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Clauses Ordinance (Cap 1, Laws of Hong Kong), in particular, section 2A(1)
which provides as follows:
All laws previously in force shall be construed with such modifications,
adaptations, limitations and exceptions as may be necessary so as not to
contravene the Basic Law and to bring them into conformity with the status of
Hong Kong as a Special Administrative Region of the People’s Republic of China.
and section 19 which provides that:
An Ordinance shall be deemed to be remedial and shall receive such fair, large
and liberal construction and interpretation as will best ensure the attainment of
the object of the Ordinance according to its true intent, meaning and spirit.
5
1.8
The Commissioner is constantly mindful of the generally recognized
principle of “presumption against absurdity” in statutory interpretation,
6
which is explained in Bennion on Statutory Interpretation
7
as follows:
Section 312. Presumption that
“
absurd
”
result not intended
(1) The court seeks to avoid a construction that produces an absurd result,
since this is unlikely to have been intended by Parliament. Here the courts
give a very wide meaning to the concept of “absurdity”, using it to include
virtually any result which is unworkable or impracticable, inconvenient,
anomalous or illogical, futile or pointless, artificial, or productive of a
disproportionate counter-mischief.
8
(2) In rare cases there are overriding reasons for applying a construction that
produces an absurd result, for example where it appears that Parliament
really intended it or the literal meaning is too strong.
1.9
Hence, in dealing with a case involving a particular data protection
principle that, according to its language, seems to be open to more than
one interpretation, the Commissioner will adopt the interpretation that
5
In how to apply the rule of “fair, large and liberal” construction and interpretation, reference can be
made to the Court of Final Appeal in the case of
The Medical Council of Hong Kong v David Chow Siu
Shek
[2000] 2 HKLRD 674. In determining the proper interpretation of sections 21(1) and 25(3) of the
Medical Registration Ordinance, Cap 161 as to whether there is automatic restoration of the name of
the medical practitioner who was removed for a specified period, the Court had taken the following
five interpretative factors into account, namely, (i) striking a balance; (ii) interpretation in the context of
other statutes dealing with comparable matters; (iii) avoiding circularity; (iv) according meaning and
substance to each provision; and (v) reluctance to find a radical change through a side-wind.
6
Otherwise also known as the “golden rule” of interpretation, that whatever the literal meaning of the
language which the legislature used, there was a presumption that it did not truly intend to bring about
an absurd result.
7
Sixth Edition, Butterworths.
8
The rule was followed in the case of
HKSAR v Hung Chan Wa
[2005] 3 HKLRD 291 concerning the proper
interpretation of section 47 of the Dangerous Drugs Ordinance, Cap 134 in which the Court stated
clearly that “... any exercise in statutory interpretation should seek an interpretation, that does not
result in absurdity, provided it is reasonably possible so to do”. (paragraph 58 of the judgment).