N v Secretary for Security [2025] 1 HKLRD 807, [2025] HKCFI 206

Kay KW Chan and Tasman Tam represented the applicants in both cases in N v Secretary for Security [2025] 1 HKLRD 807, [2025] HKCFI 206.

N and M, as foreign domestic helpers, faced exploitation by their employer and employment agency in Hong Kong. They were screened by the Government for victimhood of trafficking in person (TIP) 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 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 (Grounds 3 and 4). N and M’s cases were heard together at a rolled-up hearing. The Court dismissed leave to apply for judicial review for N on all grounds and granted leave to apply for judicial review for M on Ground 1 only, which was substantively established, but declining to grant any relief, and made a cost order nisi that there be no order as to costs (see [2024] 4 HKLRD 105). N and M were partially on legal aid in the rolled-up hearing (for Grounds 1 to 3 and Grounds 1 to 2 respectively). By an earlier decision, the Court dismissed N and M’s summonses to adduce expert evidence (the Expert Summonses) with costs reserved. Rs now applied to vary the costs order nisi to the effect that the costs of and occasioned by these proceedings, including the costs on the Expert Summonses, be paid by N and M to Rs. Rs argued, inter alia, that: (i) save for Ground 1 put forward by M, all intended grounds of review did not pass the reasonable arguability threshold; (ii) as to M’s Ground 1, the “event” had been determined in favour of Rs when viewed as a matter of realistic common sense; (iii) the fact that N and M were partially on legal aid was irrelevant; and (iv) there was no basis to invoke the public interest litigation factor.

Held, varying the costs order nisi to the extent set out in the holdings below, that:

• (1) Costs should follow the event in each of the Expert Summonses. The Expert Summonses could be viewed as relatively stand-alone interlocutory applications, and the costs consequences of them were not so directly linked to the overall outcome or consideration of the matters canvassed at the rolled-up hearing. (See para.19.)
• (2) Issue-based or ground-based orders were appropriate for the rolled-up hearing though it may complicate the taxation process. Grounds 1 and 2 were essentially individual and fact specific to each of the applications of N and M, whilst Grounds 3 and 4 were more general and systemic challenges. (See paras.14, 21, 24.)
• (3) It was incorrect to suggest that M was not the winner on her Ground 1. Though the Court exercised its discretion not to grant relief, M succeeded on the substantive argument on Ground 1 against the argument advanced by Rs. This finding was one of a clear failure on the part of the Government in respect of the duties it owed to M on the facts, and where the claimed second-tier screening was both without documentary evidence and suffered from the chronological mismatch difficulties identified. (See para.22.)
• (4) Despite that Grounds 3 and 4 in each case were considered not to have reached the threshold for granting leave to apply for judicial review, there was significant argument on these grounds as a result of the nature of the rolled-up hearing. These grounds were of the sort as to potentially meet the public interest litigation test and occurred in the context of relatively new and evolving legal considerations (Kwok Cheuk Kin v Chief Executive in Council [2024] HKCFI 358 applied). (See paras.11, 23.)
• (5) The impecuniosity of a party was largely irrelevant to the appropriate costs orders to be made. Given the particular facts of this case, this point may relate to a choice of enforcement or not. (See para.25.)
• (6) In light of the applicable principles and the matters set out above, the costs order nisi would be varied to the extent that N and M shall pay Rs’ costs of the Expert Summonses; that N shall be liable for Rs’ costs of Grounds 1 and 2, M shall be liable for Rs’ costs of Ground 2 and M’s costs of Ground 1 shall be paid by Rs (Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, Cai Zhenrong v Stock Exchange of Hong Kong Ltd [2021] HKCFI 1899 applied). (See paras.9, 26-28.)

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