HKSAR v. CHAN PAU CHI
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CACC 368/2016 and
CACC 228/2019
(Heard together)
[2023] HKCA 59
CACC 368/2016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 368 OF 2016
(ON APPEAL FROM DCCC NO 199 OF 2016)
_______________
| HKSAR | Respondent | |
| v | ||
| Fung Ka Chun (馮家俊) (D1) | 1st Appellant | |
| Szeto Ka Fai (司徒嘉暉) (D2) | 2nd Appellant |
_______________
AND
CACC 228/2019
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 228 OF 2019
(ON APPEAL FROM DCCC NOS 991 and 1007 – 1010 OF 2016)
_______________
| HKSAR | Respondent | |
| v | ||
| Chan Pau Chi (陳豹智) (D1) | Appellant |
_______________
(Heard together)
| Before: | Hon Poon CJHC, Zervos and A Pang JJA in Court |
| Date of Hearing: | 9 December 2021 |
| Date of Judgment: | 20 January 2023 |
________________
J U D G M E N T
________________
Hon Zervos JA (giving the Judgment of the Court):
| Contents | Paragraph | |
| Introduction | 1 | |
| The legal framework | 7 | |
| CACC 368 of 2016 | 9 | |
| CACC 228 of 2019 | 30 | |
| CACC 368 of 2016 | ||
| The grounds of appeal | 39 | |
| The statutory construction of section 137 | 43 | |
| The constitutional arguments | 83 | |
| Freedom of choice of occupation (BL33 and BOR14) | 91 | |
| Safety and personal security (BOR5(1) and BOR14) | 115 | |
| The standing of the appellants | 144 | |
| The proportionality test | 154 | |
| CACC 228 of 2019 | ||
| The appellant’s ground of appeal | 168 | |
| The appellant’s submissions | 169 | |
| The respondent’s submissions | 176 | |
| Discussion | 181 | |
| Conclusion | 193 | |
1. The two appeals each seek to challenge the validity of the offence of living on the earnings of prostitution of another, contrary to s.137(1) of the Crimes Ordinance, Cap 200 (CO), and for that reason, it was directed that they be heard together.
2. In CACC 368 of 2016, the 1st appellant was charged under s.137(1) (Charge 1), while the 2nd appellant faced one charge of aiding, abetting, counselling, and procuring the 1st appellant to commit Charge 1 (Charge 2).[1] A third defendant, D3, faced the same charge as the 2nd appellant (Charge 3). On 6 October 2016, all three defendants were convicted after trial before District Court Judge Alex Lee (as he then was) (the Judge).
3. On 10 November 2016, the 1st appellant was sentenced to a Community Service Order (CSO) of 240 hours and fined $100,000; the 2nd appellant was sentenced to a CSO of 160 hours, and on 16 December 2016, D3 was sentenced to a probation order for 12 months.
4. The two appellants appealed against their convictions, whilst D3 has not sought to challenge her conviction. It was alleged that the appellants provided or facilitated an adult website through which male members were brought into contact with female members who offered sexual services. Leave was initially granted based on whether or not the activity of operating an adult forum in this way, and deriving income from the male members, was in fact and in law capable of amounting to the offence of living on the earnings of prostitution carried on by others for the purposes of s.137(1). The point of law questioned what constituted “earnings of prostitution of another” and the scope of the offence.[2] Leave was later granted to also challenge the constitutionality of s.137(1),[3] which was viewed as possibly having wider implications on the practical consequences for many social networking and dating websites and mobile telephone applications.[4]
5. In CACC 228 of 2019, the appellant was one of 15 defendants who stood trial before District Court Judge Casewell (the Judge). On 23 May 2019, the appellant was convicted of a single charge of conspiracy to lend money at an excessive rate of interest (Charge 1);[5] a single charge of conspiracy to live on the earnings of prostitution, contrary to ss.137(1), 159A and 159C of the CO (Charge 2), and three charges of dealing with property representing the proceeds of an indictable offence (Charges 3, 4 and 5).[6] On 24 July 2019, the Judge sentenced the appellant to 48 months’ imprisonment.
6. It was alleged under Charge 2 that the appellant, who was considered to be the boss, together with D3, D8 to D12, operated a vice website, which facilitated the provision of sexual services by sex workers. The sex workers were required to pay a monthly subscription fee to the operators of the website for promoting their services. The appellant appealed against his convictions. Whilst the nature and character of the website in this appeal was different from that in the previous appeal, leave was granted to the appellant to appeal against his conviction only on Charge 2, and join the previous appeal in its challenge of s.137(1).[7]
7. Section 137 creates an offence of living on earnings of prostitution of others. It reads:
“137. Living on earnings of prostitution of others
(1) A person who knowingly lives wholly or in part on the earnings of prostitution of another shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 10 years.
(2) For the purposes of subsection (1), a person who lives with or is habitually in the company of a prostitute, or who exercises control, direction or influence over another person’s movements in a way which shows he or she is aiding, abetting or compelling that other person’s prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution, unless he or she proves the contrary.”
8. The relevant articles in the constitutional challenge of s.137(1) are as follows.
Article 30 of the Basic Law (BL30), which reads:
“The freedom and privacy of communication of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences.”
Article 33 of the Basic Law (BL33), which reads:
“Hong Kong residents shall have freedom of choice of occupation.”
Article 5(1) of the Hong Kong Bill of Rights (BOR5(1)), which reads:
“Liberty and security of person
(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. …”
Article 14 of the Hong Kong Bill of Rights (BOR14), which reads:
“Protection of privacy, family, home, correspondence, honour and reputation
(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
(2) Everyone has the right to the protection of the law against such interference or attacks.”
9. There was little factual dispute at trial in this case. The prosecution proved most of its case by way of admitted facts, with neither the 1st appellant nor the 2nd appellant giving or calling evidence on their behalf.[8]
10. The 1st appellant was the owner and operator of a website called www.hkbigman.net (“hkbigman”). He had been renting hkbigman from a server company since August 2010. The contents of his computers and mobile telephones revealed numerous contacts with others concerning the operation of the forum. Some members joined hkbigman in September 2012, paying their membership fees into the 1st appellant’s bank account. The prosecution case was that hkbigman was in fact a forum for advertising the services of prostitutes. It was alleged that the 1st appellant’s income from the website constituted in law the “earnings of prostitution of another”.
11. Hkbigman was discovered during routine cyber surveillance in July 2014 after it became apparent that the website promoted what is commonly referred to as “compensated dating”. The online forum had various subcategories, one of which was described as an “Adult Forum”. Female memberships to hkbigman were free of charge. A female could become a member provided she was not a part of a prostitution syndicate, was under 27 years of age, was “not ugly”, and had a “curly” figure. Female members would then submit their age, height, measurements and contact details along with an “accreditation photograph” and “reference photograph or portrait”. The accreditation photograph appears to have been used to confirm that the female member was actually the person in the photograph.[9] By way of example, a female member was operating under the name of “sika”, whose profile appeared on hkbigman as set out below:[10]
“Age: 19
Height: 154
Weight: 44.2 kg
Measurements: C34 24 35
Time: 3 pm - 9:30 pm
Location: Yau Ma Tei, Mongkok, Prince Edward
Price: 800/1Q/1hr 1500/2Q/2hr 1200/1Q/2hr + 100 door-to-door
service including bath, wet kiss, ml, bj, finger penetration
no cum-on-face, semen swallowing, ejaculation in mouth, overnight, backdoor.”
12. Female memberships came at three different levels that appeared to be based on age, appearance and exclusivity, with Level 3 being the most exclusive. The females on Level 1 were stipulated to be between 18 and 26 years, and the females on Levels 2 and 3 were to be under 23 years. Only the male members of the higher level or those prepared to pay extra fees had access to Level 2 and 3 female members. The female members could generally decide which level they wished to be placed. However, a body known as the “committee” retained discretion in so far as female members on Levels 2 and 3 were concerned and could make replacements should the number of applicants exceed the quota.[11]
13. Male memberships were quite different. They were grouped into “Ordinary”, “VIP” and “Prestige VIP”. The “VIP” members were further subdivided into “New VIP” and “Accredited VIP” members. The Accredited VIP members were members who had been accredited by at least two accredited female members.[12]
14. Ordinary membership was free of charge, whereas VIP membership cost $550 for the first year, with reduced annual fees thereafter. Prestige VIP members were charged a one-off fee of $8,000.[13]
15. An Ordinary member could view information about female members on Level 1 and basic information about female members on Level 2. To view this information, an Ordinary member would have to purchase what were called “gold coins”. The payment was effected by PayPal to a bank account belonging to the 1st appellant or directly to his bank account. The Prestige VIP members could view information, including photographs of female members at any level, without the need to purchase gold coins.[14]
16. The Judge found certain features of the website to be highly curious. Only female members were required to provide their height, age and body measurements, which male members could exclusively view. There was no provision for any reciprocal arrangement by female members with male members. It was for the male members to view female members and then request to meet them. Female members did not provide any information about their education, background, profession, hobbies or interests, which the Judge considered were factors male members might be interested in if they were “genuinely looking for people to make friends with. Instead, the lists contained photos of females, many of them dressed in sexy clothing”.[15]
17. PW1 and PW2 were undercover police officers registered as female members with hkbigman. The 1st appellant using the nickname of “Mo Ngo” contacted PW1 via WeChat to discuss her accreditation. He then posted the message, “Newbie needs your help to get accredited”, in the VIP Secret Information Group of the website and sought assistance from others to write a report on PW1 after meeting her. Several responded via WeChat, and subsequently, on 11 August 2011, a male member met up with PW1 in Mongkok. PW1 met a man with the WeChat identification of “trymecc”, who asked PW1 about her body measurements and what sexual services she would be willing to provide. He explained to PW1 that she would become an “accredited” female member after her performance had been assessed by male members, who would post their reports on hkbigman. He said she could charge $1,500 per “Q” and some VIP members would be willing to pay as much as $6,000 to be with accredited female members. He disclosed to PW1 his sexual preferences and suggested they retire to a nearby hotel. However, PW1 made up an excuse and left.[16]
18. After having registered as a female member, PW2 was contacted by users on WeChat, including one user who invited PW2 to meet him at Hotel Victoria for “a try”, which she declined.[17]
19. PW3 and PW4 were police officers registered as male members on hkbigman. PW3 deposited money into the 1st appellant’s bank account so that he could become a VIP member. He had access to the full information and details of female members in the “Dating Zone”, which included the sexual practices on offer, the prices based on the activity and time involved, and travel expenses. PW3 eventually arranged to meet one female at the Golden Sands Hotel. PW3 met her at the hotel and then made an excuse and left. PW4 also deposited money into the 1st appellant’s bank account to become an Ordinary member but later became a Prestige VIP member, receiving access to all levels of female members and the means to contact them directly.[18] Two other undercover police officers, PW7 and PW22, joined the website and received messages from female members detailing sexual services and their prices.
20. PW15 and PW17 were laypersons who became members of hkbigman. They deposited their membership fees into the 1st appellant’s bank account when they joined and had sex with female members.[19]
21. The financial records of the 1st appellant revealed regular deposits of a few hundred dollars into his bank account. At one stage, the amount in this account totalled $1,245,638. The Judge found that the amounts and patterns of these deposits were consistent with the prosecution case that many of the deposits were payments from male members.[20]
22. The 1st appellant’s defence was that the earnings did not come from female members but from male members and could not amount to be “earnings of prostitution”. The payments were not for sex but for browsing female information; if a male member wanted to meet a female member, he could do so by making a request through hkbigman. The 1st appellant made no introductions between male and female members and took no part in arranging any meetings between them. The 1st appellant alleged he had no control over the female workers and was not concerned with whether or not a sexual transaction took place.[21]
23. The 2nd appellant had been the assistant webmaster of hkbigman since June 2014. His job as moderator allowed him to upgrade or downgrade the visibility of posts. He could also amend, edit or delete posts.[22] In a video recorded interview, he admitted that hkbigman provided a forum for promoting and facilitating sexual services for payment. However, he claimed that he received no reward and worked only voluntarily.
24. D3 was a female member providing sexual services to male members for payment.[23] The Judge found that she was a prostitute using hkbigman to facilitate her sex trade; she knew that many, if not all, of the female members were also prostitutes; she knew that the 1st appellant’s income from the website depended on the number of VIP members which in turn was dependent on the number of female members.[24]
25. The Judge found that most, if not all, female members were offering sexual services for reward, and hkbigman was a platform designed to prostitute its female members. He further found that the 1st appellant had obtained payment via the sale of gold coins which facilitated the prostitution of its female members. He considered that the term “compensated dating” was a form of prostitution. He said:[25]
“the only reasonable inference to be drawn from all the relevant evidence is that at all material times all defendants knew that most (if not all) of the male members would spend money on membership and gold coins because they were looking for girls who would provide them with sexual services for reward. The suggestion that people may spend money just for browsing female information or calling girls out for a chat is, with due respect, unrealistic to say the least. This is so, especially in view of the descriptions of female members given in the website. As the tribunal of fact, I reject the suggestion as inherently improbable.”
26. The defence at trial relied on R v Ansell[26] to argue that the Judge had to be satisfied that there was “direction, influence and control” over the prostitution to find a conviction. The Judge ruled that whilst a court may in some cases look for some form of control as in Ansell, “control” as provided under s.137(2) was an evidential provision and not an element of the offence. He held that the absence of any “direction, influence and control” was not necessarily fatal to the prosecution.[27] The Judge relied on the judgment of Viscount Simonds in Shaw v DPP[28], who said that subsection (2) of the English equivalent of s.137 did not throw much light on the meaning of the words “lives on the earnings of prostitution” in subsection (1) and that the two subsections were not coextensive, adding that the second subsection was probative and explanatory of the first but not an exhaustive definition of it.
27. The Judge referred to R v Farrugia[29] in which the Court of Appeal explained that the court in Ansell was saying that where there was “direction, influence or control”, a jury could infer the money received from an arrangement under which prostitution was to take place was the earnings of prostitution.
28. In his review of the authorities, the Judge considered the element of “earnings of prostitution” and referred to the judgments of Viscount Simonds and Lord Reid in Shaw, the case of R v Howard[30] and the test proposed by Mustill LJ in R v Stewart[31]. He concluded that “the meaning of ‘earnings of prostitution’ is not to be interpreted as being limited to the earnings of the prostitute only. Where the money received by an accused is referable to and closely connected with prostitution or intended prostitution, this too, in my view, amounts to earnings of prostitution”[32] (Emphasis added).
29. Having addressed the meaning of “earnings of prostitution”, the Judge went on to make the following finding:[33]
“In my view, a website intended it to be used by prostitutes to facilitate their sex trade is no different from a magazine intended to be used for the same purpose. Besides, in the present case membership and gold coins enabled male members not only to browse information of female members, but also to make a request for meeting. Judging from the information of female members provided in hkbigman, in the absence of evidence to the contrary, a compelling inference could be drawn that the reason why a female member would meet a male member was for her to engage in ‘compensated dating’, which is in fact a form of prosecution (sic). That there may have been other services available on the website (as there was in the magazine in Shaw), I do not think, is of any importance. Furthermore, in my view it matters not that the accused was not paid by the prostitutes directly.”
30. This case involved a website called sex141.com (“sex141”), which the prosecution alleged was for promoting prostitution by providing a forum for sex workers to advertise their services upon payment of a fee to its operators.
31. The prosecution case was that the appellant was “the overall boss” of the website; D3 “the moneyman”, tasked to deal with the proceeds of the website; D9 “the technical support and editor”; and D8 to D12[34], employees, who worked together to administer the website from its office premises.[35]
32. Between October 2012 and December 2013, the domain name “sex141.com” led the user directly to “Nightlife141.com”. The homepage of Nightlife141.com contained various icons for different countries. By clicking on “Hong Kong”, a warning page would come up, and the user would have to confirm he was over the age of 18. A new page would then open called “Females Database” where the user could “choose girls” from different districts in Hong Kong. There were also icons for services, including “water spa, healthy foot massage, upstairs massages, one-woman brothel, 24-hour escort angels, onsite massages, hotel girls, services provided to those with disabilities, etc.” The advertising of the females had individual content pages containing a photo, their nickname, and information as to the services offered.[36]
33. Various police officers who had posed as customers, as well as genuine customers, testified of contacting females on the website who offered to provide sexual services at a price.[37] There was also the evidence of several females who advertised on the website. They testified that they paid monthly advertisement fees to promote their business as prostitutes.[38] The evidence of the undercover police officers was largely unchallenged, and the Judge found that this evidenced that sex141 “was throughout the period particularised in the charge a website created and used for the purpose of promoting the prostitution of the females who advertised within it.”[39]
34. On 4 December 2013, the police raided the offices of sex141, which was located in a room of an industrial building in Lai Chi Kok, Kowloon. They found D8, D10, D11 and D12 inside, who were each sitting at a workstation with a computer.[40] On D8’s hard disk was a document entitled “Proposal of Fee Adjustment 2012”, listing increases in the monthly fees for advertisements of prostitutes in various categories, including “One-person”, “Upstairs massage”, “Individual/On site massage”, “Foot bath” and “Spa”.[41]
35. The nature and operation of sex141 were not in dispute, and it had been established that in order to advertise on sex141, prostitutes would pay for an online advertisement.[42] The Judge found that this evidenced sex141 was receiving payment from prostitutes to advertise their services.[43]
36. The Judge held that “the essence of prostitution is the offer of sexual services for reward” and that “control of the prostitutes” is not an element of the offence of living on the earnings of a prostitute.[44] Furthermore, the offence “includes where payment is made by a prostitute for a service is of [its] nature referable to prostitution and nothing else. No better example of this could be found than payment by a prostitute for advertisement of her readiness to prostitute herself.”[45] He found that the website had operated a business of promoting prostitution for commercial gain and was funded by advertising fees from prostitutes.[46]
37. As to the conspiracy, the Judge held that “the agreement to take part in and operate such a website with knowledge that it does operate on that basis would constitute the offence of a conspiracy to live on the earnings of prostitution”.[47]
38. The Judge went on to deal with the evidence regarding the appellant’s involvement in sex141. The Judge found that the appellant was “the payee of sex141.com’s essential service”[48] and that he performed senior management functions relating to its operations. He noted that the evidence showed the appellant was making a monthly payment through his credit card from July 2007 to August 2012 to a company called Softlayer which provided the IP address of the server used for the domain name sex141. The evidence also showed the appellant had been communicating via WhatsApp with D9, who was the authorised person having access to and control over the server which hosted sex141. These messages concerned the operation of the server, as well as the username and password of sex141.[49]
CACC 368 of 2016
39. Mr David Perry, KC[50], represented the 1st and 2nd appellants in this appeal and advanced the following grounds of appeal on their behalf.[51]
In respect of Charge 1:
(1) The Judge erred in law by considering the test as being that “where the money received by an accused is referable to and closely connected with prostitution or intended prostitutions” would amount to “earnings of prostitution of others.” The income of the 1st appellant was not capable in law of amounting to the “earnings of prostitutions of another.” The proper consideration, as stated in Shaw v DPP[52], should be ‘where service is of its nature referable to prostitution and to nothing else … a man who advertises prostitutes and receives payments from them for doing so embarks with them on a joint venture the object of which is that they may earn money by prostitution and in turn pay him for his services’ (emphasis applied). The test as stated in R v Stewart[53], should be ‘whether the fact of supply means that the supplier and the prostitutes were engaged in the business of prostitution together’ (emphasis applied). Although it is not an element of the offence that the reward the 1st appellant received must come from the prostitutes, the prosecution has to prove that the reward he obtained was derived from the earnings of prostitutions.
(2) The Judge erred in law in convicting the 1st appellant as there was no evidence to establish any reward or income or earnings (i.e. payment from the male member) received by the 1st appellant was derived from the earnings of prostitution. There is no evidence that any reward from the male member was earned by reason of prostitution.
(3) Further or in the alternative, the Judge erred in law to conclude that ‘the money that D1 [the 1st appellant] had obtained from male members of hkbigman was referable to and so closely connected with prostitution or intended prostitution of its female members that it amounts to “earnings of prostitution” of others’ and thereby convicted the 1st appellant whereas the evidence did not establish the Charge in that:
(a) there is no evidence that the 1st appellant made any introduction or arrangement for any male member to meet with any female member;
(b) there is no evidence that the 1st appellant took part or participated in any contact or negotiation between male and female members;
(c) there is no evidence that the 1st appellant exercised any control, direction or influence in relation to any female member;
(d) there is no evidence that the 1st appellant had any concern as to any sexual transaction that occurred or took place between any male and any female member; and
(e) there is no evidence that the 1st appellant had any reward or financial interest or earnings from any sexual transaction between any male and any female member.
(4) Section 137(1) of the Crimes Ordinance, to the extent that it is not focused solely on exploitative behaviour or exercising control, direction or influence over women for the purposes of prostitution, is inconsistent with Articles 30 and 33 of the Basic Law and Articles 5(1), 14 and 16 of the Hong Kong Bill of Rights provided in s.8 of the Hong Kong Bill of Rights Ordinance, and unless remedially interpreted by a reading down to include only the aforesaid, is unconstitutional.
In respect of Charge 2:
(5) Since no offence of living on earnings of prostitution of another could be made out against the 1st appellant, the 2nd appellant could not be shown to have aided, abetted, counselled and procured the 1st appellant’s offence. The 2nd appellant repeats the previous grounds, and thereby, the Judge erred to convict him of Charge 2.
(6) In all the circumstances, the conviction was unsafe and unsatisfactory.
40. By these grounds of appeal the appellants challenge the terms and scope of the offence of living on the earnings of prostitution by arguing that it should be given a narrow interpretation that is consistent with the construction of the section and not inconsistent with the constitutional rights of freedom of choice of occupation and protection of privacy of the appellants as well as the right to the safety and personal security of prostitutes.
41. Mr Abraham Chan, SC,[54] for the respondent, argued that the Judge applied the correct test in determining whether the income derived by the appellants was the “earnings of prostitution” and was right to rule that “direction, influence and control” was not an element of the offence. He further argued that the so-called “wide interpretation” adopted by the Judge did not encroach on any of constitutional rights as alleged by the appellants.
42. This appeal raises for consideration the statutory construction and constitutional validity of s.137.
The statutory construction of section 137
43. We turn to address the grounds of appeal that concern the statutory construction of s.137.[55]
44. The prosecution case against the appellants and the other defendants was that they were involved in a conspiratorial enterprise to derive income from an adult forum which facilitated the provision of sexual services by prostitutes to its male members upon payment of membership fees and other fees for information about the prostitutes. The income was alleged to constitute the “earnings of prostitution”.
45. The appellants argued that the income from the website did not come from female members but from male members who made payments not for sex but for browsing information about female members and making requests to meet them.
46. It was argued that the 1st appellant was wrongly convicted for the offence of living on the earnings of prostitution as there was no evidence to establish any reward or income or earnings received by him or derived from the earnings of prostitution, nor that any reward from a male member was earned by reason of prostitution. In particular, there was no evidence that the 1st appellant (a) made any introduction or arrangement for any male member to meet with any female member; (b) took part or participated in any contact or negotiation between the male and the female members; (c) exercised any control, direction or influence in relation to any female member; (d) had any concern as to any sexual transaction that occurred or took place between any male and any female member; and (e) had any reward or financial interest or earnings from any sexual transaction between any male and any female member.
47. It was further argued that since the 1st appellant’s conduct was not illegal, the 2nd appellant could not be found guilty of assisting in operating the adult forum.
48. The appellants questioned the parameters of the offence under s.137(1) and submitted that a narrow interpretation was correct for the expression “earnings of prostitution”. They argued that the prosecution had relied upon an expression to broaden the scope of liability for the offence. They contended that the law must focus on the exploitation of a person for the purpose of prostitution or where there is control, direction, or influence over the movements of a prostitute. They further contended that adopting a wide interpretation would extend the liability of the offence and lead to uncertainty in its application and operation.
49. In addressing the statutory interpretation of s.137, it is appropriate to briefly state the general principles. The approach should be purposive, construing the statutory language having regard to its context and purpose. Since the contextual and purposive construction is a tool to aid or assist the court in arriving at an interpretation that gives effect to the legislative intent, one must always have regard to the particular words by the legislature in expressing its will: Town Planning Board v Town Planning Appeal Board[56]. It follows that a court cannot attribute to a statutory provision a meaning which the language of the statute, understood in light of its contexts and the statutory purpose, is incapable of bearing: HKSAR v Fugro Geotechnical Services Limited[57].
50. The appellants complained that on a plain reading of s.137(1), the offence has a broad reach covering a wide range of individuals “ranging from touts and pimps to dependant family members of the prostitute.”[58] It was their primary submission that the expression “earnings of prostitution of another” in the section should be given a narrow interpretation. They argued that the offence is confined to an individual who exerts actual control or influence over the person or exploits the person for the purpose of prostitution (the narrow interpretation). They submitted that when s.137(1) is read with s.137(2), the expression is not apt, nor is it intended to extend to an individual who profits from or is involved in the activities of a prostitute but without actually controlling any of those activities. They complained that the Judge wrongly widened the meaning of the expression when he concluded “’direction, influence and control’ is only a piece of evidence, rather than an element of the offence, the absence of which is not necessarily fatal to the prosecution”, and adopted a test of “referable to and closely connected with prostitution or intended prostitution” (the wide interpretation).[59]
51. The appellants referred to the Canadian case of Attorney General of Canada v Bedford[60], where the Supreme Court of Canada held that an offence in similar terms was overbroad. They also pointed to the legislative history of s.137, which they said revealed the offence was aimed at the “problem of exploitation, control, direction or influence over women or girls for the purpose of prostitution”.[61] They argued that in addition to the parasitic nature of the offence as emphasised by Lord Reid in Shaw, the receipt of monies “must be shown to be so closely connected with the exercise by [the defendant] of direction, influence or control over the movements of prostitutes that it could clearly and fairly be said to be earnings of prostitution” as stated by Lord Roskill in Ansell. They contended that the Court of Appeal in Farrugia was wrong in explaining and correcting the remarks in Ansell.
52. Furthermore, the appellants submitted that there had to be a symmetry between the absence of a prohibition on, for example, a one-woman-brothel and the criminalisation of living on “earnings of prostitution of another”. This was illustrated by a landlord who knowingly leased premises to a person to be used as a one-woman-brothel, being within the contemplation of the offence provision on the wide interpretation given to s.137(1) by the Judge. It was submitted that the landlord would not be in the “exploitative” category, and there was no reason why his act of leasing his property for rent should be criminalised. Accordingly, s.137(1) should be given an interpretation to limit its effect.
53. According to the appellants, the boundaries of the phrase “earnings of prostitution of another” are imprecise. As this concerns a penal statute, they argued that the terms of s.137 should not be unfairly stretched to include circumstances not naturally falling within the provisions.
54. The respondent submitted that the appellants have misunderstood the precise ambit of the offence as interpreted by the Judge. It was complained that the appellants have created a straw man argument by asserting the Judge’s “wide interpretation” would bar prostitutes from hiring drivers, receptionists and bodyguards, who could increase the safety of prostitutes, and set against it their construction of the offence which focuses exclusively on exploiters and parasites. The respondent argued that the Judge’s interpretation need not cover those persons who are not exploiters, provided that the facts are approached with common sense and regard to the legislative purpose. The respondent further argued, correctly in our view, that the case law has clearly defined the ambit of the offence and its application.
55. The respondent submitted that the aim of s.137 is to protect females and vulnerable persons from exploitation and that it was not helpful to consider legislative changes in other jurisdictions without appreciating the conditions that prevailed at the time. It was further submitted that s.137(2) did not narrow the scope of s.137(1) but provided the prosecution with evidentiary presumptions to prove the offence, as explained by Viscount Simonds in Shaw. It was contended that s.137(1) is cast in wide terms because there were many situations whereby a defendant could be said to be living on the earnings of prostitution of another.
56. Upon a review of the relevant authorities, the respondent submitted that the Judge properly defined the meaning of “earnings of prostitution” and correctly followed Farrugia regarding its explanation of the decision in Ansell. It was accepted by the respondent that there is a parasitic and exploitative aspect to the criminality involved in the offence, but to require “control” in every case would make s.137(1) superfluous.
57. Whether or not someone is living wholly or in part on the earnings of prostitution is a question of degree to be determined by a tribunal of fact. It was the respondent’s submission that hkbigman was not a mere social platform or dating website but a medium to exploit and profit from the sexual services provided by prostitutes.
58. The appellants contended that the legislative history of the evolution of the section also supports a narrow interpretation of the offence. We do not agree. The offence under s.137(1) has its origins in s.8 of The Protection of Women and Girls Ordinance, 1897, which referred to “proceeds” rather than “earnings” of prostitution and contained no presumptive provision. However, a man proved to be living with or habitually in the company of a prostitute and who had “no other visible means of subsistence” was deemed to be “knowingly living on the earnings of prostitution”. The Ordinance was amended in 1914 to include, amongst other things, the evidentiary presumption that is in s.137(2) and the removal of the requirement to prove the absence of “no other visible means of subsistence”.
59. The amendment was clearly not an element of the offence, but another way to prove it by establishing that an accused has exercised control, direction or influence of the movements of a prostitute in such a manner so as to show that he was aiding, abetting or compelling her prostitution: see Leung Chor v R[62].
60. Under s.137(1), the prosecution must prove the actus reus that the defendant lives wholly or partly on the earnings of prostitution and the mens rea that the defendant knowingly lives wholly or partly on the prostitute’s earnings. Section 137(2) provides an evidentiary presumption to prove the offence is committed. It presumes that the defendant is living on the earnings of prostitution and that he is doing so knowingly: R v Clarke[63].
61. In our view, s.137(1) is necessarily framed in general terms to cater for the myriad of circumstances in which a defendant could be living on the earnings of prostitution of another. However, the offence focuses on the parasitic or exploitative aspect of the relationship between the offender and the prostitute. The mischief it aims to address is any system or instrument of exploitation of sex workers, which seeks to make money out of them by taking advantage of their work and the vulnerable circumstances in which they operate and conduct their trade.
62. It is appropriate at this juncture to consider in detail the relevant authorities in understanding the construction and ambit of s.137.
63. In Shaw, the appellant published a booklet that advertised the sexual services of prostitutes with their contact details. The prostitutes paid for the advertisements and the appellant derived a profit from the publication. It was held by the House of Lords that a person might fairly be said to be living in whole or in part on the earnings of prostitution if prostitutes paid him for goods or services supplied by him to them for the purpose of their prostitution which he would not supply but for the fact that they were prostitutes. This was fully explained in the leading judgment of Viscount Simonds:[64]
“ ‘(2) For the purposes of this section a man who lives with or is habitually in the company of a prostitute or who exercises control direction or influence over a prostitute’s movements in a way which shows he is aiding or abetting or compelling her prostitution with others shall be presumed to be knowingly living on the earnings of prostitution, unless he proves the contrary.’
This section stems from section 1 of the Vagrancy Act, 1898 , as amended by section 7 of the Criminal Law Amendment Act, 1912. The earlier of these two Acts was itself an amendment of the Vagrancy Act, 1824, but I do not think any assistance is to be derived from a consideration of its ancestry. The Act of 1824 may be regarded as a convenient peg on which to hang divers offences to which the words ‘vagabondage and roguery’ would not be entirely appropriate. Nor do I think that subsection (2) can throw much light on the meaning of the words ‘lives on the earnings of prostitution’ in subsection (1). It was at one time argued that the two subsections were coextensive, but this argument was abandoned by Mr. Rees Davies who presented the appellant’s case with candour and ability. It is, I think, clear that the second subsection is probative and explanatory of the first but not an exhaustive definition of it.
What, then, is meant by living in whole or in part on the earnings of prostitution? It was not contended by the Crown that these words in their context bear the very wide meaning which might possibly be ascribed to them. The subsection does not cover every person whose livelihood depends in whole or in part upon payment to him by prostitutes for services rendered or goods supplied, clear though it may be that payment is made out of the earnings of prostitution. The grocer who supplies groceries, the doctor or lawyer who renders professional service, to a prostitute do not commit an offence under the Act. It is not to be supposed that it is its policy to deny to her the necessities or even the luxuries of life if she can pay for them.
I would say, however, that, though a person who is paid for goods or services out of the earnings of prostitution does not necessarily commit an offence under the Act, yet a person does not necessarily escape from its provisions by receiving payment for the goods or services that he supplies to a prostitute. The argument that such a person lives on his own earnings, not on hers, is inconclusive. To give effect to it would be to exclude from the operation of the Act the very persons, the tout, the bully or protector, whom it was designed to catch. For they would surely claim that they served the prostitute, however despicable their service might seem to others. Somewhere the line must be drawn and I do not find it easy to draw it. It is not enough to say that here are plain English words and that it must be left to a jury to say in regard to any particular conduct whether the statutory offence has been committed. I have said enough, for instance, to show that the wider meaning of which the words are clearly capable is inadmissible. The jury should be directed that some limitation must be put upon the words. What is the limitation?
My Lords, I think that (apart from the operation of subsection (2)) a person may fairly be said to be living in whole or in part on the earnings of prostitution if he is paid by prostitutes for goods or services supplied by him to them for the purpose of their prostitution which he would not supply but for the fact that they were prostitutes. I emphasise the negative part of this proposition, for I wish to distinguish beyond all misconception such a case from that in which the service supplied could be supplied to a woman whether a prostitute or not. It may be that circumstances will be equivocal though no example readily occurs to me. But a case which is beyond all doubt is one where the service is of its nature referable to prostitution and to nothing else. No better example of this could be found than payment by a prostitute for advertisement of her readiness to prostitute herself. I do not doubt that a person who makes a business of accepting such advertisements for reward knowingly lives in part on the earnings of prostitution.
In one of the cases to which I shall refer a person receiving payment from a prostitute for services rendered by him is described as her coadjutor, and in another as trading in prostitution. These expressions indicate the distinction that I have in mind though neither of them accurately defines a legal relation. Thus a man who advertises prostitutes and receives payment from them for doing so embarks with them on a joint venture the object of which is that they may earn money by prostitution and in turn pay him for his services. No doubt, all that he is paid is not profit, for he has the expenses of publishing. But his net reward is the direct and intended result of their prostitution. If he had no other means of livelihood it would be truly said that he lived on their earnings: if he had other means, he would be doing so in part.” (Underling emphasises the quotes in Ground 1)
64. Lord Reid, in his judgment, emphasized that the mischief the offence sought to address was against those persons who live parasitically on prostitutes. He said:[65]
“The mischief is plain enough. It is well known that there were and are men who live parasitically on prostitutes and their earnings. They may be welcome and merely cohabit, or they may bully women into earning money in this way. They prey or batten on the women. Such men are clearly living on the earnings of prostitution: if they have or earn some other income then they are living in part on such earnings. The question, to my mind, is how much further the Act must be held to go, bearing in mind that it is a penal statute and therefore should not be extended to apply to cases which its terms do not clearly cover.
Such men may render services as protectors or as touts, but that cannot make any difference even if their relationship were dressed up as a contract of service. and a man could not escape because he acted in some such capacity for a number of women. His occupation would still be parasitic: it would not exist if the women were not prostitutes. It appears to me that the accused in this case comes well within this class. His occupation of gathering and publishing these advertisements would not exist if his customers were not prostitutes. He was really no more than a tout using this means of bringing men to the prostitutes from whom he received money.
If this were an ordinary case I would be content to leave it there because, if I go further, I am in effect prejudging cases which are not before us and of which the facts may be beyond the sphere of common knowledge. But I appreciate the desirability of giving some general guidance as to the meaning of this Act. So I pass to my second question, the natural meaning of the words in the Act. ‘Living on’ normally, I think, connotes living parasitically. It could have a wider meaning, but if it is to be applied at all to those who are in no sense parasites, then I think its meaning must be the same whether we are considering the earnings of prostitution or of any other occupation or trade.”
65. After a review of Shaw and several other cases, Mustill LJ in Stewart distilled the ambit of the offence as follows:[66]
“According to the literal meaning of the section any person who supplies goods or services to a prostitute is in one sense living off the earnings of prostitution: for in part he earns his livelihood from payments which the woman would not be able to make but for her trade. This cannot be the right view. There has to be a closer connection between the receipt of money and the trade before the recipient commits an offence. We doubt whether it is possible to devise a definition of the type and closeness of the necessary connection which will deal with all the circumstances which may arise; and, indeed, it is dangerous to treat words or phrases from judgments delivered in relation to one set of facts, as if they provided a statutory gloss which can be reliably applied to facts of a quite different nature. Thus, for example, although expressions such as ‘co-adjutor’ and ‘joint venture’ will, at least if translated into layman’s language, often give the jury valuable guidance as to the criteria which they are to apply, they will not always provide a solution, for both common sense and the language of subsection (2) suggest that a man who lives with a prostitute and is supported by her is living on her earnings even though he plays no part at all in the running of her trade.
Subject to this reservation, we believe that an approach which will often be useful is to identify for the jury the flavour of the words ‘living off’, and then to express this general concept in the shape of guidance more directly referable to the case in hand. In our judgment, the word ‘parasite’ (to be found in the speech of Lord Reid in Shaw v. D.P.P. (1961) 45 Cr. App. R. 113, 151; [1962] A.C. 220, p. 270 ), or some expanded equivalent, provides a useful starting point for this exercise, and does express a concept which accounts for all the reported cases with the exception of Silver ( supra ).
Adopting this general approach, and dealing specifically with a defendant who supplies goods or services to a prostitute, a good working test, sufficient to deal with many cases, is whether the fact of supply means that the supplier and the prostitute were engaged in the business of prostitution together: and ‘the fact of supply’ will include the scale of supply, the price charged and the nature of the goods or services. It will be impossible to say in advance that certain categories of supplier must necessarily fall outside the section, any more than that other categories must be within it, but the idea of participation in the prostitute’s business will enable the jury to distinguish readily between (say) the supplier of groceries on one hand and the publisher of prostitutes’ advertisements on the other. There will remain a residue of more difficult cases, and these include the situation where the premises are let at a market rent with knowledge of the purpose to which they are to be put. We see no room here for any rule of thumb distinction between premises which are or are not let at abnormally high rates. Certainly, the jury will find it easier to infer in the former case that the lessor participates in the woman’s earnings: either because, as Lord Reid suggested, the margin between the actual and the market rents directly constitutes the lessor’s share of the receipts, or because the payment of such a high rent is explicable only in terms of a common business of prostitution. We can, however, see no logic in the suggestion that the lessor cannot be convicted unless the rent is exorbitant and indeed the judgment of Ashworth J. in Shaw v. D.P.P. (at p. 120 and p. 230), and the speech of Lord Simonds in the same case (at p. 145 and p. 265—see the words ‘whatever the rent’) are authority for the view that the presence or absence of this factor is not conclusive. Nor in our opinion is the question whether the premises are occupied or capable of occupation as residential premises to be taken as the touchstone.” (Emphasis added and the underlining emphasises the quote in Ground 1)
66. As appropriately observed by Mustill LJ, it would not be right to apply a literal meaning to the section as “any person who supplies goods or services to a prostitute is in one sense living off the earnings of prostitution: for in part he earns his livelihood from payments which the woman would not be able to make but for her trade.” He explained that the correct view was that there has to be a closer connection between the receipt of money and the trade before the recipient commits the offence.[67] He set out a “good working test” when dealing with a defendant who supplied goods or services to a prostitute.
67. The appellants contended that the Judge had erred by not treating “direction, influence or control” as an ingredient of the offence. They rely on Ansell in support of their contention. In that case, the defendant inserted advertisements directed at men in a magazine called His and Hers. He provided the contact details of prostitutes to men who answered his advertisements for reward. He received no money from any prostitute and was not concerned whether any sexual services had taken place. It was also emphasised that he did not control or direct the movements of the prostitutes in any way.[68]
68. Roskill LJ, giving the judgment of the Court of Appeal, said that based on the authorities, the judge in that case should “… have told the jury that, while the fact that the money came from the men and not from the women did not in law prevent this money being the earnings of prostitution, before they could hold that it was, its receipt must be shown to be so closely connected with the exercise by the appellant of direction, influence or control over the movements of prostitutes that it could clearly and fairly be said to be the earnings of prostitution. Yet this was a conclusion which the evidence could not support. …”[69] (Emphasis added).
69. Roskill LJ, in his judgment, was assessing whether the facts of the case fell within the provisions of the section, noting that some connection was not enough to prove the offence. However, he added, “It equally would not (following Calvert v Mayes (supra)) have been correct to have told the jury that the mere fact that the money came from the men and not from the prostitutes itself justified acquittal.”[70]
70. It is noteworthy to examine Calvert briefly. In that case, the defendant provided board and lodging to a prostitute who, in return, would bring at least one man a week to the house for sexual services, and the defendant would take two pounds from the man she brought back. Lord Goddard CJ said that the defendant was exactly in the position of a brothel keeper who keeps girls on the premises and takes money from people who come to the brothel. It was said by Sellers J that the defendant was trading in prostitution, a phrase that Viscount Simonds in Shaw said was an “apt if colloquial way of describing a person who lives on the earnings of prostitution.”
71. The reliance by the appellants on Ansell is misplaced because the court was not stating as a proposition of law that an element of the offence was that the prostitute was under the “direction, influence or control” of the defendant. This was explained by the Court of Appeal in R v Farrugia[71], which stated that the court in Ansell was merely saying that where there was direction, influence or control, a jury could infer that the money received from an arrangement under which prostitution was to take place was the earnings of prostitution. Lawton LJ said:[72]
“The test which was applied in Ansell was this: if the money came from the men with whom the prostitutes were dealing and not from the prostitutes themselves, that fact did not in law prevent the money being the earnings of prostitution, but before a jury could hold that it was, ‘its receipt must be shown to be so closely connected with the exercise by the defendant of direction, influence or control over the movement of prostitutes that it could clearly and fairly be said to be the earnings of prostitution’: see p. 50 … This test cannot mean, and we infer that Roskill L.J. did not intend it to mean, that the exercise of direction influence or control over prostitutes can turn money which is not the earnings of prostitutions into such earnings; but it may be evidence from which a jury could infer that money received from an arrangement under which prostitution was to take place was the earnings of prostitution.”
72. It is useful to refer to the facts in Farrugia, which was similar to the present case in that the appellants had not received monies directly from prostitutes. It concerned a business in which cab drivers conveyed prostitutes to customers. The prostitutes would assemble nightly at an escort agency, waiting for assignments. The cab drivers, in turn, waited to take the prostitutes to their customers. A driver would be asked to take the girl to a hotel, introduce her to the agency’s customer, collect from the customer the agency’s fee plus the cab fare and return to the agency, where the fee would be handed over to the operators of the agency. The cab drivers kept the cab fee for themselves. The Court of Appeal held that the appellants (the operator of the business, an assistant and two cab drivers) must have known what the girls intended to do and that what they got from introducing the girls to their customers came from the intended prostitution. This was properly regarded as the earnings of prostitution.[73]
73. Another noteworthy case is Howard, in which the appellant produced cards and adhesive stickers to be used by prostitutes to advertise their services and telephone numbers. He knew that his products were to be used by the prostitutes to obtain clients and that the payment he received came from the earnings of prostitution. Lord Lane CJ applied Shaw and held that the facts fell within the definition of the offence.[74]
74. From a review of the authorities, it is clear that a distinction is to be drawn between a service which could be supplied to a woman, whether a prostitute or not, and one which by its nature is referable to prostitution and nothing else, although the latter would be a clear and obvious case of earnings of prostitution.[75] A general and good working test when dealing specifically with a defendant who supplies goods or services to a prostitute is whether the fact of supply means that the supplier and the prostitute were engaged in the business of prostitution together; and “the fact of supply” will include the scale of supply, the price charged and the nature of the goods or services. The “idea of participation” in the prostitute’s business will enable the jury to distinguish readily between the supplier of groceries on the one hand, and the publisher of prostitutes’ advertisements on the other.[76]
75. The crux of the appellants’ argument was that the offence under s.137(1) is too wide because it criminalizes anyone who receives funds from a prostitute, whether as payment for ordinary services or living expenses for dependant family members. We agree with the respondent’s submission that this is not a realistic view of the terms or scope of the offence when the facts are approached with common sense and due regard to the purpose of the legislation.[77] As stated in Shaw and Stewart, the relationship between the defendant and the prostitute must be parasitic or exploitative, while the defendant’s reward is the direct and intended result of the prostitution of another.[78] In this sense, there must be a close connection between the receipt of money and the trade before the recipient commits an offence.[79]
76. In R v Grilo[80], Arbour JA explained that an element of exploitation was essential in the concept of living on the earnings of prostitution (stated in Canada as “living on the avails of prostitution”) and would not include a prostitute financially supporting a family member or the ordinary disposition of her income. Where the prostitute owes a moral or legal obligation towards the recipient to support the latter, the relationship is unlikely to be parasitic or exploitative in nature.[81]
77. We note that the Judge’s remark that the money received by an accused “is referable to and closely connected with prostitution or intended prostitution” was made when he was addressing the defence contention that the meaning of “earnings of prostitution” was limited to earnings of the prostitute only. He made this remark after he had examined the relevant case authorities on this issue and rightly rejected the defence contention.[82] It would appear that the defence submission at trial is no longer maintained as it was acknowledged in the first ground of appeal that it is not an element of the offence that the reward must come from the prostitutes.
78. Furthermore, the Judge was clearly mindful of the exploitative or parasitic relationship between the accused and the prostitute as he quoted with approval the judgment by Lord Reid in Shaw and the test by Mustill LJ in Stewart.[83] He also rejected the defence contention that “control” of the prostitute by an accused was an element of the offence (the narrow interpretation).[84] The common law interpretation given by the Judge is consistent with a strong line of authority, and there is no justification for incorporating the element of “control” in the offence under s.137(1) by virtue of s.137(2).
79. We reject the appellants’ submission that the ambit of the offence provision is unfairly wide and will catch persons who are not exploiting prostitutes. It is appropriate to refer to the Court of Final Appeal’s remarks in Mo Yuk Ping v HKSAR[85], addressing the width of the common law offence of conspiracy to defraud on the basis that it offended the principle of legal certainty. The Court held that the need for a general offence in this area of criminal law was generally accepted and noted, amongst other things, that with the interpretation of statute law, it is inevitable that questions arise which require clarification by judicial decision. The point was made that some degree of vagueness is inherent in the formulation of laws, especially those expressed in general terms, which may require clarification by the courts[86]. As we have already pointed out, a strong body of authority has considered this offence provision, addressing its terms and application.
80. We also point out that the quoted remarks from Shaw and Stewart in the first ground of appeal should be read in context. When Viscount Simonds said that the service should be “referable to prostitution and to nothing else” he prefaced his remarks by saying that this would be a case “beyond all doubt”. When he commented about “a joint venture”, he was referring to circumstances where a person received payment from a prostitute for services rendered by him. He was not saying this had to be an essential requirement to constitute the “earnings of prostitution of another” as suggested by the appellants. When Mustill LJ set out “a good working test” in respect of a defendant who supplies goods or services to a prostitute, he explained that a useful starting point was to consider the parasitic nature of the relationship between them and by adopting this general approach, apply the test he suggested which would be sufficient to deal with many cases. He further explained that “the idea of participation” in the prostitute’s business will enable the jury to distinguish readily between a supplier of groceries on the one hand and the publisher of prostitutes advertisements on the other, adding that there will remain a residue of more difficult cases.
81. Whilst the income derived from hkbigman were fees paid by male members, the purpose and structure of the website were to facilitate the provision of sexual services by female members to male members. There was an appropriate level of participation by the operators of the website in the business of the prostitutes. We are satisfied that the earnings were derived from the exploitation of the prostitutes and come within the terms of the “earnings of prostitution” as discussed by the relevant authorities.
82. Rejecting the appellants’ submission on the width of the offence provision will have a significant bearing on aspects of the appellants’ arguments in the constitutional challenge.
83. Mr Perry challenged the validity of s.137(1) primarily because the “wide interpretation” of the section by the Judge encroached upon various constitutional rights. He submitted that the offence is not proportional to the aims it seeks to achieve, and unless it is remedially interpreted the section should be struck down.[87]
84. The constitutional argument was advanced on two bases. The first was that the appellants have freedom of choice of occupation under BL33 (freedom of choice of occupation) and a right to privacy or a private life under BL30 (freedom and privacy of communication) and BOR14 (protection of privacy), which provides a derivative right to work, and that these rights have been encroached because s.137(1) bars the appellants from conducting work of their choice, namely setting up and operating hkbigman.
85. The second was that prostitutes have a right to safety and personal security under BOR5(1) (right of liberty and security) and BOR14 (right to private life, which provides a derivative right to personal security or protection from violence), which have been encroached by s.137(1) because prostitutes will be prevented from hiring persons to provide them with protection and security or operating through a secure environment as offered by hkbigman.
86. Mr Perry maintained that the “narrow interpretation” was the correct interpretation of the scope of the expression “earnings of prostitution of another” in the offence provision under s.137(1). He argued that on this interpretation the money received by the 1st appellant from male members was incapable in law to be “earnings of prostitution of another”, and thus there was no criminal act which the 2nd appellant had aided or abetted. He further argued that the offence provision would have a broad reach because of the Judge’s rejection of “direction, influence and control” as an element of the offence, and adoption of a test of “referable to and closely connected with prostitution or intended prostitution” for earnings to be “earnings of prostitution”.
87. In particular, it was argued that the “wide interpretation” would outlaw many instances of the provision, for gain, of goods or services by others to a prostitute and was an encroachment on the freedom of choice of occupation of such persons guaranteed by BL33 and/or BOR14; and would further outlaw the provision, for gain, of services provided by others which relate to the security or physical integrity of a prostitute, in particular, a person who works in a one-woman-brothel or otherwise works alone and was an encroachment on rights guaranteed by BOR5(1) and BOR14.
88. It would appear that the appellants’ constitutional arguments are based on the assumption that if the Court rejected the “narrow interpretation” it must have adopted the “wide interpretation” as suggested by them. As is apparent from our conclusion upon a review of the authorities, we have not endorsed the “wide interpretation” given to s.137(1) by the appellants because, in our judgment, the offence provision is directed at an exploitative or parasitic relationship between the accused and the prostitute. It is primarily on the basis of the “wide interpretation” given by the appellants to s.137(1) that they argue various constitutional rights have been encroached.
89. Two key issues arise from the constitutional arguments that we have to address. First, whether the rights identified by the appellants exist as defined by them. Secondly, whether the rights have been encroached, and if so, the nature and degree of such encroachment. Central to the issue of the encroachment of these rights is the “wide interpretation” of s.137(1), which is said to catch persons not exploiting prostitutes. It would seem to us that once the “narrow interpretation” as submitted by the appellants is rejected, the arguments advanced by them on the encroachment of those rights largely fall away.
90. We will examine the nature of each right and the alleged encroachment submitted by the appellants in turn.
Freedom of choice of occupation (BL33 and BOR14)
91. It is provided under BL33 that Hong Kong residents shall have freedom of choice of occupation.
92. It was accepted by the appellants that their case on BL33 was contrary to the Court of Appeal decision in Leung Sze Ho Albert v Bar Council of the Hong Kong Bar Association (Albert Leung)[88], which held that BL33 only protects against conscription to particular fields of occupation, and does not confer a right to work in general. In reaching that view, the Court explained that it followed the decision of the Court of Final Appeal in GA v Director of Immigration (GA)[89], which upheld the Court of Appeal’s decision in that case of MA and Others v Director of Immigration (MA)[90]. The appellants also accepted that the freedom of choice of occupation was not an absolute right as it could be subject to restrictions based on the proportionality test. However, they argued that they had the freedom to engage in occupation by setting up a dating website, and it would be overly restrictive not to allow them to do it because activities in the sex trade were also taking place. It was contended that the restriction was unjustified given the evidence in the case, which showed that the website was not exploitative of prostitutes. As to this aspect of the constitutional challenge, the main focus of the appellants’ submission questioned the basis of the decision in Albert Leung and analysed the reasoning in GA in the context of adopting a purposive interpretation to BL33.
93. In his submission, Mr Perry referred to the comments of Cheung CJHC (as he then was) in Albert Leung that it was arguable on a generous interpretation of BL33 that it comprised two limbs, “first, a resident shall not be forced to work in any or any particular field of occupation against his wish. Secondly, a resident shall have the freedom to work in any or any particular field of occupation of his choice (assuming work is otherwise available and he is otherwise qualified to do so etc.). This second limb, it should be pointed out, is quite different from, and indeed far less extensive in content than, a right or guarantee that there will be available employment to take up, or in other words, a general right to work. The latter is a right guaranteed under art. 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which thus far has no domestic force.”
94. Mr Perry noted that the two limbs accorded with the judgment on appeal from G Lam J (as he then was), who was of the view that the freedom curtailed where a person is compelled to take up an occupation against his wishes, and where he is prevented from pursuing an occupation of his choice. [91] Whilst G Lam J did not consider the judgment in GA stood against his interpretation of BL33 by the inclusion of the second limb, Cheung CJHC was of the view that GA, having cited with approval the Court of Appeal judgment of Fok JA (as he then was) in that case of MA, ruled out the possibility of BL33 having the second limb.
95. Poon JA (as he then was) gave the leading judgment in Albert Leung, with whom Cheung CJHC and Barma JA agreed, and after analysing the reasoning in GA, concluded that BL33 did not confer a general right to work. He had previously said that a proposition which could be distilled from GA was that, “BL33, on a proper construction, only protects against conscription to particular fields of occupation. It does not confer a right to work in general.”[92] It would appear the appellants take issue to the suggestion from these remarks that BL33 only protects against conscription to particular fields of occupation.
96. The background circumstances of GA were that the appellants, three mandated refugees and one torture claimant, challenged the refusal of the Director of Immigration to grant them permission to work in Hong Kong. The question was, therefore, whether they had a “right to work” under common law or BL33, which was a wider right than that contained in the second limb. Mr Perry submitted that whilst the appellants in GA relied on BL33 as part of their case, it was concerned, not with the second limb, but with an alleged wider right, “being a right to take up any kind of work at all, or a right to be guaranteed a job or occupation, but not about the right to choose the kind of work that is preferred by a resident who otherwise has a right to take up work.”
97. Mr Perry contended that nothing in the judgments of the Court of Appeal in MA and the Court of Final Appeal in GA supported a narrow construction which excluded the second limb. He referred to the judgment of Fok JA in MA, with whom the other judges agreed, where he said, “the right conferred by BL33 is a passive or negative right of freedom to choose an occupation, but does not imply a right to take up available employment in the first place. Nor does it confer an unqualified right to obtain employment, which is necessarily subject to market forces and also subject to legal constraints, such as visa and qualification requirements.”[93] In a footnote to this paragraph, Fok JA further explained that, “the right being ‘passive or negative’ in the sense of prohibiting any interference with the freedom of choice as opposed to imposing an active or positive duty on the part of the Government to provide an employment.”[94] However, we should point out that in the preceding paragraphs, Fok JA rejected a wide construction of BL33, stating that in his opinion “a right to choose one’s occupation is narrower than a right to work in general”. He explained that the freedom of choice of occupation is only part of the wider right to work and if it was intended to confer on BL33 more than a freedom of choice, the wording of the article would have been different. He further noted that his conclusion was “consistent with previous cases dealing with BL33 which have held that its effect is not to guarantee a right to be employed either generally or in any particular field, but instead, is to protect against conscription to particular fields of occupation”.[95]
98. Ma CJ, in GA, with whom the other judges agreed, held that BL33 “does not refer to the right to work in general. It is much narrower than that, dealing only with the freedom of choice of occupation. If it was intended that a wider right was to exist, the article would simply have said so or it would have been made much clearer, rather than to adopt a somewhat elliptical technique.”[96] He then cited and approved the reasoning of Fok JA and his conclusion as to the construction of BL33.[97]
99. It was acknowledged by Mr Perry that under BL33 a resident does not have a positive right to take up or obtain an employment, and the Government has no positive obligation to ensure that a resident can and is in a position to obtain employment if he so wishes. However, he submitted that a resident has a right not to have his own choice of employment or occupation interfered with by the Government unless such interference is prescribed by law and justified under the proportionality test. He said that the right is “negative” in the sense that it is a right to require the Government not to do anything to interfere with, diminish or take away what a resident chooses to do as an occupation.
100. Mr Perry contended that the Court of Appeal in Albert Leung had misapplied and misunderstood GA, and was plainly wrong, in so far as it found that GA had ruled against the second limb.[98] It was submitted that this Court should rule that “the [1st appellant’s] right and freedom to choose to engage in the occupation of establishing, operating a managing hkbigman, and the [2nd appellant’s] right and freedom to assist in the management and operation of hkbigman, are constitutionally guaranteed by BL33 and section 137(1), as interpreted by the learned judge, is an encroachment on this right and freedom and so: (i) the narrow interpretation should be adopted as opposed to the wide interpretation; and (ii) if widely interpreted, unless justified by the respondent here or, failing that, remedially interpreted, must be struck down. It is submitted that the encroachment is not justifiable and a remedial interpretation ought to be given to section 137(1) so that it would only operate on the basis of the narrow interpretation and does not apply to the [1st appellant] (and therefore the [2nd appellant] would escape accessory liability as well).”[99]
101. The appellants also relied on BOR14 in support of their contention that their freedom of choice of occupation had been encroached by s.137(1). BOR14 provides, amongst other things, that no one shall be subjected to arbitrary or unlawful interference with his privacy and that everyone has the right to protection of the law against such interference. It is identical to Article 17 of the International Covenant on Civil and Political Rights (ICCPR17) [100], and is similar to Article 8 of the European Convention on Human Rights (ECHR8)[101], which refers to, amongst other things, the protection of “private life”.
102. Mr Perry submitted that the concept of “privacy” or “private life” encompasses a person’s professional or business life or employment, including freedom of choice of occupation.[102] He argued that the State must therefore leave residents alone in their choice and pursuit of occupations, and refrain from adopting measures which would negatively impact a person’s freedom of choice of occupation. He mainly relied on the jurisprudence regarding ECHR8, which referred to the protection of “private life”. He submitted that it had been held that the rights under ECHR8 have been encroached because of restrictions imposed on access to the profession have been found to affect “private life”.[103] The authorities he cited generally concerned the notion of professional or business relations falling within the scope of the protection of private life. In the extract from the Commentary by Grabenwarter[104], which was relied upon by Mr Perry, it was noted that aspects that may fall under the freedom to choose an occupation and the right to engage in work under domestic law and EU law, were protected under ECHR8 but did not protect illegal professional activities.
103. It was accepted by Mr Perry that the right to privacy or a private life may be restricted as long as it satisfies the proportionality test. It was submitted that the extent to which s.137(1) was not focused solely on exploitative behaviour or exercising control, direction or influence over females for the purposes of prostitution was inconsistent with these rights and, therefore, unconstitutional.
104. The respondent argued that BOR14 is not engaged. It was submitted that the appellants were seeking to assert a positive right to work in a person’s preferred field based on the right to privacy under BOR14. In accordance with the doctrine of lex specialis, the respondent contended that given the appellants do not enjoy any positive right to work under BL33, which deals specifically with the employment right of Hong Kong residents, they cannot derive such right from the right to privacy under BOR14: MK v Government of HKSAR[105]. Furthermore, the provisions in the BL or BOR which guarantee various constitutional rights to Hong Kong residents should be read as a coherent and consistent scheme: Comilang v Director of Immigration[106] and Kwok Cheuk Kin v Director of Lands[107]. Accordingly, if BL33, which specifically relates to the right to work, does not accord a positive right to work, such right cannot be derived from other general, non-specific provisions in the BL or BOR.
105. The respondent further argued that the European Court of Human Rights (ECtHR) in Denisov v Ukraine[108] has held that the concept of “private life” under ECHR8 does not give rise to a right to choose a particular occupation. The ECtHR explained that, “Whereas no general right to employment, nor a right of access to the civil service or a right to choose a particular profession, can be derived from Article 8, the notion of ‘private life’, as a broad term, does not exclude in principal activities of a professional or business nature. It is, after all, in the course of their working lives that the majority of people have a significant opportunity to develop relationships with the outside world.”[109]
106. It was pointed out that the cases cited by the appellants only go as far as to suggest that the concept of “privacy” or “private life” encompasses a person’s professional or business life or employment. These cases do not provide authority that privacy covers a right of choice of occupation.[110] Furthermore, as acknowledged by the appellants, MA[111] and GA[112], this left open the question of whether a denial of a right to work is an infringement of BOR14.[113]
107. Mr Chan argued that none of the constitutional rights relied upon by the appellants are engaged. They do not enjoy any general right to work under BL33 and this had been made abundantly clear by the Court of Appeal in Albert Leung, which was bound by the decision of the Court of Final Appeal in GA. He submitted that there is no basis to show that the Court of Appeal’s decision in Albert Leung was plainly wrong or that it had misapplied or misunderstood the law.
108. Nor was BOR14 engaged as submitted by the appellants. Mr Chan argued that the concept of “private life” under ECHR8 does not give rise to a right to choose a particular occupation. The cases from the ECtHR cited by the appellants only go as far as to suggest that the concept of “privacy” or “private life” encompasses a person’s professional or business life or employment and do not provide that privacy covers a right of choice of occupation.
109. The various cases referred to by the appellants concern the right to work in a particular field of occupation of a person’s choice but these cases need to be considered in the context as to whether the occupation in question could constitute a criminal act. The appellants submitted that the offence provision was unconstitutional because it denied them the right to an occupation which involves dealing in the sex trade. Whilst an extreme example, we consider it is to some extent arguing that a professional robber has a right to work by carrying out robberies and that the offence of robbery prevents him from conducting his occupation. This example resonates with the offence under s.137(1) as it is directed to an accused who derives financial gain from his parasitic or exploitative relationship with a prostitute.
110. As we have said, the appellants constitutional challenge of s.137(1) is primarily based on a wide interpretation, which we do not accept. It therefore severely undermines the arguments advanced in support of their contention that the offence provision is unconstitutional.
111. We do not accept the nature of the rights or that they have been encroached as asserted by the appellants because they have been denied the right to set up and operate hkbigman. We are not persuaded that Albert Leung is plainly wrong or has misunderstood or misapplied the law.
112. In our view, both Albert Leung and GA clearly provide that BL33 does not confer a right to work in general. We do not accept the appellants’ contention that the right under BL33 requires the government not to do anything to interfere with, diminish or take away what a resident chooses to do as an occupation. When Fok JA stated in MA that the right conferred by BL33 was a passive or negative right of freedom to choose an occupation, he immediately emphasised it did not imply a right to take up available employment in the first place, nor confer an unqualified right to obtain employment. He rejected the much broader right to take up employment in general and his footnote to this passage in his judgment about the right being “passive or negative” in the sense of prohibiting any interference with the freedom of choice was to stress that it did not impose an active or positive duty on the government to provide work.
113. The reality of the situation was that the appellants were not prevented from taking up the occupation of their choice, as long as it did not involve any criminal offence. There was nothing preventing the appellants from setting up a dating website which was not engaging in any criminal or nefarious activities.
114. We do not consider that BOR14 is engaged as argued by the appellants. Essentially, they claimed that their privacy rights were curtailed because s.137(1) affects their freedom of choice of occupation. As rightly pointed out by the respondent, BL33 which specifically relates to the right to work, does not accord a positive right to work. Hence, such right cannot be derived from other general and non-specific rights or freedoms, such as BOR14. The appellants relied heavily on the concept of “private life” under ECHR8 which does not give rise to a right to choose a particular occupation. The cases referred to by the appellants only go as far as to suggest that the concept of “privacy” or “private life” encompass a person’s professional or business life or employment. They do not go as far as to suggest that privacy includes the freedom of choice of occupation.
Safety and personal security (BOR5(1) and BOR14)
115. The additional set of rights that Mr Perry submitted are engaged in the constitutional challenge against s.137(1) concern the protection of the safety and personal security of prostitutes. He contended that BOR5(1) (the right to liberty and security of person) is infringed because there is an independent right to security separate from that of liberty, and this protects the physical integrity of the person. He submitted that SW did not follow this jurisprudence and was wrongly decided. He further submitted that Li J in SW did not correctly interpret HKSAR v Coady[114], which was not concerned with the security limb of BOR5(1), as it was a murder case dealing with the issue of detention. He also relied on BOR14 (the right to private life) to argue that the concept of private life under ECHR8 includes protection from violence by others and that the “wide interpretation” of s.137(1) infringed that right because it would impact negatively on the security of residents from violence of others.
116. In submitting that s.137(1) was unacceptably wide, Mr Perry referred to Canada (Attorney General) v Bedford[115], where McLachlin CJ (now McLachlin NPJ), giving the judgment of the Supreme Court, considered the effect of s.212(1)(j) of the Criminal Code of Canada, which criminalises persons who “lives wholly or in part on the avails of prostitution of another person”. She said:[116]
“[66] Section 212(1)(j) criminalizes living on the avails of prostitution of another person, wholly or in part. While targeting parasitic relationships (R. v. Downey, [1992] 2 S.C.R. 10), it has a broad reach. As interpreted by the courts, it makes it a crime for anyone to supply a service to a prostitute, because she is a prostitute (R. v. Grilo(1991), 2 O.R. (3d) 514 (C.A.); R. v. Barrow(2001), 54 O.R. (3d) 417 (C.A.)). In effect, it prevents a prostitute from hiring bodyguards, drivers and receptionists. The application judge found that by denying prostitutes access to these security-enhancing safeguards, the law prevented them from taking steps to reduce the risks they face and negatively impacted their security of the person (para. 361). As such, she found that the law engages s. 7 of the Charter.
[67] The evidence amply supports the judge’s conclusion. Hiring drivers, receptionists, and bodyguards, could increase prostitutes’ safety (application decision, at para. 421), but the law prevents them from doing so. Accordingly, I conclude that s. 212(1)(j) negatively impacts security of the person and engages s. 7.”
117. Mr Perry emphasised the concluding remarks of the Chief Justice that hiring drivers, receptionists, and bodyguards, could increase prostitutes safety, but the law prevented them from doing so, and this rendered s.212(1)(j) inconsistent with s.7 of the Canadian Charter of Rights and Freedoms[117]. He argued that the Judge’s wide interpretation of s.137(1) had a similar effect in impacting negatively on the safety and personal security of prostitutes, and for the same reasons stated in Bedford this would encroach on rights protected by BOR5(1) and BOR14, which were equivalent to s.7 of the Canadian Charter.
118. Under BOR5(1) the right that is guaranteed is the right to liberty and security of person, which is identical to Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR9(1)). Mr Perry referred to the General Comment on the ICCPR9(1) published by the United Nations Human Rights Council (UNHRC) and submitted that there exists an independent right to security, separate from the right to or context of liberty, which entails protection of the physical integrity of the person (whether in detention or not) and from the infliction of bodily injury, under BOR5(1). He argued that the State has both a positive duty to protect “everyone” from physical harm, and a negative duty in that it must refrain from adopting measures or enacting legislation that negatively impacts the security of its citizens.[118]
119. In support of his submission, Mr Perry relied on Delgado Páez v Colombia,[119] which concerned a Colombian teacher of religion and ethics who received deaths threats because of his teachings. As a result, he left the country and claimed that the Colombian Government had violated its obligation to protect his rights to equality, justice and life. The UNHRC found that ICCPR9 was not intended to narrow the concept of the right to security to only situations of formal deprivation of liberty. There was an independent right to security which entailed protecting the physical integrity of the person whether or not in detention. [120] It was argued that this approach applies to BOR5(1).
120. However, Li J in SW held that BOR5(1) does not confer a free-standing right of the person outside the context of “liberty”. He did not follow the ICCPR jurisprudence but preferred the approach of the ECtHR that BOR5(1) does not confer a right outside the context of liberty. It was noted that Li J relied primarily on the judgment of the Court of Appeal in Coady, which Mr Perry submitted that it considered BOR5(1) in the context as to whether the Court was able to review the substantive law that gave rise to detention if breached. The issue the Court was asked to address was whether the “grievous harm” rule of the offence of murder resulted in the arbitrary deprivation of a person’s liberty. Keith JA, giving the judgment of the Court, held that BOR5(1) provided for the fair operation of the laws relating to arrest and detention and permitted judicial scrutiny of only those laws.[121]
121. It was further noted by Mr Perry that Li J sought to deal with situations as found in Delgado by reference to the right to life under BOR2(1), which he argued was too narrow because it only concerns life-threatening harm or injury.
122. Mr Perry also prayed in aid the concept of private life under ECHR8 which he submitted includes a person’s physical integrity and physical welfare, including protection from violence by others. He referred to Jankovic v Croatia[122], in which the ECtHR explained that (i) the concept of private life included a person’s physical and psychological integrity; and (ii) under ECHR8 the States have a duty to protect physical and moral integrity of an individual from other persons and to that end they are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals.[123] He contended that the position was the same under the ICCPR17, the equivalent of BOR14. He argued that the State’s obligation is not to engage in interferences inconsistent with the rights under BOR14 but the wide interpretation of s.137(1) negatively impacted on the protection of physical integrity of prostitution and encroached on those rights. He further argued that under BOR14(2), the State has an obligation to adopt legislative and other measures to give effect to the prohibition against such interference and attacks on the rights under BOR14(1), including protection from the violence of others. It was contended that rather than putting in place a framework to protect prostitutes from violence, s.137(1), under the wide interpretation, increased the risk of violence against them and therefore the obligations under BOR14(2) are also breached.
123. As a result of the infringement of these constitutional rights, Mr Perry argued that the section should be read down to exclude all persons other than exploiters, otherwise it should be struck down.
124. Mr Chan submitted that neither BOR5(1) nor BOR14 are engaged concerning the right to personal safety. He argued that the appellants’ submission that the Judge’s “wide interpretation” would cover persons who were not exploiters is incorrect. He referred to the relevant authorities regarding s.137(1), which make it plain that the relationship between the defendant and the prostitute must be parasitic and exploitative. He noted that the appellants had not filed any evidence to support their claim that s.137, as interpreted by the Judge, would result in an infringement of BOR5(1) and BOR14, and this was because they were not prostitutes and unable to provide any direct evidence on this issue. He submitted that BOR5(1) conferred no independent right to security separate from that of liberty, as it was concerned with arbitrary arrest or detention. Detention was only arbitrary if it was not in accordance with the fair and lawful operation of the law relating to arrest or detention or if those laws cannot be objectively justified. BOR5(1) only permitted judicial scrutiny of laws relating to arrest and detention, and not those laws which authorised arrest and detention if they were broken.[124]
125. Mr Chan submitted that BOR14 was not engaged as there was no right to personal security under BOR5. He argued that the appellants cannot derive such a right from the right to privacy under BOR14.
126. As for the decision of Bedford, Mr Chan questioned its application to the present case to the extent it suggests that a similar offence under s.212(1)(j) would be overbroad. It was argued that it was difficult to reconcile the Court’s reasoning that exploitation must be shown in order to render someone liable for the offence and that a service provider is only caught if he provides a service “to a prostitute because she is a prostitute”,[125] with the notion that “the law includes” some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes”.[126] He contended that if the offence was strictly confined to those persons engaging in abusive, exploitative or parasitic relationships with prostitutes, it would not capture those persons who engage in conduct “that bears no relation to its purpose of prevention of the exploitation of prostitutes”.
127. Bearing in mind the purpose and language of the offence, Mr Chan submitted that workable and sensible limits may be imposed on the offence, such that those persons who are employed solely and genuinely to protect and safeguard the interests of prostitutes would not be caught by the offence.
128. It has been held in Hong Kong that the right of liberty and security under BOR5 was a conjoint right. In other words, there was no independent right to security separate from the right to or context of liberty. This had been confirmed in the cases of Coady and SW.
129. As rightly pointed out by the respondent, we are bound by the decision in Coady, and the appellants have to show that it is plainly wrong or that the Court of Appeal misapplied or misunderstood the law with the result that they were improperly convicted in this case. We are not persuaded that the stringent requirements to overturn Coady have been satisfied.
130. In responding to the criticisms against the decision in Coady, Mr Chan made the following points. First, Coady stands for the proposition that the right of liberty and security under BOR5 is a conjoint right. In Coady, after a review of the language and purpose of BOR5(1), Keith JA emphasized that it was concerned with arbitrary arrest or detention. Therefore, it only permitted judicial scrutiny of laws relating to arrest and detention, not other laws which authorised arrest and detention if they had been broken. The appellants argued that the case did not concern the security aspect of BOR5(1) but rather whether the court was able to review the substantive law (in that case the offence of murder), the alleged breach of which gave rise to the detention.[127]
131. However, Mr Chan pointed out that the appellants were inviting judicial scrutiny of legislation which did not relate to arrest and detention but authorized arrest and detention if it were broken, which Keith JA expressly disapproved of in Coady. Li J in SW[128] observed that Coady necessarily precluded any challenge to s.137 premised on any independent right to security under BOR5(1).
132. Secondly, Coady cannot be said to be plainly wrong, nor was it a product of a misapplication or misunderstanding of the law. Mr Chan noted that Keith JA pointed out BOR5(1) contrasts the loss of liberty as a result of arbitrary arrest or detention and the loss of liberty on grounds and in accordance with procedures established by law. He found that nothing in the text of BOR5(1) supported the construction that the arrest or detention of a defendant was impressible if the offence that the defendant is alleged to have committed cannot be objectively justified.
133. The main authority on which the appellants relied was Delgado Paéz v Colombia Communication[129], which concerned ICCPR9(1). It had been noted that ICCPR9(1) suggests that the right to security may arise only where there is a loss of liberty, but from Delgado and subsequent decisions the right to personal security exists autonomously.[130] Mr Chan argued that but for the decision of Delgado the right to security was intrinsically tied to the right to liberty and had no independent existence. He relied on the reasoning and analysis of the Strasbourg jurisprudence in Coady[131] and SW[132]that had consistently interpreted ECHR5(1) as an article comprising one single right with no independent right to security of person.[133]
134. Thirdly, Mr Chan submitted that the ECtHR jurisprudence on the terms and scope of BOR5(1) should be preferred over the UNHRC’s decision in Delgado.[134] It was argued that the underlying rationale in Delgado was that it would not be right for States to be able to ignore known threats to the life of persons under their jurisdictions just because they were not arrested or otherwise detained.[135] This falsely assumed that the only way the UNHRC could have safeguarded the appellant’s rights in Delgado was by construing ICCPR9(1) to encompass an independent right to personal security, even though he could have been adequately protected by the right to life under ICCPR6(1) (the equivalent of BOR2(1)).[136]
135. As noted by the ECtHR in East African Asians, the article protects security by guarding against arbitrary interference with an individual’s personal liberty.[137]
136. Mr Chan challenged the logic of the appellants’ contention that BOR2(1) did not apply to injury to bodily or mental integrity or threats and that prostitutes require protection from threats, risks or attacks that are not fatal. Hence, BOR5(1) should include an independent right to personal security. The point was made that just because one right did not cover a particular situation, it did not follow that another right should therefore cover that situation. It was also pointed out that if the threats, risks and attacks are of sufficient severity, the prostitutes are entitled to rely on BOR3 to challenge s.137.[138]
137. Fourthly, Bedford did not support the appellants’ submission that the “wide interpretation” given to s.137(1) by the Judge encroached on BOR5(1). Mr Chan referred to the Court of Appeal’s observation in Lubiano v Director of Immigration[139], that the challenge in Bedford was based on s.7 of the Canadian Charter of which there was no equivalent in the BOR. Accordingly, the Canadian jurisprudence on s.7 could not be transplanted to Hong Kong when the BL did not provide for a similar constitutional regime; in particular, BOR5(1) does not provide for challenges based on the notion of fundamental justice as developed in Canada, and “protects against deprivation of liberty in a different manner” by linking it to the concept of liberty.
138. We agree with the respondent’s submission in respect of Bedford. The chief complaint of the appellants, in that case, concerned the prohibition preventing prostitutes from working in a fixed indoor location, which they argued would be safer than working on the streets or meeting clients at different locations. The Canadian Supreme Court considered the provision on living on the avails of prostitution against the Canadian legislative regime, especially the definition of a common bawdy-house under s.197(1) of the Canadian Criminal Code[140], which in effect prohibits indoor prostitution even by a lone prostitute. As submitted by the respondent, the Hong Kong legislative regime, in effect, affords protection to individual sex workers by allowing them to work independently so long as they do not work from a vice establishment. Furthermore, in Hong Kong, unlike the prohibition under s.213(1)(c) of the Canadian Criminal Code, which covers screening of clients in public, so long as prostitutes do not solicit customers in public to provide sexual services, there is no prohibition on prostitutes screening clients in public before receiving them in a fixed indoor location. Another significant distinction between Bedford and the present case is that Bedford is concerned about the risk to the security of prostitutes, not to those who provide or organize prostitution or agents of prostitutes, as in the case of the appellants.
139. Mr Chan further argued that as there was no right to personal security under BOR5, which deals expressly with a person’s right to security and liberty, then under the doctrine of lex specialis, a person cannot derive such a right from the right of privacy under BOR14.[141]
140. In Jankovic, the ECtHR found a violation of ECHR8 (right of privacy) where the government failed to prosecute the alleged perpetrators of an act of violence against the appellant. The court was of the view that it was unnecessary to discuss ECHR3 (prohibition of torture), given its conclusion on ECHR8. Similarly, it was argued that there was no need to interpret BOR14, which safeguards personal autonomy to conduct one’s life, to encompass a right to personal security or protection from violence. To do so would be to accord BOR14 a “strained and unnaturally wide construction” which goes beyond what the right was intended to protect. In this regard, BOR3 protects person’s physical integrity and welfare, which has been held to deal with “actual bodily injury or intense physical or mental suffering”: Ubamaka v Secretary for Security[142].
141. Mr Chan disputed the appellants’ standing to bring this constitutional challenge. He argued that such a challenge ought to be brought by prostitutes themselves on how their constitutional rights or freedoms have been affected. The appellants, not being prostitutes, do not have sufficient interest merely because the issue raised by them is of public interest.
142. The point was made by Mr Chan that the appellants have not filed any evidence to support their claim that s.137(1) as interpreted by the Judge, would result in an infringement of BOR5(1) and BOR14, and how their proposed interpretation would serve to protect and safeguard prostitutes from physical abuse.
143. The edifice of the appellants’ argument is structured on the foundation that the Judge has given s.137(1) a wide interpretation which captures persons not exploiting prostitutes and that prostitutes will be prevented from hiring persons to provide them with protection and security or operating through a secure environment as offered by the appellants through their website. As we have already pointed out, this was not how the Judge interpreted the offence provision and renders the appellants’ argument unsustainable. Furthermore, the reliance on BOR5(1) and BOR14 is misconceived as it does not encompass an independent right to security, nor do the appellants have the requisite standing to challenge the constitutional validity of the offence provision on this basis.
The standing of the appellants
144. There is an issue regarding the appellants’ standing to mount a constitutional challenge against the right to security under BOR5(1) and the right of privacy under BOR14 in the context of the safety and personal security of prostitutes. As is apparent, this is a right of prostitutes and not of someone like the appellants.
145. The appellants argued that they are nevertheless entitled to challenge the constitutional validity of s.137(1) based on those rights of others when they were charged with and convicted of offences under this section. The appellants relied on the remarks of Dickson J in R v Big M Drug Mart Ltd[143] that an accused may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid. Whilst these remarks are undoubtedly correct as a matter of general principle, the nature and basis of such a challenge would have a significant bearing on the issue of the challenger’s locus standi. As pointed out by the respondent, Dickson J’s remarks do not detract from the principle that an accused can only have standing if his or her rights, or the rights of a potential accused, are liable to be infringed: R v Church of Scientology of Toronto[144].
146. A significant matter, pointed out by the respondent is that the prostitutes are neither “the accused” in the present case, nor are they liable to be prosecuted, under s.137(1), the offence of living on the earnings of prostitutes and hence do not fall within the category of “potential accused”.
147. The respondent submitted that it is not open to the appellants to rely on the rights of prostitutes. It was argued that any challenge to s.137(1) based on the alleged right to safety and personal security ought to be brought by prostitutes, who are much more affected, and better placed to pursue the challenge. It was submitted that there was no evidential foundation to substantiate the appellants’ submission that the wide interpretation of s.137(1) increased the risk of violence against prostitutes, and the violation of their right to safety and personal security.[145] It was further submitted that the appellants do not have sufficient interest merely because the issue raised by them is of public interest and the existence and absence of any other challengers who have a greater interest in the matter is relevant to the question of standing: see Kwok Cheuk Kin v President of Legislative Council[146].
148. The appellants submitted that the concept of private life under BOR14 incorporates a person’s physical integrity and physical welfare, including protection from violence by others.[147] The obligation of the State is “not to engage in interferences inconsistent with” the rights under BOR14, and in particular, refrain from adopting measures which would impact negatively on the security of residents from the violence of others. It was argued that the wide interpretation negatively impacts the protection of the physical integrity of prostitution and encroaches on the rights under BOR14.
149. It was further argued that under BOR14(2) the State also has an obligation to adopt legislative and other measures to give effect to the prohibition against such inferences and attacks, including protection from the violence of others. A wide interpretation of s.137(1), therefore, increases the risk of violence against prostitutes.
150. The appellants’ argument highlights the importance of content and context when considering a constitutional challenge to a criminal offence provision on the basis that it engages certain rights or freedoms.
151. The existence of one-woman-brothels is unique to Hong Kong and how it functions and operates is a relevant factor in considering the impact it has on prostitutes and prostitution in general, bearing in mind the state of crime in Hong Kong. As this aspect of the constitutional challenge focuses on the right of safety and personal security of prostitutes, it is difficult to consider it in a vacuum without appropriate information, particularly from prostitutes, who can address the issue directly with detailed information.
152. The irony of this part of the constitutional challenge is that the exploiter is relying on the protection of the exploited to invalidate the offence provision that is aimed against the exploiter in order to protect the exploited. It raises the question as to whose interests we are really addressing - the entrepreneur who sees an opportunity to exploit the sex trade and profit from the earnings of sex workers or the sex worker who is concerned about her safety and personal security because of the perils of the sex trade.
153. We agree with the respondent’s submission that the appellants lack the requisite standing to mount this aspect of the constitutional challenge to s.137(1) because it specifically relies on the rights of prostitutes of which the appellants do not have sufficient interest to advance or represent in these proceedings. The dearth of information and material on this issue provides a further basis for why this aspect of the challenge is not sustainable.
154. It follows for the foregoing reasons that we are not persuaded that the appellants’ freedom of choice of occupation under BL33 or purportedly under BOR14 are engaged, nor are the prostitutes’ rights to safety and personal security purportedly under BOR5(1) and BOR14.
155. We consider that even if any of the rights are engaged, the restrictions on them satisfy the four-step proportionality test as laid out in Hysan Development Co Ltd v Town Planning Board[148]:
(1) whether the measure serves a legitimate aim;
(2) if so, whether it is rationally connected with advancing that aim;
(3) whether the measure is no more than necessary for that purpose;
(4) whether a reasonable balance has been struck between the societal benefits of the encroachment and the inroads made into the individual’s constitutionally protected rights.
156. Mr Chan submitted that any restrictions to the rights would satisfy the proportionality test. Section 137 pursues a legitimate aim to safeguard the rights and interests of females working as prostitutes and to reduce the number of prostitutes in Hong Kong by dissuading others from making a living off the trade. There is a rational connection between the aim of protecting females and s.137(1). He contended the Judge’s interpretation is capable of targeting only exploiters given the legislative intent behind the offence and a common sense approach to the facts.
157. Mr Perry argued that s.137(1) does not pursue a legitimate aim, which is to criminalise those exploiting living on the earnings of prostitutes. Hence, any legislation which applies to persons not exploiting prostitutes is not rationally connected to this aim. In the circumstances of the present case, he contended that the appellants were not exploiters and they have been denied their freedom of choice of occupation.
158. The legislative history of the offence and the commentary in the relevant case authorities reveals a myriad of issues and concerns in order to regulate the trade of prostitution and protect vulnerable females who are involved in this trade from exploitation and abuse. While the focus of this law is on female sex workers, we are also mindful that the sex trade involves male and transgender sex workers, who should equally be contemplated and protected by the law.
159. The regulation of the sex industry raises a number of social, moral and policy issues that have in the past invoked varying and competing views within the community when legal measures have been considered.
160. The appropriate review standard in a given case depends on many factors including the significance and degree of interference with the right, the identity of the decision-maker, the margin of discretion, and the institutional responsibilities and expertise of the court as compared with the primary regulator.[149]
161. In light of the legislative history and nature of s.137(1), it is clear it legitimately pursues the aim of safeguarding the rights and interests of females working as prostitutes by preventing their exploitation by parasitic businesses or trade services (prevention of exploitation aim). The parties seem to agree that this is the case. The respondent argued that there is the additional aim of reducing the phenomenon of prostitution in Hong Kong by discouraging others from making a living off the trade of prostitution (reduction of prostitution aim). The appellants disagreed with this additional aim because the act of prostitution is not criminal, and the question is not one of public morality. However, the respondent argued that it is fallacious to contend that just because the Government has made a policy decision not to criminalise prostitution itself, the Government would therefore have no legitimate interest in attempting to eliminate or reduce the scale of prostitution in Hong Kong through other means. The respondent added that there is a strong public interest in reducing the phenomenon of prostitution in Hong Kong, not least because prostitutes are an extremely vulnerable and marginalised sector of society and prostitution is deeply entwined with other social concerns, such as human trafficking and organised crime. To this end, s.137(1) is a means of combating vice activities controlled by or connected to criminal syndicates or undesirables. These are legitimate and valid observations that experience has unfortunately shown to be true.
162. In general terms, the offence under s.137 seeks to eliminate the undesirable elements that may become involved in the sex trade and to protect sex workers from abuse and exploitation by others.
163. The next step is whether s.137(1) is rationally connected with advancing the aim it seeks to serve. This “requires nothing more than showing that the legitimate goals … are logically furthered by the means government has chosen to adopt”, in the sense that the implementation of a measure can “reasonably be expected to contribute towards the achievement of that objective”: Bank Mellat v HM Treasury (No 2)[150]. There is a clear, rational connection between the protection of females in the trade of prostitution and s.137(1). The parties accepted that the offence deals with exploiters, although the appellants claim that according to the wide interpretation, it would also deal with non-exploiters. However, as we have already explained, we do not consider the offence deals with non-exploiters as claimed by the appellants.
164. We accept that s.137(1) is also rationally connected to furthering the aim of curtailing the criminality of prostitution.
165. The final steps address the question as to whether s.137(1) is no more than necessary for its purpose and strikes a reasonable balance between the rights of the individual and the interest of the community. The section seeks to outlaw and deter exploiters of females in the trade of prostitution, and to this end, it does what is necessary and strikes a reasonable balance between the societal benefits of the encroachments and the inroads made to the rights in question.
166. We are satisfied that s.137(1) serves a legitimate aim of protecting prostitutes from abuse and exploitation by others who live on their earnings, and does not improperly criminalise conduct as suggested by the appellants. The offence provision is rationally connected to advancing that aim and is appropriately necessary for that purpose. Assuming the rights in question are engaged, we consider the section strikes a reasonable balance between the societal benefits of the encroachments and the inroads made into those rights.
167. It follows from what we have said that the constitutional challenge fails.
CACC 228 of 2019
The appellant’s ground of appeal
168. Mr John Reading SC[151], who represented the appellant at trial and in this appeal, advanced a sole ground of appeal against conviction, in which he averred that the evidence taken at its highest did not in law constitute the offence of conspiracy to live on the earnings of prostitution.[152]
169. Mr Reading supported this ground with the following two arguments. The first is that Shaw was wrongly decided. The second is an alternative to the first if it is rejected, namely that the present case can be distinguished from Shaw, and hence the appellant should not have been convicted for conspiring to commit the offence of living on the earnings of prostitution. It was acknowledged that these arguments were not advanced before the Judge.
170. According to Mr Reading, the House of Lords in Shaw was wrong to treat the two subsections of the English equivalent section to s.137(1) and (2) as standing alone when they should have been read together in arriving at the correct construction of the meaning of living on the earnings of prostitution.[153] He pointed out that this construction of the section was reinforced by Viscount Simonds in Shaw, who explained that the second subsection was probative and explanatory of the first but not an exhaustive definition of it.[154] He complained there was little discussion or consideration on this issue by their Lordships and that they were wrong to treat the second subsection as an evidential provision. The essence of his submission is that s.137(2) is not a mere evidential provision but a necessary ingredient to the offence under s.137(1).
171. It is appropriate to note that under s.137(2), it is presumed for the purposes of s.137(1) that a person is knowingly living on the earnings of prostitution, unless he or she proves the contrary, if he or she lives with or is habitually in the company of a prostitute or who exercises control, direction or influence over another person’s movements in a way which shows he or she is aiding, abetting or compelling that other person’s prostitution with others (Emphasis added).
172. Mr Reading advocated that the mischief the offence seeks to outlaw is the “control or exploitation” of prostitutes, and this defines the elements of the offence of living on the earnings of prostitution. He contended that the element of the offence is not satisfied in circumstances where the conduct of an accused is “passive” because it does not involve the exercise of control over or exploitation of a prostitute. Hence, Shaw was wrongly decided or no longer represents the law in Hong Kong. He argued that the assistance provided by the appellant and other defendants to the women in advertising prostitution services was passive and did not involve them exercising control or exploiting women working as prostitutes. Furthermore, he argued there was no evidence that any of the defendants exercised control, direction, or influence “over the movements of any of those advertisers, nor was there any agreement to do so”.[155]
173. In light of the foregoing, it was submitted by Mr Reading that the appellant was not guilty of an offence under s.137(1), and, at most, may be guilty of a summary offence under s.147(1) of the CO of soliciting for an immoral purpose.
174. The second basis on which Mr Reading submitted the conviction should be overturned was that there was a lack of evidence to support the conspiracy charge. He argued that although there was evidence from two prostitutes that they advertised their sexual services on the website, there was no actual evidence of the source of the funds that paid for the advertisements. He further argued that it was of no concern to the appellant as to whether the prostitutes actually provided sexual services, which was a contractual arrangement between the prostitute and the customer to which the appellant was not a party.
175. An additional point made by Mr Reading was that the offence of living on the earnings of prostitution was similar to the offence of dealing with property representing the proceeds of serious crime in that monies used to finance the crime are not proceeds of crime: HKSAR v George Li[156]. Accordingly, monies used to advertise prostitution could not be the proceeds or earnings from prostitution.
176. Mr Chan submitted that the judgment in Shaw is compelling because the approach articulated by the House of Lords furthers the aim of s.137, which is to prevent the facilitation of prostitution as a trade and provide protection against exploitation or abuse of prostitutes, who lawfully operate a one-woman brothel.
177. Mr Chan further submitted that the exercise of “control, direction or influence over another person’s movements” can be evidence that the defendant was living on the earnings of prostitution, which would then trigger the presumption under s.137(2). He argued that the language of the section unmistakably provides that a person who exercises control, direction or influence “shall be presumed” to be knowingly living on the earnings of prostitution. It is, therefore, only an evidentiary presumption[157] and this has been confirmed by Lawton LJ in R v Farrugia[158]and Lord Lane CJ in R v Howard[159].
178. According to Mr Chan, exploitative arrangements of prostitutes in the sex trade may come in many guises. He contended that the appellant and his co-conspirators were living parasitically on prostitution, and their gain from the operation of the website was clearly and closely referable to prostitution. He submitted s.137(1) does not distinguish between sexual services which are consummated and those which are not, rebutting the appellant’s submission that he was not a party to any arrangement for the provision of sexual services by the prostitutes who advertised on the website. He contended that the section concerns those who receive financial gain from promoting and trading in prostitution.
179. As for the appellant’s argument that he was not a party to the agreement between the prostitute and the customer, Mr Chan submitted that there is no basis for holding a lack of privity should prevent money received by the appellant from being the direct or intended result of prostitution and a finding of a conspiratorial agreement between two or more persons to commit the offence of living on the earnings of prostitution.
180. Finally, Mr Chan argued that George Li is not applicable and that the suggestion that the appellant could have been prosecuted under s.147(1) is without foundation. He submitted that committing an offence under s.147(1) does not preclude liability under s.137(1), and in any event, there was no evidence to suggest that any prostitutes had committed any act of solicitation for an immoral purpose.
181. The offence under s.137(1) falls within the section titled “Exploitation of other persons for sexual purposes” in Part XII of the CO. The section incorporates offences concerning prostitution and keeping a vice establishment, such as trafficking in persons to or from Hong Kong for the purpose of prostitution (s.129); control over persons for purpose of unlawful sexual intercourse or prostitution (s.130);[160] causing prostitution (s.131); living on earnings of prostitution of others (s.137); and keeping a vice establishment (s.139). It is important to note that s.117(3)(a) provides that premises will not be treated as a vice establishment unless two or more persons use them for the purposes of prostitution. Accordingly, a sole prostitute can operate from premises by virtue of this provision, and this is the origin of the concept of a one-woman brothel.
182. It is relevant in this appeal that there are specific offences against the control over a person for the purpose of prostitution (s.130) or causing a person to become or operate as a prostitute (s.131), whereas the offence under s.137(1) is “living on” the earnings of prostitution of another.
183. The respondent argued that the purpose of s.137 is to prevent the facilitation of prostitution as a trade and as a means of profit by those seeking to take advantage of the trade. We agree that the broad mischief against which the section is aimed is the exploitation of prostitution for financial gain and this is apparent from the language of the offence and by reference to other related offences.
184. The approach in Shaw appropriately balances the concern, on the one hand, to give effect to the underlying legislative intent to address the problem of those taking advantage of the prostitution of others, which may take many forms and involve a wide range of means; and on the other, to provide a fair and rational basis for those, like the ordinary tradesmen in their ordinary course of business, who do not directly and intentionally gain a reward specifically from others because of their involvement in prostitution.
185. Viscount Simonds in Shaw held that while there might be cases where the circumstances would be equivocal, a case which was beyond all doubt was one where the service was of its nature referable to prostitution and nothing else. He stated that there was no better example of this than a person making a business of accepting an advertisement of a prostitute of their sexual services for reward and accordingly was knowingly living wholly or partly on the earnings of prostitution.[161] The approach in Shaw has been endorsed and followed by a strong line of authority.[162]
186. We reject Mr Reading’s submission that evidence of “control, direction or influence” over the prostitute’s movements is a necessary ingredient of the offence under s.137(1). In our view, the wording of s.137(2) makes it clear that it is an evidential provision that, if satisfied, would presume that a person is knowingly living on the earnings of prostitution. As already pointed out, a strong line of authority supports the characterisation of s.137(2) as an evidentiary presumption. It is not an element of the offence. The phrase “control, direction or influence” only constitutes an evidentiary presumption, the absence of which merely means that the prosecution bears the onus and standard of proof of establishing the elements of the offence as provided under s.137(1).
187. An additional factor that renders the appellant’s submission untenable is that there is a specific offence provision against a person who exercises “control, direction or influence” over another person for the purpose of prostitution under s.130.
188. As submitted by the respondent, from the plain language of s.137(1) it clearly covers those who gain financially from businesses run to promote or facilitate the prostitution of others. It is part of a framework of offence provisions to regulate and curtail prostitution and related vice activities. There is no good reason for restricting the natural meaning and scope of the statutory wording to exclude those persons profiting from websites promoting prostitution, such as hkbigman and sex141.
189. The circumstances in Shaw were not dissimilar to those in the present case, except that the medium through which sex workers advertised their sexual services was a printed publication rather than a social website in this case. The House of Lords in Shaw concluded that a person might fairly be said to be living in whole or in part on the earnings of prostitution if prostitutes paid him for goods or services supplied by him to them for the purpose of their prostitution, which he would not supply but for the fact that they were prostitutes and that the purpose of the printed publication was to promote prostitution. The House of Lords concluded that in those circumstances, a person would fall foul of the offence provision.[163]
190. In similar circumstances as found in Shaw, the Judge in the present case convicted the appellant of conspiring with others to operate a business promoting prostitution that was funded by the advertising fees paid by prostitutes. We consider that the evidence was overwhelming in proving that the appellant and the co-conspirators, by the nature and purpose of the website they provided and the arrangement they had with prostitutes to advertise their sexual services for a fee, were living on the earnings of prostitution. The prostitutes would pay for an online advertisement to a designated account to advertise on sex141.[164] The appellant and the co-conspirators knew and intended that sex141 were to advertise and promote the sexual services offered by prostitutes, and that the fees that they derive from the provision of such services were clearly referable to prostitution.
191. The appellant and his co-conspirators were, in the language of Lord Reid, living “parasitically” on prostitution. Their financial gain was clearly and closely referable to prostitution, which was a direct and intended result of the operation and purpose of the website.
192. The reliance on George Li and its application to s.137(1) is misconceived. Mr Reading argued that the offence of living on the earnings of prostitution is similar to the offence of dealing with property representing the proceeds of an indictable offence in that it has been held that monies used to finance the crime are not proceeds of the crime. However, the Court of Final Appeal in George Li was concerned with an entirely different statutory provision, which is not apposite to the present offence. The wording, context and purpose of the offence of living on the earnings of prostitution provided under s.137(1) is entirely different from the money-laundering offence and its related provisions.
193. It follows for the foregoing reasons that we are not persuaded that in CACC 368 of 2016: (1) the statutory construction of s.137(1) warrants a narrow interpretation as submitted by the appellants; (2) the 1st appellant’s right and freedom to choose to engage in the occupation of establishing, operating and managing hkbigman, and the 2nd appellant’s right and freedom to assist in the management and operation of hkbigman, are constitutionally guaranteed by BL33, and hence s.137(1), as interpreted by the Judge, is an encroachment on this right and freedom; nor that the appellants’ rights under BOR5(1) and BOR14 have been encroached as claimed. Accordingly, there is no basis on which to interfere with the convictions against the 1st appellant and the 2nd appellant.
194. We are also not persuaded that Shaw was wrongly decided, nor that the circumstances of CACC 228 of 2019 can be distinguished from the range of cases caught by s.137(1). We are satisfied that the appellant’s conviction was correct.
195. The appeals in the two cases are accordingly dismissed.
196. We add by way of observation, that it is provided under s.117(3)(b) of the CO that “premises, vessel or place” used “wholly or mainly for or in connection with the organising or arranging of prostitution” shall be treated as a vice establishment under this Part of the Ordinance. Under s.139 it is an offence of keeping “any premises, vessel or place” as a vice establishment. It may be viewed that the operation of the websites under consideration in the two appeals were in essence operating a vice establishment through social platforms on the Internet.
197. It remains for us to express our gratitude to counsel for their comprehensive and erudite submissions.
| (Jeremy Poon) Chief Judge of the High Court | (Kevin Zervos) Justice of Appeal | (Anthea Pang) Justice of Appeal |
Mr Abraham Chan, SC, Ms Vinci Lam, SC, DDPP, Mr Ned Lai, SADPP and Ms Audrey Parwani, SPP, of the Department of Justice for the respondent
Mr David Perry, KC, Mr Stewart Wong, SC, Ms Maggie Wong, SC, Ms Catherine Wong and Ms Leona Chan, instructed by Francis Kong & Co, for the 1st and 2nd appellants (for CACC 368/2016)
Mr John Reading, SC, Mr David Boyton, and Ms Peggy Pao, instructed by Kent Tam & Co, for the appellant (for CACC 228/2019)
[1] Contrary to s.89 of the Criminal Procedure Ordinance, Cap 221, and s.137(1) of the CO.
[2] HKSAR v Fung Ka Chun and Another, unrep., CACC 368/2016, 19 June 2018, at [18] per Macrae VP.
[3] McWalters JA on 24 June 2019.
[4] In the matter of the application by Mr David Perry, QC, and section 27 of the Legal Practitioners Ordinance, Cap 159, HCMP 751/2019, [2020] HKCFI 1521.
[5] Contrary to s.24(1) of the Money Lenders Ordinance, Cap 163, and s.159A(1) of the Crimes Ordinance and punishable under s.24(4) of the Money Lenders Ordinance, Cap 163, and s.159C of the Crimes Ordinance.
[6] Contrary to s.25(1) and (3) of the Organized and Serious Crimes Ordinance (Cap 455). The appellant was alleged to have dealt with the following sums: between 25 June 2007 and 24 January 2013 dealing with $9,398,855.77 (Charge 3); between 4 July 2007 and 3 December 2013 dealing with $20,833,308.61 (Charge 4); between 5 July 2007 and 28 January 2013 dealing with $5,101,266.07 (Charge 5).
[7] HKSAR v Chan Pau Chi & Another, unrep., CACC 228 of 2019, 17 July 2020, at [56] - [57], per Zervos JA.
[8] Appeal Bundle (AB), pp 9-21.
[9] AB, p 27, at [13(a-b)].
[10] AB, p 32F-P.
[11] AB, p 29, at [16].
[12] AB, p 29, at [17].
[13] AB, p 29, at [17].
[14] AB, p 30, at [17] - [18].
[15] AB, pp 31-32, at [21].
[16] AB, p 34, at [24(a)].
[17] AB, p 35, at [24(b)].
[18] AB, pp 36-37, at [25(b)].
[19] AB, pp 38-39, at [27]-[28].
[20] AB, p 39, at [29].
[21] AB, p 40.
[22] AB, p 54, at [54].
[23] AB, p 55, at [57].
[24] AB, p 66, at [64].
[25] AB, p 69, at [67(e)].
[26] R v Ansell (1974) 60 Cr App R 45.
[27] AB, pp 41-42, at [35].
[28] Shaw v DPP (1961) 45 Cr App R 113.
[29] R v Farrugia (1979) 69 Cr App R 108.
[30] R v Howard (1991) 94 Cr App R 89.
[31] R v Stewart (1986) 83 Cr App R 327.
[32] AB, p 46, at [41].
[33] AB, p 46, at [42].
[34] D10, D11 and D12 were acquitted of Charge 2.
[35] AB, p 276, at [3]-[4].
[36] AB, p 287, at [61]-[63].
[37] AB, pp 362-363, at [377]-[381].
[38] AB, p 289, at [70]-[71]; p 321, at [147]; and p 394, at [547]. See also AB, pp 612-691, Prosecution’s Final Submission.
[39] AB, p 362, at [379].
[40] AB, p 289, at [72]-[73].
[41] AB, pp 292-293, at [84(a-c)].
[42] AB, p 362, at [380].
[43] AB, p 363, at [381].
[44] AB, p 363, at [382].
[45] AB, p 363, at [383].
[46] AB, p 363, at [384].
[47] AB, p 363, at [385].
[48] AB, p 372, at [437].
[49] AB, pp 370-372.
[50] With him Mr Stewart Wong, SC, Ms Maggie Wong, SC, Ms Catherine K K Wong and Ms Leona Chan.
[51] Re-Re-Amended Perfected Grounds of Appeal dated 14 April 2021.
[52] Shaw v DPP [1962] AC 220, p 264.
[53] R v Stewart (1986) 83 Cr App R 327, p 332.
[54] With him Ms Vinci Lam, SC, Mr Ned Lai and Ms Audrey Parwani. The respondent’s original written submission was signed by the late Mr Gerard McCoy, SC, with Ms Vinci Lam and Ms Audrey Parwani.
[55] Grounds 1,2, 3, 5 and 6.
[56] Town Planning Board v Town Planning Appeal Board (2017) 20 HKCFAR 196, at [29], per Ma CJ, reaffirming the principle set out in T v Commissioner of Police (2014) 17 HKCFAR 593.
[57] HKSAR v Fugro Geotechnical Services Limited (2014) 17 HKCFAR 755, at [19] and [22], per Fok PJ.
[58] Written Submissions on behalf of 1st and 2nd Applicants dated 9 July 2019, at [36].
[59] Written submissions on behalf of the 1st and 2nd Applicants, at [25]-[27]. The Judge’s quoted remarks, see AB, pp 41-42, at [35].
[60] Attorney General of Canada v Bedford [2013] SCC 72, at [66] and [142].
[61] Written Submissions on behalf of the 1st and 2nd Applicants, at [47].
[62] Leung Chor v R [1963] 4 HKLR 825, pp 833-834 per Blair-Kerr J.
[63] R v Clarke (1976) 63 Cr App R 16, p 19.
[64] Shaw, pp 263-264, with whom Lord Tucker, Lord Morris of Borth-y-Gest and Lord Hobson agreed.
[65] Shaw, pp 269-270.
[66] Stewart, pp 332-333.
[67] Ibid., p 332.
[68] Ibid., pp 47-48.
[69] Ansell, p 50.
[70] Ansell, p 50.
[71] R v Farrugia (1979) 69 Cr App 108.
[72] Ibid., p 112.
[73] Ibid., p 112.
[74] Ibid., p 93.
[75] Shaw, p 264.
[76] Stewart, pp 332-333.
[77] HKSAR v Lam Tan Ching Paul (2018) 21 HKCFAR 1, at [13].
[78] Shaw, p 264.
[79] Stewart, p 332.
[80] R v Grilo 2 OR (3d) 514.
[81] Ibid.
[82] AB, pp 46 - 47, at [41]-[43].
[83] AB, pp 44-45, at [39].
[84] AB, pp 41-42, at [35].
[85] Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386.
[86] Ibid., at [61] - [62].
[87] Written Submissions on behalf of the 1st and 2nd Applicants dated 9 July 2019, at [80]-[91] and Supplemental Submissions of the 1st and 2nd Applicants dated 14 April 2021.
[88] Leung Sze Ho Albert v Bar Council of the Hong Kong Bar Association [2016] 5 HKLRD 542.
[89] GA v Director of Immigration (2014) 17 HKCFAR 60, at [72].
[90] MA and Others v Director of Immigration, unrep., CACV 45 to 48/2011, 27 November2012.
[91] Leung Sze Ho Albert v Bar Council of Hong Kong Bar Association [2015] 5 HKLRD 791.
[92] Albert Leung, at [51].
[93] MA, at [143]. See also GA, at [71]-[73].
[94] Supplemental Submissions of the 1st and 2nd Applicants, at [12]-[13].
[95] MA, at [138]-[142].
[96] GA, at [71].
[97] GA, at [72] - [73].
[98] It is to be noted that the Appeal Committee of the Court of Final Appeal in FAMV 13/2017, 16 August 2017, granted leave to Leung to appeal from the Court of Appeal, but it did not proceed. One of the questions certified by the Appeal Committee concerned the construction of BL33 as to whether it encompassed the freedom to work in any particular field of occupation of Leung’s choice.
[99] Supplemental Submissions of the 1st and 2nd Applicants, at [21].
[100] The rights and freedoms protected by the ICCPR are given domestic effect by the BOR and incorporated as part of the BL by virtue of BL39, and have constitutional effect. See also SW v Secretary for Justice [2009] 1 HKLRD 768, at [62]-[65]; Democratic Party v Secretary for Justice [2007] 2 HKLRD 804, at [64], [58] and [65]; Kwok Wing Hang v Chief Executive in Council (No 6) (2020) 23 HKCFAR 518, at [100].
[101] ECHR8 reads:
“ Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
[102] Niemietz v Germany (1992) 16 EHRR 97, at [29]. See also Jehovah’s Witnesses of Moscow v Russia (2011) 53 EHRR 4, at [116]-[117] and Martinez v Spain (2015) 60 EHRR 3, at [109]-[112].
[103] Volkov v Ukraine (2013) 57 EHRR 1, at [165]-[166].
[104] Grabenwarter, European Convention on Human Rights: Commentary (2014), 192.
[105] MK v Government of HKSAR [2019] 5 HKLRD 259, at [32]-[37].
[106] Comilang v Director of Immigration[2019] HKCFA 10.
[107] Kwok Cheuk Kin v Director of Lands [2021] 1 HKLRD 737, at [98].
[108] Denisov v Ukraine, Application No 76639/11, 25 September 2018.
[109] Ibid., at [100].
[110] See Niemietz, at [29]; Martinez, at [109]; Jehovah’s Witnesses of Moscow, at [117].
[111] MA, at [67].
[112] GA, at [18]-[42].
[113] Supplemental Submissions of 1st and 2nd Applicants, at [28] and footnote 37.
[114] HKSAR v Coady [2000] 2 HKLRD 195.
[115] Canada (Attorney General) v Bedford [2013] 3 SCR 1101.
[116] Ibid., at [66]-[67].
[117] Section 7 provides: “Everyone has the right of life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
[118] General Comment No 35 “Article 9 (Liberty and Security of person)” (2014), at [2] and [9].
[119] Delgado Páez v Colombia, Communication No 195/1985 (23 August 1990).
[120] Nowak’s CCPR Commentary 3rd rev ed (2019) edited by Schabas, pp 241 - 242.
[121] Coady, pp 203B-H and 205D-206F.
[122] Jankovic v Croatia 38478/05, 14 September 2009.
[123] Ibid., at [44]-[45].
[124] Coady.
[125] Bedford, at [141].
[126] Ibid., at [142].
[127] Supplemental Submissions of the 1st and 2nd Applicants, at [45.6].
[128] SW, at [33]-[34].
[129] Delgado Paéz v Colombia Communication No 195/1985 (23 August 1990).
[130] Taylor A Commentary on the International Covenant on Civil and Political Rights (1st Ed. 2020).
[131] Coady, 202E-207A.
[132] SW, at [51].
[133] East African Asians v United Kingdom (1973) 3 EHRR 76, at [220] – [222].
[134] SW, at [11].
[135] Delgado, at [5.5].
[136] SW, at [43]-[48] and [66]-[76].
[137] East African Asians, at [222]. See also Bozano v France, Application No 9990/82, 18 December 1986; Kurt v Turkey [1998] ECHR 44.
[138] GA, at [48]-[49]; The Hong Kong Journalist Association v The Commissioner of Police [2020] 5 HKLRD 653, at [67].
[139] Lubiano v Director of Immigration [2020] 5 HKLRD 107, at [133]-[139].
[140] Section 197(1) defines a bawdy-house as a place that is (i) kept or occupied; or (ii) resorted to by one or more persons for the purpose of prostitution.
[141] SW, at [60]-[61].
[142] Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, at [173].
[143] R v Big M Drug Mart Ltd [1985] 1 SCR 295, pp 313-314.
[144] R v Church of Scientology of Toronto (1997) 116 CCC (3d) 1 (Ont CA).
[145] SW, at [91]; Lubiano, at [131]-[140] and [142]-[145].
[146] Kwok Cheuk Kin v President of Legislative Council[2021] HKCA 169, at [24].
[147] Janokovic; SW, at [55]-[61].
[148] Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, at [134]-[135].
[149] Hysan, at [140]; Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs (2017) 20 HKCFAR 353, at [37]-[46].
[150] Bank Mellat v HM Treasury (No 2) [2013] JKSC 38, at [92].
[151] With Mr David Boyton.
[152] Amended Perfected Ground of Appeal dated 25 September 2020. Mr Reading in his submissions uses the expression “living off”, which is not the language of the section.
[153] This argument was described as a “robust” submission by the appellant. See the Appellant’s Submission dated 18 September 2020, at [33].
[154] Shaw, p 263.
[155] Appellant’s Submission, at [23].
[156] HKSAR v George Li (2014) 17 HKCFAR 319. The decision concerned the definition of “proceeds of an indictable offence” in s.25(1) of the Organized and Serious Crimes Ordinance (Cap 455).
[157] See The Queen v Li Lik [1991] 1 HKLR 94, p 99A-D, where the presumption was not triggered as there was ample other evidence to prove the s.137(1) offence.
[158] Farrugia, p 112.
[159] Howard, pp 92-93.
[160] Section 130(1)(b) reads “a person who harbours another person or exercises control, direction or influence over another person for the purpose of or with the view to that person’s prostitution.” See R v Massey [2008] 1 WLR 937, on the definition of control.
[161] Shaw, p 264.
[162] See Farrugia, p 112 per Lawton LJ; Stewart, pp 332 and 333 per Mustill LJ (with further clarification); Howard, pp 93-94, per Lord Lane CJ.
[163] Shaw, pp 263-264.
[164] AB, pp 362-363, at [380]-[381].