Am v. Director of Immigration and Others
Read the full judgment text of HCAL 466/2021 on BabelCite. This High Court CFI judgment was delivered on 22 April 2022.
1. In ZN v Secretary for Justice (2020) 23 HKCFAR 15 (“ ZN (CFA) ”), the Court of Final Appeal left a door ajar. The Applicants in the present cases invite me to open the door wide and to step through. The Putative Respondents would prefer the door to be closed, but at least not opened any further.
Cited by 1 case · Cites 6 cases
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HCAL 466/2021 [2022] HKCFI 1046 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 466 OF 2021 ________________________
AND HCAL 617/2021 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 617 OF 2021 ________________________
________________________ (Heard together) Before: Hon Coleman J in Court Dates of Hearing: 28-29 March 2022 Date of Decision: 22 April 2022 ______________ D E C I S I O N ______________ A. Introduction 1.In ZN v Secretary for Justice (2020) 23 HKCFAR 15 (“ZN (CFA)”), the Court of Final Appeal left a door ajar. The Applicants in the present cases invite me to open the door wide and to step through. The Putative Respondents would prefer the door to be closed, but at least not opened any further. 2.Therefore, the present cases revisit the twin scourges of ‘trafficking in persons’ (“TIP”) and ‘forced or compulsory labour’ (“forced labour”), as were visited in the ZN case – at CFI, CA and CFA level. These are worldwide problems, but have also been recognised by the HKSAR Government as Hong Kong problems. 3.Each Applicant is a Philippine national who worked in Hong Kong as a foreign domestic helper (“FDH”). It can usefully be noted at once that FDHs as a class are recognised as being in a peculiarly vulnerable state, being foreigners and possibly newcomers to Hong Kong, unable to speak the local language, without family or friends here, having little money and being wholly dependent on their employers for food, shelter, income and eventual repatriation: see Semana Bachicha v Poon Siu Man [2000] 2 HKLRD 833 at §49. 4.Unfortunately, it is a disturbing but notorious fact that some FDHs in Hong Kong have been abused by certain unscrupulous employers, who have taken advantage of their vulnerability, including from the fact that there is a ‘live-in’ requirement. Indeed, as was recognised in the ZN(CFA) case at §3, with a total of approximately 370,000 FDHs working in Hong Kong, there is potentially a sizeable number of persons at risk of exploitative practices that might constitute either forced or compulsory labour or human trafficking. 5.Here, each Applicant claims that she became a victim of forced labour, and one claims to be a victim also of TIP. They each claim that the Government failed to meet its relevant investigative duties, namely duties assumed or imposed once the Government is aware or ought to be aware that there is a credible suspicion of such abuses. 6.The proceedings were commenced by Forms 86 issued in April and May 2021. I gave various procedural directions, including for the filing of evidence, and granting leave for the Forms 86 each to be amended. 7.I also ordered a ‘rolled-up’ hearing for both cases and directed them to be heard together. The hearing, conducted remotely via VCF, was held on 28 and 29 March 2022. 8.The Applicant in HCAL 466/2021 (“AM”) appeared in person, having filed a notice to act in person shortly before the hearing (though she had been previously legally represented, and her 57-page Amended Form 86 (“AF86”) was settled by Counsel, Mr Azan Marwah and Mr Josh Baker). No written submission was filed by or for AM, though she obviously placed reliance on the AF86. Though no previous anonymity order was sought by AM, I make such an order for the purpose of this Judgment. 9.The Applicant in HCAL 617/2021 (“CB”) was represented by Counsel, Mr Abraham Chan SC leading Mr Albert NB Wong. Mr Chan (and Mr Wong) had settled the 55-page long AF86, and sought to distil their case in a helpful 25-page written submission. 10.The Putative Respondents in both cases were represented by the same Counsel team of Mr Jin Pao SC leading Mr Martin Ho. They helpfully filed a 33-page written submission in the AM case, and a 50-page written submission in the CB case. 11.At the conclusion of the hearing, I reserved judgment. This is my Judgment. B. The Door Left Ajar 12.In ZN (CFA), the central point related to Article 4 (“BOR4”) of the Hong Kong Bill of Rights, with the focus on Article 4(3). It provides:
13.It was held that BOR4 imposes on the Hong Kong Government a positive duty to provide practical and effective protection to victims of forced labour. The Government has a wide margin of discretion as to how to comply with such a positive duty, but such duty also entails a procedural obligation to carry out investigation once the Government is aware or ought to be aware of circumstances giving rise to a credible suspicion of such abuses. Whilst the Government was held to have failed their procedural obligation to investigate in the particular case, the Court was not persuaded that the remedy lay in enacting a bespoke offence specifically targeting forced labour. To succeed on that point, ZN would have had to show that the Government’s breach of his BOR4 rights was caused by the failure to enact a bespoke offence. The Court was not convinced that the facts in that case had demonstrated the necessary “causal connection” between the two. 14.But the CFA specifically ruled that the determination in ZN does not preclude the necessary casual connection being shown in a future case. The door to that was, therefore, left ajar. C. The Hong Kong Framework 15.Before turning to the underlying facts in each of the cases relating to AM and CB, which occurred on different timescales – for AM between September 2011 and early 2013, and for CB between September 2018 and April 2019 – it is helpful to consider the Government’s framework for combating TIP and/or forced labour, which varied over time. 16.I shall start with the current framework with time references to the implementation of each component of the framework, where the following is mainly extracted from the affirmation evidence filed for the Police and for the Security Bureau (“SB”). C.1 A Single Framework for both TIP and Forced Labour 17.Before ZN came to be heard before the CA in May 2019, leave was granted for the Government to adduce new evidence by an affidavit dated 4 May 2018. A brief summary of the Government’s framework in combating forced labour as of May 2018 can be found at in ZN(CFA) at §§110-113. The evidence in this case does not suggest that there has been any major change to the framework since May 2018, except the framework seems to have been more widely adopted within different departments (see below). The CFA held that the Government’s framework – or “approach” – was an acceptable method to comply with its duty to provide practical and effective protection against BOR4 breaches: see ZN (CFA) at §114. 18.The framework is modelled upon the Palermo Protocol, which is an instrument adopted by the United Nations (“UN”) to supplement the 2000 Convention against Transnational Organized Crime. The protocol was adopted to prevent, supress and punish TIP. It is perhaps fair to say that the framework, modelled upon the Palermo Protocol, was originally designed to tackle TIP alone. However, the Government also relies on the same framework for combating forced labour. Indeed, as one can see, in ZN, the very same framework was relied upon by the Government to show that it had met its positive duty to provide practical and effective protection against forced labour under BOR4. 19.The Government takes the view that TIP and forced labour commonly manifest themselves in an array of shared forms of exploitation such as physical confinement, assault, criminal intimidation, threats of physical abuse or death, fraud, deception, misrepresentation, and so forth. Therefore, the same framework is deployed to tackle both evils. 20.However, without passing comment on the suitability of such an approach, it can be noted that the framework – having found its origin from the Palermo Protocol – is built around the concept of TIP as defined in the protocol. Despite that, it is said to target forced labour as well. 21.According to Article 3(a) of the Palermo Protocol, TIP is defined as:
22.This definition can be broken up into ‘act, means and purpose’, being (1) the prohibited act (2) the prohibited means by which the act was achieved, and (3) the prohibited purposes for which the act was carried out. This trio of the elements of act, means and purpose is key to the design of the framework and, as will be seen below, is also key in the Government’s reasoning in the classification decisions under challenge. 23.Under this definition, forced labour is identified as one of the prohibited purposes in TIP. This is also relied upon by the Government to justify why it is apt to deploy a single framework to address both evils. C.2 The Legal Basis for Protection against TIP 24.The Palermo Protocol is not applicable to Hong Kong because the Central Government, when it acceded to it in 2010, specifically excluded Hong Kong from its application. Hence, the Hong Kong Government has no international obligation to give effect to the provisions of the Palermo Protocol. 25.But, it is indisputable that the Government has chosen to adopt the Palermo Protocol as a matter of policy given that the entire framework is built around it. Any attempt to claim protection against TIP has to rely on such policy, rather than the Palermo Protocol directly. 26.In the ‘Handbook on Initial Victim Identification and Assistance for Trafficked Persons’ (“Handbook”), which was developed by the Civil Society Anti-Human Trafficking Task Force (a multi-disciplinary and collaborative consortium of organisation advocates launched in 2016 with the United Nation’s Migration Agency Hong Kong SAR serving as the secretariat), the division of TIP into three elements, all of which must be simultaneously present, can again be seen from the following passage:
27.As the Handbook also identifies:
28.If regard is to be had to underlying international materials (which I think is probably permissible, where the Hong Kong policy has adopted an international standard, even though those international standards are not themselves otherwise referenced in any of the documents setting out the policy), it can be noted that the United Nation’s Office on Drugs and Crime (“UNODC”) has produced a list of ‘human trafficking indicators’, which suggest that people who have been trafficked for the purpose of sexual exploitation include those who: (1) move from one brothel to the next or work in various locations; (2) are escorted whenever they go to and return from work and other outside activities; (3) have tattoos or other marks indicating ‘ownership’ by their exploiters; (4) work long hours or have few if any days off; (5) sleep where they work; (6) live or travel in a group, sometimes with other women who do not speak the same language; (7) have very few items of clothing; (8) have clothes that are mostly the kind typically worn for doing sex work; (9) only know how to say sex-related words in the local language or in the language of the client group; (10) have no cash of their own; and (11) are unable to show their identity card. 29.There is also the UNODC Model Law against Trafficking in Persons published in 2009, developed to assist State parties to implement the Palermo Protocol, and drafted with the benefit of assistance from specialists in the field of human trafficking. In the Model Law, the UNODC recommends as a definition of “exploitation of prostitution of others” that it mean “the unlawful obtaining of financial or other material benefit from the prostitution of another person”. Further, “sexual exploitation” is suggested to mean “the obtaining of financial or other benefits through the involvement of another person in prostitution, sexual servitude or other kinds of sexual services, including pornographic acts or the production of pornographic material”. 30.It is fair to say that the Model Law appears to have in mind primarily activities associated with the sex trade, as that phrase is commonly understood. A similar point can be found in Fact Sheet No. 36 from the Office of the High Commissioner of the United Nations Human Rights, titled ‘Human Rights and Human Trafficking’, which states in its introduction:
31.But, as that passage makes plain, though TIP may often or even usually involve a transnational element, it is also correct that TIP does not always require that element. It can occur within a country, and need not involve movement across borders. 32.Although the Palermo Protocol has not been applied to Hong Kong, the conduct of TIP (as defined in the Palermo Protocol) is addressed and prohibited by various pieces of legislation in Hong Kong, including but not limited to physical abuse, false imprisonment, criminal intimidation, fraud, unlawful custody of personal valuables, child abduction, child pornography, and exploitation of children. There are over 50 legal provisions against various forms of conduct which are deployed to address and combat TIP. 33.These numerous provisions have sometimes been referred to as the “patchwork” of provisions used to address TIP (and, indeed, forced labour). Though that word might be thought slightly ‘loaded’, it is an appropriate phrase to describe the collection of provisions scattered across various statutes and the common law. C.3 The Legal Basis for Protection against Forced Labour 34.On the other hand, the right for protection against forced labour is grounded in BOR4(3), which is constitutionally entrenched via Article 39 of the Basic Law. As already stated, BOR4(3)(a) provides that “No one shall be required to perform forced or compulsory labour.” Whilst BOR4(3)(b) excludes certain work or service from the scope of forced labour, otherwise there is no positive definition of forced labour. 35.In ZN, the Court has adopted the definition of forced or compulsory labour under Article 2(1) of the Forced Labour Convention 1930 (“FLC”), which states forced or compulsory labour should mean:
36.As put by the CA in ZN v Secretary for Justice [2018] 3 HKLRD 778 (“ZN(CA)”) at §6 – and see further below – what is required is (1) work or service, (2) menace of a penalty, and (3) involuntariness on the part of the victim. 37.The FLC is applicable to Hong Kong and imposes its own treaty obligation upon the Hong Kong Government at the international law level. But it seems that the Government also relies on the indicators of forced labour as adopt by the International Labour Organization (“ILO”) (the UN organ overseeing the FLC) to justify its view that the TIP and forced labour often involve a mix of substantially overlapping criminal conduct. The ILO has listed 11 indicators of forced labour: (1) abuse of vulnerability, (2) deception, (3) restriction of movement, (4) isolation, (5) physical and sexual violence, (6) intimidation and threats, (7) retention of identity documents, (8) withholding of wages, (9) debt bondage, (10) abusive working and living conditions, and (11) excessive overtime. C.4 The Central Coordinating Authorities of the Framework 38.As stated, Hong Kong does not have one single piece of legislation targeting either TIP or forced labour. The Government relies on a variety (or patchwork) of criminal offences, to be found in various statutes and the common law targeting conduct commonly found in TIP and/or forced labour. These statutory or common law offences are enforced by different law enforcement agencies (“LEAs”), the most relevant of which are the Police and the Immigration Department (“ImmD”). 39.The framework is centrally coordinated via a Steering Committee and a Working Group. The formal title of the committee is the “Steering Committee to Tackle TIP and to Enhance Protection of Foreign Domestic Helpers (“FDHs”) in Hong Kong”. The Steering Committee, established in March 2018, operates as a high-level steering committee set up to offer strategic guidance and policy steer to different bureaux or departments in tackling TIP. It is chaired by the Chief Secretary for Administration with members comprising top officials from the Police, ImmD, Customs and Excise Department (“C&ED”), Labour Department, Social Welfare Department and the Director of Public Prosecutions. Apart from the Steering Committee, there is also an inter-departmental TIP Working Group (“TIP Working Group”) led by SB and comprising the representations from the same departments as in the Steering Committee. The TIP Working Group was established in 2010. 40.At the operations level, there is an inter-departmental Joint Investigation Team (“JIT”) which was set up in 1998 to enable cooperation in day to day operations. It is said that they meet regularly to discuss the current trends in TIP, monitor case statistics and law enforcement initiatives. C.5 The TIP Guideline and the Action Plan 41.The most important documents setting out the Government’s framework are (1) the ‘TIP Guidelines on Inter-Departmental Cooperation for the Handling of Suspected Cases of Trafficking in Persons’ (“TIP Guideline”) which was first published in December 2016 and revised in March 2019, and (2) the ‘Action Plan to Tackle TIP and to Enhance Protection of FDHs in Hong Kong’ (“Action Plan”), which was published in March 2018 and annexed to the TIP Guideline. 42.As can the seen from the title of the Steering Committee and the Action Plan, it appears the Government – laudably – singles out FDHs as a group, warranting special attention in the TIP/forced labour context. 43.The TIP Guidelines set out the general guidance for the executing departments regarding victim identification, investigation, prosecution, protection and provision of assistance for victims, and so forth. It also briefly instructs departments to provide TIP training to its officers. C.6 Victim Identification and Protection 44.As stated in the TIP Guideline, departments which may encounter potential TIP victims should put in place a suitable mechanism best suiting their enforcement circumstances. The mechanism should identify the scope of potential victims (FDHs are listed as an example), a list of standard questions/parameters for identifying such victims, the follow-up actions to be taken once a victim is identified, and provide for guidelines on referral of cases to other departments if necessary. 45.The questionnaire adopted by the Police and ImmD and C&ED for victim identification is annexed to the TIP Guideline. The questionnaire is produced below:
46.The victim identification mechanism as outlined in this questionnaire consists of two parts. The first part is an initial screening. The language of the seven questions suggest that the questions are to be answered by the relevant officer rather than the suspected victim. The initial screening may be conducted without interviewing the suspected victim. Only when there is one or more “Yes” answer in the initial screening should the process proceed to the second part: a full debriefing. The language suggests the full debriefing is to be completed by way of an interview with the suspected victim. The questions are designed to find out the existence of the three elements of TIP (act, means and purpose) as defined by the Palermo Protocol. 47.Following positive identification, the officer is asked to ascertain the types of assistance which the victim needs, presumably applicable if the officer is satisfied after the full debriefing that the interviewee is a victim. Among the list of assistance, at least visa extension seems to have been provided with FDHs in mind. In the Action Plan, one of the objectives set out under victim protection is to provided dedicated support for FDHs, and there is an initiative to set up a dedicated channel such as a dedicated hotline to provide support for FDHs (though the Court has not been informed whether the initiative has been implemented yet). 48.The questionnaire adopted by the C&ED is also annexed to the TIP Guideline. It is similar to that used by the Police and ImmD, with some variation in the questions. 49.TIP identification mechanism was first implemented in ImmD in 2015 and later expanded to Police in 2016 and to C&ED in 2017. By 2018, Police and C&ED has implemented its own victim identification mechanism to all of its operational units. The Labour Department has also implemented the first part of the mechanism – initial screening – in 2019, and it will transfer the case to other LEAs for a full debriefing when appropriate. C.7 Criminal investigation and prosecution 50.In the TIP Guideline, the Government has identified a list of 50 statutory or common offences as relating to TIP, forced labour and slavery. The list is not meant to be exhaustive. When a TIP case is identified by any department, that case is to be transferred to the Organized Crime and Triad Bureau (“OCTB”) of the Police for coordination and follow-up. 51.It is said that where there is a credible suspicion that an arrested person is a TIP victim, that case must be approached with care. Departments are to bring these cases to the attention of the Department of Justice (“DoJ”) which will then decide if it is appropriate to prosecute the person for violation of immigration laws or for the very criminal conduct which is consequent upon the arrested person’s status as a TIP victim and whether that victim should be granted immunity from prosecution for such crimes. 52.In 2013, a section titled “Human Exploitation Cases” was added to the Prosecution Code. It has two paragraphs. The first paragraph elaborates on the concept of human exploitation and TIP. The second paragraph reads:
C.8 Some Implementation Statistics of the Framework 53.Between 2018 and 2020, around 4,500 government officials received local or overseas anti-TIP training. The Government has provided HK$62.23 million recurrent funding in the 2019 to 2020 budget to create 98 new posts (presumably relevant to TIP) in various departments. In 2020, 6,900 individuals were screened for TIP. 54.The JIT monitors and keeps statistics on crimes against FDHs. In 2019 and 2020, there were 26 and 23 crimes committed against FDHs by their employers, representing less than 10% of the crimes committed against FHDs and 0.008% of the entire FDH population in Hong Kong (which is around 370,000). The Government says these figures show no indication of systematic abuse of FHDs by their employers. These statistics, of course, only reflect “abuses” as defined by the currently existing offences. C.9 Police’s TIP/Forced Labour Framework 55.The Commissioner of Police issued Police Headquarter Orders (“HQOs”) to govern how the Government’s general framework is to be implemented within the Police. The HQO relevant at the time of the facts of CB’s case was HQO 12/2019 titled ‘Trafficking in persons and Exploitation of Foreign Domestic Helpers’. In the HQO, the definition of TIP under the Palermo Protocol is reiterated, with the emphasis that the three elements of “act, means and purpose” must be present simultaneously. 56.HQO 12/2019 sets out more details about how the victim identification mechanism is to be implemented within the Police and how cases of “TIP and/or Exploitation of FDHs” are to be handled. 57.For the victim identification mechanism, the Police have selected (a) FDHs and other imported labour, (b) Immigration recognizance (Form 8) holders and (c) illegal workers as the categories of vulnerable persons falling within the scope of potential screening. The Police follow the two-tier identification mechanism: an initial screening followed (where appropriate) by a full debriefing. It is noted that “the initial screening is a thinking process by the screening officer, who only need to check whether any one of the 7 indicators has already surfaced during their normal enquiries with the vulnerable person” and “it is not necessary to inform the vulnerable person of the screening process”. It is also stated that the 7 indicators in the initial screening and the 14 questions in the full debriefing should only serve as guidance for the evaluation process. They should not be taken as evidence of crimes on their own and the screening officer is reminded to consider the circumstances of the case as a whole during the process. The screening questionnaire annexed to HQO 12/2019 is the one shown in the TIP Guideline, but within an additional “Result of Full Debriefing” section for the screening officer to record the result of his or her assessment. The officer is reminded to answer the ultimate question of whether the three elements of “act, means, and purpose” exist simultaneously. 58.In terms of handling suspected TIP and/or Exploitation of FDHs cases, officers are reminded to act promptly and to take proactive steps to provide victim protection and support. From October 2019 onwards, each region has established a specialized team to handle all TIP and Exploitation of FDHs cases within their region, known as the ‘Trafficking in Persons Investigation Team’ (“TIPIT”). At the more central level within Police, the OCTB remains the responsible unit. There are also more detailed instructions at the case management level, for example, how such a case should be marked in the internal case management system, the provision of interpreters in the victim identification process, the procedure by which such a suspected case should route through the internal organs of the Police from file opening to closing, and the like. 59.HQO 12/2019 has been superseded by Police Headquarter Order No 11 of 2020 (“HQO 11/2020”) in December 2020. It is common ground that, for present purposes, there is no material difference between HQO 12/2019 and HQO 11/2020, except that there is clarification on how cases should be allocated internally among the Police. 60.In the Flow Chart of Handling TIP and Exploitation of FDH cases (attached as Annex E to HQO 11/2020), it seems that suspected cases in the category “Exploitation of FDH” will be transferred to the TIPIT of the respective region after the two-tier identification mechanism, regardless of the screening result. But suspected cases involving other types of vulnerable persons will only be transferred to the TIPIT if the victim screening result is positive. C.10 ImmD’s TIP/Forced Labour Framework 61.Within the ImmD, a specialized section known as the ‘Foreign Domestic Helpers Special Investigation Section’ was set up in December 2019 to handle all TIP cases, the victims of which are FDHs. This section will perform the initial screening on entry and post entry FDH visa applications and conduct Debriefing and follow up actions if necessary. It is also said that ImmD will provide assistance to abused or exploited FDHs taking into account such information in their future visa applications, allowing them to change their employer and to stay in Hong Kong on visitor basis to assist criminal investigation or to pursue labour claims if the circumstances so warrant. C.11 TIP and Forced Labour Overlap 62.At this point, it is worth noting specifically that the duty to investigate TIP and the duty to investigate under BOR4 are separate duties. Whilst it is obviously correct that there are often overlapping indicia, what might not amount to TIP might still be forced labour, and vice versa. 63.Nevertheless, as already noted, the approach taken in Hong Kong is to deal with them by reference to a unitary screening process. At issue in these proceedings is the relatively newly implemented screening mechanism. D. Underlying Facts in AM Case 64.AM was born in 1961. She worked as a FDH in Singapore from 1993 to 1999. AM first started working in Hong Kong as a FDH in 2000, and the main events giving rise to her forced labour claim occurred during the currency of her eighth FDH contract, the term of which ran from 2011 to 2013. 65.Prior to the eighth contract, AM had had past experience in protecting her labour rights. In 2003, she lodged a claim in the Minor Employment Claims Adjudication Board against her then previous employer and obtained a settlement sum of HK$4,920. In 2008, she wrote to the ImmD complaining about deduction of salary by her then employer. As a result, the Government has suggested that AM was a seasoned FDH and was fully conscious of her labour rights and was ready to seek help from the authorities when needed. 66.As to the material contract, AM said a Martin Ng Kwok Fai (“Martin”) was her recruitment agent and an Eddie Chiang Kwun Nam (“Eddie”) was the employer stated in the relevant contract. But AM said she never worked for Eddie. Instead, Martin arranged for her to run a boarding house (at the Mainland side of Lok Ma Chau) harbouring Indonesian girls awaiting FDH employment places. 67.At that time, the Government had not yet implemented the victim identification mechanism in the shape as seen in CB’s case (as to which, see below). Thus AM’s first target of challenge is not a “decision” as to victimhood as such, but the ‘Failures of the Director, Commissioner and Secretary respectively to conduct any or any effective investigation into the Applicant’s being a victim of forced and/or compulsory labour, since February 2014, if not before’ (“Investigative Failure”). 68.Her second target of challenge is the ‘Decisions taken by the Commissioner not to investigate Martin and Eddie, in or after September and October 2013’ (“Investigative Decisions”). As has been alluded to in the way the target is framed, there were some investigations into Martin and Eddie before September or October 2013, but the authorities eventually ended the investigations with no charges laid against them. 69.Instead, it was AM who was charged in 2013 and later convicted of the offence of making false representation to an immigration officer, and sentenced to two months’ imprisonment in 2016. The false statement was made on 14 January 2013, when she stated to the immigration officer at the border that Eddie was her employer. The criminal proceeding was rather protracted and interrupted by an application to reverse her initial guilty plea and an application to stay her trial permanently on the basis that its continuation would amount to abuse of process because the crime she committed was consequent upon her being a victim of TIP. 70.The question also arises on her delay in applying for leave to judicial review, to which I will also come below, on the following chronology. 71.In June 2012, ImmD received two emails from an informant stating that AM was working illegally for her employer’s friend in Shenzhen, PRC, contrary to the conditions imposed by her FDH visa. In August 2012, ImmD received a further email stating that AM had conducted a range of illegal activities, including recruiting her Filipino friends to work in China upon paying AM about HK$2,000 to HK$3,000. It was also said that AM would obtain business visas to the Mainland for these Filipino friends for a fee of about RMB6,000. The informant appeared to live in the neighbourhood where AM carried out these activities and complained that these activities gave rise to scenes of fighting and shouting which affected his children. The full name, HKID Card number, Passport number. and nationality of AM were identified in all three emails. ImmD thus opened an investigation against AM. 72.On 3 September 2013 (the expiry date of the eighth contract), AM submitted an application for change of employer. She was invited to attend an interview with ImmD on 11 September 2013 relating to this application, and she was intercepted and cautioned when she attended the interview. That was how the investigation against her and against those named by her began. 73.AM filed only one affirmation in these proceedings, despite being given leave to file further evidence. She did not really present her own narration of the story, though she confirmed what was said in the then Form 86 filed, and she exhibited various documents. 74.The following account is derived from the various statements she made to the ImmD and the Police. ImmD investigated her as a suspect of immigration offence and interviewed her under caution on 11 September 2013 and 17 September 2013. ImmD also took a non-prejudicial statement from her on 22 October 2013, regarding the suspected illegal conduct of Martin, Eddie and other people. 75.AM’s seventh FDH contract was ended prematurely in July 2011. She engaged an agency known as High Mountain Employment Agency (“High Mountain”) in Mongkok to help her obtain another contract. Martin was a staff member from High Mountain. Martin introduced her to the Eddie who became her employer for the eighth contract. She signed the FDH employment contract when she briefly met with Eddie in person on 1 August 2011. 76.However, later Martin told her that Eddie no longer wanted her services because she was too old, but Martin would arrange a new employer for her. Martin first introduced her to an employer from the Mainland but she rejected it because she did not like the employer. Then Martin asked her to take care of some Indonesian girls in a boarding house located in Lok Ma Chau on the Mainland side. Martin promised to pay her the wages as stated in her employment contract with Eddie. She said the employment contract with Eddie was not real, but she needed her contract with Eddie to continue so that she could seek a similar FDH job in European countries in future. 77.AM was not able to give the exact address of the boarding house but it was about 20 minutes’ walk from the Lok Ma Chau control point. There was already a room and bed made up for her in the boarding house when she was first taken there. She would escort the Indonesian girls form the Lok Ma Chau control point to the boarding house. Those girls would reside there, awaiting the processing of their FDH visas. She would make sure that the girls returned to the boarding house every night. She had to transit frequently between Hong Kong and the Mainland. Sometimes she would be asked about the name of her employer at the immigration counter, she would give Eddie’s name, and then the officer would let her go. 78.She worked for Martin for more than a year but she was never paid. Martin always made up excuses to delay paying her. She thought that it was not worth it to work for just food and a place to stay. She decided to leave. She stopped working for him in around February 2013 and returned to Hong Kong. She later approached Martin again for another job opportunity. Eventually, another agency set her up with a Ms Lai who was supposed to be her new employer and she applied to ImmD for change of employer on 3 September 2013. 79.AM had access to legal representation in about 2014 and representations made on her behalf by her lawyers in the correspondence with the authorities and in the AF86 have added some other details to her story, which were not entirely consistent with the original version. It was said that she had to pay Martin an upfront sum of HK$3,000 for the recruitment. Martin said that the offer to work for him in the boarding house was an ultimatum and he would not assist her in any other way if she rejected it. It was also said that she fled from Martin and the boarding house to Hong Kong in around September or October 2012. She then approached another agency known as Limestone Overseas Services Limited which promised her (and a group of other FDHs) employment contracts in Cyprus and arranged for them to take a flight together from the Macau airport. But the promised flight never came, and she and that group of FDHs ended up living in the Macau airport for three months. She returned to Hong Kong in 2013. E. Investigations in AM’s Case 80.After ImmD had taken the first cautioned statement from AM on 11 September 2013, it is fair to say that ImmD had immediately conducted a wide and substantial investigation into the persons and entities which might have committed the illegal activities as disclosed by AM. These included High Mountain, Martin, Eddie, a Mr Yu Leung Yum (“Yu”) who was the registered licensee on High Mountain’s business registration, and a Mr Lai On (“Lai”) who collected AM’s relevant FDH visa. 81.Premises visits or searches were conducted on High Mountain on 13 and 26 September 2013, on the reported addresses of Martin, Eddie and Yu on 27 September 2013, on the residential address of Eddie as stated in the eighth contract on 11 and 27 September 2013, on the residential address of Yu on 27 September 2013, on the residential address of Martin on 27 September 2013, and on the reported address of Limestone on 20 January 2014. 82.Cautioned interviews were conducted with Martin and Yu and 27 September 2013, with Eddie on 2 October 2013, and with Lai on 22 October 2013 and 14 January 2014. 83.AM was also invited by ImmD to provide evidence against the persons and entities which might have committed crimes. On 29 November 2013, it was arranged for her to attend an identification parade in which she identified Martin, Eddie and Lai from three photo albums. ImmD also took two ‘non-prejudicial’ statements from her on 22 October 2013 and on 7 June 2016 respectively. 84.ImmD also obtained AM’s movement records from 1 January 2011 to 1 January 2016. The immigration officer in charge of the investigation against AM highlighted the following in his affirmation:
85.After she was interviewed under caution by ImmD on 13 and 17 September 2013, she claimed that Martin met her on the rooftop of a building in North Point and asked her to sign on a statement and told her to change her statements given to ImmD regarding her case of making false statement to immigration officer. She also received a phone call from an unknown caller who threatened to kill her if she was to say anything. She reported the incidents to the Police who interviewed her as a witness on 23 September 2013. The case was handled as a ‘criminal intimidation’ case or a ‘perverting the course of justice’ case. 86.The Police have only maintained limited records due to the lapse of time. But the information shown on the Police’s internal system is that AM later became unreachable by the Police. The Police contacted Martin who denied the allegation. The Police considered that there was insufficient evidence to substantiate any charges and closed the file. 87.On 3 October 2013, AM was charged with “making false representation to an immigration officer”, in STCC 3817/2013. As already noted, the relevant false statement is that Eddie was her employer, which was said by her at the immigration counter. As said, she was eventually convicted and was given a two-month sentence in June 2016. 88.ImmD, the DoJ and the Criminal Court were asked to form a view on whether AM was a TIP victim in the course of the criminal proceedings because those representing her had sought to rely on the claimed victim status to her advantage. That came about as follows. 89.She pleaded guilty to her own charge on 7 October 2013 and expressed willingness to testify against Martin, which led to the non-prejudicial statement being taken on 22 October 2013. However, on 13 January 2014, AM’s solicitor wrote to the DoJ asking for no objection to her application to reverse her guilty plea on the basis that she was a credible TIP victim. The prosecutor noted that what AM’s lawyer claimed in the letter was inconsistent with what she said in the various statements she made to ImmD. She sought various clarifications with ImmD through correspondence in January 2014. Having considered all evidence, the prosecutor considered that it was not appropriate to classify AM as a TIP victim under Chapter 18 of the Prosecution Code and rejected the request on 10 February 2014. 90.Nonetheless, AM applied for plea reversal in January 2015 which succeeded on the basis that she was not provided with an interpreter when she received the advice from the Duty Lawyer Service before she pleaded. She reversed her plea of 7 October 2013 to one of not guilty. 91.Those representing her then requested the DoJ to take a neutral stance on her intended application to stay her trial permanently on the basis that the crime committed by her was consequent upon her being a TIP victim. The DoJ rejected the request, and AM formally applied for a permanent stay in April 2015. After a four-day hearing from late December 2015 to early January 2016, the presiding Magistrate ruled against her. It was decided that AM was not a TIP victim on the balance of probability standard, and therefore it was not necessary to further consider if her crime was integral to or consequent upon her status as a TIP victim. AM then reversed her not guilty plea to a guilty one, and she was convicted in March 2016 and sentenced in June 2016. 92.After AM’s trial was concluded in 2016, ImmD submitted the evidence collected from the investigation against Martin, Eddie, Yu and Lai to the DoJ, to seek its advice on sufficiency of evidence and appropriateness of charges. The DoJ recommended no prosecution against all of them after considering the evidence. It was noted that Yu remained silent under caution, whilst all other persons denied knowledge about AM’s bogus FDH contract, and the credibility of AM was in doubt, where a vital aspect of her case had been disbelieved even on the balance of probabilities. F. Timing of AM’s Application 93.Against the chronology of those facts, an issue of timing obviously arises, where applications for leave to apply for judicial review have to be brought promptly and in any event within three months of the date when the grounds first arose. 94.The timing issue was addressed in the AF86, where Counsel drafting it sought to place reliance on the principle that time should run from the time when an individual has effective means of mounting the challenge. On that basis, it was stated that the grounds first arose in AM’s case when she was first informed of the state of the ‘investigations’, by letter from the Director of Legal Aid to Patricia Ho & Associates (“PHA”) dated 30 August 2019. Since then, it was said, AM had proceeded responsibly and promptly – essentially by reference to the process of legal aid appeals. The AF86 also sought to characterise the decisions on the challenge as continuing failures by public authorities to take the action required of them, so that refusal of leave in the context of an ongoing failure might not serve a practical purpose because a fresh challenge could be brought based on conduct the day before. Reliance was also placed on the stated merits of the intended challenge, and the suggestion that the time factor is less compelling where a constitutional challenge is made. Lastly, it was suggested that AM’s case is an unusual case in which the prejudice that passes with time accrues not to the decision-maker (since no investigation had been conducted), but to AM (since the passing of time rendered the lack of investigation more prejudicial). 95.The last point is weak, where the facts identify that there was an investigation, though ultimately no criminal charges were preferred against persons other than AM. As to her own oral submissions, AM said she had little knowledge about how the matter happened over time, as she relied upon her lawyers. (Her other oral submissions mainly sought to confirm the truth of the matters she had already related via her AF86, and to express concerns as to her personal safety if she were to return to the Philippines, which is not relevant to the current matter.) 96.Mr Pao submits that there is no good reason to justify any extension of time for the application for leave to apply for judicial review in AM’s case. He says:
97.I accept that there is no offered explanation for the substantial delay between at least mid-2016 and mid-2019. Further, even though there is some explanation for the delay from mid-2019, relating to the pursuit of Legal Aid and some interruption from the pandemic restrictions, against the previous chronology I do not think waiting for legal aid is a good enough reason to justify extending the time considerably further. 98.I also accept Mr Pao’s submission that in this case there has been actual prejudice caused by the delay, not least because the relevant case file was destroyed in 2018 in accordance with standing procedures. Had there been a prompt application, the file would still have been there. Whilst it has been possible to recreate some aspects of the file from other sources, the materials are incomplete, and it is obvious that reliance on recollection after such a long period is problematic. 99.AM’s challenge is one which has some fact-sensitivity, and in any event falls under the old regime in use prior to the issuing of the Action Plan in 2018. Further, there clearly was some investigation of the circumstances, including by the Court on AM’s application for a permanent stay of the proceedings against her. But, not least against the Court’s then finding, there was also an understandable reason why no further prosecutions were brought. In any event, in the particular circumstances, and in summary, I do not think the merits of AM’s proposed challenge are so strong as to point to the grant of the necessary significant period of extension of time. 100.For that reason, I dismiss AM’s application for leave to apply for judicial review. 101.That I do so should not be taken as a lack of sympathy for the plainly difficult situation in which AM found herself to be caught up. On the facts I have related, there is at least a decent argument that – whatever the basis of her own involvement in events – it was perhaps regrettable that no other persons faced prosecution for their involvement in the same events. But I do not think that possible regret gives rise to any public law criticism. G. Underlying Facts in CB Case 102.CB is a Philippine national born in 1978. She was around 40 years old at the time of abuse. Her abuser was her employer, Z, a retired expatriate doctor living in a house on Shouson Hill Road in the South Island District. Z was almost 80 years old at the time. 103.CB applied for the position as a FDH in response to an online advertisement around August 2018. At that time, she was eager to find a new contract because her last contract was terminated at the end of July 2018. She was interviewed by Z and another FDH (“Janice”) on 2 September 2018. Janice had worked for Z for more than a decade, but was set to leave her employment in November 2018. CB was recruited as Janice’s replacement. Z asked CB to sign on a document which listed out her duties (ordinary domestic help duties) and asked her to start working on 5 September 2018, for what she was told would be a first two weeks’ trial period. She only signed a formal employment contract in the ImmD standard form for FDHs on 17 September 2018. 104.From September 2018 to April 2019, CB was subject to various forms of sexual abuse/exploitation by Z. After Z left Hong Kong for his annual vacation in France, CB approached an NGO known as “HELP for Domestic Workers” (“HELP”) around May 2019. With the support from HELP, CB resigned her FDH employment by email on 27 July 2019, although Z claimed to fire her instead, a week later on 5 August 2019. In December 2019, CB reported the sexual abuses to Police. By then, she had obtained pro bono legal assistance from the current law firm representing her, PHA, and all her witness statements given to the Police were taken in the presence of her legal representative. 105.She gave three witness statements to the Police on 13 December 2019, 17 December 2019 and 3 March 2020 respectively. The following account of abuses can be taken from those three Police statements. Since one of CB’s main complaints was that the Police did not investigate further into a potentially wider practice of sexual abuse against all of Z’s FDHs (not only CB), some detail of CB’s evidence provided to the Police may be warranted. It does not make for pleasant reading. 106.There were broadly the following forms of abuse:
107.Around March 2019, CB needed to have dental surgery. She went back to the Philippines to have it done because of the lower costs. She did not have the money and Z offered to lend her HK$4,000, but asked her to sign a document containing the conditions of the loan. One of the conditions was that CB “will receive some punishment from [Z] in relation to past failings”. CB understood the punishment was to provide massage with masturbation at the end. CB took the loan and signed the document because otherwise she had no money. 108.In her reports to the Police, CB provided various photos and videos showing not only herself and also other FDHs engaging in sexual acts with Z. CB provided six videos. Four of them were made by her on her phone capturing her massaging and touching Z in a sexual way. The other two were retrieved by CB from Z’s computer when Z was in France. These two videos showed Janice and another FDH (“Chris”) apparently providing sexual services to Z in a routine manner. Z could be heard instructing Janice and Chris how to serve him in the videos. 109.CB also provided three photos which were all taken by her. The first photo showing her massaging a fully naked Z. The second photo shows the tools which Z asked her to use on him. The third one shows a page of a photo album which CB found in Z’s bedroom. The photos in the album show Asian women in compromising sex positions. 110.It is fair to point out that, from the start, the Police properly took CB’s complaints of sexual abuse or indecent assault seriously. The ensuing investigation led to the prosecution of Z, and his conviction, on two charges of indecent assault. H. Investigations in CB’s Case 111.The Police’s evidence concerning the investigation in CB’s case was given by Inspector Mui Pik Sum and Senior Inspector Wan Chun Lok. Both of them have made two affirmations. The majority of the evidence came from Mr Wan who was the officer-in-charge of the case most of the time. 112.Ms Mui was posted in the Western District. She was involved in taking CB’s first police statement on 13 December 2019. Ms Mui recorded that case as a reported case of indecent assault from the very beginning. But she also came to the view that CB was a TIP victim and her case was a “Trafficking in Persons and Exploitation of FDHs” case pursuant to HQO 12/2019, after she conducted two-tier screening on CB when she took her first statement. On 16 September 2018, she recommended transferring the case to the Regional Crime Unit of the Hong Kong Island to be handled by the TIPIT. That was endorsed by her supervisor and the case was transferred to the Regional Crime Unit. 113.Upon arrival at the Regional Crime Unit, the case was taken up by Mr Wan. Mr Wan served as the officer-in-charge (of CB’s case) in the Regional Crime Unit, but he also assumed the role of the officer-in-charge of TIPIT in the same regional unit. 114.Further investigation was conducted after the case was taken up by Mr Wan: two more statements were taken from CB on 17 December 2019 and 3 March 2020; a house search was conducted at Z’s residence on 16 December 2019; a cautioned statement was taken from Z on the same day as the house search; two more cautioned interviews were conducted with Z on 7 January 2021 and 3 February 2021 respectively; and a statement was taken from a Ms Salewicz, who worked at an NGO assisting FDHs, on 5 March 2020. 115.On 28 April 2020, Mr Wan came to the view that CB was not a TIP victim and reversed Ms Mui’s assessment. I shall come to more details on CB’s victim identification process in the next section. 116.In any event, Mr Wan continued the investigation along the line of indecent assault. After the Police completed the investigation, the file was submitted to the DoJ for prosecutorial advice. Eventually, two counts of indecent assault were preferred against Z in ESCC 2267/2020, one count for the “body check” on 11 September 2018 and another count for the “massages” between November 2018 to 4 April 2019. Z was convicted after a 4-day trial and sentenced to 30 months in total in June 2020. CB was called as a prosecution witness in the trial. The Magistrate took into account at sentencing the element of abuse of trust because Z was CB’s employer. 117.Apparently no, or very little, investigation was conducted against the abuses which CB says might have been practised on Z’s other FDHs. The lack of further investigation along this direction is central to CB’s case. The other FDHs named by CB include Janice, Chris, the women shown in the photo album a page of which she took a picture, and Z’s FDH succeeding CB (“New FDH”). 118.The reasons why there was no further investigation along those lines were explained by DoJ in its correspondence with PHA around late August to September 2021 and Mr Wan’s affirmations. Mr Wan explained that:
119.Whilst not put in exactly this way by Mr Wan, I think it is fair to summarize his view as that there was insufficient evidence to support further counts of indecent assault or other criminal charges, or at least that there was insufficient evidence warranting more investigation to be performed with a view to unearthing further crimes. I. Detail of TIP/Forced Labour Screening of CB 120.As seen above, the victim screening conducted on CB was apparently carried out as an integral part of the Police’s criminal investigation process. Ms Mui and Mr Wan were the two officer-in-charge of the case at different stages. They were also the two officers most involved in the screening process. 121.At the time, the Police did not inform CB (or her legal representative) that she was being screened for victimhood, nor was she notified about the result. The relevant facts were later revealed through a series of correspondence between CB’s lawyer, PHA, and the Police in early 2021. 122.By letter dated 4 February 2021, PHA asked the Police to confirm if an investigation had been made pursuant to its BOR4 duties and the Action Plan, including determining if CB was a victim of TIP and/or forced labour. The Police were also asked if they had taken into account the TIP element when laying the charge of indecent assault. 123.By letter of the same day, Mr Wan replied that “based on the screening result, [CB] is not a victim of trafficking in person”. 124.PHA replied by two letters on 5 February 2021. In the first letter, PHA asked the Police to provide “detailed reasons” for its decision that CB was not a TIP victim, the date of such decision and the steps of the screening/assessment process. In the second letter, PHA asked the Police to confirm if an investigation had been made pursuant to BOR4 and whether CB was a victim of forced labour. 125.By letter dated 8 February 2021, Mr Wan reiterated that the definition of TIP under the Palermo Protocol emphasized the three elements of act, means and purpose must be present simultaneously in order to establish a case of TIP. He then stated that:
126.By letter dated 20 April 2021, PHA said the Police had not yet replied to its second 5 February 2021 letter which specifically concerned BOR4. PHA asked the Police to confirm if investigation had been made pursuant to BOR4 and whether the Police’s decision that CB was not a TIP victim also encompassed a consideration that she was not a victim under any limb of BOR4. There was no reply to this letter. 127.By letter dated 23 April 2021, PHA chased for a reply to their 20 April 2021 letter. It also asked for the Police’s policy on how to deal with sex crimes under forced labour. 128.By letter dated 27 April 2021, the Police replied to the 23 April 2021 letter. It was explained that the Police had initiated the two-tier screening process on CB when she reported a case of ‘Indecent Assault’. It is also stated that:
129.Further clarity on the victim identification process conducted on CB was gained through the affirmations filed by Ms Mui and Mr Wan in this action. 130.Ms Mui and another female police officer took the first witness statement from CB on 13 December 2019. Ms Mui said that she instantly knew that CB might be subject to HQO 12/2019, although that was her first time handling a FDH case and applying HQO 12/2019. She conducted the two-tier screening and exhibited the “TIP Screening/Debriefing Form” dated 13 December 2013 to her affirmation. 131.She asked CB questions based on the 7 indicators in ‘Part I: Initial Screening’ with the assistance of an interpreter. Ms Mui checked ‘YES’ for three of the indicators: (1) that CB was coached/taught with a cover story on what to say to law enforcement officers, (2) she was forced to perform sexual acts or other unexpected forms of work/labour, and (3) she was threatened with harm or sexually/physical abused. Since there were three ‘YES’ answers, ‘Part II: Full debriefing’ was also completed. Ms Mui wrote down all of CB’s answers to the 14 questions. The answer to Question 11 was “Employer forced, threatened and deceived to perform and be subjected to sexual acts”. The answer to Question 14 was “Yes, sexually exploited and abused. See statement given to Police on 13.12.2019”. I shall refer to Ms Mui’s assessment as the “1st TIP Decision” below. 132.She also marked that CB would need shelter, food/clothes, medical health service, visa extension and legal assistance, and that she was currently assisted by two NGOs (HELP and Rain Lily) and PHA. 133.In the last part of the initial screening/debriefing form, Ms Mui finally concluded that CB was a TIP victim and circled that particular form of prohibited act, means and purpose which she considered to be present in that case. The prohibited act was “recruitment”, the means were “deception” and “abuse of power”, and the purpose was “other forms of sexual exploitation”. 134.In an internal memo of the same day addressing her supervisor, she recommended that CB’s case should be treated as an “Exploitation of FDH” case under HQO 12/2019 and be transferred to TIPIT. That recommendation was endorsed by her supervisor. That memo was also exhibited to her affirmation. 135.As said, Mr Wan reversed Ms Mui’s assessment on 28 April 2020 (“2nd TIP Decision”). He apparently did not fill out another screening/debriefing form, not did he speak to CB directly. His 2nd TIP Decision was recorded in an internal memo written by him to his supervisor. It is stated in the memo:
136.Mr Wan’s recommendation was apparently endorsed by the Chief Inspector in the regional crime unit on the same day, although that Chief Inspector did not specifically comment on Mr Wan’s reversing Ms Mui’s assessment. Further, where there is no reference at all in the memorandum to forced labour – there being reference only to TIP – then (1) it is at best unclear as to whether Mr Wan thought he was informing the Chief Inspector of any assessment as to forced labour, and (2) it is difficult to see how the Chief Inspector can be taken to have agreed with any assessment as to the potential question of forced labour. 137.Mr Wan further explained the reasoning behind the 2nd TIP Decision in his 1st affirmation. This reasoning has come under close scrutiny by CB’s Counsel. Mr Wan said that he applied his mind to the three elements of act, means and purpose. He was satisfied that the act element was met since CB was recruited. But he was of the view that the means element was not met. He said CB applied in response to an advertisement and signed a contract following an interview. There was no evidence to suggest that her recruitment was by any prohibited means. 138.He also considered the purpose element was not met. Whilst CB was later subject to sexual abuse, it did not appear to him that Z had such a purpose in mind at the time when he recruited Z. The illicit massage sessions started around the end of November 2018, that was about two months after she started her employment. The body-check incident occurred 6 days after her first day of work for Z, but was an isolated incident on its own so insufficient to support the conclusion that Z had such a purpose in mind at the time of recruitment. He also took into account the videos and photos provided by CB, and her complaint that Z also engaged in sexual acts with his other FDHs. He recognized that if there was a pattern of sexual abuses practised on his previous FDHs, that may suggest that the employers’ specific recruitment of CB was for the purpose of sexual exploitation. However, considering all the evidence together, including Janice’s letter speaking favourably for Z, he thought that the evidence did not suggest that Z’s sexual acts with his previous FDHs were non-consensual. He concluded that CB was not recruited for the purpose of forced labour. She was recruited to work as a FDH like any other FDH would, and she discharged the duties of what a FDH would normally perform. She contracted to work as a FDH for a salary and she was paid accordingly. 139.There is also one paragraph in his 1st affirmation where Mr Wan addressed the issue of forced labour, and his decision on it (“Forced Labour Decision”). At §11, he stated:
140.In his 2nd affirmation, he also suggested that CB was in fact able to resign without difficulties. She did not resign earlier, because of her own belief that it would be difficult for her to find alternative employment. 141.Pausing here, it is fair to say that whilst the Police never directly confirmed in correspondence an answer to the question of whether the Police’s 2nd TIP Decision also encompassed a decision that CB was not a forced labour victim (which was asked by PHA in its second 5 February 2021 letter), Mr Wan’s evidence, read as whole, seems to be confirmative that it was. 142.He also stated that he was aware that his assessment differed from that of Ms. Mui. But he did not consider it unusual since he had more experience in handling similar case and had the benefit of more evidence than Ms Mui (though he did not elaborate on what evidence and why that might alter the assessment). Also, as the officer-in-charge of TIPIT, it was up to him consider if he had sufficient evidence before him to reach the 2nd Decision. 143.It can also be noted that, taking Ms Mui and Mr Wan’s evidence together, their view is that regardless of whether CB was classified as a TIP/forced labour victim, that would have made no difference to the charges preferred against Z and the privileges or protection afforded to CB. CB was offered visa extension to assist in the criminal proceedings against Z. But since she was already assisted by other NGOs including Rain Lily and HELP and had been legally represented, Ms Mui did not consider the Government had or needed to offer her other assistance. J. CB’s Intended Grounds for Review 144.In her AF86, CB relied on five intended grounds of judicial review:
145.Mr Chan characterizes Grounds 1, 3, 4 and 5 as decisional challenges and Ground 2 as a systemic challenge. Broadly speaking, Grounds 1, 3, 4 and 5 all concern the suggested flaws in the Police’s investigation process into CB’s case. The 2nd TIP Decision and the Forced Labour Decision are challenged on their own, but they are also challenged as the manifestation of the Government’s failure in meeting their investigative duty under BOR4. 146.Mr Chan ‘collapsed’ his submissions on the decisional challenges. Whilst there are submissions pertaining more discretely to one or two grounds in particular, the common theme running through Grounds 1, 3, 4 and 5 is that the Police ended their investigations prematurely. In other words, the conclusions that CB was neither a TIP victim nor a forced labour victim are the products of a prematurely ended investigative process and have, themselves, become defective too. 147.Following this logic, the challenges to the 2nd TIP Decision, to the Forced Labour Decision, and to the general investigative failure are but three different manifestations of the same base complaint, namely reaching conclusions prematurely when the evidence warranted further investigation. In this light, it is perhaps sensible for Mr Chan to deal with Ground 1, 3, 4 and 5 together. In my analysis below, I too will not distinguish between the specific TIP and forced labour decisions challenged and the investigative failure entangled with them. 148.But, it is also perhaps not unfair to say that Mr Chan’s case in the oral submissions has slightly shifted from CB’s case as he pleaded it in the AF86. In the AF86, the relief sought included declarations that the Police had failed to identify CB as a TIP and a Forced Labour victim, when CB was a TIP and Forced Labour victim, rather than merely that the Police’s contrary conclusions were reached prematurely and further investigations were warranted. 149.In the oral submissions, Mr Chan has really abandoned the position that the Police’s conclusions on CB’s victimhood were wrong, and focused on the argument that the error lay in the facts that the investigation was terminated and the conclusions reached prematurely. 150.Whilst CB’s case as stated in the AF86 seemed to focus on both TIP and forced labour, it is perhaps fair for Mr Pao to observe that Mr Chan now does not pursue the TIP challenge as keenly as he does that relating to forced labour. Nevertheless, both aspects are pursued. 151.It is common ground that the Court only has to consider the systemic challenge raised by Ground 2 if CB succeeds in proving an investigative failure in breach of obligations owed under any of the other Grounds. 152.I shall, therefore, deal with the decisional challenges first, before turning – if apt – to the systemic challenge. K. Approach to Issues in the CB Case 153.But, before considering the individual grounds of challenge put forward on behalf of CB, it is appropriate to consider the stark contrast in approaches advocated by Mr Chan and Mr Pao. 154.Mr Pao’s first line of argument invites the Court to agree with him that CB, on proper analysis, cannot be classified as a TIP victim or a forced labour victim. This is central to his submission that the entire judicial review challenge is moot and academic. Mr Chan disagrees that this is the correct approach (though, as I have noted, that disagreement would be rather less evident from the way the relief sought was pleaded in the AF86). 155.As convenient as it may perhaps sound, I do not accept Mr Pao’s suggestion is the proper approach to dealing with this application. There are two flaws in his argument. 156.The first flaw is that the Court is invited to form a view on CB’s victim status divorced from the process undertaken by the Police in this case. It risks asking a question different from the question being asked by the Police themselves. Whilst those who suffer from either evil of TIP and forced labour will naturally come to be known as a victim of such activities, the Police are not asked to answer if CB could fit into the definitions of “forced labour victim” or “TIP victim” as a matter of law. Identification as a victim is made through the screening process and any further investigations, and the decisional challenges in this case require looking at the steps taken in that process. 157.To be fair to Mr Pao, it appears that his real argument is that the activities which the Government’s policy and BOR4 seek to prohibit or combat simply did not occur in this case. He says CB was not made to perform forced labour within the meaning of BOR4, nor was she trafficked for sexual exploitation; since the evils did not occur, he says, the application is academic. 158.But the Government’s duty is not triggered by the actual occurrence of the prohibited acts. The Government’s duty to carry out an investigation arises when it is aware or ought to be aware that that is a credible suspicion that a person is subject to or at the risk of being subject to perform forced labour: see ZN(CA) at §191, cited below. The duty is preventive as well as remedial. So must be the Government’s policy to combat TIP. 159.The second flaw is that Mr Pao’s argument seems to be an invitation for the Court itself to carry out a victim screening, and if the Court’s determination is the same as the Police’s, CB’s challenge (including the challenges to the procedural aspects) should then fall away. 160.The argument turns judicial review into a test on the ultimate merits of the decision, rather than of the decision-making process. But, it is trite that judicial review protects the integrity of the decision-making process itself rather than as a test of merits of the decision. Although the Court may sometimes have to look into the merits of a decision to a certain extent, for example when the ground of challenge is irrationality, the Court does not simply substitute its own judgment with that of the decision-maker. 161.Also, a judicial review challenge does not necessary fail simply because the Court would have reached the same answer as the decision-maker did. Logically, that decision could still be challenged and quashed based on the usual bases of procedural irregularity, illegality arising from failure to consider relevant factors, or having reached by the wrong reasoning process, and so forth. 162.There may, of course, be an impact on the proper relief if grounds for review are made out. It can be asked what is the purpose of quashing a decision only for the Police to reach the same decision again. But to say that the Court’s inquiry should end because no useful relief could be granted is to put the cart before the horse. In any event, that utility argument pre-supposes that the Police’s original conclusion was clearly right, and immune from an irrationality challenge should the decision-maker make the same decision on remittance. 163.Therefore, I decline to adopt Mr Pao’s suggested approach. Instead, I shall address the decisional challenges by reference to the steps taken to screen for TIP and forced labour. 164.In doing so, I acknowledge that there are only very limited circumstances in which the Court will interfere with decisions made by law-enforcement investigatory and prosecutorial bodies. 165.In that regard, both Mr Chan and Mr Pao make reference to the recent case of In re McQuillan [2022] 2 WLR 49. At §§242-244 of that decision, it was held (in my summary) that:
166.In the particular case, it was accepted that there had been irrationality in placing reliance on the investigation and report of an officer in the Historical Enquiries Team, which vitiated the decision. One reason was that the investigation was defective because it was “unreasonably narrow”. 167.I accept Mr Chan’s submission that the more vital the interests affected, the more vigilant the reviewing court will be, including on grounds of reasonableness, rationality or the propriety of taking into account/ignoring specific matters. Particularly in the context of a constitutionally required investigation, a high level of scrutiny will come into play (meaning, in practical terms, less deference or leeway will be afforded the investigator/decision-maker). 168.Mr Pao also makes reference to Brecknell v United Kingdom (2008) 46 EHRR 42 at §65, where it was commented that the obligation to carry out an effective investigation into unlawful or suspicious activity (in that case unlawful or suspicious deaths) raises the essential purpose for the investigation to secure the effective implementation of the relevant domestic laws, and even where there may be obstacles and difficulties preventing progress in an investigation in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. At §66, it was stated:
169.I shall keep these various points in mind, not least that the obligation is one of means, not result. 170.I also specifically record Mr Pao’s proper acceptance on the part of all respondents that Z engaged in deplorable and unacceptable conduct towards CB, which is why the Police and prosecuting authorities pursued the criminal charges laid against Z after having acted, as he put it, with professionalism and the reasonable dispatch shown by the chronology already traversed above. L. Trafficking in Persons (TIP) 171.This concerns Grounds 1, 3 and 4. But, much of what can be said as regards the TIP Decision will be applicable to the Forced Labour Decision, simply because of the common or unitary approach adopted in Hong Kong (and in this case) to screening for both aspects. 172.Mr Chan submits that what he calls the “Reversal Decision”, and which I have termed the 2nd TIP Decision, should lie front and centre, because its drastic effect was to:
173.I am not sure it is necessarily helpful to focus on the suggested “reversal” elements of Mr Wan’s making the 2nd TIP Decision. I tend to agree with Mr Pao that the 1st TIP Decision made by Ms Mui was an internal or intermediate decision within the Police, and the relevant decision for the public law challenge is the 2nd TIP Decision. But, in so far as Mr Chan’s submissions include pointing to the fact that the decision-making body did not speak with one voice internally, and an initial view taken by an officer who had direct contact with the victim was disagreed with by an officer who did not, I accept that is a matter which could be taken into account in scrutinising the decision-making process leading to the 2nd TIP Decision. 174.In that context, it can be noted that both Ms Mui and Mr Wan relied on the definition of TIP victim in the Palermo Protocol when making their respective assessments. Ms Mui concluded that the three elements of act, means and purpose were satisfied. Mr Wan (in the internal memorandum and the later letters issued to PHA) merely stated that the three elements were not present simultaneously in CB’s case, though he offered no analysis as to which elements were absent, or when and why. As a result, rather unhelpfully, there was no elaboration on how or why he disagreed with Ms Mui’s initial assessment. 175.However, as already referred to above, Mr Wan has since offered further explanation in his affirmation evidence filed for these proceedings. The further explanation includes the points that: (a) CB was recruited to work as a FDH like any other FDH would have been; (b) CB was asked to perform and did perform the duties which a FDH would normally perform; (c) there was “no concrete evidence” to suggest that Z had a guilty mind to sexually exploit CB at the time of her recruitment; (d) overall, the recruitment could not be said to have been conducted “for the purpose of sexual exploitation”, which usually involves recruitment on a larger and more organised scale and/or for monetary or commercial gain; (e) the evidence collected, including the Janice Letter, did not suggest that Z’s sexual acts with his previously employed FDHs were non-consensual. 176.On that basis, Mr Pao submits that the Police were entitled to say that CB was not a victim of TIP, that what happened to her did not fall within the concept of “other forms of sexual exploitation”, and viewed holistically the necessary three elements were not present simultaneously. He emphasises that trafficking is a ‘unitary process’, necessarily viewed by reference to the simultaneous presence or absence of the three required elements and an overall view. 177.As to points (a) to (d) made by Mr Wan, I can address them as follows. In short, there seems to have been a complete failure to take into account the facts and chronology which identified:
178.Had those matters been taken into account, it is difficult to imagine that any rational decision-maker would have concluded that there was not at least satisfaction of the credible suspicion threshold that the recruitment of CB was precisely for the purpose of sex exploitation (even if in addition to the purpose of obtaining ordinary domestic help). But, in any event, those matters were not taken into account. 179.Further as to point (c) above, I agree with Mr Chan that whilst CB’s position as a FDH should have been taken to identify her real vulnerability, it has somehow become a point almost counted against her as excluding the possibility of TIP or other exploitation. This was both unfair and inappropriate to the exercise. The peculiarities and realities of the FDH context should be recognised as showing reason for heightened vigilance rather than diminished vigilance. 180.As to point (e) above, the Janice Letter is dated by Janice’s signature as 21 December 2019, though – in a mis-match – it was apparently notarised only on a date in January 2020 (perhaps 11 January 2020). It included the following passage:
181.I confess I find it impossible to understand how this letter was accepted at face value, or as exculpatory of Z, as it seems to me plainly to have raised more questions than it answered. The following points jump out:
182.The Police obviously did not believe those paragraphs and those suggestions to be true, because the Police properly and correctly charged Z with the offences of sexual assault on which he was later convicted. Notwithstanding that, the Police seem nevertheless somehow to have accepted the overall contents or thrust of the letter. This happened, even though:
183.In short, I think it was irrational to conclude that the Janice Letter did anything other than raise further suspicions which required further inquiry and investigation. 184.Indeed, as Mr Chan submits, it was manifestly irrational and unsound to conclude that there was nothing worth further investigating as to any possibility of TIP or forced labour or sexual exploitation of CB or others employed by Z, in the circumstances where Mr Wan drily reported to his superior – and as was also shown in the videos involving other FDHs – CB was required to “(i) masturbate [her] employer; (ii) perform masochistic sexual acts on [her] employer, and (iii) watch indecent videos with [her] employer”. 185.At the hearing, I explored with Mr Pao why no attempt was made by Police to contact Janice, since there appeared to be some evidence suggesting that Janice might also have been a victim. In short, the answer was that, at the end of the day, the Police have to look for evidence which could be admitted in accordance with the rules of criminal courts to prove all the elements of an offence, but without Janice coming forward, there would be no prosecution witness. I think what Mr Pao was saying was that the decision not to further investigate into other FDHs was because of the constraints arising from the general rules of criminal evidence (rather than, say, the lack of a bespoke offence) – though this point was not put in terms by the Police in their evidence. 186.Anyway, there is also some force in Mr Chan’s criticism of an apparently anachronistic approach to the question of consent – or, as it seems to have been put by Mr Wan as regards his own consideration, the absence of non-consent. In my view, the use of the litotes may be inadvertent, but it is unfortunate. Not least in this context, the absence of non-consent is not (or is not necessarily) the same as the presence of consent. 187.In the context of rape and sexual offences, the UK Crown Prosecution Service website includes a paper on Rape and Sexual Offences, amongst other things relating to combating rape myths and stereotypes. Though to be found in a UK document, I would think the points made are of general application, at least including to Hong Kong. The main point is that prosecutors will need to challenge any assumption which attempts to predefine what the offence is or where and when it occurs. On questions of consent, the point is made that each occasion is specific and consent needs to be given for each occasion, as well as that consent is ‘active’ and there is no requirement to articulate the absence of consent. Further, amongst issues which it says must be considered as being potentially relevant to someone’s freedom to consent are the following:
188.Approaching the consideration by reference to the absence of non-consent – apparently based on Mr Wan’s subjective view that the FDHs did not appear to be “scared or disgusted” – gives rise, if I might myself use the litotes, to the not insubstantial risk of error as appears to have arisen in this case. 189.Mr Chan submits that the errors and deficiencies were aggravated (1) by Mr Wan’s failure to have interviewed CB face-to-face, not least when he was reversing an initial determination contrary to the assessment made by him, (2) by Mr Wan’s readiness to embrace the one-sided evidence in support of Z, given by Z himself and supposedly by Janice, and (3) by the lack of further investigation or follow-up in relation to any of Z’s previous FDH employees, or the New FDH. Though I think there is probably more weight on the latter two points than the first, I think there was a material failure. 190.Indeed, I think the judicial review challenge to the 2nd TIP Decision has been made out. M. Forced Labour 191.This concerns Grounds 1, 3 and 5, but I have already pointed out the overlap with the points on TIP. 192.Mr Chan’s criticism of the Police’s approach to an investigation under BOR4 can be summarised as follows:
193.It is worth remembering first that, in ZN(CFA) at §44, it was explained that BOR4 contains a prohibition on the substantive conduct of forced labour, rather than the anterior process of trafficking for the purpose of forced labour. It is also worth noting that an individual can initially consent to work but then or nonetheless become subject to forced labour. 194.Further, as to the investigative duty created by BOR4, it was dealt with in ZN(CFA) at §§190-191, as follows:
195.Applying this rationale with the focus on investigations of potential forced labour, I think it correct to emphasise that BOR4 entails:
196.As it has been put elsewhere, in Chowdury v Greece [2017] ECHR 300 at §89:
197.Simply conducting some form of ‘investigation’ may not be of sufficient quality or merit to meet the imposed procedural obligations to investigate. Depending on the case, effective investigation may require and involve, without limitation: (1) taking steps to resolve conflicts between important witnesses; (2) seeking information from identified other potential victims or witnesses; (3) obtaining legal or investigatory assistance from other jurisdictions; (4) responding directly to enquiries made by a victim or those representing him or her; and (5) looking at what might be called the ‘bigger picture’, rather than merely focusing on specific potential offences, or offences by reference to just one potential victim. 198.Though the positive obligations are interlinked, there may also be some distinction to be drawn between (a) having in place an adequate legal framework affording protection against ill-treatment, and (b) the obligation to conduct an effective investigation when an arguable claim of ill-treatment has been raised. 199.Turning to the specific facts of this case, I do not think it unfair of Mr Chan to raise the question whether there was really a decision made by Mr Wan about forced labour. There is at least room for real doubt that it was. In Mr Chan’s words, the decisional record “screams silence on BOR4”. As I have already pointed out, no contemporaneous document generated by Mr Wan makes any reference to addressing forced labour (as distinct from TIP), not even the internal memorandum by which he sought the Chief Inspector’s approval of his decision. I have also already pointed out that it is difficult to think that the Chief Inspector would have thought that he was expressly approving two decisions, one on TIP and a separate and distinct decision on forced labour. Indeed, if the ultimate – and so reviewable – decision is that of the Chief Inspector, there is no direct evidence as to his decision-making process at all. Even when later pressed by solicitors’ correspondence, the Police failed to address directly the question whether a forced labour decision had in fact been made at the time. 200.It was really only in Mr Wan’s affirmation evidence that he stated for the first time that he additionally considered forced labour, as distinct from TIP. I have quoted above from his §11, where he drew specific attention to the following matters of note: (a) CB never made a complaint that she was a victim of forced labour; (b) she performed the duties of what FDHs normally would; and (c) when she asked to resign, Z accepted the resignation, showing that CB was at liberty to quit her job according to her will. 201.Assuming this is what Mr Wan actually did at the time, and addressing those individual points head on, it seems to me: (a) that CB never made a complaint is insufficient, where no complaint is required for the duty to investigate to be triggered; (b) that CB performed ordinary FDH duties (presumably meant as being in addition to the involuntary sexual services) is also irrelevant to the real complaint; (c) that CB was able to resign is of minimal weight, when it seems that she only felt able to do so after Z had left Hong Kong on vacation and she had sought and obtained the support of an NGO, and where Z did not in fact accept her resignation but purported to fire her instead; and (d) where CB was not realistically able to quit the sexual services without quitting the whole FDH employment. 202.Therefore, I do not think I need to descend into the argument as to whether or not Mr Wan’s now offered reasoning was in fact engaged in at the time, leading to a separate decision on forced labour. It is, therefore, also unnecessary to engage in the debate about what ex post facto evidence can properly provide about the decision-making process, with the distinction between elucidation of reasons already given, as opposed to correcting reasons previously given or providing reasons when none were previously given. 203.In ZN (CA), at §§133ff, the Court considered whether the applicant in that case was a victim of forced labour. In relation to the legal principles, and as already pointed out, the Court held that forced or compulsory labour, although not defined in the Hong Kong Bill of Rights or the ICCPR, bears the same meaning as that in the FLC, namely “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. At §§135-138, by reference to the facts of that case, Cheung CJHC (as he then was) said:
204.I also note that Lam VP (as he then was) at §209 agreed that there had to be some nexus between the work and the menace of a penalty, for otherwise the work or service would not be performed ‘under’ menace of a penalty. 205.However, Mr Pao seems to argue that the question as to whether or not there was forced labour in any given case has to be approached by reference to those three elements in that particular order: work, menace of penalty, and voluntariness. Essentially, he submits that if work or service is not an issue but there is no demonstration of the menace of a penalty, then one can cease the analysis at that stage. I disagree. Instead, it seems to me that the question of forced labour is one to be answered in the round. The three elements are not to be compartmentalised. If, as in this case, there is obviously involuntariness, then it may be sensible to ask why the person would have acted involuntarily by performing the work absent the menace of penalty. If no other reason is established for that person to have acted in that way involuntarily, then it may be easy to conclude that it was likely the result of (or under) the menace of a penalty – not least where that requirement is to be interpreted generously in favour of victims, particularly vulnerable victims. 206.Though I am not usually a fan of rhetorical questions, the following such question might be asked in this case: ‘If it is accepted that CB, a FDH in a recognised position of vulnerability, performed sex work on a non-consensual and involuntary basis, and where no other explanation has been offered as to why CB might have acted in that way, then why would she have done so except under the menace of some form of penalty?’ At least on the credible suspicion threshold, I would think the menace of penalty is obviously established. To decide otherwise is, to my mind, perverse. 207.In so far as reliance was placed on the Janice Letter in the context of the question of forced labour, I make the same points as I made above. The reliance was irrational. 208.For reasons already expressed, I do not accept Mr Pao’s submission that CB’s “core complaint” was addressed and met, so that it is not possible to say that the result achieved in this case was something that fell short. 209.I think the judicial review challenge in respect of the Forced Labour Decision has been made out. N. Possible Need for a Bespoke Offence 210.On the basis that I have found a breach of BOR4 duties owed to CB, the question then arises as to whether the breach is attributable to – that is, there is a causal connection with – a lack of specific legislation in Hong Kong addressing forced or compulsory labour as a particular form of criminality. 211.As to the possible enactment of a bespoke offence, it is necessary to focus on the correct question. This was identified at §168 of ZN(CA) in the following way:
212.I also keep specifically in mind the points made by Lam VP (as he then was) in ZN(CA) at §§216-217. There, he underscored the need for more mature debate on many issues before one could conclude that all forms of forced labour should be criminalised; that the judicial process cannot provide an adequate forum for such debate, without which it is difficult to tell the precise limits of the new offence and how such new offence would differ from existing criminal offences, or to gauge the extent to which the new criminal offence could provide a more effective remedy to combat the vice of forced labour. He also pointed out that it is a very strong measure for a court to hold that short of the enactment of statute providing for a specific offence for forced labour the Government is in breach of his obligation under BOR4. 213.But, as already noted in the introduction to this Judgment, in the final appeal in ZN(CFA), the relevant door was expressly left ajar. At §93, on the facts of that case, the CFA stated (emphasis in original):
214.At §§115-116, it was first concluded that the scope of the protection in BOR4 does not extend to human trafficking for forced or compulsory labour, and that instead the question for the court was whether it was shown that the breach of the appellant’s BOR4 rights was caused by the absence of a bespoke offence criminalising compulsory labour. It was then noted that there was no finding by the CA that the breach of the investigative duty was the result of the absence of a specific offence, and in fact there seemed to be a finding to the contrary, which there was no proper basis to disturb. But, the context of the statement is to be found in §117, for there had been a failure to investigate the appellant’s case at all, and that could not be said realistically to have occurred because of the lack of a specific offence criminalising forced or compulsory labour. 215.At §118, the CFA specifically held that it could not be said that the patchwork of offences available to the HKSARG is inadequate to provide practical and effective protection of that BOR4 right. Nevertheless, having referred to the CA finding that it remains to be seen whether the further efforts are sufficient to provide the requisite practical and effective protection, at §121 the CFA agreed, and pointed out that it would be wrong for the respondents to rest on the laurels of their success in ZN. The answer to the question in that case, as to whether or not a bespoke offence is required, is to be found in §122:
216.I would add that the question raised by the systemic challenge is also not answered by the Government’s assertion that it takes combating TIP and forced labour very seriously. Whilst that is obviously correct, it may well be that the facts of a given case will identify that the current patchwork of offences are nevertheless not sufficient to address the constitutional requirement of providing practical and effective protection. 217.Though merely having some benefit is not enough, the beneficial reasons for having a specific criminal offence are manifold, and have been previously recognised. For example, in ZN(CA) at §163, it was pointed out that it provides a reference point; it promotes victim identification; it facilitates the detection of crime; it eases prosecution; it guides proper punishment; it helps prevention; and it promotes general education. I agree with all of those points, but would note that the phrase “helps prevention” might also have been put as “provides deterrence”, but in any event includes that element of deterrence. 218.Similarly, the benefits of a specific criminal offence were recognised at first instance by Zervos J (as he then was), and whose views might be considered to have considerable force because of his previous role and experience as DPP. In ZN v Secretary for Justice (No 2) [2017] 1 HKLRD 559 at §355, he said that the criminalisation of forced or compulsory labour satisfies two important objectives. First, it outlaws the prohibited conduct by a specific offence provision and penalty, and sets out the elements of the conduct that is prohibited. Secondly, it provides an important measure for law enforcement and the general public of the conduct that is prohibited. At §357, he added that the enactment of a criminal offence provides a clear and precise reference of the mischief that is sought to be regulated and a focal point for law enforcement action. 219.I agree that those are important facets of a specific, or bespoke, criminal offence. Indeed, I think the last mentioned provision of a focal point for law enforcement action is highly instructive in the Hong Kong investigatory and prosecutorial context. 220.These beneficial aspects or facets of a specific criminal offence, and the problems that can arise from the absence of a specific criminal offence, have also been recognised elsewhere. For example, in CN v The United Kingdom ECHR No 4238 of 08, 13 November 2012, the Court considered (at §§72-73) that the particular applicant’s complaints did give rise to a credible suspicion that she had been held in conditions of domestic servitude, which in turn placed the domestic authorities under an obligation to investigate those complaints. Whilst it was clear that the domestic authorities did investigate the applicant’s complaints, the submission made was that the investigation was deficient because the lack of specific legislation criminalising domestic servitude meant that it was not directed at determining whether or not she had been a victim of treatment contrary to Article 4 of the Convention. The Court referred (at §76) to its previous findings in the Siliadin case, on which basis it could not but find that the legislative provisions in force in the United Kingdom at the relevant time were inadequate to afford practical and effective protection against treatment falling within the scope of Article 4. As it was put in that paragraph:
221.After looking at the particular investigation details in that case, the Court stated at §§80-82:
222.Comments useful for present purposes, as made by the Court in those paragraphs, include:
223.In short, criminal investigations are inevitably framed and focused by the existing offences available for investigation and charge against the implicated person. Particularly as regards what might be regarded as ‘standard’ offences, such as those concerning sexual assault, it is natural that law enforcement authorities will frame and pursue their investigations in line with these familiar reference points. I shall return to this point below. 224.On the facts of CB’s particular case, Mr Chan submits that the distinct value of specific legislation is strongly highlighted. He pointed in particular to how the FDH employment dimension was apparently engaged and understood in a skewed manner: where the situation should have identified a heightened risk of systemic exploitation, it was instead apparently treated as a factor against any finding of TIP or forced labour – or at least the need to conduct further investigations in those directions. 225.Though Mr Chan also points to specific legislation in other jurisdictions – for example the Australian Criminal Code, which contains a specific provision that it is not a defence to this class of offence that a person against whom the offence is alleged to have been committed consented to, or acquiesced in, conduct constituting any element of the offence – I do not think how another jurisdiction has chosen to deal with the matter really answers the question posed in this case, in Hong Kong. 226.Mr Chan submits, overall, that the absence of bespoke criminal legislation on forced labour did substantially contribute to the investigative and evaluative failures in CB’s case. I agree, for reasons which I shall come to below. 227.First, it is helpful to keep in mind certain observations on the place or role of potential victim identification in the overall police investigation process. In the SB’s evidence, in the context of explaining why the person screened would not be informed about her being screened, the SB said that the victim screening mechanism is “a component element of an investigative process on the police’s part”. The particular “investigative process” referred to must naturally mean the criminal investigative process, since that is the most important function of the Police (and indeed all the LEAs). 228.The most observable purpose of the victim screening mechanism in the criminal investigation process appears to be determining whether the case will be transferred within the Police to the more specialized TIPIT. But the transfer to TIPIT is apparently not exactly for the purpose of further investigation into whether the person – here CB – was or was not a victim of TIP or forced labour. Whilst some attention is paid to the suspected TIP/exploitation of FDH aspect of the case, the task of TIPIT remains a criminal investigation. At stated in §§18-19 of the 1st affirmation of Lau Chun Piu Bill of the SB:
229.The various references to “according to the law”, “criminal offences”, “crime element”, “offence” and “offender” underline the fact that the task of TIPIT remains one of criminal investigation – namely an investigation into identifiable crimes for which there might be a subsequent prosecution. 230.This was demonstrated in CB’s case. In §§8-9 of Mr Wan’s 1st affirmation, he stated:
231.As Mr Wan stated, the investigation was done to ascertain the “crime elements” involved. The criminal nature of the investigative steps is also made by plain by the steps taken. In the cautioned statements/interviews taken from Z, Z was cautioned for the offence of indecent assault. In the witness statements taken from CB, she was interviewed as a possible victim of indecent assault. The basis for the house search and the arrest against Z on 16 December 2019 (the relevant documents of which are not exhibited) were likely to be the suspected indecent assault offences. 232.Mr Wan said it is after these criminal investigative steps that he had come to the view that CB was not a victim of TIP (or forced labour), and he overruled Ms Mui. In any event, he continued the criminal investigation on indecent assault which resulted in Z’s ultimate conviction. 233.Therefore, whilst SB has said the victim assessment was a component of the Police’s investigation process, other than the initial screening by Ms Mui, none of the investigative steps taken by Ms Mui or Mr Wan was taken directly for the purpose of investigating into CB’s TIP/forced labour position. Mr Wan said in his affirmation that even if CB was classified as a TIP victim, it would have made no difference to the charges preferred against Z in the end. Indeed, not only as regards the criminal charges, it appears that the criminal investigation against Z also was not affected (and would not have been affected) by CB’s victim classification one way or the other. 234.This (together with the Police’s other evidence that CB’s entitlements to protection and assistance would remain unchanged regardless of her victimhood classification) forms the basis of Mr Pao’s utility argument, as to which see below. The essence is that a positive determination that she was a TIP or forced labour victim would make no meaningful difference in real and concrete terms. 235.This leads to the next observation. Whilst the Government’s case is that various investigative steps had been taken, it is not its case that that those investigative steps were taken for the purpose of deciding whether CB was a TIP or forced labour victim. Ms Mui and Mr Wan formed a view on the matter using the information they gathered from their criminal investigation work, triggered by the report of indecent assault. I acknowledge the obvious step taken for the purpose of assessing TIP or forced labour was Ms Mui’s filling out the initial screening/debriefing form in CB’s first interview with the Police, and asking the questions in Part II of the form. But in practical terms that was the only such step, as the entire process of investigation as to TIP or forced labour was embodied in that initial screening/debriefing form. The design of the form itself seems to show why: the assessing officer is guided through the usual indicators and the triple elements of TIP and is expected to reach an answer on whether the screened person is or is not a victim of the kind, rather than to form a tentative or interim view which awaits further investigation. 236.Mr Pao’s primary submission is not that there was any (further) investigation conducted specifically for the purpose of assessing CB as a potential victim of TIP or forced labour, but rather that the BOR investigative duty was never triggered because there has never been a sufficient case to trigger such duty. But his fall-back submission is that, even if the Court considers that the Government’s investigative duty under BOR4 was triggered, such duty would have been met given the extensive investigative steps taken by the Police. 237.At the hearing, I raised the question as to how it might be said the criminal investigation targeting indecent assault – with no thought about whether there was forced labour, not least where it said no such duty arose – could nevertheless meet the duty to investigate under BOR4. Mr Pao said there is no need to “label” the investigation done by Police as one for investigating into either (a) a forced labour claim under BOR4 or (b) an offence of indecent assault. If, as seems to be suggested, the purpose of the investigation does not matter, that would also seem to suggest that the Government’s duty to investigate under BOR4 could be fulfilled unintentionally or even when the Government has already consciously decided not to carry out an investigation pursuant to BOR4. Rather than resolving my question, this seems to highlight the oddity. 238.Indeed, it seems to me that the very way in which Mr Pao was constrained to argue the case also identifies the causal connection between the particular failures in CB’s case and the absence of a specific criminal offence. 239.In CB’s case, the only potential charge to be brought against Z was one of sexual assault. It is not surprising, therefore, that the investigation was focused on the possibility of charging and proving such a crime. That is why Mr Pao was able – in fact, constrained – to make the submission that any further investigation as might have been conducted by the Police would have made no material difference to CB or to the criminal charges preferred against Z. It is also why Mr Wan (in evidence) and Mr Pao (in submission) were able to state that the prosecutor was correct to have told the Magistrate at Z’s trial that the videos – showing Z engaged in sexual acts with other FDHs – were irrelevant to the charges laid against Z. Indeed, even if Mr Wan had believed that the videos did demonstrate non-consensual sexual acts performed by the former FDHs at Z’s instructions, the videos would have been irrelevant to the charges laid against Z in respect of the sexual assaults committed by him on CB. 240.As already pointed out, the broad picture which emerges is that CB’s complaint would have been processed through the criminal justice system in the same manner from investigation to prosecution, regardless of the Police’s view on whether she was also a victim of forced labour. 241.In other words, it can be said that the failures which have been identified in the CB case demonstrate that the constitutional investigative duty imposed by BOR4 does not fit well with a criminal justice system which has no specific criminal offence targeting forced labour. 242.As was stated by Zervos J, and as perhaps is obvious, the focal point for law enforcement action is bound to be by reference to specific criminal offences. It is the essence of the investigatory and prosecutorial process that the Police and other enforcement agencies will look to see if they can detect the commission of a specific crime, for which they can bring a particular charge, and on which they will be able to produce evidence admissible to the proof of that charge. 243.Without an applicable legislative framework directing and regulating the conduct of investigations into possible specific forced labour offences, officers are left to revert to focusing on an available existing offence, here indecent assault. That is not simply a matter of habit, as the Police’s ordinary duty is to investigate suspected crime, and the relevant suspected crime was, in this case, recognised from the start to be one of sexual assault. Put another way, the Police’s investigation did not set to discover a case of forced labour, but instead targeted a case of indecent assault because that was the only charge which could have been brought against Z. The ultimate prosecutorial decision, and by extension the prior criminal investigation process done by the Police, must be guided by evidence which could be admitted through the rules applicable in the criminal courts to prove beyond reasonable doubt all elements of the offence of indecent assault. 244.One may even question if the Police could legitimately use their criminal investigative powers to investigate something which is not a crime. Take a search warrant as an example. In CB’s case, the search warrant used to search Z’s premises was presumably issued by a magistrate under s.50(7) of the Police Force Ordinance Cap 232, because the magistrate was satisfied on sworn information that an offence had been committed or reasonably suspected to have been committed. As the offence must also be sufficiently revealed, the offence identified was likely that of indecent assault. It is at least doubtful that the Police could have obtained a search warrant for the purpose of investigating a suspected “case of forced labour”. 245.The reality seems to be that an investigation under BOR4 (currently conducted by the Police) would make, and arguably should make, no impact on the parallel criminal investigation and prosecutorial process. So it might even be asked what the purpose is of investigating into suspected forced labour cases if the positive detection of such prohibited conduct does not further lead to the conviction of an offence criminalizing the prohibited conduct. 246.Of course, it may be said the purpose of investigation is to drive towards the conviction on one amongst the patchwork of potential offences which happen to catch various facets of forced labour in a particular instance. But these facets of forced labour are criminalized on their own already, and they are already targeted by our criminal investigatory and prosecutorial machinery. Taking the offence of indecent assault in CB’s case as an example, the offence was, and would be, processed in the criminal justice system even if the Police had never seen the need to fill out the initial screening/debriefing form. 247.The apparent oddity in the Government’s case – that it is said the Police had met its investigative duty under BOR4, despite ruling out the possibility of forced labour, by continuing to investigate into indecent assault – is but a reflection of the current divorce between forced labour and the criminal justice system. 248.Mr Pao submitted that, since ZN(CFA) has decided that the positive duty under BOR4 is capable of being met without a bespoke offence, a certain degree of ‘asymmetry’ between forced labour and the offence(s) investigated or prosecuted is to be expected. On reflection, Mr Pao’s real submission is that the investigative duty under BOR4 is met as long as the Police (or other LEAs) have properly investigated into the criminal offences which happen to accompany or reflect aspects of the forced labour in that case. In other words, BOR4 requires of them no more than carrying out the investigative duty which has already been imposed on them by the criminal justice system. 249.I do not think that can be right. For example, Mr Pao has sought to emphasise that the Magistrate sentencing Z already specifically took into account the breach of trust in the employment relationship between Z and CB, so that the sentence passed reflected that aggravating element. But, surely it would have been an additional aggravating element if it had been demonstrated to the Magistrate that CB was not just a victim of sexual assault by employer on employee, but a victim of forced labour (perhaps in particular if it were also demonstrated that there were other victims). In other words, forced labour is an additional dimension to the existing criminal offence. 250.Nevertheless, the question would then arise as to how that additional dimension would be demonstrated to the Magistrate – and the answer would seem to be that would only be possible if Z were charged with and convicted of a specific offence of forced labour. Without that specific offence, even a clear finding in some other form that CB was the victim, or one of a larger number of victims, of forced labour would have made no difference. 251.This leads to Mr Pao’s argument as to the lack of utility. But the argument seems to be wider than as regards a lack of utility just in the instant case, and may suggest a lack of utility of investigation under BOR4 in the criminal justice system in general. When the criminal investigation and prosecutorial process must necessarily be determined by the identified offence and the relevant criminal law, it can be asked what benefits would be brought by asking LEAs to investigate into a ‘non-crime’ alongside the ‘real’ crime. 252.As already stated, the ultimate duty imposed by BOR4 on the Government is to put in place measures to provide practical and effective protection against forced labour – and I emphasize “against forced labour”. Some form of detection (and hence investigation) must exist to enable the Government to offer that protection. As to what the nature and scope of such an investigation should be, that question did not arise on the facts in ZN. This was because ZN was shunted from one government authority to another and was left floundering in the system; the failure in the ZN case was a complete failure to investigate. As no investigation was done, the opportunity did not arise to discuss what sort of investigation would have met the BOR4 duty. 253.So it can be seen that the Government’s legislative and administrative framework as shown in the latest evidence filed before the CA in ZN(CA) has never been decided to have offered practical and effective protection required by BOR4. Indeed, later in ZN(CFA) at §114, it was stated that the Government’s approach “is an acceptable method of compliance providing it affords practical and effective protection of rights under BOR4” (my emphasis). That comment was made at the same time as leaving the door ajar. 254.The nature and scope of the investigation required must be informed by the ultimate duty imposed by BOR4, namely to put in place measurements to provide practical and effective protection against forced labour. Though practical and effective protection does not necessarily entail a bespoke offence, that would only be correct if the criminal sanctions already provided by the patchwork of existing offences provide the required protection. For the reasons already identified above – and where no-one is suggesting meeting the duty through some different form of administrative process focusing only on offering assistance to the victims, rather than also pursuing criminal convictions – I do not think practical and effective protection likely simply means doing what the Government is already obliged to do under the existing criminal justice system. 255.The CB case demonstrates that point. The manner in which the investigation focused on conventional sexual offences may be different from an investigation specifically into forced labour offences, where a more nuanced or subtle approach to questions of consent may be warranted. The essence of forced labour may also involve patterns of behaviour, so focusing on the ‘results’ as regards one victim may not suffice if the position of other possible victims is not also properly addressed. 256.Further, the TIP screening form attached to HQO 12/2019, also used for the BOR4 screening, focuses on transnational recruitment. Whilst that aspect is frequently present in TIP cases, it is not necessary even to TIP and the forced labour or sexual exploitation of FDHs need not depend on any international recruitment aspect. The misdirection in investigation is further highlighted by the emphasis on CB having been recruited to work as a FDH, and having performed FDH duties “like any other FDHs would”. 257.Lastly, the lack of any proper written record – in fact the lack of any written record at all – of a separate negative finding of forced labour is another clear sign that the lack of a specific offence criminalising forced or compulsory labour has led to systemic failure. Here, there was a failure to ensure a properly recorded process for assessing forced labour, as separate and distinct from TIP, commensurate to the gravity of the fundamental rights and constitutional concerns in this area. 258.I also have in mind that the failures in this case involved relatively senior officers (up to the rank of Chief Inspector) in what is supposed to be the specialist unit. Accepting that these officers were acting in good faith, that only tends to point up a systemic problem. 259.As Mr Chan identifies, the reality is that an employer may abuse the FDH system of employment for his own sexual purposes, but does not necessarily commit the offence of international trafficking for prostitution. This is because, having employed the FDH, there is no need to take a person in or out of Hong Kong for forced sexual services, as that person is already at the possible beck and call and whim of the employer in the convenience of his own home. That clearly offends against the fundamental concerns of BOR4, and itself warrants a direct and effective bespoke criminal sanction. 260.Further – in addition to the risks naturally arising from seeking to address both TIP and forced labour in one exercise, and by reference to a form which is structured by reference to the elements of TIP alone – what seems to have happened is that there has been elision between (a) the investigation as to whether forced labour occurred with (b) the possible domestic criminal charges as might be a response to a finding that there was forced labour. 261.In short, investigating under the duty imposed under BOR4 – so as to give practical and effective protection against forced labour – is simply not the same thing as investigating the commission of an offence which might be shown to have occurred as a facet of forced labour. 262.In conclusion, I think the facts of the CB case do establish the ‘causal connection’ between the particular failures in the case and the lack of a bespoke criminal offence. 263.In her AF86, CB seeks a declaration that the absence of specific legislation criminalising forced labour prevented the proper investigation of her complaint. In his submissions, Mr Chan seeks either that declaration, or alternatively a declaration that specific legislation be enacted addressing forced labour and exploitation under BOR4 in the context of FDH employment. 264.Having formed the view that there should be bespoke legislation, I do not see why it should be limited only to the context of FDH employment. 265.Of course, it is not for the Court to identify the detailed features of the specific legislative remedy, which would be a matter for the Legislature (with the assistance of the Executive). O. Result in AM’s Case 266.In the light of the foregoing, I dismiss AM’s application for leave to apply for judicial review. 267.I make no order as to costs, save as to Legal Aid taxation of AM’s own costs relating to the period during which she had the benefit of a Certificate for Legal Aid. However, as I have not heard argument on costs, I make that order for the moment on a nisi basis, which will become absolute after 14 days unless a prior application is made for variation of that order. Any variation application will be dealt with on paper. P. Result in CB’s Case 268.Though I have found grounds for judicial review made out in relation to both the 2nd TIP Decision and the Forced Labour Decision, I do not think it appropriate to go on myself to make any declaration as to whether CB was or was not in fact a victim of TIP or forced labour. As previously indicated, such a decision ought to be made by the original decision-maker (albeit subject to the supervision of this Court). The effect of my decision is to rule that the various investigations into TIP and forced labour were prematurely curtailed as a result of the public law failures identified. The consequence is that the investigations should be revived. The revived investigation should not be limited to the position of CB alone. Whilst Mr Pao is correct that BOR4 is concerned with an individual’s rights that are being infringed, the relevant investigation is plainly not limited only to the individual who has made the complaint – not least when that individual has been able to identify other individuals who may have been victims of infringed rights, and where the pattern of behaviour may have gone back more than a decade. Those points were directly raised in the AF86. 269.In passing, I should state that I am, of course, conscious of the practical difficulties that reviving those investigations may now face, simply as a result of the passage of time. But I do not think it necessary or appropriate for me to speculate as to what those potential practical difficulties will entail. I have in mind the point already touched on above that the relevant duty imposed under BOR4 is one of means, not of result. 270.In the light of the foregoing, I grant the following relief:
271.As to costs, I presently seen no reason why costs should not follow the event, so that CB’s costs be paid by the respondents on a party and party basis with certificate for two Counsel, with CB’s own costs to be taxed in accordance with the Legal Aid Regulations. However, again I make that order for the moment on a nisi basis, which will become absolute after 14 days unless a prior application is made for variation of that order. Any variation application will be dealt with on paper.
The applicant in HCAL 466/2021, acting in person Mr Abraham Chan, SC and Mr Albert N B Wong, instructed by Patricia Ho & Associates, for the applicant in HCAL 617/2021 Mr Jin Pao, SC and Mr Martin Ho, instructed by the Department of Justice, for the 1st to 3rd putative respondents in HCAL 466/2021 and 1st and 2nd putative respondents and the putative interested party in HCAL 617/2021 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCAL 466/2021