CB v Commissioner of Police [2024] 2 HKLRD 104, [2024] HKCA 172

Abraham Chan SC and Albert NB Wong represented the applicant (respondent) in CB v Commissioner of Police [2024] 2 HKLRD 104, [2024] HKCA 172.

CB was a Philippine woman who was employed as a foreign domestic helper by Z. She alleged that during her employment, she had been repeatedly sexually assaulted and exploited by Z, and was, at his hands, the victim of human trafficking and forced labour. Following CB’s complaint to the police, Z was investigated for, and convicted of, two counts of indecent assault. However, following a screening process, the police made decisions that CB was not a victim of human trafficking or forced labour. CB successfully applied for judicial review of those decisions against the Commissioner of Police and the Secretary of Justice, with the Secretary for Security as putative interested party (collectively, Rs). The Judge quashed the police’s decisions and remitted them to the Commissioner for reconsideration. The Judge also granted a declaration that the failures regarding the investigation as to whether CB was a victim of human trafficking or forced labour were causally connected to the absence of specific legislation criminalising forced labour. Rs appealed, arguing that: (i) taking CB’s case at its highest, she could not properly be classified as a victim of human trafficking or forced labour; (ii) even if an investigative duty had arisen, the Judge erred in failing to afford a wide margin of deference to the investigative steps taken and concluding there was a failure to conduct an effective investigation into trafficking and forced labour; and (iii) the Judge had erred in concluding there was a causal connection between the breach of art.4 of the Hong Kong Bill of Rights (BOR 4) and the absence of specific legislation criminalising forced labour, and there was a need for a specific offence against forced labour. Meanwhile, Z’s convictions were quashed on appeal due to irregularities in the trial, and he was acquitted after a re-trial before another Magistrate.

Held, allowing the appeal in part to set aside the declaration that the investigative failures in relation to CB were causally connected to the absence of specific legislation criminalising forced labour, but upholding the Judge’s orders quashing and remitting the decisions that CB was not a victim of human trafficking or forced labour, that: 

Whether case involved human trafficking or forced labour 

• (1) There were no specific laws in Hong Kong prohibiting human trafficking. Although BOR 4 may prohibit human trafficking for the purposes of slavery, it did not prohibit human trafficking generally. Notwithstanding this, the Government had adopted various policies and strategies to combat human trafficking, which for the purposes of administrative law amounted to self-imposed public law norms by reference to which the Government’s actions in a specific case could be challenged in an application for judicial review. The definition for human trafficking in art.3(a) of the Protocol to the United Nations Convention against Transnational Organised Crime (the Palermo Protocol) had been adopted by the Government and was relevant for present purposes (ZN v Secretary for Justice (2020) 23 HKCFAR 15 applied). (See paras.7-13.)
• (2) By contrast, protection against forced labour was specifically provided for under BOR 4, and the meaning of “forced or compulsory labour” was defined in art.2(1) of the Forced Labour Convention 1930 (ZN v Secretary for Justice (2020) 23 HKCFAR 15 applied). (See paras.15-17.)
• (3) There was no merit to Rs’ argument that taking CB’s case at its highest, she could not be properly classified as a victim of human trafficking or forced labour, thereby preventing any investigative duties from arising at all. The applicable standard in assessing whether investigative duties arose was one of credible suspicion. Regarding human trafficking and with reference to its definition under art.3(a) of the Palermo Protocol, the exploitation involved did not have to be intended for economic or commercial gain; the prohibited means required was satisfied by the allegation of deception used in CB’s recruitment; and there was evidence to support the contention that CB’s recruitment was for the purpose of exploitation. As for forced labour, it was sufficient that there was a “menace of penalty” which was the material reason or effective cause for its performance. Here, it was legitimate for the Judge to conclude on the evidence that CB would not have performed the sexual acts without menace of some form of penalty. Although the Judge had not dealt with the above arguments as a threshold question, he had in substance addressed them throughout his judgment according to the credible suspicion standard (Shiu Wing Steel Ltd v Director of Environmental Protection (No 2) (2006) 9 HKCFAR 478, ZN v Secretary for Justice [2018] 3 HKLRD 778, SM v Croatia (2021) 72 EHRR 1 applied). (See paras.80-103.)

Whether breach of obligations to investigate 

• (4) The Judge was justified in concluding that there were public law errors in the investigation into human trafficking and forced labour, and had correctly accorded a wide margin of discretion to the police in doing so. The investigative errors included the officer-in-charge of CB’s case misunderstanding and misdirecting himself on the definition of human trafficking; irrationally failing to further investigate whether Z had a previous pattern of sexual exploitation; irrationally taking into account a letter apparently written by a foreign domestic helper previously employed by Z as exculpatory of Z in circumstances when that domestic helper could not be interviewed; and taking into account further irrelevant considerations (In re McQuillan [2022] AC 1063 applied). (See paras.113-117.) 

Whether failures causally connected to the absence of specific legislation criminalising forced labour 

• (5) However, it had not been demonstrated that the failures in the discharge of the investigative duties in relation to CB were causally connected with the absence of a specific offence of forced labour, and that the failures could not be redressed by other measures. The Judge had erred in failing to apply the correct approach on causal connection, under which it was necessary to show that enacting a specific offence was the only effective solution to protect the BOR 4 right. He had also erred in taking into account general and hypothetical shortcomings in the existing system and how they may be remedied, instead of focusing on the actual breaches of BOR 4 found in the present case. The present allegations concerned sexual exploitation and there was existing criminal legislation designed to combat sexual offences. In the circumstances, the Judge’s declaration that the identified investigative failures in relation to CB were causally connected to the absence of specific legislation criminalising forced labour should be set aside (ZN v Secretary for Justice [2018] 3 HKLRD 778, ZN v Secretary for Justice (2020) 23 HKCFAR 15 applied; Siliadin v France (2006) 43 EHRR 16, Rantsev v Cyprus and Russia (2010) 51 EHRR 1, CN v France (ECtHR App No 67724/09, 11 October 2012), CN v United Kingdom (2013) 56 EHRR 24 distinguished). (See paras.119-142.)

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