Zn v. Secretary for Justice and Others
Read the full judgment text of HCAL 15/2015 on BabelCite. This High Court CFI judgment was delivered on 13 November 2015.
1. In an unprecedented application by the respondents, namely, the Secretary for Justice, the Director of Immigration, the Commissioner of Police and the Commissioner for Labour, I have been asked to recuse myself from hearing an application for judicial review involving an issue of human trafficking, because of the positive stance I took in combating this problem when I was the Director of Public Prosecutions (DPP).
Cited by 1 case · Cites 8 cases
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HCAL 15/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST ___________________
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_______________ D E C I S I O N _______________ Introduction 1.In an unprecedented application by the respondents, namely, the Secretary for Justice, the Director of Immigration, the Commissioner of Police and the Commissioner for Labour, I have been asked to recuse myself from hearing an application for judicial review involving an issue of human trafficking, because of the positive stance I took in combating this problem when I was the Director of Public Prosecutions (DPP). Background 2.The applicant in the judicial review proceedings is a Pakistani national who claims he is a victim of human trafficking for forced labour. 3.The brief facts as alleged by the applicant giving rise to the application are as follows. The applicant was brought to Hong Kong from Pakistan on 1 May 2007 under a standard domestic helper contract. His employer, a Pakistani national who is resident in Hong Kong, comes from a prominent and well connected family in the same village as the applicant. The applicant was illegally put to work by the employer in commercial premises where he was required to reside. He was repeatedly beaten and threatened, was rarely permitted to leave the premises except for the employer’s purposes, was not paid any wages for over two years, and was told that he could not leave his employment unless he repaid substantial sums of money allegedly spent by the employer in bringing him from Pakistan to Hong Kong. Throughout this time the employer retained his passport. 4.The employer continuously put off paying the applicant his wages. In December 2010, he needed the money and when he asked the employer to pay him, the employer arranged his return to Pakistan where he was threatened by members of the employer’s family and told not to demand payment of his wages. There followed a series of threats and altercations against the applicant and his family members from the employer’s family members and associates. 5.In April 2012, the applicant came illegally to Hong Kong to press his claim against the employer for his unpaid wages. Immediately upon his arrival, he went to the Immigration Department to seek assistance about his wages dispute with the employer where he was referred first to the Police and later to the Labour Department. 6.On 2 May 2012, he registered a claim against the employer for unpaid wages in the sum of $220,310.59. During this time, the employer initiated attacks and threats against him in Hong Kong and his family in Pakistan. He reported the incidents to the police in Hong Kong but no action was taken. He claims he was forced by an associate of the employer to settle his claim against the employer in the sum of $32,500. Afterwards, the same associate of the employer threatened to kill him. He reported the matter to the police and sought their protection but was turned away. There was another occasion in August 2012, when he noticed he was being followed by persons associated with the employer. He went to a police station and sought assistance. Police officers made inquiries of his employer and over the next few days checked on him to see if he was alright. 7.On 26 August 2012, he was attacked by a group of associates of the employer, which included the employer’s brother. They beat him and unsuccessfully tried to push him into a car. He broke free and contacted the police through the emergency telephone line. After the police officers had made inquiries, the applicant was charged with robbery and with illegal entry into Hong Kong. He was placed in custody. 8.The applicant’s case was heard in the District Court and on 20 February 2013, he was acquitted of the offence of robbery. The judge commented in her reasons that the actions of the applicant “were wholly irreconcilable with that of a robber”. 9.Thereafter, the applicant sought protection as a torture claimant. On 1 June 2013, he married a local resident and is seeking to remain in Hong Kong as a dependent spouse. Application for judicial review 10.On 30 January 2015, the applicant filed a notice of application for leave to apply for judicial review against the respondents in relation to his case on the ground of the continuing breach of his rights under Article 4 of the Hong Kong Bill of Rights (BOR). Article 4 reads:
11.It is alleged that the applicant complained to officers of the Immigration Department, the Hong Kong Police and the Labour Department about what had happened to him but no steps were taken to investigate his complaints as a case of human trafficking. It is complained that the applicant was denied the protection of his right not to be subjected to servitude or forced labour pursuant to Article 4 of the BOR. It is further complained that these failures were systematic and occurred primarily because of the absence of any legislative framework to prevent human trafficking or protect victims of human trafficking. 12.In consequence, the applicant seeks declaratory relief and damages in relation to the continuing breach of his rights under Article 4 of the BOR occasioned by the respondents’ failure since April 2012 to fulfil their obligations under the article to protect him from forced labour and/or servitude in Hong Kong and further by the failure of the Hong Kong Special Administrative Region Government (HKSARG) to enact legislation against forced labour and/or servitude, and by the failure of the Immigration Department, the Hong Kong Police and the Labour Department, to investigate his case as possible human trafficking. Procedural history 13.On 19 December 2014, the applicant made an ex parte application for an anonymity order before Au J which he granted. On 2 June 2015, Au J heard the application for leave to apply for judicial review where both the applicant and the putative respondents were legally represented. His Lordship reserved judgment after submissions were presented on behalf of the parties. 14.On 9 June 2015, His Lordship granted leave to the applicant to apply for judicial review and directed that the judicial review would be handled and heard by myself and that the parties were to write to me to fix a directions hearing. 15.On 3 July 2015, a directions hearing took place before me where both the applicant and the respondents were legally represented. After a lengthy discussion, available hearing dates were suggested and a timetable was agreed to address various matters in relation to the substantive hearing of the judicial review. A case management conference was fixed for 15 October 2015. It was directed that if the applicant wished to rely on expert evidence he should apply to the Court for an order to admit the evidence by way of summons and file and serve all relevant papers for the hearing on 15 October 2015. 16.On 24 July 2015, after an exchange of correspondence between the parties, the substantive hearing for the judicial review was fixed for 13 to 15 January 2016. 17.On 12 October 2015, three days prior to the case management conference, Ms Phyllis Wong, the Senior Assistant Law Officer (Civil Law) of the Department of Justice, forwarded a letter to my clerk which was copied to Daly & Associates, the solicitors for the applicant. It read:
18.Attached to the letter from the Department of Justice was a chronological table of matters and events in which I said or did things in addressing the problem of human trafficking. Some of the material is very general and even unrelated to the subject of the application as illustrated by the interview of me in the publication of Hong Kong Lawyer, November 2013, where I said that it was important for lawyers to be conversant in human rights. 19.Under cover of letter dated 13 October 2015, Daly & Associates gave the following reply to the letter from the Department of Justice.
20.On 13 October 2015, I directed that in light of the nature and timing of the respondents’ application the matter should be raised at the hearing fixed for 15 October 2015. Skeleton submissions for the respondents from counsel together with a list of authorities were then filed and served. 21.On 14 October 2015, a summons was taken out by the respondents returnable on 15 October 2015 for an order that I recuse myself from continuing to act as the judge responsible for hearing these proceedings and to transfer them to a different judge, that the applicant’s summons dated 12 October 2015 (for an order to admit expert evidence) and the case management hearing be adjourned to a date to be fixed to be heard before a newly assigned judge and that time for service be abridged. Ms Wong Hwa Yih, Senior Assistant Law Officer (Civil Division) of the Department of Justice, filed an affirmation duly authorised by the respondents in support of the summons. 22.At the hearing on 15 October 2015, the parties made brief submissions in relation to the recusal application which were carried over to 19 October 2015 for full argument. Recusal application 23.The respondents explain that the basis of the application is on the question of apparent bias only. 24.The respondents summarise their case of apparent bias in their written submission as follows:
Relevant legal principles 25.It is deeply rooted in the common law that the appearance of impartiality is essential for public confidence in the administration of justice. This is founded on the principle that justice should not only be done, but should be seen to be done. At the same token, it is equally important that judicial officers discharge their duty to hear and adjudicate cases and resist unjustified applications for their recusal by tactical or manipulative considerations. 26.The Appeal Committee of the Court of Final Appeal in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd (2014) 17 HKCFAR 281 addressed the issue by noting at paragraph 38:
Reasonable apprehension of bias test 27.It is a fundamental rule of natural justice that every judicial officer is free from bias. A recusal application can be found on either actual bias or apparent bias, and is generally a matter of whether the judicial officer might not bring an open mind to the resolution of the question that he or she is required to decide. 28.The application in the present case is based on apparent bias. Where a recusal application is made on the grounds of apparent bias, the test to be applied is one of a “reasonable apprehension of bias”. The test has been expressed by the Appeal Committee of the Court of Final Appeal as follows:
29.The reasonable apprehension of bias test underwent some adjustment upon concern that the “reasonable likelihood” and “real danger” tests in R v Gough [1993] AC 646 tended to emphasise the court’s view of the facts and to place inadequate emphasis on the public perception of the irregular incident. 30.Lord Hope of Craighead in Porter v Magill [2002] 2 AC 357 at 494H articulated the test in the following way which emphasises the need to consider the relevant established facts.
31.Kwan JA in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd [2014] 3 HKLRD 375, at paragraph 51, explained the test in terms of “…whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge had not brought or will not bring an impartial mind to bear on the adjudication of the case, that is, a mind open to persuasion by the evidence and the submissions of counsel…”. 32.A recusal application is therefore to be objectively considered through the prism of an observer who is fair-minded and informed. The courts have provided guidance on how the fair-minded and informed observer should be conceived and it has been best explained by Lord Hope of Craighead in Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 where he said:
33.From this comprehensive description, we can glean that the fair-minded observer always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, and her approach must not be confused with that of the person who has brought the complaint. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively.[2] 34.On how a fair-minded observer would assess a situation, Kirby J in Johnson v Johnson (2000) 201 CLR 488 at paragraph 53 said:
35.The fair-minded and informed observer, as conceptualised by the courts and as employed in the reasonable apprehension of bias test, will have regard to all the relevant circumstances pertaining to the recusal application, as a statement or act exhibiting apparent bias may be displaced when considered in its full and proper context. 36.In deciding a recusal application, the court must first ascertain all the circumstances which have a bearing on the suggestion that the judicial officer was biased, but this should cover more broadly all relevant circumstances, and then to ask whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judicial officer was biased. 37.The importance of the appearance of justice being seen to be done cannot be overstated, but there is a strong need for courts to apply realistic criteria in considering whether a reasonable apprehension of bias has been established. 38.Care should be taken when addressing an application of apparent bias. Bare claims of the appearance of bias are not sufficient. As observed by Mason J (as he then was) in Re JRL ex parte CJL (1986) 161 CLR 342 at 352:
39.A vague or general contention of ‘bias’ is not sufficient to mount a recusal application and the complaining party must specify how the judicial officer would be biased towards a particular party or on a particular issue, or what that bias would be. As noted, the allegation of bias must be assessed objectively by the fair-minded and informed observer by having regard to all the relevant circumstances pertaining to the recusal application. 40.An applicant must show a logical connection between the asserted apprehension of bias and a particular party or issue. This was explained by Kwan JA in Falcon Private Bank Ltd at paragraph 55, where she said:
Judicial duties 41.The observer is taken to be fair-minded and informed, and the person being observed is a professional judicial officer whose training, tradition and oath or affirmation requires the judicial officer to discard the irrelevant, the immaterial and the prejudicial. 42.It is incumbent upon judicial officers to be true to their oath of office to uphold the Basic Law and to decide cases without fear, favour or self-interest or deceit. To this end, judicial officers are required to discharge their professional duties unless disqualified by law. They should not accede too readily to suggestions of an appearance of bias, “lest parties be encouraged to seek such disqualification without justification.” See Johnson v Johnson (2000) 201 CLR 488 at 504 per Kirby J. 43.The judicial oath of office reads:
44.Lord Mance in Helow at paragraph 57 addressed the significance of the judicial oath by referring to a passage from the following Canadian case:
45.He went on to say:
46.It is clear that the judicial oath is no more than one factor to be taken into account when objectively assessing the risk of bias. However, I consider it to be more than a symbol for the judicial oath is sacrosanct and imposes on the judicial officer the strict duties and obligations as stated therein. Judicial officers 47.The Court of Appeal in Locabail (UK) Ltd at paragraph 25 laid down that, while everything will depend upon the facts and the nature of the issue to be decided, objections could not be based on religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, ordinarily, would the judge’s educational, social, employment or service background, nor his political associations, professional associations, membership of social, sporting or charitable bodies, prior judicial decisions or views expressed in textbooks, lectures, speeches, articles, interviews, or reports or responses to consultation papers, nor the fact that he had in the past received instructions from a party. 48.Judicial officers are not automatons. They will normally have views or positions on legal principles or policies, which may change from time to time, and this will usually be reflected in their decisions. 49.In R v S (RD) [1997] 3SCR 484, L'Heureux-Dubé and McLachlin JJ at paragraph 119 pointedly observed that:
50.Mr Dykes referred to the case of Sengupta v Holmes [2002] EWCA Civ 1104 where Laws LJ at paragraphs 30 and 31 discussed the distinction between two types of putative bias.
51.Mr Dykes argues that a distinction must be drawn between preconceptions and bias. He says preconceptions are views held on a topic before the commencement of a trial. He gives the example of a layperson, such as a tribunal member, who may not be able to exclude such preconceptions from his or her decision-making. However, he argues that a trained judge will normally be aware of them and able to exclude them. He submits it is only where the judge’s preconceptions appear to be so entrenched that he is unable to set them aside and consider the evidence objectively that a fixed preconception gives rise to apparent bias. He stresses however that the mere fact that a judge had previously expressed a view on an issue which he is now required to try is not a proper basis for a judge to recuse himself. Of course, this will all depend upon the particular facts and circumstances of the case and how it would be viewed by a fair-minded and informed observer. 52.Mr Dykes points out that it is normal practice of the court to assign cases to specialist lists, with specialist judges, experienced in the relevant area of law. In such cases, it is often normal that a judge will have spoken publicly about reform or development of an area of law in which he or she is well acquainted. The judge cannot help having views about particular issues but such views are put to one side in the process of adjudication. However, such experience is beneficial to the rule of law and excluding judges in such a situation would be counter-productive. 53.Mr Dykes has referred to the Bangalore Principles of Judicial Conduct (2002) adopted by the United Nations in 2006. The UN Commentary the Bangalore Principles (March 2007) deals with Value 2 Impartiality and so far as material states:
54.Mr Dykes has helpfully directed my attention to two judicial guides of conduct, the Guide to Judicial Conduct, England & Wales (2013) and the UK Supreme Court Guide to Judicial Conduct (2009). The 2013 Guide gives advice at paragraph 3.10 that where judges have ‘strong views’ on matters relevant to a case and says a risk of apparent bias may arise only if the matter is ‘controversial or political’. The Supreme Court Guide notes at paragraph 3.14 that “previous participation in public office or public debate on matters relevant to an issue” will not normally be a problem unless the Justice has committed himself or herself to a view “irrespective of the arguments” that may be canvassed. The Supreme Court Guide also notes at paragraph 3.4 that it is important for Justices to deliver lectures and speeches, to take part in conferences and seminars, to write and teach and generally to contribute to debate on matters of public interest in the law, the administration of justice, and the judiciary. Impartiality is not compromised by participation in public debate about an issue and it is recognised that it is important to engage in legal issues outside court for the purpose of enhancing “professional and public understanding” of an issue. Waiver 55.It is open to a party not to raise an objection on grounds of bias. It has been held that a party can waive its right of objection if it has acted freely and in full knowledge of the facts: R v Bow Street Magistrate, ex parte Pinochet (No 2) [2000] 1 AC 119, at 137 per Lord Browne-Wilkinson. Lord Bingham of Cornhill in Millar v Dickson [2002] 1 WLR 1615 at paragraph 31, explained that for a waiver to be valid, it must be a voluntary, informed and unequivocal election by a party not to raise an objection which it is open to that party to claim or raise. 56.The vital requirements for a waiver as stated by Lord Phillips CJ in Smith v Kvaerner Cementation Foundations Ltd [2007] 1 WLR 370 at paragraph 29 are “that the party waiving should be aware of all the material facts, of the consequences of the choice open to them, and given a fair opportunity to reach an unpressured decision.” 57.I raise the issue of waiver because it is open to the respondents not to raise an objection on grounds of bias. There seems to me to be two very good reasons why this is open to them which I will briefly discuss even though the respondents have chosen to raise an objection. 58.First, the respondents have stated that they have the highest possible regard for my independence, integrity and professionalism and expressly disavow any suggestion that I am actually biased in favour of any party. With such a strong endorsement for my impartiality from the respondents who are seeking the recusal, would not a fair-minded and informed observer ask that if there is no possibility of actual bias, how can there be the appearance of it? 59.Secondly, the appropriateness of the HKSARG, through the respondents, in making such an application which is not in the same category as an ordinary litigant. 60.The respondents argue that the principles of apparent bias apply to judicial officers and should be applied objectively irrespective of whether the party who raises the issue is a public authority. Does that mean that from now on, the past or even current role or function of a judicial officer in the law or in law reform will be examined and scrutinised in order to address any apparent bias. Most judicial officers are deeply involved in the law and have or do commit themselves heavily to its reform and development and without such contribution the law and our legal system would suffer. 61.As commonly seen, an application for the recusal of a judicial officer on the appearance of bias is normally made by an ordinary litigant because of a lack of familiarity with the legal process and a heightened sensitivity to any appearance of bias. When the litigant is the HKSARG, it should be rare indeed that it would make an application for the recusal of a judicial officer, and if it does it should be only in the most obvious cases. For it should be less reluctant for the HKSAR to do so than the ordinary litigant, and thereby display greater confidence in and respect for the workings of the judiciary. 62.The respondents argue that there have been at least four prior occasions in Hong Kong when recusal applications have been made by the HKSARG in the context of a criminal trial, in other words, by the prosecution. Without going into the details of each case, one case involved a District Court judge refusing to hear a case,[4] another case involved a doubtful recusal application[5] and another case was a judicial review where it was held that the District Court judge incorrectly disqualified himself.[6] 63.The final case was a judicial review of a District Court judge’s decision to refuse to recuse himself on the application by the prosecution and the defence.[7] It was alleged that at a legal conference the judge commented that he did not believe in the offence of careless driving and thought it was of little efficacy. The judge then had a case involving that offence and a recusal application was made. Hartmann J in his judgment refusing leave to apply for judicial review noted that the judge’s comments were of a jurisprudential nature and that:
64.These comments are apposite to the present application. Lateness of the application 65.There is an obligation on a party to make a recusal application expeditiously, and lateness of an application and the absence of any explanation for the delay will be conclusive that there has been a waiver. It will depend upon whether the applicant was aware of all the material facts and has decided not to raise an objection on the grounds of bias when it was open to him to raise such an objection. See Millar v Dickson [2002] 1 WLR 1615 at paragraphs 33(1) and 34; JSC BTA Bank v Ablyazov [2013] 1 WLR 1845. 66.Recusal applications should be made promptly as soon afterwards when enough relevant facts are known. Late applications are discouraged, unless there is good reason for the delay, for it is highly undesirable that cases should be aborted unless the reality or the appearance of justice clearly requires that that should be done. See JSC BTA Bank v Ablyazov (No 9) [2013] 1 WLR 1845 (CA) at paragraphs 77 to 84; Locabail (U.K.) Ltd v Bayfield Properties Ltd [2000] QB 451 at paragraph 26. 67.In the second affirmation of Ms Wong Hwa Yih, she states that towards the end of June 2015 a meeting was held between the Department of Justice’s legal team and the client departments to discuss matters in relation to the directions hearing on 3 July 2015. She claims that it was during this meeting that the issue of possible apparent bias on my part was first raised and the article in the South China Morning Post dated 10 March 2013 was briefly mentioned. Upon counsel’s advice, the legal team took the view that the article alone was insufficient to form the basis for a recusal application and that further material, if any existed, would be required to justify a recusal application. She said the legal team took the position that the matter should be kept under review. 68.Ms Wong states that in consequence of the directions hearing on 3 July 2015 the main focus of the respondents was filing affirmation evidence in opposition to the judicial review and this significantly occupied both the client departments and the legal team. She said in the meantime, however, pursuant to counsel’s advice, the legal team continued to retrieve further material and information in respect of my involvement in the subject of human trafficking. She said that leading counsel’s advice was sought and was received towards the end of September 2015. She said careful consideration was given to the matter in consultation with the clients, after which a decision was made to make the application for my recusal. 69.I should say that my involvement in the subject of human trafficking was when I was the DPP and a law officer of the Department of Justice which was both public and publicly recorded. That is evident by the material that the respondents rely on in support of this application. The material, such as papers presented by me and the Prosecution Code, would have been known to the client departments, in particular the Department of Justice, and readily available to them. Clearly, the matters raised in support of the recusal application would have been and were known by the client departments as evidenced by the reference to the South China Morning Post article which was discussed by the legal team in late June 2015. 70.In any event, I accept that the legal team involved in the case may not have known all the relevant facts as to my involvement in the subject of human trafficking and although the application was made late did not constitute a waiver. Relevant circumstances 71.The following is a brief description of the relevant and salient circumstances to be considered in objectively assessing whether there is apparent bias. For the sake of clarity, I have referred to myself as the Judge.
Respondents’ view of the Judge 72.The respondents have stated that they have full confidence in my impartiality as a judge. 73.In the letter from the Department of Justice dated 12 October 2015 it is stated:
74.In the respondents’ written submission it is stated:
75.The significance of these statements by, or on behalf of the respondents, is that they go further than what is usually said in other cases because they are positive assertions by the applicants to the recusal application of there being no doubt as to my impartiality. The subject matter of human trafficking 76.The respondents in their written submission acknowledge the evil of human trafficking and forced labour. In paragraph 13 it is stated: “There is of course no dispute or disagreement that human trafficking and forced labour are evils which need to be combated.” 77.If I have said or done no more than to further the objectives to which the respondents also seek to further, then how would a fair-minded and informed observer consider the matter? Take as an example, a trial judge who has in the past expressed his condemnation of the crime of murder or has recommended reform to the elements of the offence of murder. Does that prevent him from trying a murder case? I do not believe it creates any impediment for the trial judge to hear such cases. 78.The respondents seem to be suggesting that what I have said and done on human trafficking is to comment that the current legislative and law enforcement framework is inadequate in dealing with this problem, but I point out that none of the comments concern the duties and obligations of the HKSARG under Article 4 of the BOR, or make reference to any failure by the HKSARG in this regard. My comments could be taken that the problem of human trafficking is being addressed by the HKSARG and on this the applicant takes no issue. The respondents’ submission 79.Mr Stewart Wong, SC, appearing with Mr Jin Pao, for the respondents firstly notes that the application for judicial review concerns a wide ranging challenge in relation to the adequacy of the existing administrative and legal regime to combat human trafficking and forced labour. 80.He points out that I was the DPP from 25 March 2011 to 8 September 2013 and that most, if not all, of the material events in this application for judicial review took place within that timeframe. However, that is not the basis for the recusal application by the respondents and the applicant who may have reason to raise this matter as an objection has specifically declined to do so. 81.Mr Wong submits that the major concern arises from my active involvement in matters relating to human trafficking and exploitation while I was the DPP. He acknowledges that there is no question that these matters were undertaken by me except “in good faith” and what was considered to be “a fair and proper discharge of his public responsibilities as the DPP in the public interest.” It begs the question, given this endorsement by the respondents (the applicants of the recusal application), then how is a fair-minded and informed observer to view the issue when deciding whether there is a real possibility that I was biased. 82.Mr Wong prays in aid that I was personally involved as the DPP in the formulation of new initiatives adopted by the Department of Justice to address and combat human trafficking. He says this included at least two major fresh initiatives, namely, the introduction of amendments to the Prosecution Code in 2013 (in the form of a new chapter, which replaced the previous Statement of Prosecution Policy and Practice) and the more systematic reporting of cases to better monitor trends and the size of human trafficking in Hong Kong. But how does this impact on my duties as a judge in adjudicating this case? As the DPP, I handled and dealt with a whole range of matters and initiatives in relation to criminal offences. Does that mean that I should be disqualified from handling such cases as a judge in the future? I do not think so. 83.Mr Wong argues that these matters must be considered in the context of public statements made at the time. He refers to a speech I gave at the Opening Ceremony for Prosecutions Week 2013, where I expressly identified human exploitation as an area which required reform. He also refers to print media accounts in 2013 where I was reported to have said that the HKSAR was not exempt from human exploitation, and that there was a need for an integrated approach, that human exploitation should be dealt with in a comprehensive, consistent and compassionate manner, and that the HKSAR needed to move with the times. He points out that I was also reported as saying that sex trafficking, forced labour and abuse of domestic helpers are equivalent to ‘modern-day slavery’, and in televised media I stated that human trafficking is a growing problem for the HKSAR. This is all true, but the point is that all that I said and did was and is consistent with the claimed objectives of the HKSARG and the respondents. 84.Mr Wong also mentioned that there are a number of occasions from March 2013 onwards where I met with different sectors and interest groups to discuss issues in relation to human trafficking and that I was a representative of a newly established Advisory Committee which in May 2013 discussed the identification and extent of the problem in Hong Kong together with possible initiatives to assist frontline officers. I have difficulty seeing how these matters would impact on a fair-minded and informed observer when applying the reasonable apprehension of bias test with respect to the case that I have to adjudicate upon. I appreciate that the question remains whether any of these matters display an improper predisposition on my part to decide an issue one way rather than in another. 85.However, the connection between what I have said and done as the DPP and the subject matter of the present judicial review is that they come under the rubic of human trafficking. Whilst I have expressed firm views about addressing human trafficking, so has the HKSARG and the respondents, but more significantly I have not previously expressed any views as to Article 4 of the BOR and the legal duties and obligations of the HKSARG in relation to it. 86.Based on the foregoing matters, Mr Wong submits that I clearly had a pivotal role to play in the formulation of policy, implementation of measures and reforms, and in accounting to the public on issues relating to human trafficking, exploitation and forced labour in my capacity as the DPP. He further submits that by expressed views and involvement went further than a government lawyer or officer merely explaining government policy and that that I took the lead, introduced measures and reforms, and expressed very firm views. He argues because the application for judicial review will involve, inter alia, an examination of those measures and policies to determine their adequacy from a legal standpoint under Article 4 of the BOR, there is a risk that I would be biased. This has to be assessed from the viewpoint of the fair-minded and informed observer. 87.From these circumstances, Mr Wong submits that a fair-minded and informed observer would conclude that there is a real possibility that I would be influenced by my previous involvement in policy-making on human trafficking, the strength of the views I expressed in public statements as to the extent of the problem and the need for reform and the implementation of measures over which I oversaw, in the determination of the very issues arising in this application for judicial review. I disagree. 88.Whilst I addressed the issue of human trafficking as the DPP, what I am being asked to decide in the present judicial review proceedings is to address essentially a question of law. Also, one would expect that a fair-minded and informed observer when considering all the circumstances would take into account that I am a professional jurist trained to discard the immaterial, the irrelevant and the prejudicial. Although it is acknowledged this is only one factor to be taken into account by the fair-minded and informed observer it is nevertheless a factor that should be considered, given the subject matter of the recusal application. 89.In Davidson v Scottish Ministers (No 2) 2005 1 SC (HL) 7, the House of Lords was satisfied that the earlier involvement of Lord Hardie, as Lord Advocate in Scotland, in promoting a bill in Parliament would render the fair-minded and informed observer concerned that he may seek to uphold his earlier views in a case where he sat as a judge in relation to interpretation on the same issue. Lord Bingham of Cornhill held at paragraph 17:
90.The case of Davidson is cited by Mr Wong as authority for my recusal. He submits that in that case the prior involvement of a judge in an official capacity as to the introduction of a matter (in that case, legislation), the correctness of which he is then called upon to later adjudicate upon as a judge may give rise to an appearance of bias warranting recusal. I do not believe that the case goes that far and seems to have been decided on its own particular set of circumstances. In any event, the court was at pains to stress that there are no hard edge rules in this area. 91.Mr Wong also refers to the judgments of Lord Hope of Craighead where he said at paragraphs 55-57: “He committed himself to the view ...”; “... Lord Hardie was actively promoting the legislation ...”; and a fair-minded observer “would appreciate the importance of the issue to the Government's principal law officer”; and Lord Cullen of Whitekirk at paragraph 79 where he referred to Lord Hardie as committing himself to a particular view. 92.Mr Wong acknowledges that whilst the facts and circumstances were different, those cases demonstrate that it is a question of how firm, committed or entrenched the fair-minded observer would perceive the views held by the judicial officer to be so as to affect his impartiality. I agree with this proposition but with the qualification that the views have to be of relevance to the issues to be decided upon, or as explained by Kwan JA, have a logical connection with each other, and that the views exhibit a prejudgment incapable of being altered by evidence or argument after taking everything into account as viewed by the fair-minded and informed observer. 93.It is acknowledged that the case for the respondents is not that a judge must have no preconceived ideas or views at all on the issues, or on the parties (or their legal representatives), that are before him but whether the fair-minded observer would think that the holding of any such views by the judge is such that there is a real possibility that he would not judge the matter impartially and with an open mind. Mr Wong submits this raises the question of how firm, or entrenched, the observer would consider those views to be in the judge’s mind in all the circumstances, and to focus on the relationship of those views to the particular issues arising from the matter requiring adjudication by the judge. Mr Wong gives examples of cases where the relevant judge was considered to be apparently biased because of the firm and strong views he had expressed. But this will depend on the nature and the context of such firm and strong views. For instance, a judge expressing the strong view that he is against human trafficking is no more than a judge expressing the strong view that he is against the offence of murder. Both are universally accepted views shared by all law abiding citizens and the HKSARG. Would that warrant the recusal of a judge in deciding a case of human trafficking or murder? 94.Mr Dykes in response to the two cases that are relied upon by the respondents in their submission he addresses as follows. The first case he addressed was Davidson. He explains that in that case Lord Hardie, in his position as Lord Advocate, had made assurances to the legislature, when passing legislation that the Scottish Government would have certain powers upon devolution. However, Lord Hardie, then in the Court of Sessions and sitting as an appellate judge, refused the applicant’s case that the legislation did not confer those powers on the Scottish Government. The House of Lords agreed with the applicant’s concern that the “fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that Lord Hardie, sitting judicially, would subconsciously strive to avoid reaching a conclusion which would undermine the very clear assurances he had given to Parliament.”[9] This case is heavily relied upon by the respondents as being on all fours with the present application. I do not agree for the two situations are very different. The second case he addressed was Falcon Private Bank Ltd. He explains that the Court of Appeal at paragraph 66 agreed that the trial judge’s attacks on the professional integrity of the applicant’s legal representatives were such that the observer would conclude “the judge’s mind was closed to persuasion by the defendants’ submissions and that his ability to impartially adjudicate upon them was affected by the view he had taken of their counsel.” Mr Dykes argues that these two cases are quite distinct from the present application and a clear instance where there is a logical connection between the conduct giving rise to the apprehension of bias and the possibility of departure from impartial decision-making. I agree with his submission. 95.Mr Wong also makes the point that as in this case, the petitioner in Davidson expressly disavowed any allegation of actual bias, but at paragraph 7 was “at pains to disclaim any challenge to the personal honour or judicial integrity of Lord Hardie. They are not in question”. Indeed, the fair-minded and informed observer would also be aware that the judge would have taken the judicial oath. While these are relevant matters to be taken into account, they cannot be a sufficient answer to the challenge, but are to be balanced against all other relevant facts and considerations including those pointing to (apparent) bias. Otherwise, no case of application for recusal based on apparent bias (as distinct from actual bias) would ever succeed. In Davidson, where the challenge on apparent bias was upheld despite the express disavowment, Lord Bingham dealt with the question of judicial oath at paragraph 18 as follows (which reasoning also applies to the question of the party's own view of the integrity of the judge):
96.At paragraph 57, Lord Hope also referred to, and took into account, the fact that Lord Hardie had taken the judicial oath, but taking everything into account concluded that the apparent bias test had been satisfied. 97.It is also argued by Mr Wong that unlike, for example Davidson, where the challenge was made after an unfavourable judgment had been handed down against the party challenging, this application is made before I have made any adjudicative ruling of an adversarial nature. He points out that even then the court is duty bound to consider the challenge on its merits. He refers to Lord Hope’s comments at paragraph 46 that: “The court’s duty is simply to examine the information that is put before it and to assess its consequences”. I do not see the relevance of this point in applying the reasonable apprehension of bias test. A classic case of forum shopping would normally be attempted before the judicial officer sought to be recused has decided upon the case. 98.It is the respondents’ submission that the fair-minded observer would consider the views held by me as mentioned in their submissions to be such that there is (apparently) bias. The applicant’s submission 99.Mr Philip Dykes, SC, who appears with Mr Azan Marwah, for the applicant submits that the issue to be resolved in the judicial review proceedings is the constitutional question as to whether the HKSARG has met its positive obligations under Article 4 of the BOR to protect the applicant from forced labour and/or servitude and that what I said when I was the DPP about the HKSARG’s response to the issue of human trafficking and associated crimes would not lead a fair-minded and informed observer to conclude that there was a real possibility of apparent bias on my part. 100.He notes that Article 4 of the BOR restates the obligation that the HKSARG has undertaken through Article 8 of the International Covenant on Civil and Political Rights (ICCPR). The article is non-derogable both domestically and as a matter of conventional obligation. He submits that the public statements attributed to me are not in any way inconsistent with the HKSARG’s publicly stated position on Article 4 and its international obligations, and therefore would not attribute to me the appearance of bias because of that. 101.He refers to the affirmation of Ms Wendy Leung, the Administrative Assistant to the Secretary for Security, who made the affirmation duly authorised on behalf of the respondents in opposition to the application for judicial review. She states that although the HKSARG is not a party to any instrument relating specifically to human trafficking, it nevertheless attaches significant importance in dealing with issues relating to and in ultimately preventing human trafficking, and believes its laws are effective in preventing it. She states that the HKSARG is serious about combating servitude and forced labour, even though it does not possess dedicated legislation on the topic and that it does combatant deal with these matters. She states that the HKSARG has effective enforcement and prosecution measures to deal with trafficking, exploitation and forced labour; it has procedures that enable identification of victims; it assists and protects human trafficking and forced labour victims; it cooperates with other countries and overseas enforcement agencies. In respect of prosecution she states this on behalf of the respondents:
102.Mr Dykes addresses the specific remarks made by me that have been identified by the respondents as supporting their application for my recusal. 103.The first is the statement in June 2013 that the offence regime addresses human exploitation in its various forms and “to that end” we seek to put forward appropriate measures and reforms. He submits that the statement does not say that the regime is in fact legislatively deficient and that the preceding paragraph talks about room for improvement in the prosecution of cases and that the changes to the Prosecution Code which were introduced a few months later are an improvement that a fair-minded and informed observer would assume I was foreshadowing. I have to disagree to some extent because my statement is open to the interpretation that measures and reforms need to be introduced to address the offence of human exploitation in its various forms. But having said that, a fair-minded and informed observer would consider these remarks together with all the other circumstances, and in particular that I made the statement as the DPP when addressing a legitimate public concern from which the HKSARG does not disassociate itself. 104.The second are the statements in the press in March 2013 about “moving with the times” and dealing with the phenomenon of exploitation in a better way. He submits that these statements do not suggest that the existing legislative regime is constitutionally deficient, and that the same point can be made in relation to the later press report that is relied upon by the respondents. 105.The third is the television interview records that the prosecution policy has been updated to better define categories of human exploitation. As he rightly submits this is more to do with how the presenter has bridged comments from various contributors. 106.The respondents make a point or express concern about the change to the prosecution policy which I initiated and the statements I made about changes to address the problem of human trafficking. 107.Like Mr Dykes, I am unclear how these matters support the recusal application as they were said and done when I was the DPP and a law officer of the Department of Justice, and were and are heavily relied upon by the HKSARG as part of its response to combating human trafficking as seen in the extracted passages from the affirmation of Ms Wendy Leung. The making of public statements by government lawyers in relation to a current legal topic or policy is common practice. 108.Mr Dykes makes a similar point in relation to the reference that I had meetings with different sectors and interest groups to discuss issues in relation to human trafficking. He submits that this amounts to no more than promoting the issue as part of the HKSARG’s fulfilment of its own policy objectives. 109.In any event, as Mr Dykes rightly points out the revised prosecution policy has nothing to do with the issue in the present case, which is a question of law, namely what are the HKSARG’s obligations under Article 4 of the BOR and whether there has been any breach of such obligations. 110.Mr Dykes submits that the respondents’ case taken at its highest amounts to no more than I have spoken about matters that are uncontroversial and not in dispute between the parties. He articulates his case against the respondents’ application as follows:
111.I think Mr Dykes’ submissions are well made and I agree with them. Conclusion 112.I have carefully considered the relevant circumstances and submissions made by the parties and have concluded that it is not the case that a fair-minded and informed observer would conclude that there is a real possibility that I would bring an impartial mind to these proceedings. I am not persuaded that there are exceptional circumstances of the type that would warrant my recusal on the grounds of an appearance of bias. 113.A fair-minded and informed observer may view the application with some degree of scepticism in light of all the circumstances but the appearance of justice is everything. That is why a recusal application should not be lightly made and should not be lightly considered. 114.Whilst a fair-minded and informed observer would come to the view that I took an active role in addressing the problem of human trafficking when the DPP, I am not persuaded that the observer when taking everything relevant into account would conclude that there is a real possibility that I would be biased. The observer would appreciate that I have been active in this area in the past and have an understanding of the relevant law and principles in relation to it and that I have not said or done anything that would be considered an improper predisposition to decide the case, one way rather than in another. In other words, that I would have a closed mind or put another way, the absence of an open mind, on the matters I am to decide. 115.The fair-minded and informed observer is not without common sense and she would view my actions and statements in the past as being general in nature in relation to my duties as the DPP in addressing the problem of human trafficking. She would also take into account that the issue to be decided upon in the present judicial review application is primarily a question of law concerning a determination of the duties and obligations of the HKSARG under Article 4 of the BOR and whether there has been any failure to fulfil such duties and obligations as determined to apply in the context of the present case. 116.I am not in the same situation as Lord Hardie in Davidson. I am in a very different situation and one in which a lot of judicial officers would find themselves in because they have been active in the learning and the reform of the law. 117.It is appropriate to repeat the comments of Mason J (as he then was) in Re JRL ex parte CJL (1986) 161 CLR 342 at 352, where he said:
118.For the foregoing reasons, I dismiss the application seeking my recusal from this case. I make an order nisi that the respondents pay the applicant’s costs, to be taxed if not agreed.
Mr Philip Dykes, SC, and Mr Azan Marwah, instructed by Daly & Associates, assigned by the Director of Legal Aid, for the applicant Mr Stewart Wong, SC, and Mr Jin Pao, instructed by the Department of Justice, for the respondents [1] Deacons v White & Case Ltd Liability Partnership & Ors (2003) 6 HKCFAR 322, at paras 20 to 24; Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd (2014) 17 HKCFAR 281, at para 11 [2] See Chau Siu Woon v Cheung Shek Kong [2010] 3 HKLRD 49 at paras 13 and 42 per Cheung JA [3] Oaths and Declarations Ordinance, Cap 11, s 17 and Schedules 2, Part V and 3 [4] R v Flickinger [1993] HKLY 163 [5] HKSAR v Yuen Kwok-keung, HCMA 609/2007, 31 January 2008 [6] Nattrass v AG [1996] 1 HKC 480 [7] SJ v Li Chau Wing, HCAL 143/2004, 22 November 2004 [8] At para 23 [9] Davidson v Scottish Ministers (No 2) 2005 1 SC (HL) 7 at para 17 | ||||||||||||||||||||||||||||||
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