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Cb v Commissioner Of Police And Another

Judgment Cited authorities 6 Cited in 1 Precedent Map Related
Vincent
Judgment Date22 April 2022
Neutral Citation[2022] HKCFI 1046
Year2021
Judgement NumberHCAL617/2021
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL466/2021 AM v. DIRECTOR OF IMMIGRATION AND OTHERS

HCAL 466/2021

[2022] HKCFI 1046

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 466 OF 2021

________________________

BETWEEN
AM Applicant

and
DIRECTOR OF IMMIGRATION 1st Putative
Respondent
COMMISSIONER OF POLICE 2nd Putative
Respondent
SECRETARY FOR JUSTICE 3rd Putative
Respondent

AND

HCAL 617/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 617 OF 2021

________________________

BETWEEN
CB Applicant

and
COMMISSIONER OF POLICE 1st Putative
Respondent
SECRETARY FOR JUSTICE 2nd Putative
Respondent

and
SECRETARY FOR SECURITY Putative
Interested Party

________________________

(Heard together)

Before: Hon Coleman J in Court

Dates of Hearing: 28-29 March 2022

Date of Decision: 22 April 2022

______________

D E C I S I O N

______________

A. Introduction

1. In ZN v Secretary for Justice (2020) 23 HKCFAR 15 (“ZN (CFA)”), the Court of Final Appeal left a door ajar. The Applicants in the present cases invite me to open the door wide and to step through. The Putative Respondents would prefer the door to be closed, but at least not opened any further.

2. Therefore, the present cases revisit the twin scourges of ‘trafficking in persons’ (“TIP”) and ‘forced or compulsory labour’ (“forced labour”), as were visited in the ZN case – at CFI, CA and CFA level. These are worldwide problems, but have also been recognised by the HKSAR Government as Hong Kong problems.

3. Each Applicant is a Philippine national who worked in Hong Kong as a foreign domestic helper (“FDH”). It can usefully be noted at once that FDHs as a class are recognised as being in a peculiarly vulnerable state, being foreigners and possibly newcomers to Hong Kong, unable to speak the local language, without family or friends here, having little money and being wholly dependent on their employers for food, shelter, income and eventual repatriation: see Semana Bachicha v Poon Siu Man [2000] 2 HKLRD 833 at §49.

4. Unfortunately, it is a disturbing but notorious fact that some FDHs in Hong Kong have been abused by certain unscrupulous employers, who have taken advantage of their vulnerability, including from the fact that there is a ‘live-in’ requirement. Indeed, as was recognised in the ZN(CFA) case at §3, with a total of approximately 370,000 FDHs working in Hong Kong, there is potentially a sizeable number of persons at risk of exploitative practices that might constitute either forced or compulsory labour or human trafficking.

5. Here, each Applicant claims that she became a victim of forced labour, and one claims to be a victim also of TIP. They each claim that the Government failed to meet its relevant investigative duties, namely duties assumed or imposed once the Government is aware or ought to be aware that there is a credible suspicion of such abuses.

6. The proceedings were commenced by Forms 86 issued in April and May 2021. I gave various procedural directions, including for the filing of evidence, and granting leave for the Forms 86 each to be amended.

7. I also ordered a ‘rolled-up’ hearing for both cases and directed them to be heard together. The hearing, conducted remotely via VCF, was held on 28 and 29 March 2022.

8. The Applicant in HCAL 466/2021 (“AM”) appeared in person, having filed a notice to act in person shortly before the hearing (though she had been previously legally represented, and her 57-page Amended Form 86 (“AF86”) was settled by Counsel, Mr Azan Marwah and Mr Josh Baker). No written submission was filed by or for AM, though she obviously placed reliance on the AF86. Though no previous anonymity order was sought by AM, I make such an order for the purpose of this Judgment.

9. The Applicant in HCAL 617/2021 (“CB”) was represented by Counsel, Mr Abraham Chan SC leading Mr Albert NB Wong. Mr Chan (and Mr Wong) had settled the 55-page long AF86, and sought to distil their case in a helpful 25-page written submission.

10. The Putative Respondents in both cases were represented by the same Counsel team of Mr Jin Pao SC leading Mr Martin Ho. They helpfully filed a 33-page written submission in the AM case, and a 50-page written submission in the CB case.

11. At the conclusion of the hearing, I reserved judgment. This is my Judgment.

B. The Door Left Ajar

12. In ZN (CFA), the central point related to Article 4 (“BOR4”) of the Hong Kong Bill of Rights, with the focus on Article 4(3). It provides:

Article 4

No slavery or servitude

(1) No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

(2) No one shall be held in servitude.

(3) (a) No one shall be required to perform forced or compulsory labour.

(b) For the purpose of this paragraph the term “forced or compulsory labour” shall not include:

(i) any work or service normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release for such detention;

(ii) any service of a military character and, where conscientious objection is recognised, any national service required by law of conscientious objectors;

(iii) any service exacted in cases of emergency or calamity threatening the life or well-being of the community;

(iv) any work or service which forms part of normal civil obligations.

13. It was held that BOR4 imposes on the Hong Kong Government a positive duty to provide practical and effective protection to victims of forced labour. The Government has a wide margin of discretion as to how to comply with such a positive duty, but such duty also entails a procedural obligation to carry out investigation once the Government is aware or ought to be aware of circumstances giving rise to a credible suspicion of such abuses. Whilst the Government was held to have failed their procedural obligation to investigate in the particular case, the Court was not persuaded that the remedy lay in enacting a bespoke offence specifically targeting forced labour. To succeed on that point, ZN would have had to show that the Government’s breach of his BOR4 rights was caused by the failure to enact a bespoke offence. The Court was not convinced that the facts in that case had demonstrated the necessary “causal connection” between the two.

14. But the CFA specifically ruled that the determination in ZN does not preclude the necessary casual connection being shown in a future case. The door to that was, therefore, left ajar.

C. The Hong Kong Framework

15. Before turning to the underlying facts in each of the cases relating to AM and CB, which occurred on different timescales – for AM between September 2011 and early 2013, and for CB between September 2018 and April 2019 – it is helpful to consider the Government’s framework for combating TIP and/or forced labour, which varied over time.

16. I shall start with the current framework with time references to the implementation of each component of the framework, where the following is mainly extracted from the affirmation evidence filed for the Police and for the Security Bureau (“SB”).

C.1 A Single Framework for both TIP and Forced Labour

17. Before ZN came to be heard before the CA in May 2019, leave was granted for the Government to adduce new evidence by an affidavit dated 4 May 2018. A brief summary of the Government’s framework in combating forced labour as of May 2018 can be found at in ZN(CFA) at §§110-113. The evidence in this case does not suggest that there has been any major change to the framework since May 2018, except the framework seems to have been more widely adopted within different departments (see below). The CFA held that the Government’s framework – or “approach” – was an acceptable method to comply with its duty to provide practical and effective protection against BOR4 breaches: see ZN (CFA) at §114.

18. The framework is modelled upon the Palermo Protocol, which is an instrument adopted by the United Nations (“UN”) to supplement the 2000 Convention against Transnational Organized Crime. The protocol was adopted to prevent, supress and punish TIP. It is perhaps fair to say that the framework, modelled upon the Palermo Protocol, was originally designed to tackle TIP alone. However, the Government also relies on the same framework for combating forced labour. Indeed, as one can see, in ZN, the very same framework was relied upon by the Government to show that it had met its positive duty to provide practical and effective protection against forced labour under BOR4.

19. The Government takes the view that TIP and forced labour commonly manifest themselves in an array of shared forms of exploitation such as physical confinement, assault, criminal intimidation, threats of physical abuse or death, fraud, deception, misrepresentation, and so forth. Therefore, the same framework is deployed to tackle both evils.

20. However, without passing comment on the suitability of such an approach, it can be noted that the framework – having found its origin from the Palermo Protocol – is built around the concept of TIP as defined in the protocol. Despite that, it is said to target forced labour as well.

21. According to Article 3(a) of the Palermo Protocol, TIP is defined as:

The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception of the abuse of power or of a position of vulnerability of the giving or receiving of payments or benefits to achieve the consent of a person having...

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