LUBIANO NANCY ALMORIN v. THE DIRECTOR OF IMMIGRATION

HCAL 210/2016
[2018] HKCFI 331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 210 OF 2016

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J U D G M E N T

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1.  This application for judicial review concerns a systemic challenge to the “Live-In Requirement” applicable to foreign domestic helpers (“FDHs”) admitted to work as such in Hong Kong. Four grounds are advanced by the Applicant in support of her application, namely:-

(1) the Director of Immigration (“the Director”) does not have lawful authority to impose the Live-In Requirement on FDHs, whether as a condition of stay or as a precondition to exercising his powers to allow FDHs to come to work in Hong Kong (“the Ultra Vires Ground”);

(2) the implementation of the Live-In Requirement heightens the risk of a breach of engaged fundamental rights in a manner that is disproportional and therefore unconstitutional (“the Fundamental Rights Ground”);

(3) the implementation of the Live-In Requirement is discriminatory against FDHs by reason of their status as domestic helper or migrant worker contrary to Article 25 of the Basic Law (“the Discrimination Ground”); and

(4) applying the anxious scrutiny approach, the implementation of the Live-In Requirement without any, or any general, exception is irrational in the public law sense, and/or amounts to an unlawful fetter on the Director’s exercise of his discretion (“the Irrationality Ground”).

2.  By a summons dated 13 September 2017, the Applicant seeks leave to (i) amend the Notice of Application for Leave to Apply for Judicial Review (“Form 86”), and (ii) file and serve the 2^nd Affidavit of Wijesinghe Manisha Roshendri Leonie (“the 2^nd Affidavit”).  The Director opposes the summons.  I have considered the proposed amendments to the Form 86 and the 2^nd Affidavit on a de bene esse basis.

3.  For reasons which I shall explain later in this Judgment, I reject the various grounds of challenge to the Live-In Requirement raised by the Applicant.  Accordingly, the present application for judicial review stands to be dismissed.

4.  At this juncture, I should also mention that, at the commencement of the hearing, Mr Paul Shieh, SC, on behalf of the Applicant, sought a direction from the court that there be no reporting of any personal facts of the Applicant, for reasons which it is not necessary to go into in this judgment.  In view of the nature of the challenge raised by the Applicant, her personal facts and circumstances would not be directly relevant to the issues to be considered.  Accordingly, I directed that it would not be necessary to refer to the personal facts of the Applicant in open court at the hearing.  Neither is it necessary for me to do so in this judgment.

The current Live-In Requirement

5.  The nature and effect of the current Live-In Requirement can be seen from the following documents issued by the Immigration Department:-

(1) the “Guidebook for the Employment of Domestic Helpers from Abroad”, ID(E) 969 (03/2015) (“the Guidebook”);

(2) the standard “Employment Contract (For a Domestic Helper recruited from abroad)”, ID 407 (“the Standard Employment Contract”);

(3) the “Visa/Extension of Stay Application Form for Domestic Helper from Abroad”, ID 988A (089/2014) (“the Visa Application”); and

(4) the “Application for Employment of Domestic Helper from Abroad”, ID 998B (09/2014) (“the Employment Application”).

(i)   The Guidebook

6.  The current immigration arrangement for employers wishing to employ foreign nationals to work as FDHs in Hong Kong is contained in the Guidebook.  The following provisions in the Guidebook are relevant for the present purpose:-

(1) Under Section II (Eligibility Criteria), it is provided that employers who wish to employ FDHs have to satisfy the following criteria (amongst others) -

(a) the FDH and the employer shall enter into the Standard Employment Contract as specified by the Director;

(b) the FDH shall work and reside in the employer’s residence as specified in Clause 3 of the Standard Employment Contract; and

(c) the FDH shall be provided with suitable accommodation and with reasonable privacy.

(2) Under Section III (Undertaking), it is provided that –

“All [FDHs] and their employers are required to give an undertaking to the Government of the HKSAR. If an employer breaches the undertaking under Part 5 of the [Employment Application], his/her conduct will be taken into account in considering any future application he/she may make to employ [an FDH] and any such application may be refused. If [an FDH] breaches the undertaking under Part 6 of the [Visa Application], his/her conduct will be an adverse consideration in considering any future application for employment visa or for extension of stay in the HKSAR and any such application may be refused.”

(3) Under Section IV (Breaches), it is provided that –

“6 An employer will not normally be considered eligible to employ [an FDH] for a period of time where he/she has breached/has been convicted of any of the following breaches/offences:

(b) Offences relating to [FDHs] under labour laws;

(c) Offences relating to assault or harassment of [FDHs];

(d) Breach of the [Standard Employment Contract] or of the undertaking given to the Government of the HKSAR under Part 5 of [Employment Application].

7 In addition to requiring the [FDH] to meet normal immigration requirements…, the Director of Immigration will take the following offences/breaches into account in considering any future application by [an FDH] for employment visa or for extension of stay in the HKSAR and such future application will not normally be approved:

(b) Breach of obligations under the [Standard Employment Contract] or Undertaking to the Government of the HKSAR under Part 6 of the [Visa Application].”

(4) Under Section VI (Application Procedures), it is provided that an employer should, for the purpose of applying for an entry visa for a new FDH –

(a) arrange with the FDH to complete the Visa Application and four copies of the Standard Employment Contract (Step 1);

(b) complete the Employment Application (Step 2); and

(c) submit the above documents and relevant supporting documents to the Director (Steps 3 and 4).

(ii)   The Standard Employment Contract

7.  In the Standard Employment Contract, it is expressly provided, inter alia, as follows:-

(1) Clause 3 - the FDH shall work and reside in the employer’s residence at a specified address;

(2) Clause 4 - the employer shall provide the FDH with suitable and furnished accommodation as per the Schedule of Accommodation and Domestic Duties attached thereto;

(3) Clause 10 - either party may terminate the contract by giving one month’s notice in writing or one month’s wages in lieu of notice;

(4) Clause 11 - notwithstanding Clause 10, either party may in writing terminate the contract without notice or payment in lieu in circumstances permitted by the Employment Ordinance, Chapter 57; and

(5) Clause 15 - save for certain specified matters (which are not relevant for the present purpose), any variation or addition to the terms of the contract (including the Schedule of Accommodation and Domestic Duties annexed thereto) during its duration shall be void unless made with the prior consent of the Commissioner for Labour in Hong Kong.

8.  The Schedule of Accommodation and Domestic Duties attached to the Standard Employment Contract requires (inter alia) the following matters to be specified:-

(a) approximate size of the employer’s residence;

(b) the number of adult, minors aged between 5 and 18, minors aged below 5, and persons requiring constant care or attention in the household to be served on a regular basis;

(c) the accommodation to the FDH, including the estimated size of the servant room (if provided), or the sleeping arrangement for the FDH (if no servant room is provided), and in the latter case whether the FDH is required to share a room with a child/children, or would have a separate partitioned area of a stated size;

(d) the facilities to be provided to the FDH; and

(e) the major portion of domestic duties to be discharged by the FDH.

(iii)   The Visa Application

9.  In the Visa Application, under Part 6 (Undertaking), the FDH is required to undertake to the Government (inter alia) that he/she will reside in the employer’s residence as stated in Clause 3 of the Standard Employment Contract, and declares that he/she understands that if he/she breaches the undertaking in Part 6, apart from the legal liabilities which he/she may incur, his/her conduct will be an adverse consideration in any future application for employment visa or for extension of stay in the HKSAR and that the application may be refused.

(iv)   The Employment Application

10.  In the Employment Application, under Part 5 (Undertaking), the employer is required to undertake to the Government (inter alia) that he/she will provide the FDH with suitable accommodation and with reasonable privacy, and the FDH will reside only in his/her residence as stated in Clause 3 of the Standard Employment Contract.  The employer further declares that he/she understands that if he/she breaches this undertaking, his/her conduct will be taken into account in considering any future application that he/she may make to employ an FDH and that any such application may be refused.

(v)   The FDH visa

11.  Following a successful application for an FDH visa, the Immigration Department would issue to the FDH a visa label prior to his/her arrival in Hong Kong to be affixed onto the FDH’s passport.  The visa label would set out the conditions of stay, in particular that the FHD is permitted to land and remain in Hong Kong for employment as a domestic helper for a specified employer under a specified DH (Domestic Helper) Contract.  Upon the FDH’s arrival in Hong Kong, he/she would be given a landing slip setting out the same conditions of stay as mentioned in the visa label.

12.  In summary, as between the employer and the FDH, the Live‑In Requirement is a matter of “contract” between them, and as between the employer/FDH and the Director, the Live-In Requirement is a matter of “undertaking” given by the former to the latter and an eligibility criterion for the exercise of the Director’s discretion to permit the employer to employ the FDH and to grant an FDH visa.  The Live-In Requirement is not imposed by the Director on the FDH as a condition of stay.

13.  A breach of the relevant undertakings by the employer or FDH may attract adverse immigration consequences and, possibly, criminal liability for making a false statement under Section 42 of the Immigration Ordinance, Cap 115 (“the IO”), but not for “breach of condition of stay” under Section 41 of the IO (see paragraphs 33 and 43 of the Affidavit of Ma Chi Ming, Acting Assistant Director of Immigration in charge of Visa and Policies Branch).

LABOUR POLICY ON THE ADMISSION OF FOREIGN DOMESTIC HELPERS TO HONG KONG

14.  The following exposition is based largely on the information contained in the Affirmation of Wong Ting Chi, Assistant Commissioner for Labour (Policy Support) of the Labour Department, filed herein on 24 May 2017.

(i)   The number of FDHs working in Hong Kong

15.  The number of FDHs working in Hong Kong has grown exponentially since the 1970s.  In 1974, there were only 881 FDHs working in Hong Kong.  By the end of 1986, the number had increased to 28,951, and by the end of 1990, the number had further increased to 70,355.  As of March 2017, there were over 357,000 FDHs working in Hong King, employed by over 287,000 families.  They came mostly from the Philippines and Indonesia, making up almost 98% of the FDH population in Hong Kong.

(ii)   Government’s primary labour policy on importation of foreign workers

16.  It is the long established labour policy of the Government that priority in employment should be given to the local workforce. Generally, the lower-skilled local workers in the labour force are more vulnerable to competition from foreign workers for employment as they could be more easily replaced by lower-skilled foreign workers who are in great supply at lower costs.  Furthermore, lower-skilled local workers would have more limited choice of occupations if they are displaced by foreign workers.

17.  Hence, the Government considers that foreign workers should be allowed to work in Hong Kong only where there is a proven manpower shortage in certain trades that cannot be filled by local workers and, as a corollary of this position, foreign workers must possess skills, knowledge or experience of value not readily available in Hong Kong before they would be admitted to work here.  Foreign workers may also be admitted where they are assessed to be making a substantial contribution to the economy of Hong Kong.

18.  The Government operates a number of different schemes whereby employers may apply for importation of workers on account of their actual operational circumstances so as to supplement skills not readily available in the local labour market and to sustain the competitiveness and development needs of Hong Kong.  Depending on the skill levels and/or education requirements of the jobs concerned, employers may apply for admission of (i) professionals (not relevant for the present purpose), or (ii) workers at technician level or below.

19.  Of relevance to the present application are two labour importation schemes for lower-skilled workers (ie, workers at technician level or below), namely:-

(1) the Foreign Domestic Helpers Scheme (“FDH Scheme”); and

(2) the Supplementary Labour Scheme (“SL Scheme”).

(iii)   Foreign Domestic Helpers Scheme

20.  The Government considers that (i) live-in, and (ii) non-live-in (full-time or part-time) domestic helpers are different in terms of the essential nature and scope of their work.  Although the services provided by live-in and non-live-in domestic helpers both include household chores such as cooking, cleaning and washing, a key difference between the two lies in that fact that live-in domestic helpers stay overnight in the employers’ residences as part of their functional job requirements, specifically to attend to the intermittent needs for household services required by the employers at different hours of the day.  In addition to household duties, many employers have special personal care needs for which live-in domestic helpers are better placed to cater due to their availability and flexibility in providing a variety of services at different hours of the day.  For instance, many families need live-in domestic helpers to look after young children, or elderly or disabled people who are in need of close attention.  The assistance required may be for a short duration at any one time (for example, assisting an elderly person’s movement at home at night-time), but the need for such assistance may arise at short notice and at irregular intervals.  The job requirement to live in the employer’s residence is considered part and parcel to the occupation of live-in domestic helpers.

21.  On the other hand, full-time or part-time non-live-in domestic helpers generally provide service to their employers in a more regular pattern and/or during a specified period of the day (for example, to clean up an apartment twice a week in the morning, or to take care of a child or to cook at specified hours on weekdays).  They are not therefore required to stay overnight in the employers’ residences.

22.  The importation of FDHs first started in 1969 when a small number of FDHs were permitted by the Director to come to work in Hong Kong with their expatriate employers on a case-by-case basis.  Since 1970s, there has been a continually increasing demand from Hong Kong families for service by FDHs.  This is attributable to (i) the growing affluence in the community, and (ii) the substantial shrinkage in the supply of local domestic helpers (“LDHs”) due to increased job opportunities and wages in other sectors of the labour market.  Further, many Hong Kong families, especially those with elderly members or young children, often prefer employing full-time live-in FDHs rather than non-live-in, whether full-time or part-time, LDHs.  On the other hand, the majority of the LDHs are not prepared to work full-time or as live-in domestic helpers. 

23.  The Government has accordingly designed and developed the FDH Scheme to meet the demand of Hong Kong families for full time live-in FDHs consistently with the fundamental principle of the Government’s labour policy that local workers should enjoy priority in employment (and thus employers can only import workers if they cannot recruit suitable local workers in Hong Kong), while ensuring that the importation of FDHs would not pose any real demands on housing and other social services (as they live in the employers’ residences and are not accompanied by spouses and dependents).

24.  A key feature of the FDH Scheme is that it is a scheme for the provision of a “full-time live-in domestic service” to Hong Kong families.  This feature of the FDH Scheme was mentioned as long ago as 1978 by the Secretary for Security (in response to Question 20) in the Legislative Council on 26 April 1978:

“The arrangements between the employee and the employer for the provision of this personal service require the employer houses the employee and are designed to ensure that she does not become a burden on the community.

In deciding whether to admit a new class of workers the Director of Immigration consults the Commissioner of Labour to ascertain whether in his view there is a shortage of experienced local workers with such skills available and seeking employment”.

25.  Similarly, at a Legislative Council Penal Meeting on Manpower on 2 November 2001, the Secretary for Education and Manpower stated that “a fundamental principle of the FDH Policy was the provision of a full-time live-in domestic service” (see paragraph 59 of the minutes of that meeting).

26.  Nevertheless, prior to April 2003, the Live-In Requirement was not strictly enforced, and FDHs and their employers could apply for the FDHs to live outside the employers’ residences based on their mutual agreement and by consent of or notification to the relevant authorities (ie, the Director or the Commissioner) according to the requirements contained in the Standard Employment Contract then in force at the time.

27.  In 2000, a review of the FDH Scheme took place. In October 2001, the Government proposed to tighten up the enforcement of the Live-In Requirement and to revise the Standard Employment Contract to make it clear that FDHs were obliged to live-in their employers’ residences.  The rationale behind the Government’s proposal was set out in a paper for the Legislative Council Panel on Manpower entitled “Promotion of Job Opportunities for Local Domestic Helpers” dated October 2001.  In that paper, it was stated, inter alia, that:-

(1) The Education and Manpower Bureau commissioned a consultancy firm in October 2000 to conduct a fact-finding survey on the supply and demand of domestic helpers in Hong Kong.  The survey results revealed that about 212,500 out of a total of 2.1 million households in Hong Kong were hiring either FDHs (about 185,700) or LDHs (about 25,700).  Among the households employing domestic helpers, 87.9% were employing FDHs.  The ratio of households employing FDHs to households employing LDHs was about seven to one.

(2) Slightly more than half of the households employing FDHs (53.8%) opted for FDHs because their wages were lower than those for LDHs.  Other reasons cited for employing FDHs included more suitable working hours (28%), more committed working attitude (20.2%) and reliability (16.8%).  For households employing LDHs, 34.7% cited relative ease of communication with LDHs as the primary reason for their choice.  Other reasons included reliability (18.9%), wages were lower (18.4%) and more suitable working hours (14.2%).

(3) 69.7% of the household employing LDHs did so on a part‑time basis for a median of 12 hours per week.  For the remaining 30.3%, ie, households employing full-time LDHs, the majority of LDHs (77.6%) did not stay overnight at their employers’ residences.

(4) On the supply side, the survey suggested some 1.5% of people interviewed professed an interest in taking up job vacancies as LDHs.  While there was a potential supply of LDHs in Hong Kong, the majority was not prepared to work full time (69.8%). Of those who were prepared to work full time, most did not wish to stay overnight in the employers’ residences (64.6%).

(5) The survey findings suggested that FDHs and LDHs were addressing the needs of different types of households. While LDHs might not be able to compete with FDHs in the full time market, they would appeal to smaller households which did not have accommodation for domestic helpers and did not require full time domestic service.

(6) The survey findings indicated that FDHs were meeting the demand of local employers for full-time, live-in domestic service. FDHs were filling a void as LDHs were generally not prepared to undertake full-time, live-in vacancies.  However, the situation was different in respect of the part‑time market. There was a growing pool of LDHs looking for jobs in that sector.  Hence, FDHs should not be allowed to live outside of the employers’ residences as such arrangements would affect the job opportunities of LDHs.  It was proposed that employers should only be permitted to engage FDHs where they were able to provide accommodation for FDHs in their residences.  They should no longer be allowed to make arrangements for their FDHs to live outside of their residences.

(7) Accordingly, the Government proposed to amend the standard contract of employment for FDHs to put it beyond doubt that employers would be obliged to provide accommodation for FDHs in their residences.  Immigration Department would not grant permission for employment if the prospective employer could not satisfy the Director of Immigration that he/she could provide adequate accommodation for the FDH.

(8) The Government believed that enforcing the live-in requirement for all FDHs would result in more job opportunities for LDHs.

28.  The aforesaid proposal was discussed at a meeting of the Legislative Council Panel on Manpower on 2 November 2001.  At that meeting, the Secretary for Education stated, inter alia, that a recent survey conducted in 2000 revealed that there was a mismatch in the demand and supply of domestic helpers in Hong Kong, and that one of the main reasons why prospective employers were unwilling to engage LDHs was that LDHs were generally not willing to work late or stay overnight in the employers’ residences.  The Government therefore proposed a series of measures to encourage prospective employers to employ LDHs and encourage local people to take up the vacant posts of domestic helpers.  The Secretary further stated (as mentioned above) that a fundamental principle of the FHD policy was the provision of a full-time live-in domestic service, and that the Government considered it necessary to uphold the principle and tighten up the relaxed live-in requirement.

29.  The proposal to strictly enforce the Live-In Requirement eventually came into effect in April 2013.  A general exception was made for employers who had obtained the Director’s approval before 1 April 2003 to let their FDHs live out.  Those employers could continue to do so, so long as they continue to employ the helpers without a break of more than 6 months. Currently, there are approximately only 30 such employers being allowed to employ live-out FDHs.

30.  In addition, an employer or an FDH may apply to the Commissioner for the FDH to live-out on a case-by-case basis.  Since the exercise of the Commissioner’s discretionary power to permit the FDH to live-out will result in a material departure from (i) the established labour policy and FDH Scheme, and (ii) the decision made in 2003 to tighten up enforcement of the Live-In Requirement, the Commissioner’s normal practice has been not to exercise this discretion save in special or exceptional circumstances.

31.  In summary, the FDH Scheme has since its inception been a scheme for the importation of foreign labour to provide full time live-in domestic service to Hong Kong families.  The change made in April 2003 was merely to tighten up, or strictly enforce, the Live-In Requirement so that FDHs would generally not be allowed to live-out even with the agreement of the employers.  In any event, there is no doubt that, as from April 2003, the FDH Scheme is a such scheme.

(iv)   Justification for the Live-In Requirement

32.  The Live-In Requirement is an essential feature of the FDH Scheme, which has been designed and developed to meet the demand of Hong Kong families for live-in domestic service.  The Government considers that the importation of non-live-in (full-time or part-time) domestic helpers would not be warranted as a matter of policy given that there is no shortage in the supply of non-live-in LDHs.  If FDHs do not reside in their employers’ residences, they would come into direct competition with non-live-in LDHs in the labour market.

33.  The Government also considers that, in addition to being inconsistent with Hong Kong’s established policy on the importation of foreign labour, the lifting of the Live-In Requirement could or might have serious repercussions for Hong Kong’s economy and society, including:-

(1) impact on families with minor children, elderly persons or persons with disability requiring close and constant care and attention;

(2) impact on housing demand;

(3) impact on employers’ liabilities in respect of medical costs;

(4) impact on families who currently employ FHDs; and

(5) impact on local workforce (in particular, the ability or willingness of “housewives”, who might otherwise be tied by household duties or the need to take care of family members requiring close and constant care and attention, to enter the labour market).

34.  The aforesaid potential impacts on Hong Kong’s economy and society (and other matters not specifically mentioned above such as traffic and wages) are fairly self-explanatory, and are fully explained in paragraphs 36 to 39 of the Affirmation of Wong Ting Chi which I do not consider it necessary to set out in this judgment.

(v)   Supplementary Labour Scheme

35.  The SL Scheme is a more restrictive labour importation scheme than the FDH Scheme.  It allows employers with genuine difficulties in finding suitable workers at technician level or below locally to import them from abroad.  While there are no industry-specific or overall quota ceilings under the SL Scheme, all applications are considered on a case-by-case basis.  There are safeguards in place under the SL Scheme to ensure that employers provide job offers to local workers first (in particular, conducting a four-week local recruitment exercise) before their applications for imported workers will be processed further.  Their applications have to be passed to the Labour Advisory Board (comprising 6 employer-representatives and 6 employee-representatives) for consideration before a decision is made by the Commissioner.  There is no such requirement for employing an FDH because it is accepted that there is a shortage of live-in domestic helpers locally.

36.  An imported worker under the SL Scheme is required to be paid at least the median monthly wages of local workers in comparable positions, and be accorded no less favourable treatment as that enjoyed by local workers under the labour laws of Hong Kong.  The amount of wages offered must be in compliance with the requirements set by the Minimum Wage Ordinance, Cap 608.

37.  An imported worker under the SL Scheme must remain under the direct employment of the employer for the specified job and in the specified workplace(s) as stipulated in the employment contract (in standard form). He/she cannot be contracted out to other companies/sub‑contractors. Change of employer or post is not permitted.  He/she is also required to return to his/her place of origin on completion of expiry of his/her employment contract.

38.  Under the SL Scheme, an employer is required to provide a furnished accommodation to an imported worker in compliance with the standards stipulated in the schedule to the standard employment contract for the SL Scheme.  Free accommodation may be provided to the imported worker by the employer.  However, if it is so stipulated in the employment contract, the employer may deduct 10% of the employee’s normal wages or the actual cost of the accommodation, whichever is the less, as accommodation cost in respect of the period that the imported worker occupies the accommodation.  The purpose of this arrangement is to assist the imported worker to have an affordable accommodation while he/she is working in Hong Kong.

39.  At present, there are only around 5,000 imported workers in Hong Kong admitted under the SL Scheme.

IMMIGRATION POLICY IN RESPECT OF FOREIGN DOMESTIC HELPERS

40.  That Hong Kong has to adopt highly restrictive and stringent immigration policies and practices in view of its unique geographical, social, economic and political conditions is well recognized by the Hong Kong courts.

41.  The Director’s immigration policy in respect of FDHs is no exception.  As mentioned in paragraph 31 of the Affidavit of Ma Chi Ming, Acting Assistant Director of Immigration, filed herein on 24 May 2017, the eligibility criteria for employers wishing to employ FDHs (including the Live-In Requirement) serve both the Government’s labour policy in relation to FDHs and the purposes of Hong Kong’s strict overall immigration policy.

42.  In this regard, it will be recalled that the Live-In Requirement for FHDs was one of the key features of the arrangement under which FDHs were admitted to work and reside in Hong Kong which led to the Court of Final Appeal’s conclusion that their residence in Hong Kong could not be regarded as “ordinary residence” and therefore they could not acquire the right of abode in Hong Kong under Article 24(2)(4) of the Basic Law (see Vallejos and Domingo v Commissioner of Registration [2013] 2 HKLRD 533, at paragraphs 12, 82, 88-89 per Ma CJ).  A determination that the Live-In Requirement is unconstitutional or illegal may lead to a re-opening of the debate on whether FDHs may acquire the right of abode in Hong Kong.   It is well-recognized that the court should act cautiously when being asked to adjudicate on a constitutional issue which may give rise to substantial or unexpected social, economic or political consequences or implications which the executive and/or legislative branches of the Government, rather than the judiciary, are much better placed to address or consider.  This having been said, if the Live-In Requirement is, as a matter of law, unconstitutional or illegal, the court is duty bound to declare that it is so.

The ultra vires ground

43.  In the original Form 86, the Applicant contends that the imposition of the Live-In Requirement is beyond the powers of the Director to impose by way of a condition of stay when giving permission to a person to land or remain in Hong Kong under Section 11 of the IO.  This contention is, in my view, plainly misconceived because the Live-In Requirement is not, as a matter of fact, imposed as any “condition of stay” on an FDH upon his/her entry into Hong Kong.

44.  Probably in recognition of the obviously untenable position taken in the original Form 86, the Applicant seeks to raise, in the draft Amended Form 86, an alternative argument that it is ultra vires for the Director to impose the Live-In Requirement as a precondition for the exercise of his discretion to allow FDHs to come to work in Hong Kong.  On behalf of the Applicant, Mr Shieh argues that:-

(1) any power to extract undertakings in furtherance of the Director’s statutory immigration powers can only be lawfully made if (a) such undertakings are expressly provided for in statute, or (b) in the absence of express wordings, such undertakings are required for a lawful statutory purpose;

(2) there are no express statutory provisions permitting the Director to extract the Live-In Requirement by way of undertakings, nor are such undertaking required for any lawful purpose; and

(3) if it is ultra vires for the Director to impose the Live-In Requirement by means of a condition of stay, it is likewise ultra vires for him to impose the Live-In Requirement by another route, namely, extracting undertakings from the employer and FDH to the same effect, as this would be contrary to the statutory purpose of conferring the power on the Director to impose conditions of stay.

45.  In support of this alternative argument, Mr Shieh refers to the various conditions of stay expressly mentioned in Regulation 2(1) of the Immigration Regulations, Cap 115A, which may be imposed on visitors, persons landing in Hong Kong in transit, students, employees and contract seamen, and argues that the Director can only lawfully impose conditions which concern or regulate the “activities” or “purposes” for which a person may be permitted to enter or remain in Hong Kong.  “Sleep”, it is said, cannot reasonably be construed as an activity or purpose subject to regulation by immigration powers unless the location where one sleeps can be said to be a necessary function of one’s employment.

46.  The Applicant’s alternative argument is premised on the assumption that the Director cannot impose the Live-In Requirement as a condition of stay.  I do not accept this contention.  It is well established in our jurisprudence that –

“the legislature has chosen to entrust the high responsibility for and discretions on immigration matters to the Director of Immigration. It is an important responsibility, given Hong Kong’s unique circumstances, and the discretions conferred are wide… it also represents an acknowledgment on the part of the courts that the legislature, in its wisdom, has entrusted the Director with the unenviable task of manning Hong Kong’s immigration controls”: Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219, at paragraph 20 per Andrew Cheung J (as he then was) [emphasis added].

47.  It has also been said by the Privy Council, when considering the Director’s power to impose a “limit of stay” (being a form of condition of stay) under Section 11(2) of the IO that such power should be regarded as being “flexible” rather than “rigid” (see Elvira Vergara and Attorney General [1989] 1 HKLR 233, at 241A-B).

48.  Section 11(2)(b) of the IO provides that an immigration officer or immigration assistant may, when giving permission to a person to land or remain in Hong Kong, impose “such other conditions of stay as an immigration officer or immigration assistant thinks fit, being conditions of stay authorized by the Director, either generally or in a particular case”.  This power to impose conditions of stay is couched in general terms.  The Director’s power to impose conditions of stay generally under Section 11(2) should, as earlier mentioned, be regarded as being flexible rather than rigid.  There is, I consider, no warrant for reading it down such that the Director can only impose conditions concerning or regulating the “activities” or “purposes” for which a person may be permitted to enter or remain in Hong Kong, or to exclude the imposition of the Live-In Requirement as a lawful condition of stay.

49.  Further, it cannot be disputed that the Director has power to impose as a condition of stay on an FDH that he/she should only take up a specified employment by a specified employer.  As earlier mentioned, the specified employment which the FDH would be permitted to take up is one for the provision of live-in domestic service in the specified employer’s residence.  The Live-In Requirement under such employment can, in my view, properly be regarded as a functional requirement of the FDH’s employment. Viewed in this light, I cannot see why it would be beyond the powers of the Director to impose the Live-In Requirement on the FDH as a condition of stay under Section 11(2) of the IO.

50.  I am fortified in this conclusion by the following statements in the judgment of Court of Final Appeal in Vallejos and Domingo, ante:-

“82 In the present case, the Court must take as the factual context, the scheme whereby FDHs are allowed to enter and reside in Hong Kong subject to the highly restrictive conditions described in Section B above. Those are the facts that mark out FDHs as a class and characterise the nature and quality of their residence in Hong Kong while employed as such…

85 It has rightly not been suggested that the imposition of such controls is in any way constitutionally objectionable. As was noted in Prem Singh, the Director may undoubtedly exercise his discretions as to whether a non-Chinese person should be allowed to enter Hong Kong and whether permission to remain should be extended, such discretions having a bearing on the entry and seven-year requirements. This is consistent with Article 154(2) which allocates constitutional responsibility for immigration control on the HKSAR Government and provides:

‘The Government of the Hong Kong Special Administrative Region may apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states and regions.’

87   In the exercise of this power, the Director may impose conditions on the entry of a person which will materially affect the quality of his residence in Hong Kong.”

51.  The “highly restrictive conditions” referred to by the Court of Final Appeal include the requirements that an FDH has to reside in the employer’s residence designated in the contract, the employer must provide the FDH with accommodation and food during the term of the employment and pay for repatriation upon termination of the contract, and, in the case of death, the FDH’s remains and personal property have to be returned to the place of origin at the employer’s expense (see paragraph 12 of the judgment). These conditions do not concern or regulate the “activities” or “purposes” for which the FDH is permitted to enter or remain in Hong Kong.  Nevertheless, the Court of Final Appeal plainly did not consider it constitutionally objectionable for the Director to impose them, including in particular the Live-in Requirement, on FHDs as conditions of stay.

52.  Even if, contrary to the above conclusion, it should be held that the Director has no lawful power to impose the Live-in Requirement as a condition of stay under Section 11(2) of the IO, I am by no means satisfied that the Director cannot achieve the same result by the route of extracting appropriate contractual provisions between the parties and undertakings to the Government and applying it as an eligibility criterion for the exercise of his discretion to permit employers to employ FDHs, in order to give effect to Hong Kong’s labour and immigration policies.

53.  In passing, I should mention that the Applicant’s proposed amendments to the Form 86 are objected to by the Director.  Since I have come to the conclusion that the alternative argument has no merits, I am not prepared to grant leave to the Applicant to amend the Form 86 in respect of the Ultra Vires Ground.

the Fundamental Rights Ground

(i)   Principle of heightening of risk of violation of fundamental rights

54.  Mr Shieh argues that the court’s jurisdiction to review the constitutionality of a governmental decision, measure, policy, legislation or inaction (hereinafter referred to as “measure”) arises not only when such measure itself deprives or breaches a fundamental right but also when such measure increases the risk of violation of a fundamental right.  Mr Benjamin Yu, SC (on behalf of the Director) does not, as I understand him, dispute that some such principle exists, but emphasizes that it has application only when the governmental measure “unacceptably” or “significantly” increases the risk of violation of a fundamental right.

55.  There is support from overseas authorities for the existence of some such principle but there is, so far as I am aware, no local decision which directly applies this principle in the context of a risk of breach of a fundamental right occurring within Hong Kong.  Mr Shieh has made reference to the judgment of Zervos J in ZN v Director of Immigration [2017] 1 HKLRD 559, in particular paragraph 355 of that judgment in support of the proposition advanced by him (see paragraph 34(4) of Mr Shieh’s skeleton submissions).  In paragraph 355, the learned Judge stated as follows:-

“I find that the HKSARG has positive obligations under Article 4 of the BOR to enact measures to ensure the prohibition of forced or compulsory labour, and these include criminalising and penalising any offender of forced or compulsory labour or trafficking for that purpose, and having appropriate measures in place to investigate such cases. It seems to me that trafficking a person for forced or compulsory labour is within the ambit of criminal liability as formulated by the prohibition under Article 4 of the BOR. There is no offence against forced or compulsory labour and the reliance on other provisions of the criminal law does not adequately if at all address the need for the criminalisation of this prohibited conduct. 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. It seems to me that this case has illustrated the ineffectiveness of this important prohibition because of a lack of criminalisation.”

56.  I shall have to consider the judgment in ZN a little more closely later.  At this juncture, I would merely say that I do not read the above passage relied upon by Mr Shieh as supporting his proposition.  It seems to me that the learned Judge was there saying no more than that the Government was under an obligation to take positive measures to ensure the prohibition of forced or compulsory labour. The learned Judge was not in any way addressing the question of whether a governmental measure which did not, on its face, concern or relate to forced or compulsory labour should be held to be unconstitutional or unlawful because it had the effect of increasing the risk of occurrence of forced or compulsory labour.

57.  These having been said, in view of the stance taken on behalf of the Director, I shall proceed on the assumption (without deciding) that a governmental measure may be challenged on constitutional grounds if it unacceptably or significantly[1] increases the risk of violation of a fundamental right occurring within Hong Kong subject, however, to the following observations:-

(1) The burden is on the applicant seeking to impeach the governmental measure to show by evidence that the measure has the effect of unacceptably or significantly increasing the risk of violation of a fundamental right.

(2) The evidence relied upon by the applicant must be clear and convincing.  This requirement flows naturally from the fact that it is always a serious matter for the court to hold that an otherwise lawful governmental measure is unconstitutional or unlawful.  Generally, such evidence should be based on objective facts and circumstances.  Bare assertions, or allegations of a subjective nature, are hardly likely to be sufficient.  There must also be reasonable evidence of linkage, or causal connection, between the governmental measure under challenge and the alleged unacceptable or significant increase in the risk of violation of a fundamental right.

(3) To make good the challenge, the applicant must show that the governmental measure under challenge gives rise to a “significant” or “serious” risk of violation of a fundamental right (see Munjaz v Mersey Care NHS Trust [2006] 2 AC 148, at paragraph 29 per Lord Bingham of Cornhill and at paragraph 80-81 per Lord Hope of Craighead; R (Suppiah) v SSHD [2011] EWHC 2 (Admin), at paragraph 137 per Wyn Williams J; MK v Secretary of State for the Home Department [2012] EWHC 1896 (Admin), at paragraphs 151-156 per Foskett J).  It is neither possible, nor appropriate, to further define or refine the level of risk which would be regarded as sufficient for this purpose, because much would depend on the nature of the right in question, the consequences of a breach of such right having regard to the prevailing circumstances, as well as the protective measures or safeguards which the government may have put in place to mitigate the risk of a breach being materialized.

(4) To determine whether the governmental measure unacceptably or significantly increases the risk of violation of a fundamental right, one should also ask whether it would impose a disproportionate burden on the public authority for it to be forced to abandon the measure so as to eliminate it (see Munjaz v Mersey Care NHS Trust, ante, paragraph 80).

(5) What must be shown by the applicant is an unacceptable or significant increase in the risk of violation of the fundamental right relied upon, not something which approximates to, or may (for some purposes) be regarded as indicating a possibility of, a violation of that right.  I shall come back to this point later in this judgment.

(ii)    Servitude and Forced Labour

58.  The first group of fundamental rights relied upon by the Applicant relates to the prohibition against “servitude” under Article 4(2) of the Hong Kong Bill of Rights (“BoR”), “forced or compulsory labour” under BoR 4(3)(a), and an alleged international customary rule prohibiting forced labour.

59.  The expressions “servitude” and “forced or compulsory labour” are not defined in the BoR.  Mr Shieh refers to the judgment of Zervos J in ZN which explains the concepts of “servitude” and “forced or compulsory labour”.

60.  As regards “forced or compulsory labour”, the learned Judge explains as follows:-

(1) It is defined in Article 2(1) of the 1930 Forced Labour Convention as including “all work or service which is extracted from any person under the menace of any penalty and for which the person has not offered himself voluntarily” (see paragraph 233 in ZN).

(2) It comprises two basic elements: the work or service is exacted under the menace of a penalty and it is undertaken involuntarily.

(a) The penalty does not need to be in the form of penal sanctions, but may also take the form of a loss of rights and privileges. Moreover, the menace of a penalty can take many different forms. Arguably, its most extreme form involves physical violence or restraint, or even death threats addressed to the victim or relatives. There can also be subtler forms of menace, sometimes of a psychological nature.  They include threats to denounce victims to the police or immigration authorities when their employment status is illegal, or denunciation to village elders in the case of girls forced to prostitute themselves in distant cities. Other penalties can be of a financial nature, including economic penalties linked to debts.  Employers sometimes also require workers to hand over their identity papers, and may use the threat of confiscation of these documents in order to exact forced labour.

(b) A range of aspects should be considered in relation to the element of “voluntary offer”: the role of external constraints or indirect coercion; and the possibility of revoking freely-given consent.  There can be many subtle forms of coercion. Many victims enter forced labour situations initially out of their own choice, albeit through fraud and deception, physical or psychological coercion. Initial consent may be considered irrelevant when deception or fraud has been used to obtain it.

See paragraph 235 in ZN, referring to the judgment of the European Court of Human Rights in CN and V v France, ECHR App No 67724/09, 11 October 2012.

61.  As regards “servitude”, the learned Judge explains as follows:-

(1) It refers to the obligation on a person to provide services where he/she is forced to do so and where he/she feels that his/her condition is permanent (see paragraph 228 in ZN).

(2) It means an obligation to provide one’s services that is imposed by the use of coercion, and is linked with the concept of “slavery” (see paragraph 229 in ZN, referring to the judgment of the European Court of Human Rights in Siliadin v France (2006) 43 EHHR 16).

(3) It corresponds to a special type of forced or compulsory labour or, in other words, “aggravated” forced or compulsory labour.  The fundamental distinguishing feature between servitude and forced or compulsory labour lies in the victim’s feeling that his/her condition is permanent and that the situation is unlikely to change.  It is sufficient that this feeling be based on objective criteria or brought about or kept alive by those responsible for the situation (see paragraph 231 in ZN, referring to the judgment of the European Court of Human Rights in CN and V v France).

62.  In short, “servitude” is a special, or aggravated, form of “forced or compulsory labour”, with the additional element of a feeling by the victim that the condition is permanent and the situation is unlikely to change in future.  I pause to add that there must be some reasonable, objective, basis for such feeling on the part of the victim before a case of a servitude can be made out.

63.  In so far as the alleged international customary rule prohibiting forced labour is concerned, it is a controversial issue as to whether it is competent for the Hong Kong court to declare and enforce international customary law, because such ruling could potentially raise issues pertaining to “foreign affairs” which are the responsibility of the Central People’s Government under Article 13 of the Basic Law.  This is a matter of some significance here, because China has not ratified either the Forced Labour Convention, 1930 (No.29) (“FLC”) or the Abolition of Forced Labour Convention, 1957 (No.105) (“AFLC”).  It is not necessary for me to resolve this issue in the present case because I consider it to be clear that the Applicant has, in any event, failed to adduce sufficient evidence of the alleged international customary rule prohibiting forced labour.

64.  The principles for determining whether a norm has developed into customary international law were considered by the Court of Appeal in C v Director of Immigration [2011] 5 HKC 118.  Yuen JA, with whom the other members of the Court of Appeal agreed, stated the following:-

“45 This court has been presented with a wealth of materials on how a concept may develop into a CIL. In Prague Airport (para. 23), Lord Bingham commented that identification of the conditions to be satisfied before a rule may properly be recognised as one of CIL are ‘not in themselves problematical’. He accepted the formulation that CIL results from a general and consistent practice of States followed by them from a sense of legal obligation (opinio juris).

46 From the materials, it seems clear that three elements must be present:

- the concept must be of such a character and its formulation of sufficient precision as to be capable of creating a general rule;

- it has been consistently practised by States generally, although not necessarily by all States; and

- the practice has been followed because of a legal obligation to do so.

48   … I have harboured some concerns about the type of evidence which has been presented to this court.  In Michael Domingues v United States Case 12.285, Report No.62/02, Inter-Am. C.H.R., Doc. 5 rev.1 at 913 (2002), the Commission held (para. 47):

‘These elements in turn suggest that when considering the establishment of such a customary norm, regard must be had to evidence of state practice. While the value of potential sources of evidence vary depending on the circumstances, state practice is generally interpreted to mean official governmental conduct which would include state legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international and regional governmental organizations such as the United Nations and the Organization of American States and their organs, domestic policy statements, press releases and official manuals on legal questions. In summary, state practice generally comprises any acts or statements by a state from which views about customary laws may be inferred.’

49   Similarly in Flores v Southern Peru Copper Co. (2003) 62 343 F3d 140, the United States Court of Appeals, Second Circuit, held (para. 11):

‘2. Sources and Evidence of Customary International Law

‘In determining whether a particular rule is a part of customary international law - i.e., whether States universally abide by, or accede to, that rule out of a sense of legal obligation and mutual concern - courts must look to concrete evidence of the customs and practices of States. As we have recently stated, ‘we look primarily to the formal lawmaking and official actions of States and only secondarily to the works of scholars as evidence of the established practice of States.’ United States v. Yousef. 327 F.3d 56. 103 (2d Cir.2003); see also United States v. Smith. 18 U.S. (5 Wheat.) 153. 160-61. 5 L.Ed. 57 (1820) (Story, J.) (identifying ‘the general usage and practice of nations [;] … judicial decisions recognising and enforcing that law[;]’ and ‘the works of jurists, writing professedly on public laws’ as the proper sources of customary international law); see also Filartiga. 630 F.2d at 880 (quoting Smith).’”

65.  It is clear that an essential condition which must be satisfied before a norm can be regarded as part of customary international law is that the norm has been consistently followed by States generally out of a sense of legal obligation (opinio juris).  For this purpose:-

(1) Regard must be had to evidence of actual State practice.

(2) The opinion of jurists carries little weight, unless the opinion is itself based on objective evidence of State practice.

(3) The assertions of human rights groups, or other national or international bodies whose mandate is to advocate or promote a relevant cause, does not carry much weight unless such assertions are based on or backed up by objective evidence of State practice, because otherwise the emergence of a principle of customary international law could become self-fulfilling.

(4) When examining State practice, it is important to ask whether a State follows a norm because it is already treaty-bound to do so.  In such a case, the value of the State’s practice as evidence of the customary international law would be considerably diminished.  On the other hand, if a State follows a norm even though it is not a party to any relevant treaty or towards a non-party State, the evidential value of the conduct of that State as proof of the customary international law would be more significant.

(5) Lastly, the fact that many States enter into bilateral, or multi‑lateral, treaties containing a particular norm is equivocal, unless there is additional proof that the State parties consider that the norm has gained the status of customary international law and the treaties merely declare, or affirm the existence of, such customary international law.

66.  Support for last two propositions mentioned above can be found in the International Law Commission’s Second Report on Identification of Customary International Law by Michael Wood, Special Rapporteur, A/CN.4/672.  At paragraph 62, the following is stated:-

“Nor may practice motivated (solely) by the need to comply with treaty (or some other extracustomary) obligations be taken as indicating ‘acceptance as law’: when the parties to a treaty act in fulfilment of their conventional obligations, this does not generally demonstrate the existence of an opinio juris. By contrast, where States act in conformity with a treaty by which they are not (yet) bound or towards States not parties to the treaty, the existence of ‘acceptance as law’ may indeed be established.”

67.  And at paragraph 76(f), the following is stated:

“Treaties (and their travaux préparatoires) may potentially demonstrate the existence of ‘acceptance as law’ as well, given that ‘conventions continue to be a very important form for the expression of the juridical conscience of peoples’. For present purposes, such juridical consciousness (with regard to the convention as a whole or certain provisions therein) must exist outside the treaty, and not within: for a treaty to serve as evidence of opinio juris, States (and international organizations), whether parties or not, must be shown to regard the rule(s) enumerated in the treaty as binding on them as rules of law regardless of the treaty. This may well be the case when a treaty purports to be declaratory of customary international law, explicitly or implicitly: then ‘the treaty is clear evidence of the will of States [parties to the treaty], free of ambiguities and inconsistencies characteristic of the patchwork of evidence of State practice that is normally employed in proving the state of international law… ‘[t]he multiplicity of … treaties … is as it were a double-edged weapon’: ‘the concordance of even a considerable number of treaties per se constitutes neither sufficient evidence nor even a sufficient presumption that the international community as a whole considers such treaties as evidence of general customary law.”

68.  The Third Report by Michael Wood (relied upon by Mr Shieh) is, I consider, to the same effect.  At paragraph 41 of the Third Report, it is stated that:-

“The practice of parties to a treaty (among themselves) is likely to be chiefly motivated by the conventional obligation, and thus is generally less helpful in ascertaining the existence or development of a rule of customary international law. Such practice is normally just that … As pointed out by Baxter, this may pose particular difficulty in ascertaining whether a rule of customary international law has emerged when a treaty attracts quasi-universal participation. Such a problem does not arise with respect to the conduct of non-parties, and of parties towards non-parties, which may clearly constitute practice for the purposes of identifying a rule set out in a treaty as having customary force as well.”

69.  In the present case, the Applicant seeks to prove the existence of an international customary rule prohibiting forced labour by reference to three matters (see paragraph 71 of Form 86):-

(1) the opening sentence contained in the Executive Summary of Report III (Part 1B) entitled “General Survey concerning the Forced Labour Convention, 1930 (No.29), and the Abolition of Forced Labour Convention, 1957 (No.105)” prepared by the International Labour Office Geneva for the purpose of an International Labour Conference (96^th Session, 2007);

(2) a commentary in Henckaerts and Doswald-Beck, Customary International Humanitarian Law, Vol 1 (2006 Ed), Rule 95 (dealing with situations concerning international and non‑international armed conflicts); and

(3) the fact that Hong Kong has allegedly “ratified” the FLC as well as the AFLC.  Pausing here, while there is no dispute that these conventions apply to Hong Kong, it is plainly incorrect to say that Hone Kong has ratified them, because the HKSAR, not being a sovereign State, has generally no competence to ratify any international treaty.

70.  It is not necessary for me to set out the passages relied upon by the Applicant referred to in paragraph 69(1) and (2) above.  For reasons explained in paragraph 65 above, none of the matters relied upon by the Applicant can be regarded as evidence of actual State practice sufficient to prove the alleged international customary rule prohibiting forced labour.

71.  I should also mention that, in his submissions, Mr Shieh has sought to rely on other matters as proof of the alleged international customary rule prohibiting forced labour, including (i) the number of States which have ratified the FLC (178) and AFLC (175), and (ii) China’s practice and national legislation regarding forced labour as described in an article by Qiu Yang, ILO Fundamental Conventions and Chinese Labor Law: From a Comparative Perspective, 2 East Asian Law Review (2006) 18 (see paragraph 14 of the Reply Submissions of the Applicant).  In so far as (i) is concerned, for the reasons explained in paragraph 65 above, the mere fact that many States have ratified the FLC and AFLC is, I consider, equivocal.  In so far as (ii) is concerned, I do not consider that the Applicant is entitled to rely the article by Qiu Yang, which has not been mentioned in the Form 86, for the purpose of proving the existence of the alleged international customary rule.  It is, in my view, inherently unfair for an applicant seeking to prove customary international law by putting in materials as “authorities” without properly referring to them in the Form 86 or at least in the evidence filed in support of the application for judicial review.  In any event, the article does not support the existence of the alleged international customary rule (see in particular the learned author’s assessment (at page 33) of the “Reeducation Through Labor” system practiced in the Mainland). 

72.  Mr Shieh also relies on the fact that since the AFLC, there is no evidence that any State has asserted that it is entitled, solely as a matter of legal right in public international law, to practise forced labour during times of peace and outside of the exceptional situations provided for by BoR 4(3) (see paragraph 15 of the Reply Submissions of the Applicant).  This is putting the cart before the horse, and completely reverses the burden of proof.  In any event, having regard to the number of States which have ratified the FLC and/or AFLC, the absence of such evidence is hardly surprising, and cannot be regarded as evidence of State practice pointing to the existence of the alleged international customary rule prohibiting forced labour.

(iii)   Adequate rest and limitation on working hours

73.  The second group of fundamental rights relied upon by the Applicant relates to the alleged rights to safe and healthy working conditions, adequate rest, leisure, limitation on working hours, and periodic holidays with pay under (i) Article 7(b) and (d) of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”), and (ii) Article 6(1)(a)(i) of the Migration for Employment Convention 1949 (“MEC”).

74.  ICESCR 7(b) and (d) states as follows:-

“The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular

(b) Safe and healthy working conditions;

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.”

75.  MEC 6(1)(a)(i) states as follows:-

“Each Member for which this Convention is in force undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters:-

(a) in so far as such matters are regulated by law or regulations, or are subject to the control of administrative authorities –

(i) remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age for employment, apprenticeship and training, women’s work and the work of young persons”.

76.  It is not in dispute that the above provisions are applicable to Hong Kong as a matter of international law, and come within the scope of Article 39(1) of the Basic Law.  However, whether they can be enforced or relied upon in the domestic court is another matter.  The following well established principles are relevant for the purpose of the present discussion:-

(1) The provisions of the international covenants and conventions referred to in Article 39(1) of the Basic Law are not directly enforceable in Hong Kong by any individual unless implemented by domestic or municipal law.  Under the common law dualist principle, international treaties are not self-executing and, unless and until they are made part of our domestic law by legislation, they do not give rise to any rights or obligations enforceable in the domestic court (see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, at paragraph 43 per Ribeiro PJ; GA v Director of Immigration (2014) 17 HKCFAR 60, at paragraph 58 per Ma CJ).

(2) When the legislature passes a law which mirrors the terms of the treaty and in that sense incorporates the treaty into Hong Kong law, the metaphor of incorporation may be misleading, because it is not the treaty but the statute which forms part of Hong Kong law (see R v Lyons [2003] 1 AC 976, at paragraph 27 per Lord Hoffmann).

(3) Where it is said that a particular Convention or a provision of that Convention has been incorporated into domestic legislation, it is important to analyse that piece of domestic legislation to see whether it has actually done so and to what extent.  This becomes then largely a matter of statutory construction (see GA, ante, paragraph 60(2) and (4)(b)).

77.  In the present case, Mr Shieh argues that the aforesaid provisions in ICESCR and MEC have been given “domestic effect” by the following provisions in the Employment Ordinance, Cap 57 (“the EO Provision”):-

(1) Section 2, which defines “rest day” to mean “a continuous period of not less than 24 hours during which an employee is entitled under Part IV to abstain from working for his employer”.

(2) Section 17(1), under Part IV (Rest Days), which provides that subject to the provisions of that part, “every employee who has been employed by the same employer under a continuous contract shall be granted not less than 1 rest day in every period of 7 days”.

(3) Section 19, also under Part IV (Rest Days), which provides that subject to subsection (2) thereof (which is not relevant for the present purpose), “no employer shall require an employee to work on any of his rest days”.

(4) Section 63(2), which provides that it is a criminal offence for any employer who, without reasonable excuse, fails to grant to any employee any rest day which he is required to grant under Part IV.

78.  Mr Shieh also relies on the long title to the Employment Ordinance, namely –

“To provide for the protection of the wages of employees, to regulate general conditions of employment and employment agencies, and for matters connected therewith.”

79.  It is, in my view, clear that the EO Provision cannot be regarded as domestic legislation incorporating MEC 6(1)(a)(i), because the former concerns the right to “rest days” whereas the latter concerns the right against discrimination.

80.  I also do not consider the EO Provision to incorporate ICESCR 7(b) and (d).  The right to “rest days”, in one form or another, has been in the Employment Ordinance since no later than the early 1970s, whereas the UK Government did not extend the ICESCR to Hong Kong until May 1976.  In the 1970 Revised Edition of the Employment Ordinance, the provision relating to “rest days” was contained in Section 11E(1), which provided that “every employee who has been employed by the same employer under a continuous contract shall be granted not less than four rest days in each month”.  In November 1976, the number of rest days was increase to 1 rest day in every period of 7 days.  There is nothing in the Official Report of Proceedings of the Legislative Council on 24 November 1976 (recording the resumption of debate on the second reading of the Employment (Amendment) (No 2) Bill) which suggests that the amendment had anything to do with the ICESCR.  Moreover, the EO Provision relates to a specific aspect of conditions of work (namely, rest days), whereas ICESCR 7(b) and (d) covers a much wider field.  There is, in my view, no reasonable or objective basis to support the contention that the legislature enacted the EO Provision to domesticate ICESCR 7(b) and (d).  In any event, even if it should be held that the EO Provision amounts to a domestic legislation incorporating a part of ICESCR 7(b) and (d), it is clear that, of the various rights relied upon by the Applicant, only the right to “rest days” under the Employment Ordinance may qualify as a constitutionally protected right under Article 39(1) of the Basic Law.

(iv)   No sufficient evidence that the Live-In Requirement heightens the risk of violation of fundamental rights

81.  It cannot seriously be argued that the imposition of the Live-In Requirement would directly constitute, or give rise to, a violation of the fundamental rights relied upon by the Applicant.

(1) In so far as “servitude” is concerned, whatever may be said about the working conditions of FDHs, there can be no question of them feeling that such conditions are permanent and the situation is unlikely to change because of the Live-In Requirement.  It is a matter of choice for any FDH to decide whether to come to work in Hong Kong in the first place.  More importantly, if, after coming to work in Hong Kong, the FDH finds it unacceptable, for any reason, to reside in his/her employer’s residence, it is well within his/her right or power to terminate the employment contract at any time by giving one month’s notice in writing or paying one month’s wages in lieu of notice.  The fact that the FDH may decide, nevertheless, to continue the employment because of some personal, economic, reasons is not relevant for the present purpose, because the feeling of permanence in such circumstances cannot be attributed to the Live-In Requirement.

(2) The same analysis applies to “forced or compulsory labour”.  Generally, FDHs offer their services voluntarily for the contractual consideration and not because of any threat of penalty, and may withdraw their services at any time by giving one month’s notice in writing or paying one month’s wages in lieu of notice.  The imposition of the Live-In Requirement on FDHs would not, by itself, give rise to either (i) extraction of work or service under the menace of a penalty, or (ii) involuntary undertaking of work, being the two basic elements of forced or compulsory labour.

(3) There is also no proper or logical basis to suggest that requiring FDHs to reside in their employers’ residences would itself lead to the FDHs being denied their statutory right to not less than 1 rest day in every period of 7 days (assuming, contrary to the conclusion reached above, that the right to “rest days” under the Employment Ordinance is a constitutionally protected right under Article 39(1) of the Basic Law).

82.  Mr Shieh contends, however, that requiring FDHs to reside in their employers’ residences heightens the risk of violation of fundamental rights.  Mr Shieh first argues that FDHs as a group are vulnerable to abuse by their employers, including physical and sexual abuse, and the Live-In Requirement would exacerbate the risk of abuse. He refers to the well-publicized case of an Indonesian FDH called Erwiana Sulistyaningsih as an example of the serious abuse which could be inflicted by an employer.  Obviously, the conduct of the employer towards Erwiana cannot be condoned, and the employer was duly found guilty after trial of various criminal offences arising out of her ill-treatment of Erwiana and 2 other Indonesian FDHs, including inflicting grievous bodily harm, causing grievous bodily harm with intent, criminal intimidation, failing to pay wages, and failing to grant statutory holiday and rest day, and sentenced to 6 years’ imprisonment for her convictions (see HKSAR v Law Wan Tung, DCCC 421/2014 & 651/2014 (Consolidated), 10 February 2015).  Leaving aside for the moment that some of the complaints (eg, inflicting of grievous bodily harm or failure to pay wages) have nothing to do the particular fundamental rights relied upon by the Applicant, as submitted by Mr Yu, one has to recognize that the inherent nature of an FDH’s employment is the provision of domestic service, which necessarily requires him/her to work in his/her employers’ residence.  A domestic helper working in his/her employer’s residence would necessarily be exposed to a risk of ill-treatment by the employer while working there, regardless of whether he/she also lives in the employer’s residence.  It is plain that if an employer were to engage in acts of violence or other unlawful or unacceptable conduct towards the FDH, those acts could take place whenever the FDH is physically at the employer’s residence, which is his/her only place of work as a domestic helper.  While the fact that the FDH is living in the employer’s residence would mean that there may be more opportunities for the employer to apply ill-treatment on the FDH if the employer is minded to do so, I am by no means satisfied that the risk of ill-treatment is unacceptably or significantly increased by the fact that the FDH is living in the employer’s residence.  Where ill-treatment does occur, it seems to me that the real cause of the problem lies in the employer, instead of in the fact that the FDH is required to live in the employer’s residence.

83.  Mr Shieh next refers to the experience of a Sri Lankan FDH called Muthukumarage Ganga Gayani Priyanka who has made an affirmation for the Applicant complaining about inappropriate or unsuitable accommodation and long working hours.

(1) In so far as inappropriate or unsuitable accommodation is concerned, I consider that it is an issue more appropriately to be addressed through enforcement of the relevant eligibility criterion for employment of a FDH, namely, that the employer has to provide the FDH with suitable accommodation and with reasonable privacy as stated in Clause 2(g) of the Guidebook.

(2) In so far as long working hours are concerned, I consider there is force in Mr Yu’s submission that if the employer does not respect the FDH’s need for rest, the employer may still insist that the live-out FDH (assuming that this is permitted) reports to work early and gets off work late, with the result he/she would still be deprived of adequate rest time.

84.  Mr Shieh also refers to the personal circumstances of the Applicant.  For the reasons mentioned at the beginning of this judgment, I do not propose to set out those circumstances.  I do not consider that they add anything to the debate.

85.  Lastly, Mr Shieh relies upon some studies or surveys carried out by non-governmental organizations, including in particular a study by Justice Centre Hong Kong as documented in a report entitled “Coming Clean” dated March 2016 (“the Justice Centre Report”).

86.  Justice Centre describes itself as “a non-profit human rights organization working fearlessly to protect the rights of Hong Kong’s most vulnerable people” whose mandate is to campaign for “legislative and policy change, conduct research and work with the media and civil society to fight root causes and change systems and minds”(see the back page of the Justice Centre Report under “About Justice Centre Hong Kong”).  The study carried out by Justice Centre purports to be a “quantitative” study “to estimate the prevalence of forced labour and human trafficking for the purpose of forced labour amongst migrant domestic workers (‘MDWs’) in Hong Kong” (see page 6 of the Justice Centre Report under “What is this research about?”).  In other words, the study is not to determine whether forced labour exists in Hong Kong.  Rather, it assumes that forced labour exists, and seeks to determine its prevalence in Hong Kong.

87.  To understand the methodology employed by Justice Centre in the study, I should first mention that the International Labour Office (“the ILO”) has developed a list of 11 “Indicators of Forced Labour” (“the ILO Indicators”) for the purpose of helping –

“‘front-line’ criminal law enforcement officials, labour inspectors, trade union officers, NGO workers and others to identify persons who are possibly trapped in a forced labour situation, and who may require urgent assistance”.

88.  The ILO considers that the indicators represent the “most common signs or ‘clues’ that point to the possibility of a forced labour case”.  The ILO Indicators are: (i) abuse of vulnerability, (ii) deception, (iii) restriction of movement, (iv) isolation, (v) physical and sexual violence, (vi) intimidation and threats, (vii) retention of identity documents, (viii) withholding of wages, (ix) debt bondage, (x) abusive working and living conditions, and (xi) excessive overtime.

89.  Justice Centre considered three possible situations, described as “dimensions”, of forced labour, namely, (a) unfree recruitment, (b) work and life under duress, and (c) impossibility of leaving employment.  For each dimension, Justice Centre developed, based on the ILO Indicators, a series of indicators for the two elements of forced labour, namely, (i) “involuntariness” indicators, and (ii) “menace of penalty” indicators.  Justice Centre further classified those indicators as either “strong” or “medium”.  Justice Survey carried out a survey of 1,003 MDWs in Hong Kong to determine whether he/she experienced the involuntariness indicators and menace of penalty indicators in each of the 3 dimensions.  Based on the responses of those surveyed, Justice Centre classified an MDW as being in a forced labour situation if he/she was positive in at least one of the three dimensions of forced labour.  For this purpose, to be positive in a dimension, a respondent must trigger at last one indicator of “involuntariness” and at least one indicator of “menace of penalty”, and at least one of those indicators must be “strong”.

90.  In the Justice Centre Report, it is stated that:-

“Of the 1,003 MDWs surveyed, Justice Centre identified 171 respondents who were in forced labour. This represents 17.0% of the total sample.

Extrapolated to the entire population of MDWs (336,000) in Hong Kong, we can infer that there are currently over 50,000 MDWs in forced labour in Hong Kong….

The most significant factor determining whether MDWs are likely to be in forced labour related to their debt burden.  MDWs with excessive debt burden (where debt level is equal to or more than 30% of annual income) were six times more likely to be in forced labour than those without high debt.”

91.  In relation to this study by Justice Centre, my views are as follows:-

(1) The study is not a focused study on the effect or consequence of the Live-In Requirement.  As earlier mentioned, it purports to be a study to estimate the prevalence of forced labour and human trafficking for the purpose of forced labour amongst migrant domestic workers in Hong Kong.

(2) The ILO Indicators, or the indicators developed by Justice Centre based on them, cannot, in my view, be used as a substitute for the legal definition of forced labour.  Neither can proof of the presence of one or more of the indicators mean that a forced labour situation exists as a matter of law.  As earlier noted, the ILO Indicators are intended to be used for the purpose of assisting front-line’ criminal law enforcement officials and other labour or NGO workers to identify possible cases of forced labour.  The ILO itself considers that the indicators only represent common signs or clues that point to the possibility of a forced labour case.  In this regard, I note that in ZN, ante, at paragraph 344, Zervos J referred to the ILO Indicators and said that it was a question of fact and degree as to whether the presence of indicators amounted to forced labour.  Plainly, the learned Judge did not consider that one can find forced labour proved merely upon proof of the presence of one or more of the ILO Indicators

(3) Of the three dimensions of forced labour considered by Justice Centre, the first and third ones, namely, “unfree recruitment” and “impossibility of leaving employer”, plainly have nothing to do with the Live-In Requirement.  Hence, those cases identified by Justice Centre as involving forced labour based on positive responses in these two dimensions should be excluded from consideration for the present purpose.

(4) In respect of the remaining dimension, namely, “work and life under duress” -

(a) Justice Centre regards the following as indicators of “involuntariness" –

(i) strong indicators – being under the influence of employer or people related to employer for housing and non-work life, excessive working days or hours, forced to work on call (day and night), degrading living conditions, and limited freedom of movement and communication;

(ii) weak indicators – hazardous work, no respect of labour law, no social protection, wage manipulation, forced engagement in illicit activities (including forced work for other people), and forced tasks.

(b) Justice Centre regards the following as indicators of “menace of penalty” –

(i) strong indicators – confiscation of identity papers or travel documents, isolation, locked in workplace or living quarters, sexual violence in workplace (threat or actual), physical violence in workplace (threat or actual), other forms of punishment (deprivation of food, water, sleep, etc), confiscation of mobile phones, denunciation to authorities (threat or actual), threats against family members, and withholding of wages;

(ii) weak indicator – informing family, community or public about worker’s current situation (blackmail).

(c) The majority of these indicators, including all the menace of penalty indicators, cannot, in my view, be attributed to the Live-In Requirement.  The only items which may arguably have some linkage to the Live-In Requirement would be “being under the influence of employer or people related to employer for housing”, “excessive working days or hours”, and “forced to work on call (day and night)”.

(d) It does not seem to me that those cases identified by Justice Centre as involving forced labour based on positive responses in the dimension of “work and life under duress” can properly be attributed to the Live-In Requirement.

(5) As Justice Centre itself recognizes, the most significant factor determining whether MDWs are likely to be in forced labour relates to their debt burden.  However, the Live-In Requirement would not cause MDWs to contract debts, whether in Hong Kong or in their home countries.

92.  In all, I do consider the Justice Centre Report provides any reliable evidence that the Live-In Requirement heightens the risk of force or compulsory labour (still less servitude).

93.  Mr Shieh also refers to a report prepared by Mission for Migrant Workers Limited entitled “Live-In Policy increases female FDH’s vulnerability to various types of abuse” dated April 2013 (“the MMW Report”).   Chapter 7 of the MMW Report is supposed to identify the “rights” being violated by or as a result of the Live-In Requirement.  It is notable that there is no mention of any violation of (i) the right to “rest days” under the list of violations of “the Standard Employment Contract and HK Labour Ordinance”, or (ii) the rights against “forced or compulsory labour” or “servitude” under the list of violations of “International Labour Law such as provisions in ILO Contention No.189”, although violation of Article 5 of that convention (ie, protection against all forms of abuse, harassment and violence) is mentioned.  The MMW report is, it seems to me, more about the living conditions of FDHs than the Live-In Requirement.  The contents of the MMW Report are, in my view, far from sufficient as objective evidence that the Live-In Requirement would, systematically, increase the risk of forced or compulsory labour (still less servitude), or denial of the statutory right to rest days.  The same comments apply to a subsequent report prepared by Mission for Migrant Workers Limited dated May 2017.

94.  In considering whether the Live-In Requirement significantly increases the risk of violation of fundamental rights, it is also necessary to have regard to the measures and safeguards in place for the protection of FDH’s rights, including:

(1) legal avenues (such as the Minor Employment Claims Adjudication Board and Labour Tribunal) for FDHs to seek civil remedies, channels (such as the Labour Relations Offices of the Labour Department and 24-hour enquiry hotline) to obtain information and advice on their statutory and contractual rights and benefits as FDHs, and free conciliation services provided by the Labour Department to resolve their disputes with the employers;

(2) investigation and prosecution of offences under the Employment Ordinance and criminal law generally;

(3) co-operation with the governments of the FDH’s home countries; and

(4) education and public promotion of FDH’s rights and channels for seeking redress in Hong Kong.

The details of the above measures and safeguards (which are supplemented by the work of NGOs, labour unions and migrant workers’ groups in Hong Kong) are set out in paragraph 44 to 69 of the Affirmation of Wong Ting Chi which I do not propose to repeat here.

95.  On the totality of the evidence and materials before me, and giving proper weight to all the additional measures and safeguards mentioned above, I do not consider that the Live-In Requirement unacceptably or significantly increases the risk of violations of the fundamental rights relied upon by the Applicant.

96.  In passing, I note that in the Skeleton Submissions of the Applicant (paragraphs 38, 41 and 42), it is alleged that the Director has “admitted” that the Live-In Requirement heightens the risk of a breach of fundamental rights.  There is, I consider, simply no basis for this allegation.

97.  Even if, contrary to the above conclusion, the imposition of the Live-In Requirement should be held to have unacceptably or significantly increased the risk of “servitude” and/or “forced or compulsory labour” under BoR 4(2) or (3)(a), the Applicant is nevertheless precluded from invoking that article to challenge the Live-In Requirement because of Section 11 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“the HKBORO”), which states as follows:-

“As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.”

98.  The imposition of the Live-In Requirement by the Director on FDHs involves, in my view, an application of the IO governing “entry into” or “stay in” Hong Kong, and is therefore within the scope of Section 11.  In Ubamaka, ante, it was held that BoR 3 rights, ie, rights not to be subjected to torture, or to cruel, inhuman or degrading treatment or punishment, were non-derogable (under Section 5(2)(c) of the HKBORO)and absolute, and therefore, as a matter of construction of Section 11, were excepted from its scope.  As Ribeiro PJ was at pains to emphasize, this analysis does not necessarily apply to other rights listed in Section 5 (see paragraphs 134-140 in Ubamaka).  I do not consider the rationale in Ubamaka has application to:-

(1) the right against “servitude” under BoR 4(2), because it is not, or has not been proved to be, “absolute”, or

(2) the right against “forced or compulsory labour” under BoR 4(3)(a), because it is not “non-derogable” under Section 5(2)(c), and/or it is not, or has not been proved to be, “absolute”.  In this regard, the existence of categories of exceptions to forced or compulsory labour in the FLC (which are not affected by the AFLC) suggests that the right against forced or compulsory labour is not an absolute right.

99.  Having reached the conclusion that the imposition of the Live-In Requirement does not engage any of the fundamental rights relied upon by the Applicant, the issue of justification does not arise for consideration.

The Discrimination Ground

100.  The Discrimination Ground can be disposed of shortly. The Applicant’s complaint is that FDHs are treated differently from those admitted under the SL Scheme, contrary to Article 25 of the Basic Law, which provides that:-

“All Hong Kong residents shall be equal before the law.”

101.  The proper approach to be adopted by the court when considering a discrimination complaint is well established.  In most cases, the court would apply a two-stage approach:-

(1) The first stage is to identity the comparators: the person complaining is comparing his position with someone who is said to be in a comparable position.  The question is asked: are these persons in comparable positions?

(2) The second stage assumes that the first stage is passed (in other words, the court regards the comparators as being in comparable or analogous positions), and the question is: can the differences in treatment between the comparators be justified using the Yau Yuk Lung justification test, namely, (i) whether the difference in treatment pursues a legitimate aim, (ii) whether the difference in treatment is rationally connected to the legitimate aim, and (iii) whether the difference in treatment is no more than is necessary to accomplish the legitimate aim.

In some cases, there may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous.  In such cases, it would not be necessary to go through the three facets of the justification test. Ultimately, the question to ask is whether there is enough of a relevant difference between the comparators to justify differential treatment (see Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409, at paragraphs 57 to 59, per Ma CJ).

102.  In view of the recent judgment of the Court of Final Appeal in Hysan Development Company Limited v Town Planning Board, FACV 21 and 22 of 2015 (26 September 2016), there is probably a fourth element to the justification test, namely-

“whether a reasonable balance has been struck between the societal benefits of the encroachment and the inroads made into the constitutionally protected rights of the individual, asking in particular whether pursuit of the societal interest results in an unacceptably harsh burden on the individual” (see paragraph 135 per Ribeiro PJ).

103.  It is, in my view, clear that there is enough of a relevant difference between FDHs admitted under the FDH Scheme and imported workers admitted under the SL Scheme to justify the differential treatment. The two groups are plainly not in comparable or analogous positions in so far as the Live-In Requirement is concerned.  In view of the fact that FHDs are admitted to Hong Kong for the purpose of provision of live-in domestic service, it cannot sensibly be argued that a requirement that they should live-in their employers’ residences is discriminatory of them when compared to other workers who are not admitted for such purpose.

104.  In Demebele, Salifou and Others v Director of Immigration, HCAL 44/2014 (22 April 2016), the applicants challenged the financial sufficiency requirement under the Director’s dependant policy on the ground that it was discriminatory against Hong Kong residents marrying foreign nationals as the requirement did not similarly apply to spouses coming from Mainland China on a One‑Way Permit (“OWP”).  In rejecting this challenge, Au J stated as follows:-

“62 In relation to the applicants’ specific reference to the comparison based on the OWP scheme to support the claim of discrimination, as I have also said above, the Dependant Policy which is premised on the showing and proving of dependency is an entirely separate and different scheme from the OWP scheme.

63 The Dependant Policy and the OWP schemes are thus simply two different schemes with different nature and objective, and are to serve different and distinct purposes.  There are no meaningful and relevant comparisons that can be made to support any contentions of discrimination by reason of differential treatment.”

105.  The above reasoning applies, a fortiori, to the present attempt to argue that FDHs admitted under the FDH Scheme and imported workers admitted under the SL Scheme are in comparable or analogous positions in so far as the Live-In Requirement is concerned.

106.  The fact that some imported workers admitted under the SL Scheme may be working in elderly care centres in Hong Kong (a category of workers singled out by Mr Shieh for mention) and therefore their work duties may be similar to FDHs in some aspects is, I consider, completely besides the point.

107.  If it should be necessary to go through the three facets of the justification test, I consider it to be equally clear that they are satisfied: (i) the importation of live-in domestic helpers from abroad pursues the legitimate aim of meeting the demand of Hong Kong families for live-in domestic service which could not be filled by local domestic helpers, (ii) the Live-In Requirement is rationally connected to such legitimate aim, and (iii) the measure adopted is also no more than is necessary to accomplish the legitimate aim.

108.  In respect of the fourth element, it is important to emphasise that, ultimately, it is a matter of choice for an FDH to decide whether to accept the Live-In Requirement in order to be permitted to come to work in Hong Kong.  If, prior to coming to Hong Kong, he/she considers the Live-In Requirement to amount to an unacceptable invasion of his/her personal or private rights, he/she can of course choose to remain in his/her home country, or work in some other countries which do not have such requirement.  On the other hand, if, after coming to work in Hong Kong, he/she finds the Live-In Requirement to be unacceptable, he/she can terminate the employment contract by giving one month’s notice in writing or paying one month’s wages in lieu of notice.  I do not consider that the pursuit of societal interest in the importation of workers to provide live-in domestic service in Hong Kong can be said to result in an unacceptably harsh burden on FDHs.

109.  In all, I reject the Discrimination Ground.

The Irrationality Ground

110.  The Irrationality Ground can also be disposed of shortly.  In the original Form 86, the Applicant argues that the Director acts irrationally or wrongfully fetters his discretion in imposing the Live-In Requirement without providing for any exception since April 2003.  This argument is based on a false premise, in that, as a matter of fact, the Commissioner does have a discretion, which he exercises on a case-by-case basis, to permit FDHs not to live in his/her employers’ residences upon specific applications (see paragraphs 33 to 35 of the Affirmation of Wong Ting Chi).

111.  In her draft Amended Form 86, the Applicant seeks to change her case and argues that the Director acts irrationally or wrongfully fetters his discretion in imposing the Live-In Requirement without providing for any general exception based on the parties’ mutual consent.  On the footing, however, that the Live-In Requirement is otherwise a lawful policy (which I consider to be the case), there is no legal basis that I can see to support the argument that such requirement would become unlawful in the absence of any general exception.  Neither am I able to see why the Director should be regarded as acting irrationally or wrongfully fettering his discretion merely because he fails to provide for a general exception to the Live-In Requirement based on the parties’ mutual consent.

112.  In his submissions, Mr Shieh argues, specifically, that the Director applies his policy so inflexibly that even FDHs who are entitled to statutory maternity leave do not fall within an exempted category to be able to be approved for living-out (see paragraph 94(3) of Mr Shieh’s skeleton submissions).  This complaint is not raised in the Form 86. That aside, the evidence relied upon in support of this argument consists of, essentially, (i) a general allegation that an unspecified number of applications, without particulars, by FDHs to live‑out during their maternity leave were not approved, and (ii) a letter from the Labour Department dated 5 March 2014 to the Chief Executive Officer of PathFinders Limited stating generally (inter alia) that the Live-In Requirement would apply irrespective of whether an FDH is on maternity leave or not (see paragraph 9 of the 2^nd Affidavit).  Neither can, in my view, properly support any argument that the Commissioner would not, when being asked to approve an application to live out by an FDH during her maternity leave, consider the specific facts and circumstances of her case before making a decision on the application.  I should also mention that, regardless of whether the live-out application is approved, the FDH would continue to enjoy all the statutory rights and protections under Part III (Maternity Protection) of the Employment Ordinance, including maternity leave, maternity leave pay, prohibition against termination of employment, and prohibition of assignment of heavy, hazardous or harmful work, as explained in the Labour Department’s letter dated 5 March 2014.  Her statutory rights and protections would not be diminished or affected by her living in her employer’s residence.

113.  In all, I do not accept either the original, or revised, formulation of the Irrationality Ground, and I am not prepared to grant leave to the Applicant to amend the Form 86 in respect of this ground.

DISPOSITION

114.  For the foregoing reasons, the present application for judicial review, as well as the Applicant’s summons dated 13 September 2017, are dismissed.  I make an order nisi that the Applicant shall pay to the Respondents the costs of this application, including the costs of and occasioned by the Applicant’s summons, to be taxed if not agreed, with certificate for two counsel.  The Applicant’s own costs are to be taxed in accordance with legal aid regulations.

115.  Lastly, it remains for me to thank counsel for their assistance rendered to the court.