CB v Commissioner of Police [2025] 4 HKC 949, [2025] HKCFA 10 (Albert NB Wong)
Albert NB Wong represented the Appellant in CB v Commissioner of Police [2025] 4 HKC 949, [2025] HKCFA 10.
Article 4(3) of the Hong Kong Bill of Rights conferred the right not to be subjected to forced or compulsory labour and the duty of the Government of the Hong Kong Special Administrative Region to comply with its positive obligations under art 4 (BOR4). The appellant, a foreign domestic helper, complained to the police against her employer (Z) for Z’s sexual abuse and indecent assault during her employment. The investigations led to Z being charged with two counts of indecent assault, of which Z was ultimately acquitted following Z’s successful appeal against his initial conviction and re-trial. The judicial review proceedings concerned the police’s decision from their investigation that the appellant was not the victim of trafficking in persons or forced labour. A judge of the Court of First Instance found various errors and operation failures in the police’s investigation, quashed the decisions and remitted them for renewed consideration, and, having concluded that the absence of bespoke criminal legislation on forced labour did substantially contribute to the investigative and evaluative failures in the appellant’s case, granted a declaration that the failures were casually connected to the absence of specific legislation criminalizing forced labour ([2022] 4 HKC 445, [2022] HKCFI 1046). The Court of Appeal affirmed the judge’s findings of investigative errors but allowed the respondents’ appeal to the extent that it was not demonstrated the failures in discharging the HKSAR Government’s investigative duties were casually connected with the absence of a specific offence of forced labour ([2024] 2 HKLRD 104, [2024] HKCU 690, [2024] HKCA 172). The appellant obtained leave from the Court of Appeal to appeal to the Court of Final Appeal.
Held, unanimously dismissing the appeal:
Per Cheung CJ and Fok PJ (Ribeiro and Lam PJJ and Gummow NPJ agreeing)
(1) The starting point for identifying the correct context for the causation inquiry was the positive duty imposed on the HKSAR Government under BOR4 to have in place measures providing practical and effective protection against the activities prohibited under BOR4. The positive duties should be distinguished between their substantive and procedural aspects. Whereas the substantive aspect looked at the end results of finding a prohibited conduct, the procedural aspect was a requirement of means and must not be interpreted to impose an impossible or disproportionate burden on the authorities. ZN v Secretary for Justice [2020] 2 HKC 75, (2020) 23 HKCFAR 15, [2019] HKCFA 53 followed. SM v Croatia (2021) 72 EHRR 1 considered (paras 37-39).
(2) The causation exercise arose where a breach of BOR4 was identified. The approach was fact-specific remedy based, with the remedy that must be adopted depended on the nature of the detected failure. In case there existed more than one potential remedy, the HKSAR Government was afforded a wide margin of discretion in deciding how to address the failure found. This approach focused on the specific finding as to the BOR4 breach in the given case and asked if, in consequence, the rights in BOR4 could be given practical and effective protection by some means other than bespoke legislation criminalising forced labour. The ‘only effective solution’ approach was the appropriate and consistent approach that should be taken as regards causation in the cases concerning the HKSAR Government’s compliance with its positive duties under BOR4. It was the correct way in which to determine if, in the event of a breach of BOR4 rights, the appropriate remedy was to require the enactment of bespoke legislation criminalising forced labour. The Court of Appeal applied that approach in the present case. ZN v Secretary for Justice (above) (CFA); and ZN v Secretary for Justice [2018] 3 HKLRD 778, [2018] HKCU 2595 (CA) followed. CN v United Kingdom (2013) 56 EHRR 24; Botta v Italy (1998) 26 EHRR 241; O’Keeffe v Ireland (2014) 59 EHRR 15; Khudoroshko v Russia (2022) 75 EHRR 32; Sarjanston v Chief Constable of Humberside Police [2014] QB 411; Fadeyeva v Russia (2007) 45 EHRR 10; and Finogenov v Russia (2015) 61 EHRR 4 considered (paras 40-43, 45-47, 50-51).
(3) In the absence of any suggestion that Z could or had been convicted of a forced labour offence if it had existed notwithstanding Z’s acquittal of the indecent assault charges, there was no room to argue the only effective solution to provide practical and effective protection of the appellant’s BOR4 rights was by the enactment of bespoke legislation to criminalize forced labour. The suggestion that the indecent assaults of the appellant might have formed part of a pattern of forced labour for sexual exploitation maintained by Z would not have affected the prosecution of Z arising from the appellant’s complaints. On the facts of the present case, there was no basis for suggesting that to protect the appellant’s BOR4 rights an alternative criminal charge should have been available but was, in breach of those rights, lacking. The failures to further investigate Z’s conducts in respect of other alleged victims were irrelevant to the appellant’s case and the appellant’s BOR4 rights and would not promote a finding of forced labour. ZN v Secretary for Justice (above) (CFA) applied (paras 53, 55, 61-62, 64-68).
(4) It had not been shown that the enactment of bespoke legislation criminalising forced labour was required as the only effective solution to provide a remedy for the breaches of the appellant’s BOR4 rights as found by the courts below. Nor did those investigation failures as found demonstrated that such legislation was required to provide practical and effective protection of the appellant’s BOR4 rights (para 69).
[The above is excerpted from the headnote to the report in HKC.]
