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HCAL 15/2015
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 15 OF 2015
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BETWEEN
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ZN |
Applicant |
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and
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Secretary for Justice |
1st Respondent |
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Director of Immigration |
2nd Respondent |
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Commissioner of Police |
3rd Respondent |
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Commissioner for Labour |
4th Respondent |
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| Dates of Hearing: 12 to 15 January 2016 |
| Date of Judgment: 23 December 2016 |
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J U D G M E N T
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Index
Introduction
Matters to be addressed
Evidential basis of the judicial review
Summary of the evidence
The applicant and his background
The employer and his family
Employment in Hong Kong from 2007 to 2010
The first contract
The second contract
Return to Pakistan
Attempting to recover the unpaid wages
Return to Hong Kong
Seeking redress against the employer
The Labour Tribunal claim
Threats and attacks against the applicant and his family
The Labour Tribunal hearing
Continued threats by the employer
The robbery offence
The CAT claim
Subsequent police complaint
Challenge to the applicant’s evidence
Visits to the Immigration Department
Visits to the Labour Department
Visits to the Police
Other proceedings
The CAT screening interviews
Credibility of the applicant
Findings of fact
The issues in this judicial review
The legal framework
Legal principles of statutory interpretation
The applicant’s submission
The Strasbourg jurisprudence
Interpretation of Article 4 of the BOR
Slavery
Servitude
Forced or compulsory labour
Whether human trafficking is protected under Article 4 of the BOR
The positive obligation under Article 4 of the BOR
Hong Kong’s law and practice
Positive obligation to enact legislation and to implement other measures
The applicant’s case
The issue of delay
Conclusion
Relief and damages
Introduction
1. This is an application by the applicant to judicially review the alleged failure by the respondents to protect him as a victim of human trafficking for servitude or forced labour, after he was enticed to come to Hong Kong to work as a foreign domestic helper between 2007 and 2010.
2. In general terms, the applicant’s grounds for judicial review are that the Hong Kong Special Administrative Region Government (HKSARG) and the relevant government authorities failed in their duties and obligations in relation to the protection against human trafficking conferred by Article 4 of the Hong Kong Bill of Rights Ordinance, Cap 383 (BOR), which prohibits slavery, servitude and forced or compulsory labour. The applicant alleges that he complained to officers of the Immigration Department, the Hong Kong Police and the Labour Department about what had happened to him, but no steps were taken to investigate his complaints as a case of human trafficking for servitude or forced labour. The applicant complains that he was denied the protection of his right not to be subjected to servitude or forced labour pursuant to Article 4 of the BOR. He further complains that these failures were systematic and occurred primarily because of the absence of any legislative framework to prevent human trafficking or to protect victims of human trafficking where they are subject to servitude or forced labour.
3. In consequence, the applicant seeks declaratory relief and damages in relation to the continuing breach of his rights under Article 4 of the BOR occasioned by the respondents’ failure since April 2012 to fulfil their obligations under the article to protect him from servitude or forced labour in Hong Kong, and further by the failure of the HKSARG to enact legislation against servitude or forced labour, and by the failure of the Immigration Department, the Hong Kong Police and the Labour Department to investigate his case as one of possible human trafficking for servitude or forced labour.
4. This judicial review raises the issue of the nature and scope of the protection afforded to a person under Article 4 of the BOR against the impermissible exploitation by a person of another person as measured by the prohibited concepts of slavery, servitude or forced or compulsory labour. This pernicious conduct is commonly categorised under the general concept of human trafficking, which is the transportation of a person for the purpose of exploitation. Human trafficking in all its forms is unquestionably an affront to human dignity and a denial or curtailment of personal autonomy from which springs the most fundamental human rights and freedoms.
5. Depending upon the nature and scope of the protection against human exploitation that the law provides, the question arises as to whether the applicant in the circumstances of his case has been denied such protection against human trafficking for servitude or forced labour.
6. At the time the applicant brought the judicial review proceedings, he made an ex parte application for an anonymity order before Au J. This was granted, and the proceedings were commenced under the pseudonym “ZN” in order to protect the applicant’s identity. Later, on 9 June 2015, Au J granted the applicant leave to apply for judicial review at a hearing at which the parties were legally represented, and directed that the judicial review would be heard by me. There followed an application by the respondents for my recusal, which I refused in a decision I handed down on 13 November 2015[1]. An application by the applicant to adduce expert evidence was partially granted by me in a decision I handed down on 11 December 2015.[2]
Matters to be addressed
7. It is contended by the applicant that he has been a victim of an obvious and very serious case of human trafficking for servitude or forced labour. He says he returned to Hong Kong to obtain help from the authorities, but that although he repeatedly approached them for assistance they completely failed to investigate his case. He complains that as a result of this failure to investigate, he has suffered a protracted ordeal, including lengthy imprisonment and trial for a crime he did not commit.
8. The applicant initially sought to argue that the circumstances of his case came within the scope of the concepts of servitude or forced labour. However, as the facts and circumstances unfolded in the course of these proceedings, he put his case on the basis that he was a victim of human trafficking for forced labour only. The issue, therefore, is whether he was a victim of forced labour and whether he was trafficked for that purpose.
9. The applicant generally complains that there is a lack of effective measures in place in Hong Kong to identify and assist victims of human trafficking or forced labour.
10. The applicant submits that in substantiating his claim he must establish the following matters:
(a) That he was a victim of human trafficking for forced labour, and therefore he must satisfy the Court on the balance of probabilities that:
(1) he was brought to Hong Kong by the employer in circumstances involving deception as to his conditions of work;[3] and
(2) once in Hong Kong he was forced to work for the employer by means of menaces of penalties.[4]
(b) That the HKSARG has breached its obligations under Article 4 of the BOR to conduct a proper investigation into his case as a victim of human trafficking for forced labour, and therefore he must satisfy the Court on the balance of probabilities that:
(1) he told a HKSARG official about his case on at least one occasion; and
(2) following receipt of such information the HKSARG failed to carry out an adequate investigation into his case.
11. Critical to these two questions is the nature and scope of the protection conferred by Article 4 of the BOR and the HKSARG’s legal obligations under Article 4 of the BOR in relation to human trafficking or forced labour.
12. I will deal first with the evidential basis of the applicant’s claim, and then examine the relevant law before addressing the arguments of the parties and the issues to be resolved.
Evidential basis of the judicial review
13. The evidence in support of the applicant’s case comes from the applicant,[5] Lam Bik Che,[6] Ma Chun Man Amos,[7] Chan Lui Luna[8], and an expert in human trafficking, Ms Klara Skrivankova of Anti-Slavery International.[9]
14. The evidence in support of the respondents’ case comes from Ms Wendy Leung, Administrative Assistant to the Secretary for Security,[10] Cheung Kwok Hei, Senior Immigration Officer of the Immigration Department,[11] Shum Chi Chung, Acting Chief Investigation Officer of the Immigration Department,[12] Chiu Peng Fai, Inspector of Police of the Hong Kong Police Force,[13] and Chan Wing Han, Senior Labour Officer of the Labour Department.[14]
15. The respondents take issue with the applicant’s account of events concerning his employment as a foreign domestic helper in Hong Kong, and accordingly he has been required to give oral testimony. His evidence was subject to cross-examination. This has necessitated that I evaluate his evidence together with all the other evidence presented in these proceedings in order to make findings of fact in relation to the events and allegations that are the subject of the judicial review.
16. This is a rather unusual occurrence because a court in judicial review is performing a supervisory role over public authorities, and therefore is not usually concerned with making findings of fact.[15] However, on rare occasions, a court will be required to resolve disputed facts relevant to the grounds for judicial review. Even so, the adducing of oral...
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