Zn v. Secretary for Justice and Others

CACV 14/2017

[2018] HKCA 255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 14 OF 2017

(ON APPEAL FROM HCAL NO 15 OF 2015)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

INTRODUCTION

1.In the judicial review proceedings below, the applicant alleged that he was a victim of human trafficking for forced labour after he was enticed to come to Hong Kong to work as a foreign domestic helper between 2007 and 2010.  He complained that the respondents had failed in their duties and obligations in relation to protection against human trafficking under article 4 of the Hong Kong Bill of Rights (“BOR 4”).  He asserted that those failures were systematic and occurred primarily because of the absence of any legislative framework to prevent human trafficking or to protect victims of human trafficking where they were subject to forced labour.  He therefore sought declaratory relief and damages for the continuing breach of his rights under BOR 4 occasioned by the respondents’ said failures since April 2012.

2.By a judgment dated 23 December 2016 (“Judgment”), Zervos J allowed the applicant’s application for judicial review. He found that the applicant had been a victim of human trafficking for forced labour and he had been denied protection under BOR 4 because of the respondents’ systemic failures as complained of.  As agreed by the parties, the Judge adjourned the question of relief and damages for argument.

3.The respondents now appeal.  Among other things, the respondents argue that the Judge erred in concluding, among other things, that the Hong Kong Government had breached its obligations under BOR 4 by failing to take steps to ensure the prohibition of trafficking for forced labour, in particular a specific criminal offence in that respect.  The appeal is scheduled to be heard on 8 and 9 May 2018.

SAPL’S APPLICATION TO INTERVENE

4.By a summons dated 21 March 2018, Share (Asia Pacific) Limited (“SAPL”) applied to intervene in the appeal.  SAPL is a Hong Kong registered charitable institution.  It runs a project called Liberty Asia, which aims at preventing human trafficking through legal advocacy, technological intervention, and strategic collaboration with other non-governmental organizations and financial institutions in Southeast Asia.  Liberty Asia employs a systemic approach in combating human trafficking, including championing legal reform.  SAPL applied to intervene in the appeal to present its position in relation to the law and the law’s application to facts.

5.By a letter dated 23 March 2018, the respondents indicated that they did not consent to SAPL’s application for the reasons stated therein.  On the same day and 19 April 2018, the Court gave directions for the disposal of SAPL’s application.  Pursuant to our directions, the parties have filed their written submissions.  The applicant adopts a neutral stance while the respondents maintain their objection to SAPL’s application.

6.We have carefully considered all the submissions.  Based on the materials before the Court, we can dispose of SAPL’s application without an oral hearing.  We now hand down our judgment.

DISCUSSION

7.As a preliminary point, the respondents complained that SAPL had been guilty of inordinate delay in taking out the present application.  For reasons to be followed, we do not need to dwell on this point.  We would simply proceed on the basis that SAPL has satisfactorily explained the delay.

8.Under section 13(4) of the High Court Ordinance, Cap 4, the Court of Appeal has the same power as the Court of First Instance does under Order 53, rule 5B and 9(1) of the Rules of the High Court, Cap 4A, to grant leave to intervene to any party who is a proper person to be heard.  In QT v Director of Immigration and Others, CACV 117/2016, unreported, 8 June 2017, we distilled 5 questions to be asked in order to determine if an intended intervener is a proper person to be heard as follows :

(1)   Whether the appeal involves primarily a question of general public importance;

(2)   Whether the intended intervener’s fund of knowledge or particular point of view enables him to provide the court with a more rounded picture than the court would otherwise obtain;

(3)   Conversely, whether the intended intervener will merely repeat points that an existing party will be making;

(4)   Overall, whether the intervention is likely to be helpful and appeals justified; and

(5)   Whether the intervention will cause any prejudice to the existing parties or the court.

9.We will ask the same set of questions here.

10.For Question 1, this appeal plainly involves a question of great and general public importance concerning, among other things, the proper interpretation of BOR 4 and whether the Government had breached its obligations under BOR 4, systemically or otherwise, as contended by the applicant.

11.For Questions 2 and 3, we readily accept that SAPL has ample knowledge in matters concerning human trafficking and how to combat it.  But we do not accept that it can provide the Court with a more rounded picture than the Court would otherwise obtain for the following reasons.

12.Insofar as evidence is concerned, the applicant had already adduced expert evidence on human trafficking in the court below.  SAPL’s knowledge in terms of evidence will not add any further dimension in the appeal.

13.Insofar as legal submissions are concerned, what SAPL seeks to do is, essentially, to advance various legal arguments on how BOR 4 should be construed.  We first note that SAPL is generally in support of the applicant’s submissions before the learned Judge below.  Insofar as those submissions are concerned, SAPL will be substantially repeating points that the applicant will make anyway.  SAPL further argues that there are differences in its approach from the applicant’s. But as rightly submitted by the respondents, such differences are more illusory than real.

(1)   SAPL submits that the applicant exclusively relied or “directly applied” Strasbourg jurisprudence in interpreting BOR 4(3) whereas SAPL adopts a boarder approach.  However, that is not how the applicant’s case was put in the court below : see Judgment at [192].

(2)   SAPL submits that the applicant did not advance an argument on the so-called “change of time” or “interpretation updating” approach to the interpretation of BOR 4.  However, the applicant did argue that the BOR should be treated as a “living instrument” in modern society, relying on the proposition stated in Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 : see Judgment at [195].

(3)   SAPL submits that there is a difference in its approach from the applicant’s as to the meaning of “voluntariness”.  The issue of undertaking work “voluntarily” was addressed by Judge at the Judgment at [235], [241] and [246].  We agree with the respondents and fail to discern any meaningful difference in approach as contended by SAPL.

14.In light of our conclusion on Questions 2 and 3, Questions 4 and 5 must also be answered against SAPL.

CONCLUSION

15.For the above reasons, we refuse SAPL’s application.

16.As we have not heard the parties on costs, we direct them to file and serve their respective submissions within 14 days.

Mr Kay K.W. Chan and Ms Stephanie Y.Y. Chau, instructed by Khoo & Co., for the Intended Intervener

Mr Raza Husain QC, Mr Paul Harris SC and Mr Azan Marwah, instructed by Daly, Ho & Associates, assigned by Director of Legal Aid, for the Applicant

Mr Stewart Wong SC and Mr Jin Pao, instructed by Department of Justice, for the 1^st to 4^th Respondents