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incriminate them was a violation of their right to liberty and security of the person in article 5 (1) of the Bill of Rights.
However, the application for leave to appeal was dismissed on other grounds and Fuad VP expressly stated that this issue was not considered on the merits.
LIBERTY OF MOVEMENT (ARTICLE 8) -- PROHIBITION ORDERS
District Court Ordinance (cap. 336), section 52E
Tam Hing-yee v Wu Tai-wai, Court of Appeal, Civ App No. 118 of 1991, 28 November 1991 (Cons VP, Clough and MacDougall JJA)
As noted above (p. 8), the Court of Appeal held that section 52E (1)(a) was not a violation of the Bill of Rights.
Article 8 of the Bill of Rights provides:
(1) Everyone lawfully within Hong Kong shall, within Hong Kong, have the right to liberty of movement and freedom to choose his residence.
(2) Everyone shall be free to leave Hong Kong.
(3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in this Bill of Rights.
(4) No one who has right of abode in Hong Kong shall be arbitrarily deprived of the right to leave Hong Kong.
In dealing with the question whether the infringement on a debtor's freedom to leave Hong Kong came within article 8 (3), the Court wrote (at p. 10 of the judgment):
"The judge approached the question of necessity as though it were a balancing exercise between the personal liberty and freedom of the judgment debtor on the one hand and the legitimate interest in the satisfaction of his debt by the judgment creditor on the other. We do not see it that way. Firstly it is not a question of general liberty or freedom. It is a question of the particular right of the individual to leave Hong Kong if he wishes. Secondly it is not for the courts to put a value on that right. Worth little or much, that right is confirmed to the individual by the Ordinance which provides that it shall only be taken away or restricted if that is necessary to achieve one of the stated objectives. In assessing whether or not that is so we do not, with the very greatest respect, feel that the court is assisted by substituting for necessity some phrase such as "pressing social need" (see The Sunday Times v. The United Kingdom, 1979 2 EHRR 245 at paras. 59 and 62) or considering whether the restriction in question is reasonable and demonstrably justified in a free and democratic society, as may be
Bill of Rights Bulletin
December 1991