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How to Interpret, and Not Interpret, Hong Kong Law

29 Pages Posted: 15 Aug 2009 Last revised: 22 Mar 2017

Stephen Kruger

Independent

Date Written: March 21, 2017

Abstract

Some articles of the Hong Kong Bill of Rights guarantee rights absolutely. Other articles contain words of derogation, and guarantee rights subject to exceptions.

Article 10 of the Hong Kong Bill of Rights guarantees, inter alia, the right to a fair trial, and does so absolutely. The right to a fair trial comprehends the right to silence.

Road Traffic Ordinance section 63 requires a registered owner of a motor vehicle to disclose, to the Hong Kong Police Force, personal information which is later used in a prosecution of the registered owner, in his role of the driver of the motor vehicle. Section 63 is a derogation of the right to silence, guaranteed absolutely by article 10.

The Court of Appeal approved of RTO s 63, despite the derogation therein of the right to silence. It was error for the Court of Appeal to read the absolute right to silence, guaranteed by article 10, as subject to derogation.

Use of foreign case law is at the discretion of a judge. When foreign case law is used, a judge is unrestricted in his choice of the foreign jurisdiction on which to rely. The proposal is that Hong Kong judges would be permitted to use only the case law of the most-significant foreign common-law jurisdictions: Australia, Canada, New Zealand, Singapore, and, within the United Kingdom, England and Wales, plus the House of Lords and the Supreme Court.

Comments are offered about standards for the interpretation of the Basic Law, set out by the Court of Final Appeal. The fundamental standard is that the fixed meaning of the Basic Law is the legislative intent of the Drafting Committee.

See also 'Police Demands for Hong Kong Identity Cards': http://ssrn.com/abstract=1451238.

Keywords: Brown v Stott, common law, Heaney, O’Halloran, Latker, Legislative Council, Magistrates' Court, plain meaning, proportionality test, purposive interpretation, self-incrimination

JEL Classification: K19, K40

Suggested Citation

Kruger, Stephen, How to Interpret, and Not Interpret, Hong Kong Law (March 21, 2017). Available at SSRN: https://ssrn.com/abstract=1451237 or http://dx.doi.org/10.2139/ssrn.1451237

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