Restrictions may violate the rights of the vulnerable
Recent events in Canada may offer an argument that controls on maids are unconstitutional
Article 5 of the Hong Kong Bill of Rights protects the right to "security of person". Unfortunately this has been a dormant right, neglected by courts and legal practitioners.
It deserves greater attention in current discussions on protecting vulnerable people, such as domestic helpers and prostitutes.
Three months ago, a similarly worded right empowered the Supreme Court of Canada to strike down three long-standing prostitution offences: being in a brothel, living on the proceeds of prostitution, and communicating in a public place for the purpose of prostitution - all with equivalents in Part XII of our Crimes Ordinance.
The decision could lead to an open system of regulated prostitution in Canada.
The laws were found to impose "dangerous" conditions on prostitutes, preventing "people engaged in a risky - but legal - activity from taking steps to protect themselves".
The government had argued that any risks were either accepted voluntarily or caused by violent customers, not by the law. The court rejected these points, noting that the "violence of a [client] does not diminish the role of the state in making a prostitute more vulnerable to that violence".
The claimants also showed the laws were overly broad - prohibiting acts that were or should be protected - and grossly disproportionate to their objectives. Brothels, whose prohibition aimed to prevent public nuisance, provided "safety benefits". The "living on the proceeds" provision, though targeted at pimps, had the added effect of depriving prostitutes of the services of people who could increase their safety, such as bodyguards.
The communication offence, aimed at preventing the nuisance of street soliciting, deprived prostitutes of the ability to screen customers and bargain for conditions - both essential for enhancing safety.
Can the case be used to mount an argument that current restrictions on domestic helpers, such as the live-in and two-week rules, are unconstitutional because they violate the right to security of person?
Practitioners must be mindful of three points. First, it is unknown if our courts will interpret Article 5 in the same way Section 7 of the Canadian Charter of Rights and Freedoms was applied. More importantly, a proper evidential record needs to be compiled.
Thirdly, the Canadian applicants won because the evidence showed a disconnect between the narrow objectives of the law and its unintended effects. In this regard, the case resembles the Court of Final Appeal's reasoning in December, in the case of Kong Yunming, that it is unconstitutional to require new arrivals to live in the city for at least seven years before they can apply for Comprehensive Social Security Assistance benefits.
Professor Simon Young Ngai-man teaches criminal law and evidence at the University of Hong Kong's law faculty