CB v Commissioner of Police [2021] 5 HKLRD 13, [2021] HKCFI 3142

Albert Wong (led by Abraham Chan SC) appeared for the successful applicant in CB v Commissioner of Police [2021] 5 HKLRD 13, [2021] HKCFI 3142.

X, a Philippine national who worked as a domestic helper, claimed she was subject to sexual exploitation by her ex-employer (Z), and that she had been a victim of trafficking in persons and forced or compulsory labour. X reported the matter to the police. After X was screened, it was ultimately decided that she was neither a victim of trafficking in persons or forced labour (the Decisions). Z was subsequently convicted of indecent assault against X. X applied for leave to apply for judicial review to challenge the Decisions. A rolled-up hearing was set down. Upon sight of the Government’s evidence, X applied for extensive amendment of her Form 86 and for discovery against the Government of: (i) the Commissioner of Police and/or the Security Bureau’s policy/protocol for assessment of forced labour under art.4 of the Hong Kong Bill of Rights (BOR 4) and reasons for the decision made thereunder in relation to X (category 1); (ii) written statements and/or video recorded interview by Z (category 2); (iii) all unused materials in the police/prosecution’s possession in Z’s trial (category 3). Upon X’s request, the hearing of the rolled-up hearing was adjourned and converted into a direction hearing to consider X’s applications for amendment and discovery. The Government did not oppose the application for amendment which was granted accordingly. In light of the amendments, X submitted that despite the order for a rolled-up hearing, leave to apply for judicial review should now be granted. The Government considered that wrong in principle. X then applied for leave to apply for judicial review in the form of the draft amended Form 86 (the 27/9 Summons). X submitted that the granting of leave would trigger the full duty of candour on the part of the Government, so that there would be no risk of the application being dismissed on a rolled-up hearing with inadequate disclosure.

Held, adjourning the 27/9 Summons to be heard during the resumed rolled-up hearing and ordering discovery in relation to categories 2 and 3, that:

• (1) It was not fair to the Government to revisit at this stage the order for a rolled-up hearing. (See para.19.)
• (2) This was not the appropriate occasion to determine whether the Government’s duty of candour arose in the context of a rolled-up hearing as the issue was not engaged. (See para.22.)
• (3) The confirmation on the Commissioner’s behalf that there were no further relevant documents in existence in relation to category 1 was conclusive at this stage (Jade’s Realm Ltd v Director of Lands (HCA 1509/2012, [2014] HKEC 978) applied). (See paras.25 – 26, 28.)
• (4) The fact that category 2 materials might not have been considered by the screening officers or that the category 3 materials were not relied on in Z’s trial did not necessarily make them irrelevant to the present proceedings. They were relevant as to whether the Government had fulfilled its duties under BOR 4. (See paras.31, 33.)

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