Cb v. Commissioner of Police and Another
Read the full judgment text of CACV 208/2022 on BabelCite. This Court of Appeal judgment was delivered on 22 February 2024.
1. The applicant, a Philippine woman who worked in Hong Kong as a foreign domestic helper (“ FDH ”) whose name has been anonymized in the legal proceedings as “ CB ”, says that between September 2018 and April 2019 she was repeatedly sexually assaulted and exploited by her employer, a man who has been referred to in the proceedings as “ Z ”. She complains that she was, at his hands, the victim of human trafficking and forced labour.
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CACV 208/2022, [2024] HKCA 172 On Appeal from [2022] HKCFI 1046 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 208 OF 2022 (ON APPEAL FROM HCAL NO 617 OF 2022) ____________ BETWEEN
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_________________ J U D G M E N T _________________ Hon G Lam JA (giving the Judgment of the Court): A. Introduction 1.The applicant, a Philippine woman who worked in Hong Kong as a foreign domestic helper (“FDH”) whose name has been anonymized in the legal proceedings as “CB”, says that between September 2018 and April 2019 she was repeatedly sexually assaulted and exploited by her employer, a man who has been referred to in the proceedings as “Z”. She complains that she was, at his hands, the victim of human trafficking and forced labour. 2.With legal assistance obtained through a non-governmental organisation, CB made a complaint to the Police against Z in December 2019. This led to Z being arrested, investigated and prosecuted for two counts of indecent assault. The Police nevertheless took the view that CB was not a victim of trafficking in persons or forced labour. Aggrieved by this conclusion, CB sought leave to apply for judicial review of the Police’s decisions on trafficking and forced labour, naming the Commissioner of Police (“Commissioner”) and the Secretary for Justice as putative respondents, and the Secretary for Security as putative interested party. For convenience, we shall refer to all three officials together as the “Respondents”. 3.CB’s application was heard at a rolled-up hearing together with the application of another applicant for leave for judicial review anonymously called “AM”, since both cases raised questions relating to human trafficking and forced labour. In his judgment handed down on 22 April 2022 (“Judgment”),[1] Coleman J granted CB leave to apply for judicial review and granted her application for judicial review. By way of relief, he quashed the decisions in question and remitted them to the Commissioner for re-consideration. The judge also granted a declaration that the failures as regards the investigation as to whether CB was a victim of trafficking in persons and/or forced labour in this case were causally connected to the absence of specific legislation criminalising forced labour. In contrast, the judge dismissed AM’s application for leave to apply for judicial review. 4.This is our judgment on the Respondents’ appeal against the Judgment in relation to CB. There is no appeal brought by AM. 5.Meanwhile, although Z had in July 2021 been convicted after trial by a magistrate on both counts of indecent assault and sentenced to a total of 30 months’ imprisonment, shortly after Coleman J’s Judgment, on 29 April 2022, the conviction was quashed on appeal by the Court of First Instance due to an irregularity in the criminal trial. In December 2022, Z was acquitted after a re-trial before another magistrate. B. The legal context 6.Trafficking in persons (or human trafficking, which we shall use interchangeably) and forced labour have sometimes been referred to as twin scourges, but their essence is different and their constituent elements and legal treatments under Hong Kong law are also different even though they may overlap on the facts of a particular case. B1. Human trafficking 7.Internationally, human trafficking is the subject matter of treaty provisions, particularly the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (“Palermo Protocol”), being a protocol supplementary to the United Nations Convention against Transnational Organised Crime. The People’s Republic of China acceded to the Palermo Protocol in 2010 but, having consulted the Hong Kong Government, made a declaration that the treaty shall not apply to the Hong Kong Special Administrative Region unless otherwise notified by the Central Government. The Palermo Protocol does not therefore impose any obligations on the Hong Kong Government, nor has Hong Kong enacted legislation to incorporate it into domestic law. It does not directly have the force of law in this jurisdiction; still less does it give rise to any entrenched fundamental rights. 8.It has been held by the Court of Final Appeal that although art. 4 of the Bill of Rights of Hong Kong[2] (“BOR 4”) may prohibit trafficking in persons for the purposes of slavery, it does not encompass a prohibition against human trafficking generally for the purposes of exploitation; nor does BOR 4 prohibit human trafficking for the purposes of servitude and forced or compulsory labour: see ZN v Secretary for Justice (2020) 23 HKCFAR 15, §80. (We shall refer to the Court of Final Appeal’s decision in ZN as ZN (CFA) and the Court of Appeal’s decision in that case, reported at [2018] 3 HKLRD 778, as ZN (CA) respectively.) 9.Notwithstanding the absence of specific laws in Hong Kong prohibiting human trafficking, the Government has adopted policies and strategies to combat human trafficking. An inter-departmental joint investigation team was set up in 1998 that enabled intelligence exchange and joint investigation or law enforcement action to combat human trafficking activities. An inter-departmental working group was set up in 2010, led by the Security Bureau, to enhance the policy and enforcement strategy against human trafficking and forced labour. In 2015, a human trafficking victim screening mechanism was introduced in the Immigration Department, which was gradually implemented by the Police in certain districts in 2016 and 2017 and was extended to all 24 police districts in July 2018. 10.In 2016, the Government issued a set of guidelines called “Guideline on Inter-departmental Cooperation for the Handling of Suspected Cases of Trafficking in Persons”. In March 2018, a high-level inter-bureau/departmental Steering Committee to Tackle Trafficking in Persons and to Enhance Protection of Foreign Domestic Helpers in Hong Kong (“Steering Committee”), chaired by the Chief Secretary for Administration, was established to provide strategic and policy guidance within the Government. At the same time, the Government adopted and published an action plan called “Action Plan to Tackle Trafficking in Persons and to Enhance Protection of Foreign Domestic Helpers in Hong Kong” (“Action Plan”). In March 2019, a revised version of the Guideline referred to above was issued (“Guideline”). 11.The Action Plan and the Guideline adopt the definition of human trafficking in the Palermo Protocol, require each relevant department to appoint dedicated teams or officers to handle cases relating to human trafficking and exploitation of FDHs, and lay down measures for victim identification, investigation and prosecution, protection of and provision of assistance for victims, and record-keeping and compilation of statistics. By adopting these policies and guidelines, the Government seeks to demonstrate its commitment to tackling human trafficking and affording protection for FDHs. For the purposes of administrative law, they amount to self-imposed public law norms by reference to which the Government’s actions in a specific case may be challenged and judged in an application for judicial review. 12.So far as relevant for present purposes, “trafficking in persons” is defined in Art. 3(a) of the Palermo Protocol as:
13.In ZN (CFA) at §36, Fok PJ (with whom the other members of the Court of Final Appeal agreed) explained the definition as follows:
14.Further, as pointed out by Coleman J,[3] it should be borne in mind that although human trafficking may often involve a transnational element, it can occur wholly within a single jurisdiction such as Hong Kong. B2. Forced Labour 15.In contrast to human trafficking, protection from forced labour is specifically provided for by law in Hong Kong. In particular, BOR 4 provides:
16.For the purposes of BOR 4(3), “forced or compulsory labour” has the meaning as defined in art. 2(1) of the Forced Labour Convention 1930: ZN (CFA), §32(3). That definition is as follows:
17.The components are, therefore, as explained in ZN (CA) at §6, first, work or service; secondly, the menace of a penalty; and, thirdly, involuntariness on the part of the victim. There must also be a causal connection, a nexus between the work and the menace: see ZN (CA), §§136 & 209; see also CN & V v France, ECHR 67724/09, 11 October 2012, §75. C. Relevant procedures under the Action Plan and Guideline 18.As mentioned above, the Action Plan and Guideline set out a framework for tackling human trafficking. The concrete procedures adopted by the relevant departments were described by Coleman J in his Judgment at §§41 – 61, the relevant parts of which we adopt and summarise as follows. 19.As stated in the Guideline, departments which may encounter potential human trafficking 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. 20.The questionnaire adopted by the Police, among other departments, for victim identification is annexed to the Guideline. The questionnaire is quoted at §45 of the Judgment. It consists of two parts. The first part is an initial screening, with seven questions to be answered by the relevant officer. The initial screening may be conducted without interviewing the suspected victim. Only when there is one or more “Yes” answer 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 human trafficking (act, means and purpose) as defined by the Palermo Protocol. Following positive identification, the officer is asked to ascertain the types of assistance which the victim needs. 21.When a human trafficking 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. It is said that where there is credible suspicion that an arrested person is a human trafficking victim, that case must be approached with care. Departments are to bring these cases to the attention of the Department of Justice which will then decide the appropriate prosecutorial response. 22.Within the Police Force, Police Headquarter Orders (“HQO”) issued by the Commissioner govern the implementation of the Government’s general framework. The applicable HQO at the time of CB’s case was HQO 12/2019 intituled “Trafficking in persons and Exploitation of Foreign Domestic Helpers”. It sets out more details about how the victim identification mechanism is to be implemented within the Police and how cases of trafficking in persons and exploitation of FDHs are to be handled. 23.In terms of handling suspected trafficking in persons and/or exploitation of FDH cases, police officers are reminded to act promptly and to take proactive steps to provide victim protection and support. From October 2019 onwards, each police region has established a specialized team to handle all trafficking in persons and exploitation of FDH cases within their region, known as the “Trafficking in Persons Investigation Team” (“TIPIT”). At the more central level within the 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. D. The facts D1. The caveat 24.The relevant facts and investigative history in respect of CB were set out by Coleman J in his Judgment at §§102-143. As mentioned above, Z had been convicted of indecent assault based on that evidence at the time of the hearing before the judge. Even so, Coleman J was not asked to, and did not, make a finding that CB was a victim of human trafficking or forced labour.[4] This differed from ZN in which the Court of First Instance heard oral evidence from the applicant (though not from any alleged perpetrator of wrongdoing) and actually made findings of fact including that the applicant was the victim of forced labour as well as human trafficking for forced labour.[5] The finding that the applicant was a victim of forced labour was challenged on appeal but upheld by the Court of Appeal,[6] with no further appeal on that point to the Court of Final Appeal. 25.In the present case, not only was there no finding by Coleman J as to CB’s victimhood, but Z’s conviction was also set aside on appeal shortly after Coleman J’s Judgment, and Z was later acquitted at the re-trial because the magistrate had doubts about CB’s evidence. So whilst Coleman J may have legitimately proceeded on the basis that CB’s evidence had already been tested and proven as against Z, we have to proceed on a different footing, that is to say, that her complaints have not been established to the criminal standard as against Z. Z was not made an interested party in the application for judicial review, and no evidence from him as such has been filed, although the transcripts of his two video-recorded interviews taken by the Police under caution in early 2020 are in evidence. On the other hand, there is no suggestion before us that CB’s evidence is not credible. Indeed it must have been accepted by the police as at least prima facie credible for they decided to bring a prosecution on her evidence. In the account below we have included CB’s allegations as facts without qualifying them each time with the word “alleged”. 26.With this caveat in mind, we set out the relevant facts as follows, which are largely derived from the detailed account in the Judgment. D2. CB’s complaints 27.CB is a Philippine national born in 1978. She was around 40 years old at the time of the relevant events. Her employer, Z, was a retired expatriate doctor living in a house in the South Island District. He was almost 80 years old at the time. 28.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 called 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 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 Immigration Department standard form for FDHs on 17 September 2018. 29.From September 2018 to April 2019, CB was subjected to various forms of sexual abuse or exploitation by Z. After Z left Hong Kong for his annual vacation in France, CB approached an organisation known as “HELP for Domestic Workers” (“HELP”) around May 2019. With the support from HELP, CB resigned from her employment by email to Z on 27 July 2019, although Z claimed to fire her instead, a week later, by letter dated 5 August 2019 sent to her by email. In December 2019, CB reported the sexual abuses to the Police. By then, she had obtained pro bono legal assistance from the current law firm representing her, Patricia Ho & Associates (“PHA”), and all her statements given to the Police were taken in the presence of her legal representative. 30.She gave three statements to the Police on 13 and 17 December 2019 and 3 March 2020 respectively. Based on these statements there were broadly the following forms of abuse:
31.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. 32.In her reports to the Police, CB provided various photos and videos showing not only herself but 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 female FDH called Chris providing sexual services to Z, apparently in a routine manner. Z could be heard instructing Janice and Chris how to serve him in the videos. 33.CB also provided three photos, all taken by her. The first shows her massaging a fully naked Z. The second shows the tools which Z asked her to use on him. The third one shows a page of a photo album CB found in Z’s bedroom. The photos in the album show Asian women in compromising sex positions. D3. Complaints to the Police and investigations 34.CB first approached the Police when she went to Aberdeen Police Station with a solicitor from PHA together with PHA’s letter dated 13 December 2019. The letter indicated that she wished to make a report in relation to sexual offences committed against her by her former employer, and mentioned that there appears to have been trafficking for the purpose of sexual exploitation. 35.Inspector Mui Pik Sum, who was posted in the Western District, took over the case for investigation. On the day of her report, CB was interviewed by a woman detective police constable (under the supervision of Ms Mui) in the presence of CB’s solicitor and two interpreters. The statement-taking process took a long time because of three-tier translation (Cantonese, English and Tagalog), during which Ms Mui entered the room intermittently. 36.Ms Mui recorded the case as a reported case of indecent assault from the very beginning. But she also 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 on CB and completed the screening/debriefing form dated 13 December 2013. 37.She asked CB questions based on the 7 indicators in “Part I: Initial Screening”. 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. 38.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 (‘Who told you to do such activities/works as mentioned …? Were you forced, beaten, threatened, deceived or subject to other illegal means to do so?’) was “Employer forced, threatened and deceived to perform and be subjected to sexual acts”. The answer to Question 14 (‘Were you exploited in any way? e.g. forced prostitution, organ removal, slavery, forced labour, physical/sexually abused, threatened, etc (examples not exhaustive)’) was “Yes, sexually exploited and abused. See statement given to Police on 13.12.2019”. 39.Ms Mui 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. 40.In the last part of the initial screening/debriefing form, Ms Mui concluded that CB was a victim of human trafficking. She considered the prohibited act was “recruitment”, the means were “deception” and “abuse of power”, and the purpose was “other forms of sexual exploitation”. 41.In an internal memo of the same day addressing her supervisor, Ms Mui 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. 42.Upon arrival at the Regional Crime Unit, the case was taken up by Senior Inspector Wan Chun Lok. 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. 43.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 and 3 February 2020 respectively; and a statement was taken from a Ms Salewicz, who worked at HELP, on 5 March 2020. 44.During the interview on 3 February 2020, Z produced a copy of a letter apparently written by Janice and dated 21 December 2019 and notarised before an Ontario notary public on a date (which is illegible) in January 2020 (“Janice letter”). This letter was very much in favour of Z and stated, inter alia, that Janice had been employed by Z for 13 years and found him to be a “very pleasant man to work with who was caring and generous towards [her]”, that Z had a bad skin condition and needed to have ointments applied to his body which she had explained to CB, that she had demonstrated to CB how to apply the ointments and massage Z particularly in his legs and also his crotch where he was prone to get a rash, and that Z had carried out an examination on CB to rule out cervical cancer and breast lump which two previous employees had suffered respectively. The letter concluded as follows:
45.On 28 April 2020, Mr Wan came to the view that CB was not a victim of human trafficking and reversed Ms Mui’s assessment. He apparently did not fill out another screening/debriefing form, nor did he speak to CB directly. His decision was recorded in an internal memo to his supervisor, which stated:
46.Mr Wan’s recommendation was apparently endorsed by the Chief Inspector in the regional crime unit on the same day. 47.Mr Wan continued the investigation along the line of indecent assault. After the Police completed the investigation, the file was submitted to the Department of Justice for prosecutorial advice. Eventually, in October 2020, two counts of indecent assault were preferred against Z, one count for the “body check” on 11 September 2018 and another count for the “massages” between November 2018 and 4 April 2019. D4. Notification of the screening results to CB 48.As seen above, the victim screening conducted on CB was apparently carried out as an integral part of the Police’s criminal investigation process. At the time, CB was not informed that she was being screened for victimhood of human trafficking or forced labour, nor was she notified of the result. This was later revealed through a series of correspondence between CB’s solicitors and the Police in early 2021. 49.In November 2020, a witness summons was served on CB to attend the criminal trial of Z. It appears that CB then consulted her lawyers PHA, who wrote to the Police on 16 December 2020, noting that whilst charges for indecent assault were brought against Z, he was not being charged for any other offences relating to human trafficking. The solicitors expressed the view that this was a clear case of human trafficking for purposes of sexual exploitation and that the current charges did not sufficiently represent the gravity and heinousness of the crime committed. They asked the Police to consider bringing additional charges against Z “commensurate with the abhorrent malefaction involved in human trafficking”. 50.There was no reply to this letter, but the criminal trial of Z originally fixed for 7-8 January 2021 was adjourned to 4-5 March 2021. 51.By letter dated 4 February 2021, PHA asked the Police to confirm if an investigation had been made pursuant to their BOR 4 duties and the Action Plan, including determining if CB was a victim of trafficking in persons and/or forced labour. The Police were also asked if they had taken into account the human trafficking element when laying the charges of indecent assault. 52.By letter of the same day, Mr Wan replied that “based on the screening result, [CB] is not a victim of trafficking in person”. It was at this point that CB learnt she had been screened and found not to be a victim of human trafficking. 53.Further correspondence ensued, in which PHA asked, among other things, whether an investigation had been made pursuant to BOR 4 and whether CB was a victim of forced labour. Eventually, by letter dated 27 April 2021, the Police replied, inter alia, that:
D5. Criminal proceedings against Z 54.Z was tried for 4 days on 3–4 March and 2–3 June 2021, in which CB was the principal prosecution witness. Z acted in person on the first two days but was represented by a solicitor on the last two. On 5 July 2021, Z was convicted as charged. On 15 July 2021, he was sentenced to 18 months’ imprisonment for each charge, with 3 months to run concurrently, and a 3-month deduction in view of his old age, resulting in a total sentence of 30 months. In sentencing him the magistrate took into account the element of abuse of trust because Z was CB’s employer. 55.Z’s appeal was heard in the Court of First Instance on 29 November 2021. On 29 April 2022, the appeal was allowed on the ground that the magistrate was wrong not to have allowed CB to be recalled in the second half of the trial to be cross-examined by Z’s lawyer. After a retrial before another magistrate in November 2022, on 14 December 2022, Z was acquitted because the magistrate had doubts about CB’s evidence. E. The application for judicial review and the Judgment below E1. Grounds for judicial review 56.With assistance from her lawyers, shortly after receiving Mr Wan’s letter dated 27 April 2021 (§53 above), on 3 May 2021 CB filed a Form 86 to seek leave to apply for judicial review. The decision originally attacked was the decision communicated by letter of 4 February 2021 (§52 above) that CB was not a victim of trafficking in person. After evidence was filed on behalf of the Respondents disclosing the internal decision process, amendments were made to specify the following as the decisions in respect of which relief was sought: (1) the decision made by Mr Wan on 28 April 2020 on behalf of the Commissioner refusing to classify CB as a victim of human trafficking; (2) the decision made by Mr Wan refusing to classify CB as a victim of forced labour; (3) the failure to enact bespoke legislation to combat forced labour; and (4) the operational failure to investigate under BOR 4. 57.The relief sought in the amended Form 86 included: (1) a declaration that the Commissioner of Police erred in law in failing to identify CB as a victim of human trafficking, in contravention of the Guideline and HQO 12/2019; (2) a declaration that the Commissioner erred in law in failing to identify CB as a victim of forced or compulsory labour, in contravention of BOR 4; (3) a declaration that the absence of specific legislation criminalising forced labour prevented the proper investigation of CB’s complaint under BOR 4 and that bespoke legislation for forced labour is required; and (4) a declaration that there was an operational failure to investigate under BOR 4. 58.The grounds for judicial review advanced were summarised by Coleman J in his Judgment[7] as follows:
59.Based on the way in which counsel for CB advanced her case, the judge dealt with grounds 1, 2, 3 and 5 together with respect to the screening of CB for victimhood of human trafficking and forced labour respectively, and finally dealt with ground 2 as a systemic challenge. He noted that CB’s counsel had all but abandoned any contention that the Police’s conclusions on CB’s victimhood were wrong and had instead focused on the criticism that the investigation was terminated and the conclusions reached prematurely. The judge likewise declined to engage with the Respondents’ argument that CB could not on proper analysis be classified as a victim of either human trafficking or forced labour, and focused his attention on the steps taken in the screening process.[8] E2. Judge’s reasoning and conclusion on human trafficking 60.In relation to human trafficking, Coleman J did not think it was helpful to regard Ms Mui as having made a first decision that CB was a victim and Mr Wan as having then made a second “reversal” decision. Instead, Ms Mui’s decision was an internal, intermediate one within the Police and the relevant decision for the public law challenge was Mr Wan’s decision.[9] 61.As quoted in §45 above, the decision that CB was not a victim of human trafficking was recorded in Mr Wan’s memo dated 28 April 2020. In his first affirmation in the proceedings, Mr Wan elaborated upon his reasoning for that determination. It included the points that: (a) CB was recruited to work as a FDH like any other FDH would have been; there was no evidence of any of the prohibited means used; (b) CB was asked to perform and did perform the duties which a FDH would normally perform; her recruitment was for the purpose of hiring her to perform FDH duties; (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, such as cases involving forced prostitution; (e) whilst a pattern of non-consensual sexual acts performed on previous FDHs may suggest the recruitment of CB was for the purpose of sexual exploitation, the evidence collected, including the Janice letter, did not suggest that Z’s sexual acts with his previous FDHs were non-consensual.[10] 62.In relation to points (a) to (d) above, the judge considered that there had been a complete failure to take into account the following: (1) there was video evidence of Z engaging in sexual acts with his previous FDHs, including Janice; (2) CB was recruited specifically to replace Janice (and they overlapped in employment for a short period); (3) CB was first sexually assaulted almost immediately after recruitment, under the very pretence that it was part of the recruitment process; (4) CB was later (routinely) sexually assaulted commencing immediately after Janice had left Z’s employment; (5) the nature of the sexual assaults on CB was similar to the nature of the sexual acts involving Z and Janice prior to her departure from employment, as shown on the videos; (6) there is no necessity for there to have been any larger or more organised scale of activity for there to have been at least a credible suspicion of trafficking, but in any event there was some demonstration of a larger and more organised scale of activity; (7) in so far as it might be thought necessary (which it probably is not) for there to have been some monetary or commercial gain, Z was clearly obtaining sexual services at no cost and for which he would otherwise have had to pay someone else. The judge considered that if these matters been taken into account, no rational decision-maker would have concluded that there was not at least credible suspicion 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).[11] 63.The judge added that CB’s position as a FDH should have been recognised as a reason for heightened vigilance and not as a point almost counted against her.[12] 64.As to the Janice letter, the judge observed that there was an apparent mismatch between its signature date and its notarisation date. He considered that it raised more questions than it answered, and found it impossible to understand how it was accepted at face value or as exculpatory of Z. Among other things, the judge referred to the video evidence of similar sexual acts engaged in by Janice and Chris with Z which were not explained by the Janice letter in any way. The judge also observed that the letter was provided by Z to the Police and couched in language that suggested it was not drafted entirely by Janice, and yet no inquiry was made to verify anything said in the Janice letter. He considered it irrational to conclude that the Janice letter did anything other than raise further suspicions that required further inquiry and investigation. Overall, the judge considered it manifestly irrational and unsound to conclude that there was nothing worth further investigating as to any possibility of human trafficking or forced labour.[13] 65.The judge also criticised Mr Wan’s approach to the question of consent from the women involved as anachronistic, and said that approaching the question by reference to the “absence of non-consent” gives rise to the not insubstantial risk of error as appears to have arisen in this case.[14] 66.The judge considered that there was also a failure in the investigation because of Mr Wan’s readiness to embrace the one-sided evidence in support of Z, and the lack of further investigation of follow-up in relation to any of Z’s previous FDH or the new FDH.[15] E3. Judge reasoning and conclusion on forced labour 67.As regards forced labour, Coleman J referred to the judgment in ZN (CA) at §§190-191 and emphasised that BOR 4 entails: (1) a procedural obligation to investigate situations of potential forced labour and/or exploitation; (2) which does not depend on a prior complaint; (3) where the investigation must be independent from those implicated in the events; (4) where there is a requirement of expedition and urgency; and (5) where the victim (as may potentially be found) must be involved in the procedure.[16] 68.The judge considered that there was room for real doubt that a decision had actually been made by Mr Wan at the time about forced labour because no contemporaneous documents generated by him addressed the question, which was only dealt with as a distinct issue in his affirmation evidence in the proceedings. At §11 of his first affirmation, Mr Wan said:
69.Coleman J did not however find it necessary to decide whether there was really a decision at the time or whether Mr Wan’s affirmation was an ex post facto explanation. The judge found that the reasoning was defective, because (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 also performed ordinary FDH duties is likewise irrelevant; (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 obtained the support of an NGO; and (d) where CB was not realistically able to quit the sexual services without quitting the whole FDH employment.[17] 70.The judge considered that the three elements of work, menace of penalty, and voluntariness are not to be compartmentalised. He asked the rhetorical question: if CB, a FDH in a recognised position of vulnerability, performed sex work on an involuntary basis, in the absence of any other explanation why would she have done so except under the menace of some form of penalty? He held that menace of penalty was established at least on the credible suspicion threshold, and that to decide otherwise was perverse.[18] He also considered that reliance on the Janice letter as exculpatory in relation to forced labour was irrational.[19] 71.In terms of relief the judge dealt with human trafficking and forced labour together. He quashed the decisions that CB was not a victim of human trafficking or forced labour, and remitted both questions to the Commissioner for consideration, directing that the re-consideration shall include consideration as to other possible unlawful acts by Z (besides those for which he had been convicted) including as regards his other FDHs.[20] E4. Judge’s reasoning and conclusion on absence of specific legislation criminalising forced labour 72.Finally, the judge turned to the question whether the breach of the BOR 4 investigative duties in relation to CB was attributable to the lack of specific legislation criminalising forced labour. He referred to the judgment in ZN (CA) which stated the question to be whether the enactment of a specific criminal offence of forced labour is the only effective solution to the problem,[21] and to the judgment in ZN (CFA) which stated that a bespoke offence criminalising forced labour was not shown to be necessary on the facts of that case, but this does not preclude a different conclusion in a future case if the Government is shown not to have afforded practical and effective protection of BOR 4 rights by reason of the absence of such an offence.[22] 73.Coleman J considered that the victim screening mechanism, to the extent it was invoked, was simply part of the criminal investigation process, the purpose of which was to pursue the suspected offences identified, not to investigate into CB’s victimhood of forced labour. The investigative steps would not be affected by CB’s classification in this respect. The focal point for law enforcement action was bound to be by reference to specific criminal offences. The Police’s investigative powers might also be confined by the purpose of criminal investigation. Even if the Police found there was forced labour, this would have made no difference to the criminal prosecution or sentencing without a specific offence.[23] 74.As to the conventional sexual offences, the judge said that an investigation focused on them 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, involving patterns of behaviour and examining the position of other possible victims.[24] 75.The judge also noted that the existing screening form attached to HQO 12/2019 was structured by reference to human trafficking alone and focused on transnational recruitment.[25] He considered that the lack of any written record of a negative finding of forced labour in the present case was another sign that the absence of a specific offence had led to systemic failure.[26] In the end, the judge made a declaration that the failures as regards the investigation as to whether CB was a victim of trafficking in persons and/or forced labour were causally connected to the absence of specific legislation criminalising forced labour.[27] F. The appeal 76.On this appeal, the Respondents contend that the judge was in error and that either leave to apply for judicial review should be refused or the application for judicial review should be dismissed. They have advanced essentially three contentions which may be summarised as follows:
77.We deal with these contentions in turn below. G. The first contention – whether CB’s case was one of human trafficking or forced labour at all 78.The Respondents contend that the judge erred in refusing to engage with the question whether CB can properly be classified as a victim of trafficking and/or forced labour. This involves an ambitious argument: that even taking CB’s case at its highest, she cannot properly be said to be a victim of human trafficking or forced labour, or, in other words, her allegations are as a matter of law incapable of amounting to human trafficking or forced labour. Accordingly, no relevant duties of investigation arose in the first place, and it would be academic to discuss whether any failures occurred in the investigation. Nor would any remedy serve any utility. 79.This has been called a “threshold argument” on the basis that if the case has not crossed that threshold, all the other attacks made on behalf of CB fall away. It is not in dispute that the applicable standard in assessing whether there are duties to investigate is one of credible suspicion. In ZN (CA) at §191, Cheung CJHC (as Cheung CJ then was) stated that a positive duty arises on the part of the Government to carry out investigation once it is aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an identified individual has been, or is at real and immediate risk of being, required to perform forced or compulsory labour within the meaning of BOR 4. This was said in relation to forced labour, but there is no suggestion that a different approach should be taken in assessing the applicability of the policies relating to human trafficking. G1. Whether CB’s allegations capable of giving rise to trafficking in persons 80.There is no dispute that whether CB may be a victim of trafficking in persons is to be assessed by reference to the definition in the Palermo Protocol set out in §12 above. The Respondents have raised three points as to why, even assuming what CB has said is true, the question of trafficking in persons is not engaged. (a) Whether there was sexual exploitation 81.The first point broadly runs as follows. Under the Guideline and Action Plan, which adopt the definition of trafficking in persons in the Palermo Protocol, trafficking in persons is defined with reference to the purpose of “exploitation”, which is stated to “include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”. While the phrase “other forms of sexual exploitation” is not defined, the modes of exploitation expressly set out in the definition all have in common the elements of treating human beings as mere commodities or chattels thereby demeaning the value of human life, the involvement of commercial or private gain, and a degree of systematicity or continuance. Accordingly, properly construed, “other forms of sexual exploitation” encompass acts normally associated with the sex trade such as involuntary participation in pornography rings, or work in the sex industry falling short of prostitution. In contrast, instances of sexual assault taking place in what is otherwise an ordinary employment context, whilst deplorable and indeed criminal, do not constitute “sexual exploitation”. In the present case, CB’s complaints do not involve her “commodification” or her being exploited for financial gain. 82.We do not accept this argument. First, the question is the proper construction of a policy, since human trafficking is dealt with by policy rather than by law. Even so, the question is not whether the Respondents’ interpretation of the policy is a reasonable one. There can be only one meaning of the terms of the policy, which is within the court’s function to interpret: Shiu Wing Steel Ltd v Director of Environmental Protection (2006) 9 HKCFAR 478, §§26-30. In adjudicating on this question of construction, there is no question of giving any administrative decision-maker any margin of discretion, though the court will of course need to appreciate the context in which the policy is devised and is to be given effect. 83.Within Art. 3(a), the phrase “other forms of sexual exploitation” refers to forms of sexual exploitation other than exploitation of prostitution. It seems to us that in their ordinary meaning the words can include exploiting another person for one’s own sexual gratification. As a matter of language, the phrase is not limited to exploitation of a person for a trade or industry. 84.The Palermo Protocol supplements and is to be interpreted together with the United Nations Convention against Transnational Organised Crime: see Art. 1(1) of the Palermo Protocol. Art. 2(a) of that Convention contains a definition of “organised criminal group” by reference to the phrase “in order to obtain, directly or indirectly, a financial or other material benefit”. On the latter phrase, the travaux préparatoires of the Convention state (at §3):
Thus the Convention is concerned also with activities which may have been undertaken for non-financial benefits and whose motivation may include sexual gratification. The travaux préparatoires of the Palermo Protocol state (at §64):
There is no suggestion that a more restrictive approach should be taken in the Palermo Protocol than the Convention itself. 85.The Respondents refer to the indicators in the “Sexual Exploitation” section of the list of human trafficking indicators published by the United Nations Office on Drugs and Crime and submit that they are aimed at the detection of involuntary work in the sex trade. We do not think the list provides assistance in the present context. It specifically states at the outset that the presence or absence of any of the indicators neither proves nor disproves that human trafficking is taking place. 86.Nor does the Model Law against Trafficking in Persons developed by the United Nations Office on Drugs and Crime, prayed in aid by the Respondents, support their argument. Art. 5(1)(h) of that Model Law defines “exploitation of prostitution of others” to mean the unlawful obtaining of financial or other material benefit from the prostitution of another person. Art. 5(1)(s) defines “sexual exploitation” 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 materials. It is clearly contemplated in these provisions that exploitation may be for non- commercial benefits. There is nothing to indicate that the exploiter’s own sexual gratification obtained by directly abusing the victims is not envisaged to fall within “material benefit” or “other benefits” in these provisions. 87.Mr Pao SC has in addition referred us to the introductory paragraph in Fact Sheet No. 36 issued by the Office of the High Commissioner of the United Nations Human Rights in 2014 which reads:
Mr Pao emphasises the last three words of that sentence, which he submits support the argument that the relevant forms of sexual exploitation are concerned with those involving a trade or economic gain. But the same introduction, in drawing attention to the important features of the definition of trafficking in persons in the Palermo Protocol, also states (at p 3) that
Further, the document also refers (at p 43) to the risk of human trafficking following an armed conflict, where individuals may be abducted or otherwise trafficked by military or armed groups to provide labour, military and sexual services. This again demonstrates that it is not envisaged that trafficking is limited to exploitation for commercial gain. 88.Mr Pao urges the court to guard against debasing the language in the definition by adopting too broad an interpretation. We take heed of that note of caution. But we do not think that the definition, fairly and squarely construed, is limited to exploitation for commercial gains. As Mr Pao accepted, a serial abuser bringing men or women to a place where he can “use” them for his own gratification may well be trafficking in persons, even though he derives no financial benefit. 89.For the above reasons we reject the Respondents’ argument. In our view the purpose of using another person for one’s own sexual gratification, without any intended economic or commercial gain, can nevertheless amount to a “purpose of exploitation” within the definition of human trafficking. As to the temporal dimension, CB was not the subject of only a single, one-off indecent assault. We do not understand Mr Pao to dispute that there was at least arguably the requisite degree of systematicity or continuance in the acts of which CB complained. (b) Whether prohibited means used in the recruitment 90.The definition of human trafficking requires that the action, such as the recruitment or transfer of persons, must be by a prohibited means i.e. “the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”. In this regard Mr Pao submits that CB was recruited to work as an FDH like any other FDH and that there is nothing to show that the recruitment was made by any of the prohibited means. 91.We do not accept this submission. Precisely because CB was simply recruited as an ordinary FDH but was, once recruited, subjected to sexual exploitation, there might have been deception used in the recruitment. The advertisement she responded to gave no hint that she would be required to perform sexual services. The list of duties shown by Z to CB when she was interviewed did mention that Z required massage but only “because of a tendency to eczema and sore muscles after exercise and long flights, and arthritic shoulders”. It gave her no inkling of the things that were to come. Given the evidence of Z’s sexual activities with previous domestic helpers, there was at least a credible suspicion that Z had from the outset intended that CB should fill their place. On this basis there was arguably conduct leading to CB being deceived or misled about the nature of the services required – in particular that services of a sexual nature would be required of her. It may be noted that Inspector Mui did consider that there was credible basis for thinking that CB was recruited by deceptive means. (c) Whether recruitment was for the purpose of exploitation 92.Thirdly, the Respondents submit that there is nothing to show that CB was recruited by Z for the purpose of sexual exploitation or forced labour. 93.Coleman J had actually dealt with the point, albeit not as a response to Mr Pao’s threshold argument. At §177 of his Judgment, the judge set out a number of matters relevant to Z’s purpose in recruiting CB, namely:
94.He then stated at §178 that had these matters been taken into account,
95.We agree. Accordingly, we reject the Respondents’ argument that taken at their highest, CB’s allegations do not disclose a possible case of human trafficking. G2. Whether CB’s allegations capable of giving rise to forced labour 96.It is common ground that for there to be forced labour, work or service must have been exacted “under the menace of any penalty”. There must be a causal connection between the menace of penalty and the performance of the work in question. There need not be any subjective causal link, and the menace of a penalty need not be the dominant cause; it is sufficient if it is a material reason or effective cause for the performance of forced labour: ZN (CA), §§136-140. 97.Mr Pao submits that even on CB’s own evidence, she willingly continued to work for Z due to her own personal reasons, and there was no suggestion that Z had made any threats against her. There is therefore no case that any work was caused by any menace of penalty. He submits that it is unclear on CB’s own case as to what the menace of penalty was, and that conceptually the sexual abuse complained of cannot constitute at the same time both the penalty threatened and the service exacted. He criticises the judge for jumping to the conclusion at §206 of the Judgment that absent any other explanation, there was “menace of some form of penalty”. 98.We do not agree with this submission. First, the concept of menace of a penalty has been interpreted generously: ZN (CA), §138. The following propositions set out in SM v Croatia (2021) 72 EHRR 1 at §§282-284 concerning the concept of “penalty” are, as we understand counsel’s submissions, not in dispute:
99.Secondly, the concept of menace of penalty is context-specific. Here CB was working as a FDH at the time. The concept of menace of penalty has to be approached bearing in mind the vulnerabilities of FDHs arising from their employment conditions in Hong Kong. They are often female low-skilled workers from economically disadvantaged countries, employed in a place foreign to them with language and cultural barriers, often working alone and without the company of family and friends, but with a mandatory requirement to live in the employer’s residence. They are dependent on their employers for food, shelter and income, and for permission to stay in Hong Kong which is granted by the Immigration Department conditional on their continued employment, and for their eventual repatriation.[28] That they are as a class peculiarly vulnerable is shown by the fact that the Government has promulgated the Action Plan (which is a plan to tackle trafficking in persons and to enhance protection of FDHs) and the Police have issued HQO 12/2019 (which deals with trafficking in persons and exploitation of FDHs). 100.Thirdly, as submitted by Mr Chan SC on behalf of CB, it seems to us the menace of penalty does not necessarily require that there have been explicit verbal threats in every case. There may be a menace which is not explicitly articulated in circumstances where the victim’s precarious situation and vulnerabilities are known to her and the perpetrator. 101.Fourthly, in the present case there is evidence from CB that Z had threatened that he would get angry unless she masturbated him; that on one occasion when she declined to do so, she was given additional strenuous physical chores including cutting bamboos in the garden (§30(2) above); and that she was scared of Z and of the consequences of making him angry. There was an express reference to “punishment” for “failings” in the loan document (§31 above). There were also two unsigned documents that CB had found in a drawer in Z’s house (albeit not said to have been shown by Z to CB). One bore the title “Understanding between Prospective Employee & Prospective Employer” and provided, inter alia, that if the employer considered punishment was deserved, the employee “will submit to the will of the employer and receive corporal punishment which may be inflicted on her naked nates”. The other was titled “Declaration” whereby the domestic helper acknowledged that the senior helper or the employer “may chastise me physically as they see fit”. 102.The judge’s rhetorical question does not therefore stand alone. His Lordship did not mean and should not be taken to have held that in every case, menace of penalty can readily be inferred from involuntariness in performing the work. It is a question of fact to be determined on the evidence in each case. In the present case the Respondents do not suggest that the work complained of is services which CB did not find repugnant or for which she had offered herself voluntarily. In all the circumstances it was wholly legitimate for the judge to ask why would she have done it except under the menace of some form of penalty.[29] We are unable to accept the Respondents’ contention that on CB’s own case menace of penalty cannot be established even to the credible suspicion standard. G3. Did the Judge fail to engage with the threshold argument? 103.Given our conclusions above on the Respondents’ “threshold argument” in relation to both human trafficking and forced labour, it is unnecessary to deal with their complaint that the judge wrongly failed to engage with that argument. We shall therefore confine ourselves to the following observation. Although at §§154-163 of the Judgment the judge appears to have declined to adopt Mr Pao’s approach, throughout the Judgment the judge focused, correctly in our view, on the question whether there was credible suspicion of trafficking in persons and forced labour, as opposed to whether those activities had in fact occurred. In substance it seems to us he had dealt with the argument raised. H. The second contention – whether there was any breach of the obligations to investigate 104.This contention of the Respondents seeks to defend the actual investigations and assessments made by the authorities in relation to CB. First, Mr Pao submits that, on the premise that the first contention fails, and that there was prima facie basis for suspecting that CB was a victim of human trafficking or forced labour, the fact is that the Police had investigated the matter and made a decision on 28 April 2020 (through Mr Wan) that she was not such a victim. The Security Bureau had also, in the course of the proceedings below, taken the same view on the available evidence. It is not for the court, on an application for judicial review, to substitute its view for that of the relevant decision-maker. The court is not an appellate tribunal vested with the power to decide that question. The Police’s decision can only be impugned on conventional public law grounds. 105.Mr Pao further submits that in approaching such a decision the court should accord law enforcement officers a wide margin of discretion. It is for the officers to judge what investigative steps to take and whether there is sufficient evidence to charge a suspect or refer the case to a prosecutor. In making such decisions, the officers are entitled to take into account a wide variety of factors and decide what weight to give them. 106.Subject to the usual restraints in public law, these submissions are not controversial. The correct approach to a public law attack on the Police’s investigations and assessments was not and is not in dispute. The judge, it seems to us, accepted Mr Pao’s submissions on the distinction between the roles of law enforcement officers and the courts respectively. Summarising the principles stated in In re McQuillan [2022] AC 1063, §§242-244, the judge said:[30]
107.For their part, the Respondents have not disputed that so far as forced labour is concerned, protection against which is entrenched as a fundamental right under BOR 4, the standard of review by the court should be correspondingly more intense.[31] 108.In fairness to the Police, it is right to record, as the judge also acknowledged,[32] that they took CB’s report first made on 13 December 2019 very seriously, followed the steps set out in the HQO, and acted with promptitude in response. A statement was immediately taken from CB on 13 December; Z was arrested, his house was searched under a warrant and a cautioned statement was taken from him on 16 December; a second statement was taken from CB on 17 December; and a third statement was taken from CB and Z was twice interviewed under caution not long afterwards. Had CB still been working in Z’s house at the time, the Police’s actions would have put a stop to any continuing abuse. The investigation eventually led to a prosecution and initial conviction. For all of this, CB for her part said she was grateful. 109.The question nevertheless remains whether there were public law errors even after allowance for a wide margin of discretion. The judge found there were. His findings have been described in §§60 – 71 above. In summary, and putting them into conventional administrative law terminology, the judge found that there was a failure to take into account relevant considerations in arriving at the decision that CB was not a victim of human trafficking (§62 above); a failure to take into account CB’s position as a FDH in her favour (§63 above); irrationality in accepting the Janice letter as exculpatory of Z in relation to human trafficking (§64 above); irrationality in concluding CB was not a victim of human trafficking or forced labour without further investigation (§64 above); misdirection in principle in approaching the question of consent by reference to the absence of non-consent (§65 above); taking into account irrelevant considerations and failing to take into account relevant considerations in arriving at the decision that CB was not a victim of forced labour (§69 above); irrationality in concluding there was no menace of penalty at least on the credible suspicion threshold (§70 above); and irrationality in relying on the Janice letter as exculpatory in relation to forced labour (§70 above). 110.Viewed against these findings, Mr Pao’s submissions are narrowly focused. In seeking to defend the Respondents against any finding of breaches of their investigative duties, he submits, first, that this is not a case where the Respondents prematurely curtailed investigations due to a finding that there was no trafficking in persons or forced labour. Instead, Z was prosecuted for indecent assault. This is not a case where further investigations would have revealed other instances of forced labour or sexual exploitation of CB. 111.Secondly, in relation to other FDHs, Mr Pao submits that the relief sought in the judicial review related only to operational failures regarding CB and not anyone else. In relation to the evidence of Z’s sexual activities with other FDHs, the judge failed to accord the appropriate wide margin of discretion to the Police. Taking into account that the Janice letter was made in Canada, that she adopted a supporting stance towards Z and did not suggest that his sexual acts with previous FDHs were non-consensual, that it was not feasible to interview Janice in person, and that there was no evidence uncovered in the house search to implicate Z in other sexual offences, the Police could properly form the view that further investigations would not be of real utility. The Police did not merely accept the Janice letter at face value. The reason why no further investigation was conducted was the inherent limitations within the rules of the criminal legal system. 112.Thirdly, Mr Pao submits that it would be wrong to suggest the Government could not have complied with its investigative obligations under BOR 4 when the Police concluded CB was not a victim of forced labour. Z was prosecuted for sexual assault, which was the gravamen of CB’s complaint, and (initially) convicted and sentenced to imprisonment. CB’s rights were fully protected. The non-classification of CB as a victim of forced labour had no impact on the Government’s discharge of its procedural obligations under BOR 4. 113.With respect, we are not persuaded by these arguments. The judge was well aware of the need to accord a wide margin of discretion to investigatory authorities in respect of the line and steps of investigation taken. However, Mr Wan’s reasoning (as set out in his affirmation referred to in §61 above), to the extent it is redolent of the Respondents’ threshold argument advanced above, is in our view based on an incorrect understanding of the law. In particular, Mr Wan thought that there was no prohibited means used in CB’s recruitment as her recruitment was indeed for the purpose of hiring her as a FDH, and that sexual exploitation required recruitment on a larger and more organised scale and/or for monetary or commercial gain, and thereby misdirected himself. These were material misdirections, as explained above, vitiating his conclusions. 114.Further, whilst Mr Wan apparently accepted that a pattern of non-consensual sexual acts Z performed on previous FDHs may suggest that his recruitment of CB was for the purpose of sexual exploitation, he concluded the matter without further investigation into whether there was such a pattern. One of the reasons given, namely that the video recordings did not show Janice and Chris did not consent, because they “did not appear to be scared or disgusted”, seems to us to be irrational, especially when Mr Wan accepted prima facie that CB was made to do similar things against her will. 115.In circumstances where Mr Wan concluded he could not interview Janice, we agree with the judge that it would be irrational to take into account the Janice letter as exculpatory of Z. Further, there was apparently no attempt to investigate with regard to Chris, who also appeared in the video recordings, or the new FDH. On the facts of this case it seems to us irrational to conclude that there was nothing to investigate simply because no complaint had been received from them. 116.Further, there were plainly irrelevant considerations taken into account in concluding that CB was not a victim of forced labour: see §69 above. 117.In the light of the above, the judge’s orders quashing the decisions that CB was neither a victim of trafficking in persons nor a victim of forced labour seem to us to be justified. 118.At the hearing the question was touched on as to whether quashing the original decisions and remitting them to the Police for re-consideration served any purpose, especially given that the criminal proceedings had come to a conclusion. But the Respondents have not appealed on the ground of lack of utility in the orders. Nor is this court apprised of the position of any civil claims arising from the matter. Accordingly, there is no reason to interfere with those orders on this ground. I. The third contention – whether the failures were causally connected to the absence of specific legislation criminalising forced labour 119.Finally, we come to the declaration made by the judge that the failures as regards the investigation as to whether CB was a victim of trafficking in persons and/or forced labour in this case were causally connected to the absence of specific legislation criminalising forced labour. The reference to trafficking in persons in this context seems to be an inadvertent error because the point made on behalf of CB below was raised with reference to breaches of the BOR 4 investigative duty, which concerns only forced labour and not trafficking in persons (see ZN (CFA) at §85). We shall therefore confine the discussion below to forced labour. 120.In approaching this question, the Respondents submit that, as recognised in ZN (CFA), the Government must take steps to afford practical and effective protection of the right under BOR 4 but how it is to be done is a matter for the Government on which it enjoys a wide margin of discretion. There is no absolute duty to maintain a specific offence criminalising forced labour. To contend that a bespoke criminal offence is required, one must establish a “causal connection” between the absence of a specific offence and the breach of the victim’s BOR 4 rights, hence the way in which the declaration was formulated. 121.So far, the Respondents’ submissions on the correct approach are not controversial, based as they are on what Fok PJ stated in ZN (CFA) at §§88-92. It is, however, useful to look more closely at what the causal connection the courts have referred to means in this context. In ZN (CA), Cheung CJHC said as follows:
122.In other words, the question is not whether the breaches found would not have occurred if there had been a bespoke offence of forced labour. A simple “but for” connection is not sufficient, because if the victim’s rights could also have been protected effectively in other ways, it was for the Government to decide which way to adopt, and the court would have no basis to hold that a specific offence was required. Instead, it is necessary to show that enacting a specific offence is “the only effective solution” – a sine qua non of compliance. Of course the question must be approached not on the theoretical plane, but with realism and common sense. Nevertheless, this is not a low threshold. As Lam VP said in ZN (CA) at §217:
123.The Court of Final Appeal did not, in our view, differ from the above approach in their decision in ZN (CFA). At §88, Fok PJ stated that the touchstone is whether the protection of the right under BOR 4 is practical and effective, and that the decision as to how to achieve such protection must necessarily be a matter for the Government subject to the supervision of the courts to assess the practical efficacy of the measures adopted. Fok PJ also referred to the need for a causal connection (§92), and held that on the facts of the case, it had not been shown that a bespoke offence criminalising forced labour was necessary in that the existing patchwork of offences failed to afford the victim sufficient detection (§§115-121). 124.Another point that needs to be emphasised is that the exercise must be grounded on the facts of the case. In particular, as Fok PJ said in ZN (CFA) at §116, it is necessary to keep in focus the findings as to the breaches of BOR 4 in the case. In adjudicating on this point, the court is not concerned with whether certain potential deficiencies that one can conceive of in the existing system may best be rectified by the enactment of a bespoke offence. It is concerned with the question whether the breaches of duty under BOR 4 found in the case were caused by – in the sense explained above – the absence of a bespoke offence criminalising forced labour. 125.The third point that needs to be underscored is that on the facts of this case, the complaints of forced labour relate solely to the sexual activities CB was made to perform. There was no complaint CB was forced to do a FDH’s ordinary tasks or that she was denied her wages or deprived of rest as a FDH. So far as sexual exploitation is concerned, as Mr Pao has pointed out, there is a wide array of provisions in our criminal legislation designed to combat sexual offences – see e.g. the lists of offences annexed to the Guideline. 126.Having made these preliminary remarks, we turn to the parties’ substantive submissions. Mr Pao submits that the existing criminal justice system affords sufficient protection for CB’s rights under BOR 4 in this case. This is not a case where the employer, Z, “fell through the cracks” and wholly escaped investigation and charges for any criminal offence. He was in fact promptly arrested, investigated, charged and prosecuted for two counts of indecent assault based on the acts complained of by CB which were also the acts that gave rise to allegations of forced labour and duties of investigation under BOR 4. As shown by ZN (CFA), the fact that there are other offences, albeit not specifically targeted at forced labour as such, for which the perpetrator of forced labour in the particular case can be prosecuted, means that there will not necessarily be a failure to comply with BOR 4 simply because of the lack of a bespoke offence of forced labour. 127.In our view there is force in this submission. The judge did not accept that BOR 4 requires of the Respondents no more than carrying out the investigative duty which has already been imposed on them by the criminal justice system.[33] But this is not the pertinent question here. The question is whether the breaches found were caused by the absence of a specific offence of forced labour. The judge did not find that there was any breach of BOR 4 duties arising from a complete failure of the criminal justice system to operate on Z – quite rightly, because Z was in fact charged and prosecuted for serious sexual offences and, as that the time of the Judgment, convicted and sentenced. 128.Mr Chan said the essential question was whether the patchwork of offences already in existence afforded CB sufficient protection. In the present case, if CB had not already left Z’s house when she made the report, the Police’s actions would have protected her from any further abuse by Z. There is no complaint about CB not being given assistance such as food, shelter, visa extension and the like. When she made a report, CB was already assisted by NGOs including Rain Lily and HELP and in Ms Mui’s assessment (which was not challenged) did not need assistance. In terms of criminal justice, at the time of the Judgment below, Z had been arrested, prosecuted, convicted and sentenced. In terms of compensation, there is no suggestion that CB would have been entitled to certain monetary recompense if classified as a victim of forced labour but not as a victim of indecent assault only. 129.It has not been articulated concretely just how the existing system with a patchwork of available offences failed or would fail to afford CB practical and effective protection on the facts of her case. The closest Mr Chan gets to this is when he submits that the laws on forced labour stress the dangers of conventional notions of consent compared with broader considerations appropriate to the question of forced labour. But the fact before the judge was that CB’s consent was found lacking and Z was convicted and sentenced. 130.We are aware that the conviction was subsequently set aside and Z was acquitted on the re-trial, but this occurred after the Judgment. No respondent’s notice has been filed on CB’s behalf in this appeal to contend that the fact that Z was ultimately acquitted means that there was a breach of BOR 4 duties, or that he would have been convicted of a forced labour offence (if it existed) on the same evidence even though he was acquitted of the sexual offences. Nor has any argument been advanced before us to contend that Z’s subsequent acquittal reveals a deficiency in the available criminal law such as was found in Siliadin (see below) or demonstrates a failure by the Government to discharge its positive obligation under BOR 4 to prosecute and penalise effectively the conduct CB complained of. At the end of his submissions Mr Chan has made a veiled criticism of one of the reasons given by the second magistrate in acquitting Z, but there was no argument properly advanced that Z would probably have been convicted by the magistrate of a forced labour offence if it had existed. 131.The present case may be contrasted with the European cases canvassed by the court in ZN, namely, Siliadin v France (2006) 43 EHRR 16; CN & V v France; CN v United Kingdom (2013) 56 EHRR 24; and Rantsev v Cyprus and Russia (2010) 51 EHRR 1. As observed in ZN (CA) at §176, in each of them the failure to prosecute or the failed prosecution was demonstrated by evidence to the satisfaction of the court to have been due to the lack of specific criminal legislation to combat servitude, forced labour or human trafficking as the case might be. 132.It is relevant to consider in particular Siliadin v France, where the wrongdoer was prosecuted and initially convicted but acquitted on appeal. There, the applicant, a young girl under 16 years of age, arrived in France from Togo in the company of a French national D, on the agreement that she would work in D’s home until she had earned enough to pay D back for her airfare, and that in the meantime her immigration status would be regularised and she would be educated. After arrival, the applicant’s passport was confiscated by D. She first worked for D but was later “lent” to work for Mr and Mrs B, where she had to work non-stop for 15 hours a day without rest days, without being paid, without being educated, without any identity documents and without her immigration status being regularised. At one stage she managed to escape but after a few months, she returned to Mr and Mrs B, in obedience to her paternal uncle, on the understanding that they would regularise her immigration status. But the situation remained unchanged. Her case was subsequently reported to the authorities and criminal proceedings were brought against Mr and Mrs B. The trial court convicted them of the offence (under Art. 225-13 of the French Criminal Code) of obtaining performance of unpaid or inadequately remunerated services and imposed a sentence and awarded damages, but acquitted them of the offence (under Art. 225-14) of subjecting a vulnerable or dependent person to working or living in conditions incompatible with human dignity. The conviction under Art. 225-13 was however overturned by the Paris Court of Appeal, and there was no appeal by the public prosecutor against the acquittal under Art. 225-14. On further appeal to the Court of Cassation, the Court of Appeal’s judgment was overturned only in respect of the civil aspects. On the applicant’s claim that her rights to be free from forced labour and servitude had been violated due to the lack of protection provided by French law, the European Court of Human Rights found that the applicant was, at least at the time when she was a minor, subjected to forced labour and servitude (§§120 & 129). The court noted that it needed to decide whether Arts. 225-13 and 225-14 provided effective penalties for the conduct to which the applicant had been subjected (§142). It noted that the public prosecutor did not appeal against the Court of Appeal’s reversal of the conviction, and the applicant who had been subjected to treatment contrary to art. 4 was eventually not able to see those responsible for the wrongdoing convicted under the criminal law. The court noted in particular that the two articles of the Criminal Code were “open to very differing interpretations [in France] from one court to the next” and that the applicant’s case had been described by a task force set up by the French National Assembly as “an example of a case in which a court of appeal had unexpectedly declined to apply [the two articles]”. It was in these circumstances that the European Court found that the criminal law in force in France at the time did not afford the applicant practical and effective protection against the actions of which she was a victim (§§145-148). 133.That was therefore a case in which there was a defect or deficiency in the criminal law applicable to the case and perhaps even in the way in which it was applied by the court in the case in question. CN & V v France was similar in that an initial conviction of the perpetrator of forced labour under Art. 225-14 of the Criminal Code was substituted with an acquittal on appeal, and the public prosecutor did not appeal further on points of law to the Court of Cassation. The European Court applied their reasoning in Siliadin, noting that the French law situation had remained the same as in Siliadin, and held that there had been a violation of art. 4 of the Convention.[34] 134.In his Judgment at §§220 – 222, Coleman J derived support for his conclusion from CN v United Kingdom (2013) 56 EHRR 24. That was a case where the applicant, using false documents obtained by a relative, entered the UK. The relative took the documents from her on her arrival. She lived in various properties owned by the relative and worked for various people, but her wages were paid into the relative’s bank account the bulk of which was never passed to her. She was constantly warned not to speak with anyone and that she could easily be arrested or come to harm in London. After working as a live-in carer for an elderly couple for over three years where she was permanently on-call during day and night, she collapsed and was diagnosed as HIV-positive and as suffering from psychosis, including auditory hallucinations. Her asylum claim was rejected. Her case was then investigated by the Human Trafficking Team of the police which concluded there was no evidence that she had been trafficked into the UK. The police carried out further investigation, but eventually decided that the evidence did not support exploitation of any kind. She brought her complaint to the European Court of Human Rights, alleging there was violation of art. 4 of the European Convention on Human Rights which prohibits forced or compulsory labour in terms similar to BOR 4. 135.The European Court held that the investigation into the applicant’s complaints of domestic servitude was ineffective due to the absence of specific legislation criminalising such treatment and that accordingly there had been a violation of art. 4 of the Convention. In §80 of its judgment, quoted by Coleman J,[35] the court stated:
136.In looking at CN and indeed other cases generally, it is in our view important to bear in mind the following. First, when it comes to the question of whether a specific criminal offence is required by the duties imposed by art. 4, the European Court “paid particularly careful attention to the facts involved”.[36] As stated by Cheung CJHC in ZN (CA),[37] whether existing measures afford practical and effective protection in a given case is a highly fact-sensitive issue, and the court, in its adjudicatory role, must keep its primary focus on the resolution of the dispute between the parties and can only proceed on the evidence before it which is shaped by the facts and issues involved in the case. Secondly, CN is a case where the police’s investigations culminated in the conclusion that no offence had been committed against the applicant and no prosecution was brought against anyone. The applicant was in that way frustrated in her claim for protection under art. 4 and in her pursuit of justice. Thirdly, the European Court recognised that it is not a light conclusion to reach that the absence of specific legislation has led to the violation of art. 4. The question the court posed in §78 to which it answered in §80 – whether the lack of specific legislation criminalising domestic servitude had “prevented” proper investigation by the law enforcement authorities into the victim’s complaints – seems to us to be a high one. Fourthly, the European Court reiterated that in carrying out this assessment, it is not its task to replace the domestic authorities in the assessment of the facts of the case (§78). The same caution must be borne in mind when the courts here in Hong Kong are faced with the equivalent question. Fifthly, on the facts of CN, the court concluded that the domestic authorities were “unable” – another strong word – to give due weight to relevant factors due to the absence of a specific offence of domestic servitude (§80). Sixthly, although there were other, related offences in CN which had been investigated, it was concluded none had been committed. The applicant was thus essentially a victim of domestic servitude who was not also a victim of the other offences and was, as such, “left without any remedy” (§76). Seventhly, and more generally, the whole question needs to be looked at in the context that, as has been held in ZN (CFA), BOR 4 does not impose an absolute duty to maintain a specific offence criminalising forced labour. It follows, it seems to us, that the mere fact that the alleged perpetrator has not been investigated for an offence of forced labour or one based on identical elements is not in itself a violation of BOR 4. The question remains whether practical and effective protection of the applicant’s rights under BOR 4 in a given case has been provided. 137.In the present case, Coleman J said forced labour was an additional dimension to the existing criminal offence. It would be an aggravating element which could only be demonstrated to the magistrate if Z were charged with and convicted of a specific offence of forced labour.[38] However, the magistrate did take into account Z’s breach of trust in the employment relationship in sentencing Z to 30 months’ imprisonment. There was no finding that this sentence was unjust towards CB (in being too lenient to Z) and thereby breached her BOR 4 rights, and no basis for thinking that a forced labour offence based essentially on same facts would have resulted in a higher sentence. Involuntariness, which is involved in the concept of forced labour, is already reflected in the lack of consent for the purposes of the charge of indecent assault. We do not think that under existing sentencing principles, a “menace of penalty”, another component of forced labour, to force the victim into indecent acts cannot be taken into account by the court without fresh legislation. 138.In the same vein, the judge’s doubt whether the Police could use its investigative powers, such as the power to search premises under a warrant, to investigate a case of forced labour in the absence of a bespoke offence,[39] is a hypothetical observation not rooted in the facts of this case. There is no complaint in this case that there is a deficiency in the Police’s legal powers (as opposed to a failure to exercise available powers) resulting in a breach of the Government’s investigative duties under BOR 4. Nor is there any suggestion that there exists further evidence that cannot be gathered by the Police under existing legal powers but could be obtained with a bespoke offence of forced labour. 139.The judge laid emphasis on the benefits of providing a focal point for law enforcement action that will flow from having a specific offence.[40] In the same vein Mr Chan has made general criticisms of the “patchwork” approach. It seems to us that the benefits of having a bespoke offence are not really disputed: “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”, as Cheung CJHC said in ZN (CA) at §163, summarising counsel’s submission. But it needs to be borne in mind that the question is not whether a specific offence is something helpful or desirable (see ZN (CA) at §168), and the court must be careful not to usurp the role of the legislature. 140.As for the breaches actually found by the judge (see §§60 – 71 above), they were operational failures to conduct further investigations based on irrational reasoning and the failure to consider relevant matters and exclude irrelevant matters. We agree with Mr Pao’s submission that they were attributable to the erroneous approach taken by the Police to the facts and evidence in the circumstances of this case. Of course having a bespoke offence on forced labour may help focus attention and guide investigation in future and avoid this kind of failure. But as explained above, it does not follow that the breaches were caused by the absence of specific legislation in the relevant sense. Thus, for example, the judge is critical of the form used for screening potential victims, which seems to focus on trafficking and in particular on transnational recruitment.[41] The judge also criticised the lack of written record of the investigation on forced labour in relation to CB.[42] But there is nothing to show that any inadequacy in these respects cannot be redressed by measures other than a bespoke offence. Nor are we satisfied that there is such a sizeable pool of like cases as to lead to the conclusion that the operational failures found in this case are a widespread phenomenon rather than an aberration. 141.Overall, we have, with great respect to the judge, come to a different conclusion, for two main reasons. First, it does not seem to us that the judge has applied the approach on causal connection as set out in ZN (CA) (although §168 of ZN (CA) was cited in the Judgment[43]). At §226 of the Judgment, the judge prefaced his reasons by agreeing with Mr Chan’s submission that the absence of bespoke criminal legislation on forced labour “did substantially contribute” to the investigative and evaluative failures in this case – a potentially confusing way in which to formulate the required connection. Secondly, the judge in our view took into account general and hypothetical shortcomings in the existing system and how they might perhaps be remedied, instead of focusing on the actual beaches of BOR 4 found in the present case. 142.For these reasons, we are satisfied that the declaration that the identified investigative failures in relation to CB were causally connected to the absence of specific legislation criminalising forced labour should be set aside. J. Conclusion and disposition 143.For the above reasons, we reject the Respondents’ contentions that on her own evidence, CB cannot properly be characterised as a victim of human trafficking or forced labour. There was no error in the judge’s orders quashing and remitting the relevant decisions. We accept, however, the Respondents’ contention that it has not been demonstrated that the failures in the discharge of the Government’s investigative duties in relation to CB were causally connected with the absence of a specific offence of forced labour. 144.Accordingly, the Respondents’ appeal is allowed to that limited extent. We make an order that the relevant declaration be set aside. 145.On a nisi basis, we make no order as to costs except that CB’s own costs be taxed in accordance with the Legal Aid Regulations.
Mr Abraham Chan SC and Mr Albert N B Wong, instructed by Messrs. Patricia Ho & Associates, for the Applicant (Respondent) Mr Jin Pao SC and Mr Martin Ho, instructed by the Department of Justice, for 1st and 2nd Putative Respondents and the Putative Interested Party (Appellants) [2] As enacted in section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383). [3] Judgment, §31. [4] Judgment, §§148-149. [5] See the first instance judgment of Zervos J [2017] 1 HKLRD 559 at §§160-161, quoted in ZN (CFA) at §§20-21. [6] ZN (CA), §§133-151. [7] at §144. [8] Judgment, §§149 & 154 – 163. [9] Judgment, § §172 – 173. [10] Judgment, §175. [11] Judgment, §§177 – 178. [12] Judgment, §179. [13] Judgment, §§180 – 184. [14] Judgment, §§186 – 188. [15] Judgment, §189. [16] Judgment, §§194 – 195. [17] Judgment, §§199 – 202. [18] Judgment, §§205 – 206. [19] Judgment, §207. [20] Judgment, §270(2)-(4). [21] ZN (CA), at §168. [22] ZN (CFA), at §122. [23] Judgment, §§227-251. [24] Judgment, §255. [25] Judgment, §§56 & 260. [26] Judgment, §257. [27] Judgment, §270(5). [28] See Semana Bachicha v Poon Shiu Man [2000] 2 HKLRD 833, 850; ZN (CFA), §8. [29] Judgment, §206. [30] Judgment, §165. [31] Judgment, §167. [32] Judgment, §110. [33] Judgment, §§248-249. [34] See §§106 – 108 of the European Court’s judgment. [35] Judgment, §221. [36] as noted in ZN (CA), §182. [37] ZN (CA), §§60 & 182. [38] Judgment, §§249-250. [39] Judgment, §244. [40] Judgment, §§218-219, 242. [41] Judgment, §§235, 256-257 & 260. [42] Judgment, §§199 & 257. [43] Judgment, §211. | ||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under CACV 208/2022