AM v Director of Immigration [2022] 4 HKC 445, [2022] HKCFI 1046

Albert Wong (led by Abraham Chan SC) represented the successful applicant in AM v Director of Immigration [2022] 4 HKC 445, [2022] HKCFI 1046.

AM and CB were Philippine nationals who worked in Hong Kong as foreign domestic helpers (FDHs) in 2011 to 2013 and 2018 to 2019 respectively. AM claimed she never worked for the employer stated in the contract, but was arranged by her recruitment agent to run a boarding house in the Mainland harbouring girls awaiting employment. She claimed that the Director of Immigration, Commissioner of Police, and Secretary for Justice (the 1st to 3rd putative respondents) failed to conduct any investigation into her recruitment agent and the employer since 2013 and into her case being a victim since 2014; but she applied for leave to apply for judicial review only in 2021. On the other hand, CB applied for the position as a FDH in response to an online advertisement in 2018, she was interviewed by the employer (Z) and another FDH (Janice), but after she started the employment, she was subject to various forms of sexual abuse/exploitation by Z. In 2019 and 2020, she reported the abuses to the police, including a potentially wider practice of sexual abuse by Z against all of Z’s FDHs. The Woman Inspector of Police involved in taking CB’s first statement came to the view that CB was a victim of trafficking in persons (the ‘1st TIP Decision’), and the case was transferred to a Senior Inspector. However, the Senior Inspector came to the view that CB was not a victim (the ‘2nd TIP Decision’ and the ‘Forced Labour Decision’). As a result of prosecutorial advice of the Department of Justice, Z was charged with two counts of indecent assault, and was later convicted after trial. However, no, or very little, investigation was conducted against the abuses which might have been practised on Z’s other FDHs, partly because Janice wrote a letter speaking very favourably of Z (the ‘Janice Letter’). CB applied for leave to apply for judicial review and contended that the 2nd TIP Decision and the Forced Labour Decision constituted a procedural error in not conducting an effective investigation and in breach of art 4 of the Hong Kong Bill of Rights, and were unlawful and unreasonable. Further, CB argued that the breach of investigative duty under art 4 of the Hong Kong Bill of Rights was a result of the absence of a bespoke offence criminalizing forced labour; particularly that the police reached the conclusions prematurely when the evidence warranted further investigation. The putative respondents responded that the Government had a framework, modelled on the Palermo Protocol, to prevent, suppress and punish trafficking in persons as well as to combat forced labour; and that the police met its investigative duty by continuing to investigate into Z’s indecent assault.

Held, dismissing AM’s application for leave to apply for judicial review, and granting CB leave to apply for judicial review, quashing the 2nd TIP Decision and the Forced Labour Decision, remitting the questions as to whether CB was a victim of trafficking in persons and/or forced labour to the Commissioner of Police for renewed consideration, and declaring that the failures regarding the investigation were causally connected to the absence of specific legislation criminalising forced labour:AM’s Case

(1) There was no offered explanation from AM for the substantial delay. There had been actual prejudice caused by the delay because the case file was destroyed in 2018. There clearly was some investigation of the circumstances. The merits of AM’s proposed challenge were not so strong as to point to the grant of the necessary significant period of extension of time (paras 64-101).

CB’s Case

Trafficking in Persons

(2) There seemed to have been a complete failure to take into account the facts and chronology. Had those matters been taken into account, it was difficult to imagine that any rational decision-maker would have concluded that there was not at least satisfaction of the credible suspicion threshold that the recruitment of CB was for the purpose of sex exploitation. It was irrational to conclude that the Janice Letter did anything other than raised further suspicions which required further inquiry and investigation. The material errors and deficiencies were aggravated (i) by the Senior Inspector’s failure to have interviewed CB face-to-face, (ii) by his readiness to embrace the one-sided evidence in support of Z, and (iii) by the lack of further investigation or follow-up in relation to any of Z’s previous FDHs, or the new FDH. In re McQuillan [2022] 2 WLR 49; and Brecknell v United Kingdom (2008) 46 EHRR 42 considered (paras 171-190).

Forced Labour

(3) The police failed to address directly the question whether a forced labour decision had in fact been made at the time. Assuming the Senior Inspector actually did at the time, it seemed: (i) that CB never made a complaint was insufficient, where no complaint was required for the duty to investigate to be triggered; (ii) that CB performed ordinary FDH duties was also irrelevant to the real complaint; and (iii) that CB was able to resign was of minimal weight. At least on the credible suspicion threshold, the menace of penalty was obviously established. To decide otherwise was perverse. The reliance on Janice Letter in the context of the question of forced labour was irrational. ZN v Secretary for Justice[2018] 3 HKLRD 778 ; [2018] HKCA 473 ; [2018] HKCU 2595; and Chowdury v Greece [2017] ECHR 300 considered (paras 191-209).

Bespoke Offence

(4) The absence of bespoke criminal legislation on forced labour did substantially contribute to the investigative and evaluative failures in CB’s case. None of the investigative steps taken by the Inspectors of Police were taken directly for the purpose of investigating into CB’s trafficking in person/forced labour position. Criminal investigation against Z was not affected by CB’s victim classification. CB’s complaint would have been processed through the criminal justice system in the same manner from investigation to prosecution, regardless of the police’s view. The failures demonstrated that the constitutional investigative duty did not fit well with a criminal justice system which had no specific criminal offence targeting forced labour. The lack of any proper written record of a separate negative finding of forced labour was another clear sign that the lack of a specific offence had led to systemic failure. The facts did establish the ‘causal connection’ between the particular failures and the lack of a bespoke criminal offence. ZN v Secretary for Justice [2020] 2 HKC 75 ; (2020) 23 HKCFAR 15 ; [2019] HKCFA 53; CN v United Kingdom (2013) 56 EHRR 24 ; (2012) 34 BHRC 1; and ZN v Secretary for Justice (No 2) [2017] 1 HKC 340 ; [2017] 1 HKLRD 559 considered (paras 210-265).

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




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