L.R. 181.Google Scholar

16. (1993) 3 H.K.P.L.R. 141, 147.Google ScholarSee also R. v. Town Planning Board, ex p. Auburntown Ltd (1994) 4 H.K.P.L.R. 194, 227.Google Scholar

17. Lee Miu Ling v. Attorney General (No.2), supra n.15 (General Comment 18(37)); Attorney General v. Tang Yuen Lin (1995) 5 H.K.P.L.R. 631 (General Comment 13(21))Google Scholar; R. v. Securities and Futures Commission, ex p. Lee Kwok Hung (1993) 3 H.K.P.L.R. 1 (HCt) (General Comment 12(21))Google Scholar; R. v. William Hung (1992) 2 H.K.P.L.R. 49Google Scholar (General Comment 8(16)); R. v. Secretary for the Civil Service and the Attorney General (1995) 5 H.K.P.L.R. 490 (General Comment 18(37)).Google Scholar

18. R. v. Ng Po-lam (1991) 1 H.K.P.L.R. 25Google Scholar; R. v. Director of Immigration, ex p. Wong King-lung (1993) 3 H.K.P.L.R. 253Google Scholar; R. v. Director of Immigration, ex p. Hai Ho-tak (1994) 4 H.K.P.L.R. 324.Google ScholarThe Siracusa Principles are set out in (1985) 7 Human Rights Quarterly 3.Google Scholar

19. [1986] 1 S.C.R. 103.Google Scholar

20. (1991) 1 H.K.P.L.R. 88, 134 (per Kempster, JA).Google Scholar

21. See Byrnes, , op. cit. supra n.1, at pp.72–73.Google Scholar

22. See e.g. the advice of Lord Lester that only those authorities that are likely to have the most persuasive impact oa the tribunal should be put before that tribunal; Lester, A., “Human Rights Advocacy in Practice”, in Chan and Ghai, op. cit. supra n.1, at pp.208–210.Google Scholar A similar attitude was adopted by Dykes, P., “The Law's Delay” (paper presented at a Bill of Rights Seminar organised by Aberdare Consultants, 29 Apr. 1992), p.2.Google Scholar

23. See e.g. Sin You Ming, supra n.8. The court did not find it necessary to receive statistical evidence on the prevalence of unpaid judgment debtors leaving the territory in considering whether a stop order was justifiable in Tam Hing-yee v. Wu Tai-wai (1991) 1 H.K.P.L.R. 261.Google Scholar

24. E.g. in Attomney General v. Ming Pao Newspapers Ltd (1996) 6 H.K.P.L.R. 103, similar legislation from Australia, Sri Lanka and the UK was cited to the courtGoogle Scholar

25. (1993) 3 H.K.P.L.R. 72.Google Scholar

26. idem, pp.90–91.

27. idem, p.97.

28. idem, at p.97. The Board adopted the test laid down by Lawton, LJ in R. v. Edwards [1975] Q.B. 27, 39–40.Google Scholar For a critical comment on the approach adopted by the Privy Council see Byrnes, A., “The Impact of the Hong Kong Bill of Rights on Litigation”, in Sihombing, J. (Ed.), Law Lecturers for Practitioners 1992 (1992), pp.152–235Google Scholar; Chan, J., “Introduction: The Hong Kong Perspective”, in Angus, W. and Chan, J. (Eds), Canada–Hong Kong: Human Rights and Privacy Law Issues (1994), p.20 at pp.24–26.Google Scholar

29. Lee Kwong-Kut, supra n.25, at p.100.Google Scholar

30. (1996) 6 H.K.P.L.R. 313 (CA).Google Scholar

31. (1995) 5 H.K.P.L.R. 261, 300.Google Scholar

32. idem, p.315.

33. Ibid.

34. idem, p.316. This restrictive approach was not adopted by the Court of Appeal: (1996) 6 H.K.P.L.R. 237.Google Scholar

35. (1993) 3 H.K.P.L.R. 277, 285.Google Scholar This position was, in the conteit of undue delay, doubted by Leonard, J in R. v. Deacon Chiu (1993) 3 H.K.P.L.R. 483, 497Google Scholar and disapproved by Bokhary, JA in R, v. William Hung (1993) 3 H.K.P.L.R. 328, 336–339.Google Scholar

36. (1995) 5 H.K.P.L.R. 407, 416.Google Scholar See also R. v. Yu Yem-kin (1994) 4 H.K.P.L.R. 75, 100Google Scholar, where the court pointed out that the Bill of Rights did not provide specifically, as did s.24(2) of the Canadian Charter, for the exclusion of evidence obtained by an infringing executive act.

37. [1980] A.C. 402.Google Scholar

38. Cheung Ka Fai, supra n.36, at p.416.Google Scholar

39. [1985] A.C. 1.Google Scholar The criteria include whether the offences in question are “truly criminal” in character, whether the presumption of mera rea is intended to be displaced by the legislative scheme; whether the statute deals with an issue of social concern, and whether the creation of strict liability win be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.

40. Attorney General v. Fong Chin-yue (1994) 4 H.K.P.L.R. 430, 440, 443Google Scholar, refusing to follow the decision of the Supreme Court of Canada in Reference res 94(2) of the Motor Vehicle Act [1985] 2 S.C.R. 486.Google Scholar The editors of the Bill of Rights Bulletin commented that the Gammon criteria, if interpreted traditionally, may impose a standard of scrutiny less stringent than that imposed by the rationality and proportionality test Byrnes, A. and Chan, J. (1994) 3(2) Bill of Rights Bull 30–32.Google Scholar

41. (1997) 7 H.K.P.L.R. 286.Google Scholar

42. The Court of Appeal distinguished the House of Lords' decision in Derbyshire County Council v. Times Newspapers Ltd [1993] A.C 534, which held that a local authority had no right at common law to sue for defamation.Google Scholar

43. Byrnes, , op. cit. supra n.1, at p.57.Google Scholar He has also identified (at pp.61–64) a number of areas where the Bill of Rights goes beyond the protection of the common law, e.g. the substantive guarantee of equal protection of the law in Art.22 (Art.26 of the ICCPR), the right to speedy trial in Art.11(2)(c) (Art.14(2)(c) of the ICCPR) and the guarantee of an independent and imPart.ial tribunal in Art.10 (Art.14(1) of the ICCPR).

44. In R. v. Director of Immigration, ex p. Hoi Ho-tak (1994) 4 H.K.P.L.R. 324, 336Google Scholar, Godfrey JA said that “the court must hold the balance between the individual and society as a whole, and maintain a sense of proportion in doing so. It should not impose unrealistic standards on the Hong Kong Government's attempts to resolve the difficult and intransigent problems which Hong Kong faces.”

45. See Byrnes, , op. cit. supra n.1, at pp.53–58.Google Scholar

46. (1991) 1 H.K.P.L.R. 261, 269.Google ScholarThe same attitude is adopted in Attorney General v. Ming Poo Newspapers Ltd (1995) 5 H.K.P.L.R. 13, 21.Google Scholar

47. See Velasquez Rodriguez v. Honduras, Inter-American Court of Human Rights, judgment of 29 July 1988, Ser.C, No.4 (1989) 28 I.L.M. 291Google Scholar; Buergenthal, T., “To Respect and to Ensure: State Obligations and Permissible Derogations”, in Henkin, L. (Ed.), The International Bill of Rights; The Covenant on Civil and Political Rights (1981), p.72 at pp.77–78Google Scholar; Byrnes, A., “The Hong Kong Bill of Rights and Relations Between Private Individuals”, in Chan and Ghai, op. cit. supra n.1, p.71 at pp.73–80 and the references cited therein.Google Scholar

48. (1991) 1 H.K.P.L.R. 1.Google Scholar Ss.3 and 7(1) of the BiH of Rights Ordinance provide:

3(1) All pre-existing legislation that admits of a construction consistent with this Ordinance shall be given such a construction.

(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(1)This Ordinance binds only—

(a) the Government and all public authorities; and

(b) any person acting on behalf of the Government or a public authority.

49. Tam Hing Yee, supra n.46, at p.267.Google Scholar For further discussion of this case see Byrnes, A. and Chan, J. (1991) 1(2) Bill of Rights Bull. 1–4Google Scholar; Chan, J. and Ghai, Y., “A Comparative Perspective on the Bill of Rights”, in Chan and Ghai, op. tit. supra n.1, p.1 at pp.23–26Google Scholar; Byrnes, , op. cit. supra n.1, at pp.80–91Google Scholar; Jayawickrama, N., “Interpreting the Hong Kong Bill of Rights”, in Angus and Chan, op. cit. supra n.28, at pp.76–79Google Scholar; and Chan, J., “The Hong Kong Bill of Rights 1991–1995: A Statistical Overview”, in Edwards, G. and Chan, J. (Eds), Hong Kong's Bill of Rights: Two Years Before 1997 (1995), p.7 at pp.10–13.Google Scholar

The decision of the Court of Appeal in this respect was reversed by the Hong Kong Bill of Rights (Amendment) Ordinance 1997, a private member's bill which came into effect on 30 June 1997, so that the court may examine the compatibility of any legislation with the Bill of Rights in any case irrespective of the identity of the Part.ies. The Amendment Ordinance firstly was suspended by the Provisional Legislative Council on 18 July 1997, and then repeated by the Hong Kong Bill of Rights (Amendment) Ordinance on 27 February 1998.

50. (1991) 1 H.K.P.L.R. 1, 15–16.Google Scholar

51. (1991) 1 H.K.P.L.R. 261, 269.Google Scholar

52. Yang, CJ, Litton, VP and Liu, JA. The statements of Yang CJ and Liu J A on the Bill of Rights are reproduced in Apps. B and D in A. Byrnes and J. Chan (1995) 3(4) Bill of Rights Bull.Google Scholar

53. Associated Provincial Picture House Ltd v. Wednesbury Corporation [1948] 1 K.B. 223.Google ScholarSee also Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 A.C 374, 410–411.Google Scholar

54. See e.g. Sunday Times v. The United Kingdom (1979) 2 E.H.R.R. 245.Google Scholar

55. Brind v. Home Secretary [1991] A. C. 696Google Scholar; Meng Ching Hai v. Attorney General [1991] 1 H.K.P.L.R. 535, 543Google Scholar; Issac v. Minister of Consumer Affairs [1990] 2 N.Z.L.R. 606, 636.Google Scholar For a detailed argument on the incorporation of the notion of proportionality into English law see Jowell, J. and Lester, A., “Beyond Wednesbury: Substantive Principles of Judicial Review” [1987] Public Law 368, 375–376.Google Scholar

56. (1994) 4 H.K.P.L.R. 621 (Mag)Google Scholar; (1995) 5 H.K.P.L.R. 13 (CA)Google Scholar; (1996) 6 H.K.P.L.R. 103 (PC).Google ScholarSee also Chim Shing Chung v. Commissioner of Correctional Services (1995) 5 H.K.P.L.R. 570.Google Scholar

57. Cap. 201, Laws of Hong Kong. S.30(1) provides:

“(1) Any person who, without lawful authority or reasonable excuse, discloses to any person who is the subject of an investigation in respect of an offence alleged or suspected to have been committed by him under this Ordinance the fact that he is subject to such an investigation or any details of such investigation, or discloses to any other person either the identity of any person who is the subject of such an investigation or any details of such an investigation, shall be guilty of an offence and shall be liable on conviction to a fine of $20, 000 and to imprisonment for 1 year.

(1 A) Where a person who is the subject of an investigation in respect of an offence alleged or suspected to have been committed by him under this Ordinance has been arrested in connection with such offence, subsection (1) shall not apply as regards the disclosure after such arrest of details of the investigation or the identity of the person.”

58. The defendant also attacked sJO as being so vague that it did not satisfy the requirements of “provided by law”, as laid down in Sunday Times, supra n.54, namely, the law must be formulated with sufficient precision so that the consequences could be reasonably foreseen. Referring to Sunday Times, Litton VP cast doubt on its relevance to Hong Kong: “In our system of law, an Ordinance which lays down an offence would set out with Part.icularity the ingredients to be proved; the consequences of the given action can generally be foreseen. In respect of s.30(1) it includes the ingredient of mens rea. It is difficult to envisage circumstances where, in the Hong Kong context, this requirement cannot be met”

59. (1996) 6 H.K.P.L.R. 103, 111–112.Google ScholarSee also R. v. Secretary for the Civil Service and the Attorney General (1995) 5 H.K.P.L.R. 490, 517, where margin of appreciation was also relied upon to justify some degree of deference to executive policies in the context of localisation of the Civil Service.Google Scholar

60. Handyside v. The United Kingdom (1976) 1 E.H.R.R. 737.Google Scholar

61. Sunday Times, supra n.54.

62. [1993] A.C 534, 551.Google ScholarSee also Attorney General v. Guardian Newspapers (No.2) [1990] A.C. 109, 283 (per Lord Goff).Google Scholar

63. (1995) 5 H.K.P.L.R 261.Google Scholar

64. (1975) 1 E.H.R.R. 525.Google Scholar

65. Sir Gerald Fitzmaurice of the UK and Judge Zekia of Cyprus. The third dissenting judge was Judge Verdoss of Austria.

66. Kwan Kong, supra n.63, at p.299.Google Scholar

67. Idem, p.300.

68. E.g. Ministry of Home Affairs v. Fisher [1980] A.C 319, 329E (per Lord Wilberforce).Google Scholar

69. E.g. Derbyshire County Council v. Times Newspapers Limited [1991] 1 A.C 696.Google Scholar

70. Hunter v. Southam Inc. (1984) 11 D.L.R. (4th) 641, 649Google Scholar, where Dickson CJ referred to the living tree approach to interpreting the Canadian Charter. See also In res 24 of the British North America Act (1930) 1 D.L.R. 98.Google Scholar

71. E.g. L v. M [1979] 2 N.Z.L.R. 519Google Scholar; Brader v. Ministry of Transport [1981] 1 N.Z.L.R. 73Google Scholar; New Zealand Drivers' Association v. New Zealand Road Carriers [1982] 1 N.Z.L.R. 374, 390Google Scholar; Fraser v. State Services Commission [1984] 1 N.Z.L.R. 116, 121Google Scholar; R. v. Uljee [1982] 1 N.Z.L.R. 561.Google Scholar

72. See Theophanous v. Herald & Weekly Times Ltd (1994) 124 A.L.R. 1.Google Scholar

73. Ibid; Nationwide News Pty Ltd v. Wills (1992) 177 C.L.R. 1Google Scholar; Australian Capital Television Pry Ltd v. Commonwealth (1992) 177 C.L.R. 106.Google Scholar In Theophanous the High Court of Australia held that the common law of defamation, which required the proof of truth, was inconsistent with the implied constitutional guarantee of freedom of communication in relation to public affairs of the Commonwealth.

74. (1993) 3 H.K.P.L.R. 253.Google Scholar

75. In the first application the illegal immigrant was the mother of 5 children aged from 7 years to 10 months. The father and the children were Hong Kong Permanent Residents. The children certainly needed the care of the mother. In the second and third applications the illegal immigrants were respectively an adopted child and a child of tender age, both of whose family members had a right of abode in Hong Kong. In the third case the person who used to take care of the illegal immigrant in China had stated that, because of her family circumstances, she would no longer be able to take care of the child. Removal orders were issued against the illegal immigrants

76. S.11 provides: “As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and dePart.ure from Hong Kong, or the application of any legislation.”

77. These materials included decisions of the European Court of Human Rights, the European Commission of Human Rights, and the Inter-American Court of Human Rights, national decisions from the UK, Canada, Botswana, Ireland, and the Vienna Convention on the Law of Treaties, General Comments of the Human Rights Committee, the Siracusa Principles and the history leading to the UK's reservation to the ICCPR.

78. It was reproduced in Byrnes, A. and Chan, J. (1995) 3(3) Bill of Rights Bull App.A.Google Scholar

79. (1994) 4 H.K.P.L.R. 324.Google Scholar In Chan Shing Chung, supra n.56, the Court of Appeal held that the Bill of Rights was not engaged because of the reservation clause in s.9 of the Bill of Rights Ordinance regarding preservation of custodial discipline in penal institutions. It did not address the issue of the proper approach to interpreting a reservation clause, or whether the measure concerned was necessary for the preservation of custodial discipline, or whether this reservation clause was itself subject to any limit

80. See e.g. R. v. Chan Chi Hung (1995) 5 H.K.P.L.R. 1Google Scholar, where Lord Mustill adopted the traditional common law methods of interpretation of Art.12(1) of the Bill of Rights, but acknowledged that the ICCPR sprang from a consensus of nations many of whose legal systems adopt a less linguistic and analytical approach to the interpretation of instruments than is taken for granted in the common law countries, and therefore “it is right as a precaution to adopt a broad approach by testing the apparent meaning of the words against the purpose which they are intended to fulfil” (idem, p.11).

81. Neumeister v. Austria (1968) 1 E.H.R.R. 91, para.4Google Scholar, cited with approval in R.v. William Hung (1992) 2 H.K.P.L.R. 49, 62.Google ScholarSee also R. v. Lou Shiu-wah (1991) 1 H.K.P.L.R. 202.Google Scholar

82. They include the nature and seriousness of the offence, the likelihood of defendant absconding, the risk of interference with witnesses or evidence, and so on: R. v. Lau Kwokhung (No.1) (1991) 1 H.K.P.L.R. 21.Google Scholar

83. R. v. Lou. Kwok-hung (No.2) (1992) 2 H.K.P.L.R. 261Google Scholar; R. v. Chan Wai-ming (No.1) (1991) 1 H.K.P.L.R. 292.Google ScholarSee also Chan, J., “Undue Delay and the Bill of Rights” (1992) 22 H.K.L.J. 2.Google Scholar

84. R. v. Deacon Chiu (1993) 3 H.K.P.L.R. 483, 500Google Scholar; R. v. Lam Tak-ming (1991) 1 H.K.P.L.R. 222, 230–234Google Scholar; R. v. Charles Cheung Wai-Burt (1993) 3 H.K.P.L.R. 123, 143Google Scholar, following notably the European Court's decisions in Eckle v. Federal Republic of Germany (1982) 5 E.H.R.R. 1Google Scholar, para.73 and Foti v. Italy (1982) 5 E.H.R.R. 313, para.52.Google Scholar

85. See Chan, J. and Wilkinson, M., “Abuse of the Criminal Process”, in Heilbronn, G. (Ed.), Modem Trends in Litigation (1995), p.31.Google Scholar

86. R. v. Charles Cheung Wai-Burt (1993) 3 H.K.P.L.R. 62, 70Google Scholar; R. v. Flickinger (1993) 3 H.K.P.L.R. 677Google Scholar; R. v. William Hung (1993) 3 H.K.P.L.R. 328, 336–339. So far the courts have not identified what these special circumstances are.Google Scholar

87. Notably the US, Canada, and appeals to Privy Council from various Commonwealth jurisdictions.

88. R. v. William Hung (1992) 2 H.K.P.L.R. 49, 57.Google Scholar

89. (1995) 5 H.K.P.L.R. 345.Google Scholar

90. (1995) 20 E.H.R.R. 347, 353Google Scholar, the issue being whether a confiscation order under the Drug Trafficking (Recovery of Proceeds) Ordinance amounted to a retrospective application of the relevant legislation and hence in conflict with Art.7 of the European Convention on Human Rights, the relevant Part. of which is identical to the relevant Part. of Art.12(1) of the Bill of Rights in this case. Curiously, this case was not cited to the court; it was found by the court itself. It may also be noted that a similar provision under the Drug Trafficking (Recovery of Proceeds) Ordinance had been attacked for being a violation of the right to presumption of innocence. The Court of Appeal in R. v. Ko Chi-yuen (1993) 3 H.K.P.L.R. 152Google Scholar held that presumption of innocence did not apply to confiscation proceedings, since those proceedings did not involve the determination of a criminal charge. Welsh v. United Kingdom was not cited.

91. (1995) 5 H.K.P.L.R. 428.Google Scholar

92. [1994] Q.B. 670.Google Scholar

93. (1995) 20 E.H.R.R. 242.Google Scholar

94. Byrnes, A. and Chan, J. (1995) 3(4) Bill of Rights Bull. 40.Google Scholar

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97. A conceptual difficulty is when this less stringent test of discrimination should be applied. Bokhary JA did not give any clear indication. In R. v. Secretary for the Civil Service and the Attorney General (1995) 5 H.K.P.L.R. 490Google Scholar, challenging various aspects of the localisation policy within the Civil Service, Keith J seemed to suggest that this less stringent test would apply only when it involved issues calling for “mature political judgments”. The difficulty is that many discrimination cases, by their very nature, do involve difficult political judgments; the distinction between law and policy is particularly thin in this area. Besides, in Bokhary J A's formulation, the question of proportionality disappears. Nowhere has he addressed the question whether such a great disparity in voting power is necessary and proportionate to achieve whatever objectives the legislature is trying to pursue in the functional constituency election system. In contrast, Keith J went on to consider whether the difference in treatment could be justified by the test of rationality and proportionality after he had been satisfied that sensible and fair-minded people would not regard some difference in treatment as irrational (p.548).

98. For the statistics up to the end of 1995, see Chan, op. cit supra n.49.Google Scholar

99. R. v. Lou Wan-chung (1992) 2 H.K.P.L.R. 415, 420Google Scholar; R. v. Hui Lan-chak (1992) 2 H.K.P.L.R. 423, 436Google Scholar; R. v. Hui Kwok-fai (1993) 3 H.K.P.L.R. 752, 760Google Scholar; R. v. Law Chi Wai (1995) 5 H.K.P.L.R. 417Google Scholar; R. v. Chong Ka-man (1993) 3 H.K.P.L.R. 789Google Scholar; R. v. Lee Kni-fai (1992) 2 H K.P.L.R. 466.Google Scholar For some earlier cases which held that creating a criminal offence without a requirement of mats rea violated the presumption of innocence see R. v. Cheng Pui-kit (1991) 1 H.K.P.L.R. 324Google Scholar; R. v. Joshi (1992) 2 H K.P.L.R. 564Google Scholar; R. v. China State Construction Engineering Corporation (1993) 3 H.K.P.L.R. 716Google Scholar (revsd. on appeal; (1995) 5 H.K.P.L.R. 421)Google Scholar; R. v. Dragages et Travaux (1994) 4 H.K.P.L.R. 601.Google Scholar

100. In General Comment No.16, para.4 the Human Rights Committee noted, in the context of the right to privacy under Art.14 of the ICCPR, that “arbitrary” is different from “lawfulness”; the concept of “arbitrariness” was intended to “guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the Part.icular circumstances”. In Van Alphen v. The Netherlands, Human Rights Committee, Communication No.305/1988, decision of 30 July 1990, UN Doc. A/45/40, Vol.2, Annex IX.M, p.108 (1990)Google Scholar, the Human Rights Committee noted that “arbitrariness” in Art.9(1) of the European Convention included “elements of inappropriateness, injustice and lack of predictability” (at para.5.8). See also Hassan, , “The Word ‘Arbitrary’ as Used in the Universal Declaration of Human Rights: ‘Legal’ or ‘Unjust'?” (1969) 10 Harv.Int.L.J. 225, 228.Google Scholar

101. R. v. Wong Lai Sing (1993) 3 H.K.P.L.R. 766Google Scholar, drawing upon the Report of the Committee of Experts on Human Rights to the Committee of Ministers (Strasbourg: Council of Europe, 1970), paras.26, 27, 29, 106, 206, and a variety of international and comparative materials, which include Van Alphen, ibid; Winterwerp v. Netherlands (1979) 2 E.H.R.R. 387.Google ScholarSee also R. v. Cheng Pui-kil (1991) 1 H.K.P.L.R. 324Google Scholar, relying on Reference re s.94(2), supra n.40; R. v. Burt (1987) 88 C.C.C. (3d) 299Google Scholar; and R. v. Gray (1988) 44 C.C.C. (3d) 222.Google ScholarIn Fok Lai Ying v. Governor in Council (1997) 7 H.K.P.L.R. 327 the Privy Council, in deciding whether resumption of land for public purposes without affording the landowner an opportunity to be heard constituted an “arbitrary” interference with one’s home under Art.17 of the ICCPR, assumed, without deciding, the correctness of this approach.Google Scholar

102. R. v. Hui Kwok-fai (1993) 3 H.K.P.L.R. 752.Google Scholar In a different context of arbitrary and unlawful interference with privacy, the court seems to suggest that arbitrariness is confined to procedural review: see R. v. Yu Yem-kin (1995) 5 H.K.P.L.R. 75Google Scholar; R. v. Alagon (1992) 2 H.K.P.L.R. 723.Google Scholar See also R. v. Securities and Futures Commission, ex p. Lee Kwok Hung (1993) 3 H.K.P.L.R. 39Google Scholar (CA) and R. v. Allen, ex p. Ronald Tse Chu-fai (1992) 2 H.K.P.L.R. 266.Google Scholar A similar interpretation was adopted under Art.5(1) in the context of detention of mental patients, although the issue whether there is also a substantive content was not argued: R. v. Leung Tak Choi (1995) 5 H.K.P.L.R. 379.Google ScholarSee also R. v. Chong Ka-man (1993) 3 H.K.P.L.R. 789.Google Scholar These cases may be regarded as doubtful in light of the latest view expressed by the Privy Council in Fok Lai Ying, ibid.

103. Attorney General v. Fong Chin-yue (1994) 4 H.K.P.L.R. 430, 440Google Scholar; Attorney General v. Mak Churn Hing (1996) CA, Civ.App.No.398 of 1996 (unrep.).Google Scholar

104. The court also held that the common law analysis in Gammon, supra n.39, in determining whether an offence is one of strict liability is consistent with the Bills of Rights, provided that the Gammon analysis permits a defence of honest belief or reasonable excuse. See also Bruce, A., “The Bin of Rights and the Criminal Law: Recent Development”, in Edwards and Chan, op. cit. supra n.49, p.77 at pp.87–89Google Scholar, and Byrnes, A. and Chan, J. (1994) 3(2) Bill of Rights Bull. 30–32.Google Scholar

105. Art.10 has been invoked in a series of town planning cases: R. v. Town Planning Board, ex p. Aubumtown Ltd (1994) 4 H.K.P.L.R. 194Google Scholar; R. v. Town Planning Board, ex p. Kwan Kong Co. Ltd (1995) 5 H.K.P.L.R. 261 (H.Ct)Google Scholar, (1996) 6 H.K.P.L.R. 237 (CA)Google Scholar; R. v. Town Planning Board, ex p. Read Estate Developers Association (1996) 6 H.K.P.L.R. 179.Google Scholar The facts are similar the applicants are invariably developers who own land on sites the zoning of which has been changed after they have acquired the land. The change in zoning was promulgated by the Town Planning Board in a draft plan. The new zoning would not permit the developers' planned development or would substantially reduce the value of their land. They exercised their statutory right by lodging an objection to the draft plan to the Town Planning Board. They were heard; the hearing was chaired by the chairman or the vice-chairman of the Board, who were senior civil servants responsible for drawing up the relevant draft plan. The objection was refused The draft plan was subsequently endorsed by the Governor in Council, The applicants argued that they had not been afforded a fair hearing under the common law and Art.10 of the Bill of Rights, as the Town Planning Board was a judge of its own cause—the system was inherently biased.

106. Communication No.112/1981, Selected Decisions of the Human Rights Committee under the Optional Protocol (1990), Vol.2, p.28 at p 30, para.9.2.Google Scholar

107. (1994) 4 H.K.P.L.R. 194.Google Scholar

108. (1996) 6 H.K.P.L.R. 237.Google Scholar

109. (1994) 4 H.K.P.L.R. 194, 227–230.Google Scholar Rhind J's decision was followed by Leonard J in Real Estate Developers Association, supra n.105, at p.209, referring to decisions of the European Court in Oerlemans v. Netherlands (1991) 15 E.H.R.R. 561Google Scholar and Pine Valley Development v. Ireland (1991) 14 E.H.R.R. 319.Google Scholar Not unexpectedly, this reasoning was rejected by Waung J, who adopted a minute analysis of what rights were involved under the domestic legal system, and refused to accept any residual property right or right to development which was not recognised by the common law: Kwan Kong, supra n.105. Disappointingly, the Court of Appeal did not attempt to resolve this issue.

110. See e.g. Feldbrugge v. Germany (1986) 8 E.H.R.R. 425Google Scholar, Tre Traktorer v. Sweden (1989) 13 E.H.R.R. 309.Google Scholar

111. Lee Lai Ping, supra n.16, quoting the European Commission's decision in Kaplan v. United Kingdom (1980) 4 E.H.R.R. 64.Google Scholar

112. R. v. Lai Kai-ming (1993) 3 H.K.P.L.R. 58.Google Scholar

113. E.g. a defendant was convicted of an offence of unlawful possession of forged banknotes which carried a maximum of 14 yean’ imprisonment The offence was, prior to sentencing, amended and broken down into two offences: one of simple possession carrying 3 years’ imprisonment, and one of possession with intent to defraud, which carried 14 years' imprisonment Was the defendant entitled to be sentenced at the lower maximum?

114. See R. v. Faisal (1993) 3 H.K P.L.R. 220Google Scholar; R. v. Tai Yiu-wah (1994) 4 H.K.P.L.R. 56Google Scholar; and R. v. Sze Yung-sang (1993) 3 H.K.P.L.R. 211Google Scholar; comparing literally the new and the old offences and holding that the defendant should be sentenced on the lower maximum. Appellate judges who took this view include Sillce VP, Macdougall VP, PenHngton JA, Mortimer JA and Power JA. For the opposing view see R. v. Chan Chuen-kam (1993) 3 H K.P.L.R. 215Google Scholar; R. v. Wan Siu-kei (1993) 3 H.K.P.L.R. 228Google Scholar; R. v. Chan Chi-hung (1993) 3 H.K.P.L.R. 243. Judges who took this view include Litton JA, Kempster VP, and Bokhary JA.Google Scholar

115. (1995) 5 H.K.P.L.R. 1, 11.Google Scholar

116. (1995) 5 H.K.P.L.R. 181.Google Scholar The applicants argued, inter alia, that the functional constituency system of election was inconsistent with the right to vote at genuine periodic elections by universal and equal suffrage guaranteed by Art.25(b) of the ICCPR. Their primary complaint was that the functional constituency election was an unreasonable infringement of the principle of “one person, one vote”, because about a million people who were entitled to vote in geographical constituencies were not entitled to vote in any functional constituency (defined by reference to professional or industry affiliation) and that entitlement (or non- entitlement) was determined by their status or lack of status. Their argument was rejected on the grounds that they did not have the necessary standing to challenge the system, and that the system was in any event protected from challenge by the Letters Patent This was confirmed by the Court of Appeal (1995) 5 H.K.P.L.R. 585, without addressing the merits of the challenge.Google Scholar

117. See the Concluding Observations of the Human Rights Committee on the 4th Periodic Report of the United Kingdom in respect of Hong Kong submitted under the ICCPR, CCPR/C/79/Add.57 (9 Nov. 1995), reproduced in (1995) 5 H.K.P.L.R. 641, para.19.Google Scholar Keith J's decision was upheld by the Court of Appeal, which, in confirming the decision, did not refer to the strong attack on the functional constituency system made by the Human Rights Committee in examining periodic reports of the UK government on Hong Kong.

118. (1995) 5 H.K.P.L.R. 490.Google Scholar The applicants were a union and four individual officers in the Civil Service who were affected by different aspects of the government's localisation policy. They challenged the distinction between local and expatriate terms of service of employment in the Civil Service.

119. In the context of this case these principles mean: (a) identical treatment for overseas and local officers is not required; (b) equality of treatment for an overseas and local officers is not required: if overseas officers are treated equally with all but a few local officers, the fact that they have not been treated equally with a few local officers does not necessarily mean that their right of access to the Civil Service on general terms of equality has been restricted.

120. In HKSAR v. David Ma [1997] 2 H.K.C. 315Google Scholar the Court of Appeal held that the Hong Kong courts had no jurisdiction to question whether a decision of the Standing Committee of the National People's Congress setting up the Provisional Legislative Council was consistent with the Basic Law. In Cheung Lai Wah v. Director of Immigration [1997] H.K.L.R.D. 1081Google Scholar the Court of Fast Instance held that an amendment to the Immigration Ordinance depriving retrospectively children born in mainland China to parents who are Hong Kong Permanent Residents of their right of abode in Hong Kong, a right which is conferred on them by the Basic Law, was justifiable under the Bask Law. For a commentary see Chan, J., “The Jurisdiction and Legality of the Provisional Legislative Council” (1997) 23 H.K.L.J. 374–386Google Scholar; E. Cheung, “Undermining our Rights and Autonomy’, idem, pp.297–299.