FACV No. 4 of 2019
 HKCFA 53
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 4 OF 2019 (CIVIL)
(ON APPEAL FROM CACV NO. 14 OF 2017)
|SECRETARY FOR JUSTICE
|DIRECTOR OF IMMIGRATION
|COMMISSIONER OF POLICE
|COMMISSIONER FOR LABOUR
||Chief Justice Ma, Mr Justice Ribeiro PJ,
Mr Justice Fok PJ, Mr Justice Chan NPJ and
Madam Justice McLachlin NPJ
|Dates of Hearing:
||3-4 December 2019
|Date of Judgment:
|10 January 2020
Chief Justice Ma:
1. I agree with the judgment of Mr Justice Fok PJ.
Mr Justice Ribeiro PJ:
2. I agree with the judgment of Mr Justice Fok PJ.
Mr Justice Fok PJ:
3. The appellant, whose name has been anonymised in these proceedings as ZN, was brought to Hong Kong to work as a foreign domestic helper between 2007 and 2010. During that period, he was badly mistreated by his employer to an extent that constituted forced or compulsory labour within the meaning of Article 4(3) of the Hong Kong Bill of Rights. After returning to Hong Kong in 2012, the appellant sought to report that treatment to various Government agencies but was treated in a way described to us by the respondents’ counsel as “disgraceful”.
4. As will be seen, arising from those basic facts, which are described in more detail below, this appeal broadly raises two important questions of law concerning BOR4:
(1) Does BOR4 include a prohibition against human trafficking and, if so, what is the scope of that prohibition?
(2) Does BOR4 impose a positive duty on the Government of the Hong Kong Special Administrative Region (“HKSARG”) to maintain a specific offence criminalising the activities prohibited under that article?
5. Since it is central to this appeal, it is convenient to set out the terms of BOR4 at the outset of this judgment. BOR4 provides:
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 from such detention;
(ii) any service of a military character and, where conscientious objection is recognized, 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.”
A.2 The phenomenon of human trafficking
6. Although the present case arises out of the facts concerning the appellant’s own case, the context of the case is wider. That wider context is the phenomenon of human trafficking, which is a worldwide problem and has also been recognised by the HKSARG as a Hong Kong problem. The accepted definition of human trafficking (which will be referred to in greater detail later in this judgment) is that set out in the Protocol to the United Nations Convention against Transnational Organized Crime, commonly referred to as the Palermo Protocol. Human trafficking can rightly be called an evil scourge since it involves the movement of persons by deployment of certain underhand means for the purpose of exploiting them. The exploitation takes a number of serious forms including sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
7. Although, as will be seen, the Palermo Protocol does not apply to Hong Kong, the problem of human trafficking nevertheless remains recognised as a substantive problem internationally as reflected by various measures taken in various parts of the world to combat it. In May 2005, the Council of Europe Convention on Action Against Trafficking in Human Beings (“the Anti-Trafficking Convention”) was adopted with one of its purposes being the prevention of human trafficking. In April 2011, the European Commission adopted a Directive on the trafficking in human beings. In 2015, the United Nations adopted 17 Sustainable Development Goals, which included a target to end slavery, with a directive to “take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour”. Also in 2015, the UK enacted the Modern Slavery Act 2015, which makes provision about slavery, servitude and forced or compulsory labour and about human trafficking.
8. With a total of approximately 370,000 foreign domestic helpers 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. That these matters are also a problem in Hong Kong, albeit the scale of that problem is a matter of contention between the parties, is reflected in the further evidence that was filed for the hearing of this case in the Court of Appeal. That evidence (discussed further below) refers to the fact that, in March 2018, the HKSARG established “a high-level, inter-bureaux/departmental Steering Committee chaired by the Chief Secretary for Administration to offer [a] strategic steer in respect of tackling [issues concerning human trafficking]” and that an “Action Plan to Tackle Trafficking in Persons and to Enhance Protection of Foreign Domestic Helpers in Hong Kong” was launched on 21 March 2018.
A.3 The Judicial Review
9. Following the treatment to which he was subjected by the Immigration Department, the Police and the Labour Department (described in Section A.6 below), the appellant commenced judicial review proceedings against the respondents seeking declaratory relief and damages for breach of his rights under BOR4. The proceedings were heard by Zervos J (as he then was) in January 2016 and the appellant gave oral evidence at the hearing which was subject to cross-examination. The Judge noted that he was asked to determine whether the appellant was a victim of human trafficking for forced labour and also whether the officers of the relevant authorities failed or neglected, in breach of BOR4, to take appropriate action in dealing with his case as one involving human trafficking or forced labour.
10. Whilst acknowledging that he did not have evidence from the appellant’s employer or any other relevant witness concerning the events during 2007 and 2010, Zervos J made findings of fact based on the evidence presented to him. These findings, at  and  of the CFI Judgment, are set out in Section A.6 below. There was no appeal by the respondents against those findings of fact.
11. The central legal issue in the judicial review was the interpretation of BOR4. The Judge held that implicit in each of the concepts prohibited by BOR4 is a prohibition against trafficking a person for each of slavery, servitude and forced or compulsory labour respectively. He held that the prohibited concepts of slavery, servitude and forced or compulsory labour under BOR4 included cases where a person is trafficked for such purposes and that anyone involved in the transportation of a person for slavery, servitude or forced or compulsory labour is caught by BOR4.
12. The Judge was satisfied that the evidence supported a case that the appellant was a victim of trafficking of a person for the purpose of forced labour.
13. The Judge found that the current legal regime in Hong Kong does not address adequately or effectively the positive obligations under BOR4 to tackle forced labour and the trafficking of persons for forced labour. He held that the critical flaw in the HKSARG’s obligations under BOR4 was the lack of a criminal offence and penalty that addresses the prohibited concept of forced or compulsory labour. The Judge went on to hold that the HKSARG had positive obligations under BOR4 to enact measures to ensure the prohibition of forced or compulsory labour, including trafficking for that purpose. He found that the HKSARG has not adequately fulfilled its positive obligations under BOR4 and that the appellant was denied his rights thereunder in not having his case recognised by the relevant authorities as one possibly involving human trafficking for forced labour.
14. The Judge therefore granted a declaration in the following terms:
“The application for judicial review be granted in so far as on the evidence presented, the evidence points to the Applicant having been a victim of human trafficking for forced labour, or forced labour, and that he, on various occasions from April 2012, approached officers of the relevant authorities and gave an account of his case that should have been sufficient to alert them, at least on some occasions, that this was a possible case of human trafficking for forced labour, or forced labour, and prompted them to take appropriate action; and that the Applicant was denied protection under Article 4 of the BOR, which in turn was due to the failure of the HKSARG to fulfil its obligations under Article 4 of the BOR”.
He also directed that a further hearing be fixed for argument on the question of relief, including the question of costs and damages.
A.4 The Court of Appeal
15. The respondents’ appeal against Zervos J’s judgment was allowed in part.[...