Read the full judgment text of CACV 7/1993 on BabelCite. This Court of Appeal judgment was delivered on 19 February 1993 before Cons, V.-P., Litton J.A. and Wong, J..
Constitutional law – Hong Kong Bill of Rights Ordinance – construction of pre-existing legislation – whether s.33(4) of the Securities and Futures Commission Ordinance (Cap. 24) inconsistent with Article 5 (liberty and security of person) and Article 14 (privacy) of the Bill of Rights and therefore deemed repealed by s.3(2) – production executive of public listed company served with s.33(4) notice to attend interview concerning suspected offences under s.135 of the Securities Ordinance – whether s.33(4) interview constitutes 'arrest' or 'detention' within Article 5 – whether s.33(4) constitutes 'arbitrary or unlawful interference' with privacy within Article 14 – held, s.33(4) not inconsistent with Article 5 because 'arrest' and 'detention' bear criminal-law meaning and require physical deprivation of liberty which investigator lacks power to impose – held, s.33(4) not inconsistent with Article 14, the 'arbitrary' limb requiring no more than orthodox public-law constraints and the 'unlawful' limb, judged by universal concepts of justice per Sin Yau Ming, not offended on balancing SFC's regulatory interest against limited privacy of those in regulated securities industry – Bill of Rights to be given generous and purposive construction in light of its international origin per s.2(3) – use of Canadian Charter jurisprudence in Thomson Newspapers, Biscotti and Blanch treated as tool for interpretation – meaning of 'for all the purposes of the Securities (Insider Dealing) Ordinance' in s.33(6) and its application to criminal proceedings under s.30(a) left open – appeal dismissed with costs to respondents.
Legal issues: Consistency of s.33(4) SFC Ordinance with Article 5 of the Hong Kong Bill of Rights · Consistency of s.33(4) SFC Ordinance with Article 14 of the Hong Kong Bill of Rights · Whether s.33(6) of the SFC Ordinance permits use of compelled answers in criminal proceedings
Outcome: Appeal dismissed; the order of Jones J. refusing judicial review is upheld, and s.33(4) of the SFC Ordinance is held not to be inconsistent with Articles 5 or 14 of the Bill of Rights and is not repealed by s.3(2) of the Bill of Rights Ordinance.