SW v Secretary for Justice
Court of First Instance
Constitutional and Administrative Law List No 191 of 2016
Patrick Li J
22–23 January, 5 February 2018, 10 January 2019

Human rights — liberty and security of person — Pt. XII of Crimes Ordinance — whether provisions relating to prostitution and vice establishments contravened Hong Kong Bill of Rights Ordinance (Cap.383) s. 8 art. 5(1) by infringing sex worker’s right to security — art. 5(1) only permitted judicial scrutiny of laws relating to arrest and detention — no independent right to “security of person” — art. 5(1) not engaged

S was a sex worker operating from a one-woman brothel. She and other sex workers were subject to violent crimes, abusive customers and triad extortion. S applied for judicial review, seeking a declaration that specified provisions relating to prostitution and vice establishments under Pt. XII of the Crimes Ordinance (Cap. 200), in particular ss. 137, 139, 143, 144, 145 and 151, were unconstitutional for breach of her right to “security of person” under art. 5(1) of the Hong Kong Bill of Rights (HKBOR). S argued that the combined effect of such provisions imposed unnecessary and disproportionate restrictions on her in her one-woman brothel by compelling her to work alone and preventing her from taking effective protective measures, such as hiring security guards.

Held, dismissing the application, that:

1) Article 5(1) of the HKBOR was not engaged. There was no independent right to “security of person”. Given the structure and language of art. 5(1), “security” must be read in the context of “liberty”. Article 5(1) provided for the fair operation of the laws relating to arrest and detention and permitted judicial scrutiny of only those laws, but not of other laws which allowed arrest and detention if they were breached (Hugo van Alphen v Netherlands(Communication No 305/1988) (23 July 1990), HKSAR v Coady [2000] 2 HKLRD 195 applied; Commissioner of Police of the Metropolis v DSD [2018] 2 WLR 895 distinguished). (See paras. 29–30, 34, 51, 86, 92.)

2) This accorded with the European Court of Human Rights’ consistent interpretation of art. 5(1) as comprising one single right. The protection of “security” was concerned with guaranteeing an individual’s personal liberty against arbitrary interference by a public authority (Giorgi Nikolaishvili v Georgia(37048/04) [2009] ECHR 63 applied). (See para. 51.)

3) Even if there were a separate right to security of person under art. 5(1) of the HKBOR, S’s evidence was too general and lacking in specific detail to trigger a claim. (See para. 91.)

Application

This was an application for judicial review seeking a declaration that specified provisions under the Crimes Ordinance (Cap. 200) relating to prostitution and vice establishments contravened art. 5(1) of the Hong Kong Bill of Rights and were unconstitutional. The facts are set out in the judgment.

Jurisdictions: 

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