Australian take on free speech hardly the only one HK's law should consider

PUBLISHED : Friday, 01 June, 2012, 12:00am
UPDATED : Friday, 01 June, 2012, 12:00am


I refer to the article by Richard Cullen, visiting professor at the University of Hong Kong ('Rule on flat sales does not flout free speech', May 28).

While we have no doubt about Professor Cullen's credentials, the Real Estate Developers Association finds his comments to be highly subjective and restrictive.

He makes his point on the grounds that Australia's interpretation of free speech is somehow superior to that of the US or Canada, which he describes as 'misguided', and that Hong Kong should look to Australia when deciding what may or may not contravene our Basic Law as it pertains to freedom of speech.

That presumption is seemingly not based on any precedent in the application of the rule of law in Hong Kong.

In the Medical Council case he mentioned, all three Court of Appeal judges confirmed, unequivocally, that the right of commercial advertising is guaranteed by the Basic Law and Bill of Rights. The court's decision was supported by a comprehensive review and analysis of precedent cases on human rights in different common law jurisdictions and the European Court of Human Rights.

The appeal court's decision remains the good and valid law of Hong Kong under our legal system. We cannot see why Australia's way of interpretation of free speech should be the only way to be adopted by our legal system, as suggested by Professor Cullen.

Furthermore, his argument only looks at one aspect of the legal opinion given to our association. It was written by one of the most experienced and reputable barristers in Britain and at the European Court of Human Rights who specialises in human rights law. Professor Cullen fails to address other issues in that legal opinion, such as the fact that the proposed law applies only to certain segments of the market and not others.

He also overlooks the issue of exempting the Housing Authority from the proposed law for no convincing reason and of forcing developers to issue price lists on flats that they have no intention of selling. Under the proposed law, this could potentially put the developer at risk of violating the law by providing misleading information, which would be a criminal offence punishable by up to seven years in jail.

We would be happy to discuss this issue with Professor Cullen with a view to helping ensure the people of Hong Kong receive a law that is fair and constitutional.

Louis Loong, secretary general, Real Estate Developers Association of Hong Kong