N v Secretary for Security [2024] 4 HKLRD 105, [2024] HKCFI 1983

Kay KW Chan and Tasman Tam represented the applicants in both cases in N v Secretary for Security [2024] 4 HKLRD 105, [2024] HKCFI 1983.

N and M were Kenyan nationals who were recruited to work in Hong Kong as foreign domestic helpers (FDHs). N and M worked for the same employer at the same residential address in Hong Kong in sequence, and each was recruited by the same employment agency. They were exploited by their employer and employment agency and their complaints included having to pay excessive agency fees, denial of rest days, being subject to poor working conditions including long hours and restrictions in their movements and contact with the outside world. N and M were screened by the Hong Kong Government for victimhood of trafficking in person (TIP) pursuant to its policy for TIP activities and were classified as “not a TIP victim” (the Classification). N and M also contended that they were victims of forced or compulsory labour within the meaning of art.4 of the Hong Kong Bill of Rights (BOR4). N and M brought these judicial review proceedings: (i) challenging their respective Classification (Ground 1); (ii) contending that the Government had failed to discharge its investigative duty owed to them under BOR4 (Ground 2); and (iii) challenging the Government’s decision not to enact bespoke offences against acts in breach of BOR4 and TIP for the purpose of exploitation and/or for the purpose of acts prohibited by BOR4 (Grounds 3 and 4). N and M’s cases were heard together at a rolled-up hearing covering their applications for extension of time to file their Form 86, the applications for leave to apply for judicial review, and, if apt, the substantive applications for review.

Held, dismissing the applications for extension of time and leave to apply for judicial review for N on all grounds; granting an extension of time and leave to apply for judicial review for M on Ground 1 only, which was substantively established, but declining to grant any relief, that:

Ground 1: Challenge to Classification

• (1) In respect of N, Ground 1 failed. Inter alia, none of the indicators in the initial TIP screening existed so there was no need to proceed to a full debriefing under the Government’s own procedures and it had not breached its own policy. Further, the screening policy was not procedurally unfair nor was N entitled to any legitimate expectation to be afforded procedures which were not part of the policy. The Classification reached through such a procedure was not tainted by Wednesbury unreasonableness. (See paras.144, 147, 157, 169.)
• (2) M had met the arguability threshold for granting leave to apply for judicial review for Ground 1 and it was substantively established. Inter alia, three indicators existed in the initial TIP screening but no records were produced to show that a full debriefing was conducted. Reaching a final decision on her victimhood without conducting a full debriefing as suggested by the policy was unreasonable in the public law sense. However, in the overall circumstances, there was no benefit or practical utility to the grant of any relief at this juncture. (See paras.172-175, 230-231, 233.)

Ground 2: Scope of positive duty imposed by BOR4 on Government

• (3) Ground 2 was not reasonably arguable. BOR4 imposed a positive duty on the Government to have in place measures providing practical and effective protection against the activities prohibited under BOR4, but it was a matter for the Government to decide how to achieve such protection, and a wide discretion was given to it in this regard. The positive duty included a duty to investigate, but this did not necessarily entail a mechanism which would formally recognise a person’s victim status as suggested. The provision of effective and practical protection against BOR4 breaches could be done without the victim being given formal recognition of victim status (ZN v Secretary for Justice [2018] 3 HKLRD 778, ZN v Secretary for Justice (2020) 23 HKCFAR 15, CB v Commissioner of Police [2022] HKCFI 1046 applied). (See paras.185-186, 191-192, 196.)
• (4) It could not be said that there had been no investigation into the BOR4 prohibited conducts committed against M and N and the assistance they required. It was possible to take the view that the range of criminal conduct commonly found in forced or compulsory labour had been investigated and addressed by the criminal justice system in their cases. The agent and employer were investigated and prosecuted, and M and N were granted prosecution immunities and new FDH visas which allowed them to be employed by another employer. To a substantial extent, their needs as forced or compulsory labour victims were investigated and addressed. M and N seemed to argue that the only investigative measure that would be commensurate with the nature, seriousness and/or elements of forced or compulsory labour would be a screening mechanism which aimed at providing formal identification of victimhood for forced or compulsory labour, which was a presumption which predetermined the conclusion. (See paras.193-196.)

Grounds 3 and 4: Whether need for enactment of a bespoke offence prohibiting BOR4 violations

• (5) Since N and M failed on Ground 2 as the Government had not breached its investigative duty, it was unnecessary to decide Ground 3 on whether any breach was caused by the absence of a bespoke offence (X and Y v The Netherlands [1985] ECHR 4, CB v Commissioner of Police [2022] HKCFI 1046, CB v Commissioner of Police [2024] 2 HKLRD 104 considered). (See paras.204-209.)
• (6) Ground 4 was not reasonably arguable. N and M relied on 10 articles (the Articles) in 7 international conventions (the Conventions) applicable to Hong Kong to expand the scope of BOR4 to include “exploitation in all forms and human trafficking for the purpose of slavery, servitude, forced and compulsory labour and exploitation in all forms”. However, it was well settled that Hong Kong practiced the dualist principle in that international treaties were not self-executing and unless and until domesticated, could not confer or impose any rights or obligations on individual citizens. It would render the dualist principle meaningless if a ratified but undomesticated international treaty may somehow nevertheless create a substantive legitimate expectation that the treaty obligations would be implemented on a domestic level. Ratification was an act on the international plane, and may give rise to obligations under public international law, but gave rise to no legal rights or obligations under domestic law (GA v Director of Immigration (2014) 17 HKCFAR 60, Fernandez Yvette Dingle v Commissioner of Labour [2021] HKCFI 307, PVQ v Permanent Secretary for Security [2021] HKCA 444 applied; Chan Mei Yee v Director of Immigration [2000] 1 HKLRD 28, Mok Chi Hung v Director of Immigration [2001] 2 HKLRD 125, ZN v Secretary for Justice (2020) 23 HKCFAR 15 considered; Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 distinguished). (See paras.210-211, 216-220, 223, 225.)
• (7) The fact that there were some international conventions (applicable to Hong Kong) capable of being construed as prohibiting human trafficking per se or human trafficking for slavery, servitude and forced labour had very little relevance, if any, either to inform the construction of BOR4, or to identify a clear and unambiguous representation made by a public body to individual persons such as N and M. BOR4 was based on art.8 of the International Covenant on Civil and Political Rights. BOR4 was very different from the Conventions as a whole, and very different from any of the Articles. (See para.222.)
• (8) In any event, the contents of the Articles varied greatly and some were formulated in very wide and generic language. Even when the Articles mentioned legislation, they were framed in aspirational and promotional language instead of imposing an absolute and immediate obligation on the state. Even if the Government had to take the Articles into consideration, it was hard to see how such consideration would lead to the conclusion that they should enact a bespoke offence prohibiting BOR4 violations. (See paras.221, 224.)

[The above is excerpted from the headnote to the report in HKLRD.]