ZN v. SECRETARY FOR JUSTICE AND OTHERS

HCAL 15/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 15 OF 2015

___________________

___________________

________________

J U D G M E N T

________________

Index

Introduction

Matters to be addressed

Evidential basis of the judicial review

Summary of the evidence

The applicant and his background 

The employer and his family 

Employment in Hong Kong from 2007 to 2010 

The first contract

The second contract

Return to Pakistan

Attempting to recover the unpaid wages 

Return to Hong Kong

Seeking redress against the employer

The Labour Tribunal claim

Threats and attacks against the applicant and his family 

The Labour Tribunal hearing

Continued threats by the employer

The robbery offence

The CAT claim

Subsequent police complaint

Challenge to the applicant’s evidence

Visits to the Immigration Department

Visits to the Labour Department

Visits to the Police

Other proceedings

The CAT screening interviews

Credibility of the applicant

Findings of fact

The issues in this judicial review

The legal framework

Legal principles of statutory interpretation

The applicant’s submission

The Strasbourg jurisprudence

Interpretation of Article 4 of the BOR

Slavery

Servitude

Forced or compulsory labour

Whether human trafficking is protected under Article 4 of the BOR

The positive obligation under Article 4 of the BOR

Hong Kong’s law and practice

Positive obligation to enact legislation and to implement other measures 

The applicant’s case

The issue of delay

Conclusion

Relief and damages

Introduction

1.  This is an application by the applicant to judicially review the alleged failure by the respondents to protect him as a victim of human trafficking for servitude or forced labour, after he was enticed to come to Hong Kong to work as a foreign domestic helper between 2007 and 2010. 

2.  In general terms, the applicant’s grounds for judicial review are that the Hong Kong Special Administrative Region Government (HKSARG) and the relevant government authorities failed in their duties and obligations in relation to the protection against human trafficking conferred by Article 4 of the Hong Kong Bill of Rights Ordinance, Cap 383 (BOR), which prohibits slavery, servitude and forced or compulsory labour.  The applicant alleges that he complained to officers of the Immigration Department, the Hong Kong Police and the Labour Department about what had happened to him, but no steps were taken to investigate his complaints as a case of human trafficking for servitude or forced labour.  The applicant complains that he was denied the protection of his right not to be subjected to servitude or forced labour pursuant to Article 4 of the BOR.  He further complains that these failures were systematic and occurred primarily because of the absence of any legislative framework to prevent human trafficking or to protect victims of human trafficking where they are subject to servitude or forced labour.

3.  In consequence, the applicant seeks declaratory relief and damages in relation to the continuing breach of his rights under Article 4 of the BOR occasioned by the respondents’ failure since April 2012 to fulfil their obligations under the article to protect him from servitude or forced labour in Hong Kong, and further by the failure of the HKSARG to enact legislation against servitude or forced labour, and by the failure of the Immigration Department, the Hong Kong Police and the Labour Department to investigate his case as one of possible human trafficking for servitude or forced labour. 

4.  This judicial review raises the issue of the nature and scope of the protection afforded to a person under Article 4 of the BOR against the impermissible exploitation by a person of another person as measured by the prohibited concepts of slavery, servitude or forced or compulsory labour.  This pernicious conduct is commonly categorised under the general concept of human trafficking, which is the transportation of a person for the purpose of exploitation.  Human trafficking in all its forms is unquestionably an affront to human dignity and a denial or curtailment of personal autonomy from which springs the most fundamental human rights and freedoms.

5.  Depending upon the nature and scope of the protection against human exploitation that the law provides, the question arises as to whether the applicant in the circumstances of his case has been denied such protection against human trafficking for servitude or forced labour. 

6.  At the time the applicant brought the judicial review proceedings, he made an ex parte application for an anonymity order before Au J.  This was granted, and the proceedings were commenced under the pseudonym “ZN” in order to protect the applicant’s identity. Later, on 9 June 2015, Au J granted the applicant leave to apply for judicial review at a hearing at which the parties were legally represented, and directed that the judicial review would be heard by me.  There followed an application by the respondents for my recusal, which I refused in a decision I handed down on 13 November 2015[1]. An application by the applicant to adduce expert evidence was partially granted by me in a decision I handed down on 11 December 2015.[2] 

Matters to be addressed

7.  It is contended by the applicant that he has been a victim of an obvious and very serious case of human trafficking for servitude or forced labour.  He says he returned to Hong Kong to obtain help from the authorities, but that although he repeatedly approached them for assistance they completely failed to investigate his case. He complains that as a result of this failure to investigate, he has suffered a protracted ordeal, including lengthy imprisonment and trial for a crime he did not commit.

8.  The applicant initially sought to argue that the circumstances of his case came within the scope of the concepts of servitude or forced labour.  However, as the facts and circumstances unfolded in the course of these proceedings, he put his case on the basis that he was a victim of human trafficking for forced labour only.  The issue, therefore, is whether he was a victim of forced labour and whether he was trafficked for that purpose.

9.  The applicant generally complains that there is a lack of effective measures in place in Hong Kong to identify and assist victims of human trafficking or forced labour.

10.  The applicant submits that in substantiating his claim he must establish the following matters:

(a) That he was a victim of human trafficking for forced labour, and therefore he must satisfy the Court on the balance of probabilities that:

(1) he was brought to Hong Kong by the employer in circumstances involving deception as to his conditions of work;[3] and

(2) once in Hong Kong he was forced to work for the employer by means of menaces of penalties.[4]

(b) That the HKSARG has breached its obligations under Article 4 of the BOR to conduct a proper investigation into his case as a victim of human trafficking for forced labour, and therefore he must satisfy the Court on the balance of probabilities that:

(1) he told a HKSARG official about his case on at least one occasion; and

(2) following receipt of such information the HKSARG failed to carry out an adequate investigation into his case.

11.  Critical to these two questions is the nature and scope of the protection conferred by Article 4 of the BOR and the HKSARG’s legal obligations under Article 4 of the BOR in relation to human trafficking or forced labour.

12.  I will deal first with the evidential basis of the applicant’s claim, and then examine the relevant law before addressing the arguments of the parties and the issues to be resolved.

Evidential basis of the judicial review

13.  The evidence in support of the applicant’s case comes from the applicant,[5] Lam Bik Che,[6] Ma Chun Man Amos,[7] Chan Lui Luna[8], and an expert in human trafficking, Ms Klara Skrivankova of Anti-Slavery International.[9] 

14.  The evidence in support of the respondents’ case comes from Ms Wendy Leung, Administrative Assistant to the Secretary for Security,[10] Cheung Kwok Hei, Senior Immigration Officer of the Immigration Department,[11] Shum Chi Chung, Acting Chief Investigation Officer of the Immigration Department,[12] Chiu Peng Fai, Inspector of Police of the Hong Kong Police Force,[13] and Chan Wing Han, Senior Labour Officer of the Labour Department.[14] 

15.  The respondents take issue with the applicant’s account of events concerning his employment as a foreign domestic helper in Hong Kong, and accordingly he has been required to give oral testimony.  His evidence was subject to cross-examination.  This has necessitated that I evaluate his evidence together with all the other evidence presented in these proceedings in order to make findings of fact in relation to the events and allegations that are the subject of the judicial review. 

16.  This is a rather unusual occurrence because a court in judicial review is performing a supervisory role over public authorities, and therefore is not usually concerned with making findings of fact.[15] However, on rare occasions, a court will be required to resolve disputed facts relevant to the grounds for judicial review.  Even so, the adducing of oral evidence in judicial review will only take place in the most exceptional cases.  The reason for this is obvious.  A court in judicial review is concerned about whether some recognisable public wrong has taken place, and not about the merits of the decision or action under review.  This is because the prime purpose of a court in judicial review is to guide public authorities and ensure that they act lawfully in the performance of their public duties and functions.[16] 

17.  I agreed to the request from the respondents to cross-examine the applicant because justice required it, as it was necessary for the fair disposal of the case. 

18.  I have been asked to make two determinations based on the evidence presented to me.  One is whether or not the applicant was a victim of human trafficking for forced labour.  The other is whether or not the officers of the relevant authorities failed or neglected to take appropriate action in dealing with the applicant’s case as one involving human trafficking or forced labour. I have made these determinations in order to address the grounds for judicial review, but with the following caveat.  

19.  As to the first determination, I have not had evidence presented to me by the employer or by any other possible relevant person in relation to the events that the applicant testified about involving the employer and others, both during and subsequent to his employment.  The respondents mentioned that the employer had not been approached to respond to the applicant’s allegations because of the anonymity order.  However, no application was made by the respondents either to revoke or to vary the anonymity order.  Clearly in these circumstances, the first determination can only be made on the basis of whether the evidence presented points to the applicant being a victim of human trafficking for forced labour.

20.  As to the second determination, the situation is somewhat different.  It concerns the key issue in this judicial review, which is whether the relevant public authorities have acted lawfully in the context of the applicant’s case as accepted by the Court.  This will involve considering the evidence presented and whether or not it establishes that the officers of the relevant authorities have failed or neglected to take appropriate action in dealing with the applicant’s case as one involving human trafficking or forced labour.  I have borne in mind the respondents’ claim that because of the lapse of time they have been prejudiced in obtaining evidence in response to the applicant’s allegations and account of the events.  However, in relation to the matters under consideration the relevant public authorities have presented evidence, and the applicant has been subject to cross-examination by the respondents. 

21.  In light of the anonymity order, I have had to be circumspect when referring to the persons and entities involved in the applicant’s case.  It is for this reason that I have at times used general or brief descriptions to refer to such persons or entities.

Summary of the evidence

The applicant and his background

22.  The applicant was born in Pakistan, and is now aged 32.  He comes from a village in the Punjab province and I am told that he is a member of the Malik caste, which is considered a low caste in Pakistan.  He is the eldest of seven siblings.  He was educated to primary school level, having left school to provide for his family.  He worked as a labourer.  His native tongue is Punjabi but he is also reasonably fluent in Urdu.  His proficiency in English and Chinese is limited.

23.  In giving evidence before me, the applicant presented as a simple and timorous person who was easily overawed by his surroundings and by persons in authority.  He had a tendency to overstate or magnify matters, but I did not consider that that detracted from the essential truth of what he was saying.  I felt this was more a mannerism, attributable to his background and his way of speaking, especially to persons in authority.  It was clearly apparent that he had been brought up in a rural community and that he had received little education.  He struck me as a person who was strongly influenced by his cultural and social background, and quietly resigned to his station in life.  

The employer and his family

24.  The applicant knew the person who employed him in Hong Kong (the employer) as they came from the same village in Pakistan.  The employer comes from a prominent and well-connected family in the Punjab community.  The employer and his family have large landholdings and extensive business interests in Pakistan, as well as business interests in South Africa and Hong Kong.  I am told that the employer’s family belongs to the Rana caste, which is considered superior to the Malik caste.  

25.  In Pakistan, the applicant worked for the employer’s family from time to time doing labouring jobs. It appears that he was a good worker and was well regarded by the family.  After a while he was asked by the family if he would work for them in South Africa, but he did not have a passport and nothing came of it.  He was approached again to work for the family in South Africa, and this time he applied for a passport.  However, by the time he got the passport someone else had been arranged to take his place.  

26.  The applicant was issued with a Pakistani passport on 27 March 2006.[17]  He also had a Pakistani National Identity Card, which was issued on 30 June 2005 and was due to expire on 31 May 2014.[18]

Employment in Hong Kong from 2007 to 2010

27.  The family then approached the applicant again, but this time they asked him to work for them in Hong Kong.  He was told that he would work for them for a salary of about $4,000.00 per month, which far exceeded his monthly income in Pakistan of the equivalent of $450.  The employer also told him that he would not have to work that hard, as he would be required to do cleaning and help the employer with his mobile phone business.  The applicant was therefore particularly pleased and enthusiastic about taking up the job in Hong Kong.  He supplied the family with his identity documents and they arranged a Hong Kong visa for him even though he did not sign any papers.  He was unaware of the arrangements under which he was to be permitted to enter Hong Kong.  He did not know that as a foreign domestic helper it was not lawful for him to work in the employer’s office. 

28.  From the relevant records of the Immigration Department, it appears that the applicant applied for a visa for employment as a domestic helper in Hong Kong on 18 January 2007 and the employer made a corresponding application for his employment on 30 March 2007. The visa application has attached to it a reference letter from a former employee to the Immigration Department dated 17 December 2006, and a declaration and an undertaking from the applicant.  The employer’s application has attached to it a letter from the employer dated 11 March 2007 giving reasons why he wished to hire the applicant as a male domestic helper.[19]  In the letter, the employer stated that the applicant had been a family servant and was thus very familiar to them, and that his speaking the same language would be convenient in being able to communicate with him in performing domestic duties. 

29.  The applicant states that he has not previously seen these documents, and that the signatures they contain that are purportedly his are not in fact his. 

The first contract

30.  On 1 May 2007, the applicant travelled to Hong Kong accompanied by the employer’s sister, who took charge of his passport and attended to all the paperwork when entering Hong Kong.[20]

31.  According to the relevant records, an employment contract dated 6 January 2007 states that the employer was employing the applicant as a domestic helper commencing in June 2007 for a period of 2 years, on a monthly wage of $3,400 with a food allowance of $300.[21] Also contained in the records relating to the contract is a letter from the employer providing reasons for hiring a male domestic helper dated 3 April 2007, a letter from a previous employer dated 17 December 2006, and an acknowledgement of receipt of contract dated 30 March 2007.  

32.  The applicant states that he had no knowledge of this contract and did not sign it.[22]  He does acknowledge, however, that it is possible that he may have had documents presented to him to sign in a language which he could not read.

33.  The applicant states that throughout his employment his passport and other identification documents were kept by the employer.  When he later renewed his visa he was accompanied by one of his employer’s associates to the Immigration Department.  This person took back his passport after the visa was issued.

34.  It is recorded in the applicant’s passport that he entered Hong Kong on 1 May 2007.[23]  Later, on 8 May 2007, the applicant was issued with a Hong Kong Identity Card.[24] 

35.  The applicant states that from the moment he arrived in Hong Kong he was treated very differently by the employer and the employer’s family.  Previously, he had had good relations with them, despite the applicant’s inferior caste and low economic status.  However, on his arrival in Hong Kong, the applicant was assigned to reside at the office premises of the employer’s mobile phone company.  He slept on the carpeted floor in one of the offices.  He was required to work from 10 am until 1 am at night, checking phones and packing them into cartons.  He was also required to clean the office after others had left.  He worked 7 days a week, and whenever a large number of shipments came in he would have to work throughout the night.  On Sundays he was required to buy groceries for the employer’s household.

36.  The applicant states that the employer suggested to the applicant that he save his salary for him, because if he sent his monthly salary to his family they would spend it all. His employer told him that he would pay his salary at the end of his two-year contract as a single lump sum.  He believed at the time that the employer was giving him friendly advice.  The applicant discussed the arrangement with his brothers, and as they were working and earning incomes, they agreed. 

37.  By way of an aside, this illustrates to some extent that it is not uncommon for families in these circumstances to work together and for each other, and helps show why disputes between individuals sometimes escalate into disputes between families. 

38.  The applicant states that on the third day of his employment, the employer slapped and abused him for not operating a packaging machine properly.  The applicant complained about being assaulted to the father of the employer.  The father got angry with him and reprimanded him.  Later, there was talk that the applicant wanted to leave but he was told that the family had spent a lot of money bringing him to Hong Kong, and that if he wanted to leave he would have to repay them first.  He was told not to seek employment elsewhere or he would be killed, and his family in Pakistan would be harmed. 

39.  According to the applicant, he was regularly beaten by the employer whenever he was displeased with him.  Over time the beatings became more severe.  On some occasions, the beatings resulted in him being bloodied and in severe pain, but the employer refused to allow him to seek medical attention.  The applicant states that he was constantly subjected to beatings throughout his period of employment,[25] but did not report these incidents to the police as he feared for his safety and that of his family.[26] 

40.  The applicant states he was not paid throughout his employment, but was able to live because he was provided with two meals a day, one around noon and the other around midnight. He obtained other daily necessities from other workers and what was in the office, and occasionally received clothing from the employer’s mother. 

41.  The applicant also states that he was not allowed to leave the office without permission, although he acknowledges that he did go out for work duties and on other occasions by himself.

42.  It is quite clear from the applicant’s evidence that the nature and terms of the employment as implemented by the employer were contrary to the applicant’s employment contract as a foreign domestic helper, and to the employment regulations and laws of Hong Kong.

43.  Even though the applicant was badly treated by the employer, he states that he continued to work for him because he felt dependent on him, he had no other alternative means of support, and he expected that his salary, which was high according to standards back home, would eventually be paid.  He put up with the way he was treated even though he felt unhappy and depressed as a result.  He thought about leaving but he feared that the employer would seek revenge against him and his family.[27]

The second contract

44.  The applicant was initially told by the employer that he was employed under a two-year contract and that he would be paid at the end of it.[28] Shortly before the completion of the contract, the employer arranged a two-year extension of the contract with the Immigration Department. 

45.  On 15 April 2009, the Immigration Department received an application purportedly from the applicant for an extension of stay as a foreign domestic helper.[29] 

46.  In May 2009, a further employment contract was purportedly entered into by the applicant.[30]  The applicant states that he did not know of the existence of this contract. 

47.  According to the relevant records, the employer entered into a second employment contract with the applicant commencing in May 2009, at a monthly wage of $3,580 with a food allowance of $300.  The applicant’s limit of stay in Hong Kong was extended until 1 May 2010 or two weeks after termination of contract, whichever was earlier.[31] It would appear that for the purpose of renewing his visa in relation to the second contract, the applicant travelled to and from mainland China on 8 and 9 November 2009.  Upon his return, his limit of stay in Hong Kong was extended until 1 May 2011 or two weeks after termination of contract, whichever was earlier.[32]  

48.  The applicant asked the employer for his unpaid salary, which had by then accumulated to $96,000.  His employer told him that he would be paid his remuneration under both contracts at the end of the second contract period.[33] The applicant became concerned that his employer would not pay him his salary.

49.  On one occasion, from 9 February to 3 March 2010, the applicant travelled to and from Pakistan to assist in a wedding of the employer’s family.[34] He said that he did not run away when he was back in Pakistan because there was nowhere he could go.  In any event, he feared that if he did run away his family would be harmed. 

Return to Pakistan

50.  In early December 2010, the applicant asked to be paid the salary owed to him so that he could send money to his brother to start a business, and also provide a dowry for his sister to get married.[35]

51.  About a week later, the employer suggested to the applicant that he take some time off and return to Pakistan for a holiday.  The employer told him that he could stay for a month before coming back to Hong Kong to continue with his contract. 

52.  On 7 December 2010, the employer’s cousin accompanied the applicant to the airport and handed over his travel and identification documents to him.[36]

53.  Upon his return to Pakistan, he was told by the employer’s family that his contract and employment visa with the employer had been cancelled and he could not claim any wages.[37]  He was told to forget about being paid. 

54.  On 5January 2011, a letter was sent from the Immigration Department to the applicant, stating that it had come to their attention that his employment contract had been terminated from the default date of 7 December 2010.[38]  The employer had submitted a letter to the Immigration Department informing them that the applicant had terminated his contract on 7 December 2010 and had left Hong Kong on the same day.[39]

Attempting to recover the unpaid wages

55.  Back in Pakistan, the applicant realised that he had been deceived and began demanding payment of his salary from the employer’s family.  He approached various members of the employer’s family over the matter but was soundly rebuked by them and told not to demand his money.  He and his family were threatened, and he was told that if he did not leave the village he would be killed. 

56.  The applicant took the threats seriously, and on the advice of his parents left the family home and moved around from city to city in Punjab.[40] For about a year he lived in hiding from the employer’s family.  He was warned by his family that the employer’s family were looking for him.

57.  The applicant claims that in February 2012 his brother was arrested in Pakistan on a false claim, but in the end the case did not proceed.[41]

58.  The applicant states that because of the power and position of the employer’s family within his community, he and his family were unable to complain to the police or do anything about the situation. 

59.  Eventually, the applicant decided that he would pursue his claim against the employer, as the amount owed to him was substantial and he was concerned about the threats made against him and his family.  He decided to return to Hong Kong in the hope of being able to press his claim against the employer. 

Return to Hong Kong

60.  At the end of March 2012, the applicant attempted to obtain a visa for Hong Kong from the Chinese embassy, but was unsuccessful.  He then approached a travel agent about obtaining a visa, but that was also unsuccessful.  He met an agent outside the Chinese embassy who said he could help him.  The agent arranged a visa for him to travel to China, from where he would travel to Hong Kong.[42]  He initially believed the arrangement was lawful but realised later when he was boarding a fishing boat bound for Hong Kong from mainland China, on 4 April 2012, that he was being smuggled into Hong Kong.[43] The respondents contend that according to their records the date of illegal entry into Hong Kong by the applicant was in February 2012.[44] 

61.  The applicant states that he was able to afford his return to Hong Kong because his parents assisted him in financing the trip.

Seeking redress against the employer

62.  Concerned that he had entered Hong Kong unlawfully, the applicant went to the Immigration Tower in Wan Chai to explain his situation and to surrender himself to the authorities. He also wanted the authorities to help him seek justice for the treatment he had received at the hands of the employer.  He produced his passport and Hong Kong Identity Card for the officer and explained that he had come to Hong Kong by boat.  He further explained that his purpose in coming to Hong Kong was to obtain his unpaid salary from his employer, whose name was recorded in the visa contained in his passport.[45] He says he was referred by the officer to attend their office at Skyline Tower in Kowloon Bay.  He went there but the office was closed.  

63.  The next day, the applicant returned to Skyline Tower, where he was interviewed by a female immigration officer.  The applicant explained to her that the purpose of his returning to Hong Kong was to recover his unpaid salary from his employer.  The officer checked his identification documents, consisting of his passport and Hong Kong Identity Card.  The applicant explained that he had been referred to them by the Immigration Department at Wan Chai and that he had come to Hong Kong to obtain his unpaid salary from his employer.  He further explained he had worked in Hong Kong for almost 4 years but never received any salary.  He said: “My boss beat me and used dirty language” and “his [the employer’s] cousin disturb my life in Pakistan”.  The officer said it was a police case and told him to go to Tsim Sha Tsui Police Station.[46]

64.  The applicant then went to the Tsim Sha Tsui Police Station.  He was seen by a police officer.  The applicant told him that he did not have a visa, and that the officer should arrest him.  The applicant explained his situation and produced his passport. The police officer checked it to see if he had a visa, and noted the name of the employer recorded in his previous visa.  The applicant told him that he had worked in Hong Kong for 4 years but had not been paid.  He attempted to explain to the police officer about the treatment he had received at the hands of his employer using his limited English, saying “he hit me”, “he no pay me”.  He also told the police officer that he had been to the Immigration Department offices at Wan Chai and Skyline Tower and they had told him to go to the police station.  The police officer said it was an immigration case and told him to leave.[47]

65.  The next morning the applicant went to the police station in Yau Ma Tei in the hope that someone there would listen to him.  He was seen by several police officers and basically repeated what he said at the other police station, including that he had worked for 4 years in Hong Kong but was unpaid, that he had come to Hong Kong to get his unpaid salary, and that his employer used to beat him.  He produced his passport and Hong Kong Identity Card and said he wanted to be arrested to be safe, as his employer wanted to kill him.  He explained he had already seen various authorities but they told him it was not a police matter.  The police officers sent him back to Skyline Tower.[48]

66.  The applicant returned to the office at Skyline Tower.  He was seen by the same female officer as previously. He told her that he had seen the police, but they had not arrested him and had referred him back to Skyline Tower.  She enquired about his situation, and he told her that his employer owed him money and that he had been badly treated by him during his employment.  She asked him what he wanted and he said he wanted to get his unpaid salary from his employer.  She advised him to take his dispute to the Labour Department.[49]

67.  The three visits to the offices of the Immigration Department are doubted by the 2^nd respondent, as there are no records of these visits.  There is also no record that Immigration Department officers referred the applicant to the police.[50]

68.  The applicant’s account as to what happened when he returned to Hong Kong to press his claim for his unpaid salary against the employer is that he was shunted from one government authority to another.  He told the officers concerned that he had been maltreated and that his employer had refused to pay him his salary for a period of nearly 4 years.  He produced his passport and Hong Kong Identity Card, which proved that he had worked and lived in Hong Kong as he claimed. 

69.  I should say that it is surprising that no action was taken as a result of the applicant’s illegal entry into Hong Kong, but that may have been due to the unusual circumstances of the case or a failure by the officers concerned to understand or take responsibility for the case.

70.  It seems that the officers concerned did not appreciate sufficiently, if at all, that the applicant may have been a victim of human trafficking for forced labour.  The telltale signs were the applicant’s  claims  that he had been brought to Hong Kong by a fellow countryman who had mistreated him, and then returned him to their home country having not paid him his salary for nearly 4 years.  On its face, this warranted investigation.

The Labour Tribunal claim

71.  There is some confusion in the applicant’s account as to when he went to the Labour Department. However, it is confirmed that, on 2 May 2012, he attended the Labour Department and spoke to a female officer, using the assistance of a person whom he had met outside the Cheung Sha Wan Government Offices as an interpreter.[51]  

72.  The applicant gave his identification documents to the female officer and told her that he had worked for his employer for 4 years and had not been paid.  The officer appeared surprised and asked the applicant for his contract.  He explained that he knew nothing of his contract, and that his passport and his Hong Kong Identity Card had been kept by his employer during the course of his employment.  She asked him about his holidays and days off, to which he responded that he had received none.  He also told the officer about the beatings that he had been subjected to while he was working for his employer.  The officer prepared the paperwork for the applicant’s claim.  

73.  The claim against the employer was for unpaid wages for the sum of $220,310.59.[52]  The following note is contained in the brief background to the claim:

“My employer agreed with me to pay HK$4000 each month but I was employed with [name of the employer mentioned], since 2007, till 05-12-2010 and I was not paid anything during my service.  Whenever I asked for the wage, [name of the employer mentioned] told me a new story and refuse to pay me, while later on one of my friend want to take me to labour department and immigration department for claim [the name of the employer mentioned] booked my ticket (Air ticket) and sent me back to Pakistan and terminated me from employment without prior notice and later harassed me in Pakistan, saying that “If I come back to Hong Kong, he might kill me”.  I need your help in this regard.  Please help me.  I wish to proceed with my case directly to the Labour Court.”[53]

74.  The officer asked him to sign certain documents, but he told her he did not know how to sign.  She told him to write his name as stated on his identity card.  He did this, and then the officer gave him the address of the Labour Tribunal and told him to go there.[54]

75.  The employer was notified of the claim as required under Labour Tribunal Procedures. 

76.  The applicant complains that the Labour Department did not investigate the possibility that he might have been a victim of human trafficking, and did not otherwise assist him in light of the circumstances of his case. 

77.  The Labour Department states that there is no evidence to show that the applicant told staff during the consultation session about such matters as non-domestic duties and physical abuse.[55]

Threats and attacks against the applicant and his family

78.  After the applicant had registered his claim at the Labour Tribunal, the employer and his family members and associates again attacked and threatened the applicant in Hong Kong, and also his family in Pakistan. 

79.  Between March and July 2012, the employer and his family members and associates threatened the applicant on the phone and in person.[56]

80.  In early May 2012, the applicant attended the Tsim Sha Tsui Police Station and the Yau Ma Tei Police Station respectively to report various telephone threats made to him by persons on behalf of the employer’s family.  He was told to go away as there was no Urdu interpreter available.[57]

81.  These claims are doubted by the 3^rd respondent, as no records have been found of such reports by the applicant.[58]

82.  One of the incidents the applicant reported to the police occurred on 17 May 2012.  After receiving a threatening call from the employer’s cousin, the applicant went to the Tsim Sha Tsui Police Station and made a report.  He spoke to a police officer who asked him what kind of interpreter he needed, and he replied Punjabi.[59]  He was not shown a list of languages.  For some reason the report was rejected by the police officer. 

83.  Later the same day, at the Star Ferry, he had a chance encounter with associates of the employer, who reported his whereabouts to the employer.  Upon being threatened by them, he went to the police station and made a report.  He was requested to make a statement, and arrangements were made for him to come back later to the Tsim Sha Tsui Police Station to do so.[60]

84.  It was on 28 May 2012 that the applicant went back to Tsim Sha Tsui Police Station to make a statement to the police.  Although he was aided by an interpreter, he claims that the interpreter failed to accurately report important details, such as the applicant having been directly threatened, and that people had been paid to kill him in relation to his claim.  His statement resulted in the police suggesting that he move away from where he was residing, and only return when the Labour Tribunal case was concluded.  The police officer and the interpreter (who could speak Urdu) cannot recall anything beyond what was written in the witness statement.  The 3^rd respondent claims that the interpreter has a good performance record, and would have fully and accurately interpreted what was said.[61]

85.  On 27 May 2012, late in the evening, a number of men associated with the employer, who are named, disturbed the applicant’s family members in Pakistan.  The family members were slapped and taken to the Thekriwala police station in a truck, where they were forced to call the applicant and tell him to withdraw his claim.  The men also warned the applicant’s family members that they would be framed with false cases and face trouble in the village if the applicant continued with his complaint.  There were two guests at the family home of the applicant in Pakistan who witnessed this incident.[62]  The applicant says that his father was arrested on this occasion.  He says he was telephoned from the police station and told by a police officer and a village head to withdraw his employment claim against the employer, and come back to Pakistan.  The applicant claims that this was on the instructions of the employer’s family, with the intention of forcing the applicant to return to Pakistan.[63] 

86.  The applicant also states that in November 2012, his brother was arrested and falsely charged for theft.  He says that video footage, which the police initially claimed to have lost, proved that his brother was not at the scene of the crime when it was alleged to have occurred. 

87.  The applicant states that he supplied supporting materials in relation to these matters during the screening interviews he underwent in relation to a torture claim. 

The Labour Tribunal hearing

88.  On 27 June 2012, a member of the Labour Relations Division issued a memorandum to the Labour Tribunal.  The memorandum informed the Labour Tribunal that the applicant’s case was one in which the applicant wished to seek the Labour Tribunal’s adjudication directly, without going through the Labour Relation Division’s conciliation service.[64] 

89.  On 3 July 2012, the applicant states he was given a letter by the Labour Department notifying him of the date of the hearing at the Labour Tribunal, which was scheduled for 9:15 am on 26 July 2012.[65]

90.  This is doubted by the 4^th respondent, as the Labour Tribunal issues such notification letters as a matter of standard practice on the date of the Labour Tribunal hearing direct to claimants without going through the Labour Department.[66]  I should say that I am not quite sure what this means, as some form of prior notification must have been given to the parties of the hearing date.

91.  Before the Labour Tribunal hearing, the applicant received a call from the employer in which the employer said that he and his family would be killed if he did not settle the claim.[67]

92.  The applicant states that he arrived early for the scheduled hearing and found that the employer was already there.  He says that the employer was surprised to see him, having expected that he would not attend because of the threats that had been made against him. He also says that the interpreter arrived late, so there was a late start to the hearing. 

93.  According to the applicant, he was asked to produce his employment contract but he was unable to do so, saying that he had always thought it was a verbal contract.  During the hearing, the interpreter continuously instructed the applicant only to reply to the presiding officer’s questions, and said that he did not need to tell the full story.  When the applicant tried to tell the presiding officer about how the employer’s brother had threatened to kill him, as well as to describe the beatings that he had suffered, the interpreter stopped him.  The interpreter told him, “you only need to talk about money, when you get a lawyer then you can tell your story to your lawyer.  This hearing is about your claim, the judge is only going to ask about your wages and you only need to answer that.”[68]  The applicant tried to tell the presiding officer his story and explain how much the employer owed him.  He managed to say “no holidays”, “no salary” and describe the location of the work place.[69] The presiding officer questioned him about his illegal entry into Hong Kong and urged him to settle the claim.  The presiding officer noted that there was a six month deadline to claim any salary owed, and this had passed.  The presiding officer told him that as a result he would not be able to claim back his salary.  However, the presiding officer directed the parties to see if they could reach a settlement on the claim.[70]

94.  The applicant states that he felt pressured to settle the claim as a result of what had transpired at the hearing.  He says he did not have a lawyer, and felt that he was unable to tell his story to the presiding officer because the interpreter kept on telling him just to answer the questions asked of him.[71]  Even though the original claim was for $220,310.59, it was settled on the basis that the employer would pay the applicant $32,500 in cash in court.[72] 

Continued threats by the employer

95.  The employer continued to intimidate the applicant despite the settlement.  Fearing for his safety, on 27July 2012 the applicant went to Skyline Tower where he explained that he wanted to be arrested because he feared he would be harmed.  He was sent to Tsim Sha Tsui Police Station.  At the police station, the police advised him that because he was receiving threatening phone calls he should change his phone number.[73]

96.  On 18 August 2012, after being stalked by the employer’s men, the applicant went to the Tsim Sha Tsui Police Station.  The applicant states that on this occasion, the police summoned the employer, who attended.  He says that the employer threatened him in front of the police.  He says the police did nothing about it apart from suggesting that he should avoid going back to where he resided.  The applicant had to sleep in the park that night in order to avoid his employer.[74] 

97.  The visit is doubted by the 3^rd respondent, as there is no computer record of these events. The 3^rd respondent also notes that no CCTV footage could be retrieved because of the lapse of time.[75]

The robbery offence

98.  In the early hours of 26 August 2012, the applicant was waiting for a friend in Yau Ma Tei.  He states that he was attacked by the employer’s brother and four others, who beat him and tried to push him into a car.  He broke free and called the police.  By the time the police got to the scene, the employer’s brother and two others had left.  When the police arrived they spoke in Chinese to the two men who remained, who were associates of the employer.  The police then arrested the applicant, who was not able to communicate with them.  The two men made statements to the police in which they claimed that one of them was attacked by three men, including the applicant, who snatched his bag.[76] 

99.  On 27 August 2012, a police officer took a statement from the applicant.[77] The applicant requested that the police officer check to see if the fingerprints of the person who he named were on his shirt and other belongings, but the officer refused.  The applicant also explained his situation to the police officer, and said that it was his former employer’s gang that had attacked him.  It appears the officer did not believe him.

100.  The applicant was charged with robbery and illegal entry to Hong Kong, and was remanded in custody from early September 2012 until the conclusion of his trial on 20 February 2013.[78]

101.  On 4 September 2012, a person who the applicant named visited him in prison and threatened him, saying that he should confess to the robbery charge and that if he did not, he and his family would be killed.  The applicant states that he immediately informed the prison officers about the threats, but they said that they could not arrest the person and that he should write a letter to the police.[79]

102.  The applicant followed the matter up by writing a series of letters to the police, including a complaint to the Department of Complaints against Police Officers, but no further action was taken.[80]

103.  On 18 February 2013, the applicant was put on trial in the District Court for the robbery offence, having pleaded guilty to the illegally entering Hong Kong offence for which he was sentenced to 6 months’ imprisonment.[81]

104.  After trial, on 20 February 2013 the District Court Judge acquitted the applicant of the robbery offence.  The two men who alleged they had been robbed by the applicant were not believed, and the Judge in her reasons said that the applicant’s action of calling the police “were wholly irreconcilable with that of a robber”.  The Judge accepted the applicant’s evidence and found of relevance to these proceedings that he had made a report in May 2012 of criminal intimidation, and that he had at no time hidden himself from the authorities.[82]

105.  The Judge briefly set out in her reasons the applicant’s account as to what happened, namely that he had been assaulted by the employer’s brother together with these 2 men and 2 other men.  She points out that the motive for the assault was his claim against his former employer for unpaid wages.  Curiously, she refers to the employer as PW3, which would indicate he gave evidence at the trial.[83]

The CAT claim

106.  On 22 February 2013, the applicant was released from custody, having served his sentence of 6 months’ imprisonment for the offence of illegally entering Hong Kong.[84]  However, he was detained by the Immigration Department and notified that a deportation order would be sought against him.[85]

107.  As a result of the ordeal he had gone through with the employer and his family, he was concerned about returning to Pakistan.  He therefore sought protection as a torture claimant.

108.  On 18 March 2013, the applicant was interviewed by Immigration Department officers.  He informed them that because of his circumstances he wished to submit a claim under the provisions of the Convention Against Torture (CAT).[86]  Further action to remove him was suspended, and he was released on recognizance, pending processing of his claim.[87]

109.  At the screening interviews, the applicant gave a detailed account of his dealings with the employer and his family.[88]

110.  On 10 September 2013, the applicant’s CAT claim was rejected.  He appealed the decision, but the appeal was also rejected on 16 April 2014.[89]

111.  In the meantime, the applicant had become attached to a local Chinese woman.  They were married on 1 June 2013.[90] He is now pursuing an application to remain in Hong Kong as a dependant of a Hong Kong Permanent Resident.[91]

112.  The applicant complains that in dealing with his CAT claim the relevant officers, as with the other officers of the Immigration Department, the Labour Department and the Police, treated his case as a dispute over payment of wages, and made no further inquiries into the possibility of human trafficking for forced labour.  As a consequence, the applicant had not been recognised by the HKSARG as a victim of human trafficking for forced labour, and had not received any support or assistance in this regard.

Subsequent police complaint

113.  Throughout the course of 2014 and 2015, the applicant received multiple threats from the employer’s cousin, as well as threats made in anonymous phone messages and calls.[92]

114.  On 16 July 2015, the applicant made a complaint to the Wan Chai Police Station in relation to his case, and raised concerns about his personal safety because of messages and calls he had received.  He made the complaint together with his legal representative, Ms Patricia Ho of Daly and Associates. 

115.  The applicant states that Ms Ho provided the police officer they saw with brief facts and details about his experience with his employer, including his history of employment with the employer and his efforts in seeking redress against the employer in Hong Kong.  He says she explained to the officer the circumstances of the applicant’s entry into Hong Kong, how he was deceived, the employer’s involvement in gangs, as well as the fact that he had been subjected to repeated beatings, death threats, and false accusations against him.  She highlighted the fact that he had had a claim against the employer in the Labour Tribunal, and that he had been acquitted in District Court proceedings after the employer and his associates framed him for the robbery case in 2012.  She mentioned this judicial review to the officer, explaining that the matter involved issues of human trafficking. 

116.  The officer concluded that there was at that time no direct threat involved and that, based on the information provided, the situation only constituted acts of disturbance.  A senior officer was similarly briefed.  He suggested that the matter should be taken to the Immigration Department.[93]

117.  In response, Chiu Peng Fai, on behalf of the 3^rd respondent, states that the relevant case report records that this was a report by the applicant that he had received nuisance phone calls and a message concerning a newspaper article about the applicant’s judicial review case.  It was recorded that the applicant was worried about his identity having been disclosed, and the report was initially classified as “Miscellaneous Incident”.  He also states that the applicant had not reported to the police officer that he had been abused by his employer, nor did he make a complaint about his working conditions during his employment.[94]

Challenge to the applicant’s evidence

118.  The respondents point out that there is no factual basis to support the allegations that the applicant was brought to Hong Kong by deception as to his conditions of work, or that he was forced to continue working by means of menaces of penalties. They take issue with the applicant’s claim that he never saw the visa application papers or his employment contract at the material time, and that he did not sign them.  They note that on the applicant’s own admission he was free to go to the market every Sunday for grocery shopping.  They point out that there was nothing to stop the applicant from reporting the allegations to the authorities throughout the employment period, but no action was ever taken by him.  They question how the applicant, having been denied wages for 4 years, had the means to pay to enter Hong Kong illegally in 2012.  On this point, the applicant’s explanation is that his parents provided him with the funds to return to Hong Kong by selling livestock they owned.

119.  The respondents take issue with the applicant’s claim of mistreatment by his employer, and note that there are no contemporaneous records or any other independent objective evidence regarding the physical and medical condition of the applicant in the period of his employment.  It is argued by the respondents that it is difficult to reconcile the applicant’s complaints of maltreatment by his employer with the fact that the employer arranged and paid for the applicant’s air travel back to Pakistan. 

120.  I have to say that these and other points made by the respondents are not that straightforward. They need to be considered against the background of the totality of the circumstances of the case, including the backgrounds of the individuals involved.  The applicant was a foreign worker, working and living in a foreign environment.  The employer kept the applicant under control and largely confined him to office premises.  This illustrates how the system can be abused.  Accepting what the applicant said was the case, the applicant was returned to Pakistan whereupon the employer terminated his contract and withdrew his sponsorship, thereby preventing him from being able to return to Hong Kong.  The fact that the employer paid for the applicant’s air travel back to Pakistan before the expiration of his contract could be viewed as a convenient way of removing the applicant from the jurisdiction in order to avoid paying him his salary and preventing him from seeking redress in Hong Kong.

121.  The respondents correctly point out, however, that the applicant did not make contact with the police or other authorities for assistance at the time that he says that the physical abuse, maltreatment and intimidation allegedly took place, between May 2007 and December 2010.  They point out that as there were no reported complaints to the authorities by the applicant, there was no reason for them to investigate or take any other steps during that period in relation to the alleged human trafficking or forced labour, or any other unlawful conduct. 

122.  The respondents question how the applicant was able to provide for himself if during his period of employment he was completely deprived of all of his wages, although the applicant acknowledged that the employer provided sleeping accommodation at the employer’s office premises and meals.  It appears from the applicant’s account that he basically relied on handouts.

123.  It is the applicant’s case that he first made contact with the authorities after his illegal return to Hong Kong in April 2012.  The respondents point out that the applicant returned to Hong Kong not to seek redress from anyone for having been a victim of human trafficking or forced labour, but to claim for wages earned but allegedly unpaid.  They also point out that after his return to Hong Kong the reports he made to the police concerned alleged criminal assaults and threats.

124.  I have to say that I find this argument inaccurate and fatuous, for the following reasons.  First of all, considerably more was said by the applicant in pressing his claim for unpaid wages in the context of his past employment when he dealt with the officers of the relevant authorities.  Whilst the applicant’s motivation was to recover his unpaid wages, he also revealed information in relation to a serious abuse of labour.  Secondly, victims of human trafficking or forced labour may not be in a position to understand the niceties of the law or appreciate the nature of the serious wrongdoing being committed against them.  They are generally in a state of ignorance as to the rights and remedies available to them.  This is particularly true in the broader category of cases of human exploitation in which victims are targeted because of their vulnerability and lack of appreciation and understanding of their rights and remedies, especially when they are brought from one jurisdiction to another.  After all, the law is there to help those who cannot help themselves.

Visits to the Immigration Department

125.  It is the applicant’s case that after he arrived in Hong Kong he went to the office of the Immigration Department four times within a three-day period in early April 2012.

126.  The respondents point out that according to the applicant’s case, the main focus of these visits was to surrender to the relevant authorities, given that the applicant knew he had arrived in Hong Kong illegally.  They also point out that the only purpose of his coming back was to get his unpaid salary from his employer.  It is true that the applicant came back to get his unpaid salary, but he also returned to receive justice for the way he was treated by his employer.  The applicant claims that the employer brought him to Hong Kong and then sent him back to Pakistan, having abused him during the course of his employment, in order to avoid paying him his salary.  It was as a result of his employment in Hong Kong and the treatment he received at the hands of his employer that he made his claim for the unpaid salary. 

127.  The respondents note that the applicant mentioned in one visit that he had been beaten by his employer, following which he was referred to the police.[95]  They point out that according to the applicant’s own account, he did not raise the complaint of physical abuse when he visited the Tsim Sha Tsui Police Station.[96]  That appears to be the case from the exchange he says he had with the police officer.  However, he did explain that he had come back to Hong Kong illegally to claim 4 years of unpaid salary.  It would appear that he was not listened to, and told to return to the Immigration Department. 

128.  The respondents point out that there are no records at the Immigration Department of the claimed visits by the applicant, or any record that the Immigration Department referred the applicant to the police after he arrived in Hong Kong.[97]  They submit that the Immigration Department has checked all its records and made enquiries with all its officers about the alleged visits by the applicant, but nothing has been revealed.[98] It is submitted by the respondents that if the applicant did report a crime or surrender himself to the Immigration Department during the visits as he has claimed, this would have been reported at the time and processed in accordance with the established procedures under the internal guidelines dealing with these matters.[99]

129.  The respondents further submit that, even assuming that the applicant did visit the offices of the Immigration Department in early April 2012 as he claims, since the focus of the visits was on his unpaid salary, it is unlikely that the Immigration Department’s staff would have been alerted that the applicant was a victim of human trafficking or forced labour, and that there was no reason for them to have been alerted of this. 

130.  Having observed and listened to the applicant give evidence, and bearing in mind all the evidence that has been presented, I have no doubt that the applicant visited the Immigration Department as he has claimed.  The fact that there is no record and that no one has any recollection of the visits by the applicant does not mean that the visits did not take place.  It may be the case that, due to the unusual nature of the applicant’s situation, the officer or officers who saw him at the Immigration Department simply did not understand him or the nature of his problem.  Of greater concern would be if the officer or officers either did not appreciate or did not care that the matters being raised by the applicant possibly constituted a case of human trafficking or forced labour.

Visits to the Labour Department

131.  The applicant’s case is that on 2 May 2012 he visited the Labour Department and registered a claim for wages, which was calculated at the sum of $220,310.59.  The respondents point out that the focus of this visit by the applicant was entirely on his claim for unpaid wages.  It is noted that the staff at the Labour Department assisted the applicant with the paperwork with respect to his claim.[100]  It is also noted by the respondents that the applicant mentioned to the staff that he had been beaten by his employer, but this is referred to dismissively as “a brief mention by him”.

132.  It is submitted that the Labour Department has been unable to identify any staff working at the Kowloon East office on 2 May 2012 who can recall assisting the applicant.  Whilst this may be understandable given the lapse of time and the number of consultation and conciliation cases that are handled by the staff, this was nevertheless an unusual case that concerned very serious allegations of abuse and physical violence and the non-payment of wages for a period of nearly 4 years.  I would have thought that the nature of the case was one that the officer involved would have recalled, given the information that was recorded in the claim form.  However, it is not in dispute that what the applicant says took place did occur.[101]

133.  It is submitted that when relevant staff of the Labour Department are informed that an employee might have been physically abused, the usual practice is to advise the employee to seek assistance from the appropriate authorities, including the police.[102]  The Labour Department claims that it does not have any record to indicate that the applicant informed the relevant staff of the Labour Department about his alleged physical abuse.[103] I accept the evidence of the applicant.  It would appear that for some reason, as sometimes does happen, no record was made.

134.  The respondents submit that the Labour Department’s involvement in relation to the applicant’s matter was only to register his employment claim against his former employer and facilitate him in making his claim in the Labour Tribunal.  It is argued that since the focus of the applicant’s visit was to claim the unpaid wages, and since there is no record to suggest that the applicant did in fact inform the staff concerned about his having been subject to physical abuse, it is unlikely that the Labour Department staff would have been alerted to the fact that the applicant was a victim of human trafficking or forced labour, and there was no reason for them to have been alerted of this. 

135.  This submission presupposes that the applicant did not mention that he had been subject to physical abuse in relation to his employment claim.  Given the purpose of his attendance, and the detail that was required to be taken in order to register the applicant’s employment claim, I am satisfied that he did reveal the maltreatment that he had received at the hands of his employer and the fact that that he had been subjected to physical abuse.

136.  It also seems unlikely, in my view, that the staff concerned at the Labour Department would not have been alerted by the nature and seriousness of the applicant’s claim, given that he was making an employment claim of over $200,000, representing unpaid wages as a foreign domestic helper for a four-year period.  In other words, he was claiming he was treated as an unpaid servant for 4 years.  This in itself was a very serious matter.

Visits to the Police

137.  The applicant made a number of visits to the police to lodge complaints or make reports of incidents in relation to the employer.

138.  The respondents submit that the police have no records of the first two visits to the police in early April 2012 as claimed by the applicant.  There are no records showing that the applicant went to the Tsim Sha Tsui or the Yau Ma Tei Police Station in that period.[104]

139.  The respondents acknowledge that there are records indicating that the applicant attended the Tsim Sha Tsui Police Station on 17 May 2012.  However, his complaint was not in respect of his treatment while he was a foreign domestic helper, but concerned an allegation of a recent threatening phone call.  The brief summary record of the applicant’s complaint states that the applicant said he had been warned and told to be careful, in a call which he believed was to persuade him not to pursue the labour suit against his former employer.  It also states that the applicant said he only wished to make a report, and did not wish to further pursue the case.  The complaint was classified as a “misunderstanding”.[105] 

140.  On 28 May 2012, the applicant attended the Tsim Sha Tsui Police Station and made a witness statement concerning threats that had been made to him by the employer.[106]

141.  The respondents point out that the applicant now alleges that the statement was not interpreted to him even though the witness statement indicates it that it was interpreted. What is indicated is that the statement was made with the assistance of an Urdu interpreter.  The applicant states that the statement was not interpreted to him and that it left out “many facts”.[107] The police have made inquiries with the police officer and the interpreter in question.  Whilst they do not have any independent recollection of the matter, they have both confirmed that it is their practice to appropriately record and interpret what is said by a witness.  I am not prepared to place too much reliance on their claims, as they have no specific recollection of the event.  It could be that only the salient matters were recorded, given this was a report only.

142.  The point made by the respondents, however, is that according to the applicant’s own case, this visit focused primarily on the allegation of receiving a threatening phone call on 17 May 2012 and that there is no suggestion that the applicant mentioned anything about his treatment as a foreign domestic helper apart from the fact that he was pursuing a labour claim for unpaid wages. 

143.  I think this is treating the matter too simplistically.  From what is recorded, the applicant made it clear that he had been warned and threatened not to pursue his claim for unpaid wages as a foreign domestic helper against his former employer, and that he made the report to the police to protect himself, even though it is recorded that he said he would not pursue the matter in court proceedings.  He had been warned not to go back to his residence, and it is recorded that he said that he would arrange another place to stay until his claim was completed. 

144.  By way of explanation, the respondents submit that the applicant was not seeking protection from human trafficking or forced labour, and that there was no reason for them to have been alerted of this.  They argue that according to the applicant’s case, the focus of his visit was not on his treatment as a foreign domestic helper.  Rather, he wanted to be arrested due to fears for his safety and recent allegations of criminal intimidation.  This argument takes a very blinkered view of the matter. 

145.  The respondents also note that there is no record of the applicant’s visit to the Tsim Sha Tsui Police Station on 27 July 2012 when he says he was turned away, or on 18 August 2012 when he says the police summoned his employer.[108]  I find there is no reason to disbelieve the applicant in relation to these attendances, despite the lack of police records. 

Other proceedings

146.  On 26 July 2012, the applicant appeared before the Labour Tribunal with respect to his claim for unpaid wages against the employer.[109] The claim was settled for the sum of $32,500.  The applicant claims that he was forced to enter into this settlement because of threats made to him and his family. 

147.  The respondents rely on the transcript of the proceedings, particularly the exchange between the presiding officer and the applicant.  They state that these comments were made in the context of an explanation by the applicant for his claim for unpaid wages, and were not a detailed explanation of his treatment by his ex-employer.  I do not agree.  What is clearly apparent from the transcript is that the applicant gave a consistent account of what happened to him during his employment with the employer, and of his subsequent return to Hong Kong and his dealings with the authorities.  It would seem that the presiding officer was focused on the amount of the claim and whether the parties could settle it in light of the fact that the salary claim was out of time.

148.  On 18 February 2013, the applicant was prosecuted in the District Court for the offence of robbery.[110]  The respondents make reference to his testimony in those proceedings, in which he mentions his visits to the police on 17 and 28 May 2012.  They note from his evidence that the purpose of these visits was in respect of the alleged threats he received after he returned to Hong Kong.[111]

149.  The respondents emphasise that the applicant’s statements in these two cases support the fact that his sole purpose in coming back to Hong Kong was to pursue a claim for unpaid wages, that he was concerned about the recent threats he had received but was not seeking protection from human trafficking or forced labour from any of the relevant authorities, and that no claim of a kind relating to human trafficking or forced labour was made.

150.  The respondents naturally take issue with the applicant’s argument that because of the failure of the Immigration Department, the Labour Department and the Police to identify him as a victim of human trafficking or forced labour and to investigate his case, he suffered “a protracted ordeal, including lengthy imprisonment and trial for a crime he did not commit”. 

151.  The respondents disagree with this claim and point out that according to the applicant’s own case, the applicant never made an explicit complaint to the authorities that he was a victim of human trafficking or forced labour, or sought help as such a victim, even up to the time he was charged and tried in the District Court.  They stress that the applicant’s main focus and the purpose of all his visits to the various authorities was to recover his alleged unpaid wages and to seek protection from present threats, and therefore the alleged duty to investigate did not arise. 

152.  The respondents also point out that the applicant was not just prosecuted for robbery but also for illegal entry to Hong Kong, to which he pleaded guilty and received a sentence of 6 months’ imprisonment. 

153.  If this fact is being relied upon by the respondents to suggest that the applicant would have been prosecuted even if there had been effective measures in place to identify human trafficking victims, then the point being made by the applicant has been misunderstood.  He is complaining that if effective measures were in place to deal with human trafficking or forced labour, the alleged circumstances of his employment may not have occurred in the first place.  Also if his case had been identified by the relevant authorities as potentially involving human trafficking for forced labour when he returned to Hong Kong, then notwithstanding his illegal entry he would have received a more appropriate response from the authorities and been treated differently, along the same lines as an illegal entrant making a torture claim.[112]

154.  What belies the respondents’ argument is that it is not for victims of human trafficking or forced labour to identify that they are such victims, for they may not know. It is for the relevant authorities to do so when a case comes before them. 

The CAT screening interviews

155.  In June 2013, the applicant was interviewed in relation to a torture claim.[113]  The CAT screening interviews that took place were comprehensive and essentially covered the applicant’s dispute with the employer and his family both in Hong Kong and Pakistan.  It is submitted by the respondents that the Immigration Department regarded the information provided at the CAT screening interviews as confidential and therefore only able to be used for the limited purpose of the torture claim.[114] If it is being suggested by the respondents that because the screening interviews are confidential, then when an applicant reveals that he or she has been a victim of a serious crime nothing further can be done about it by the interviewing officer, then I have to disagree.  This is contrary to the evidence of Ms Leung[115] and Shum Chi Chung[116] concerning the policies and guidelines relating to the identification of victims of human trafficking and forced labour as implemented by the government authorities, including the Immigration Department.

156.  The respondents also submit that the applicant at the time of the interviews could have  asked for a wider investigation beyond the scope of his torture claim, but did not.  There are two points to make about this submission.  First, the detail in which issues and matters are examined during the screening interviews for a CAT claim illustrates how important is it that there are effective measures in place to similarly address the prohibited concepts of slavery, servitude or forced labour. Secondly, during the course of the screening interviews the applicant made detailed allegations of human trafficking or forced labour.  At the very least, it is for the authorities to identify the prohibited conduct and take appropriate action, and not for the applicant to have to ask for a wider investigation, nor for the obligation to fall on the legal representative of a torture claimant.[117] 

Credibility of the applicant

157.  When the applicant was cross-examined, he was challenged as to his account of the events. The cross-examination including challenges as to whether the events actually happened, and whether his account of them was exaggerated. 

158.  The cross-examination of the applicant principally sought to show that he came to Hong Kong of his own accord, that the arrangements he now complains about were agreed to by him, and that despite his claims of being harshly treated he had freedom of movement and access to other people and therefore had the opportunity to complain about the treatment he was receiving from his employer.  The applicant acknowledged that he came to Hong Kong of his own accord and was not forced or ordered to obtain a passport or make the trip to Hong Kong.  He had by this stage been working for the family in Pakistan and had been previously asked if he would work for them abroad.  He understood that the job in Hong Kong entailed working in the family’s mobile phone business, which is what he did.

159.  My assessment of the applicant was that he came across as a simple man with very little understanding of the ways of the world, other than that gained from being a member of a small rural village community bound by very strong cultural and social norms.  He agreed that he came to Hong Kong on the expectation of making substantial money and having better quality work.  It would appear that he did as he was told by the employer and his family, and took the treatment that he received from them.  He was told that he would work in the family mobile phone business, which he did when he arrived in Hong Kong.  He resided in the office premises and it was arranged for him to sleep on the carpeted floor of one of the offices.  He worked long hours and had to clean up after everyone left.  He had a key to the office and was not prevented from going out, although it would appear he was under the watchful eye of the employer and his family members.  He agreed to the employer’s sister holding his passport after entering Hong Kong, which was later kept by the employer.  It would seem to me that he did not appreciate the significance of this, or the level of control that his employer had over him. This can also be said in relation to him agreeing with his employer that the employer should save his salary for him.  It would seem that at the time he thought it was appropriate, and he expected that whenever he needed money he would be able to ask for and receive it.  To a large extent his naivety and vulnerability caused him to go along with these arrangements.

Findings of fact

160.  On the evidence and materials before me, and for the purposes of these proceedings, I make the following relevant findings of fact:

(1) The applicant is a Pakistani national who is a member of the Malik caste, which is considered in Pakistan, and accepted by the applicant, as being inferior to the Rana caste. 

(2) The employer and his family belong to the Rana class.  The employer comes from a prominent and well-connected family in Punjab, Pakistan, with extensive business interests in Pakistan, South Africa and Hong Kong.

(3) The applicant worked for the employer and his family in Pakistan.  Socio-economic and cultural norms led to the employer asserting considerable command and control over the applicant.

(4) The employer and his family arranged for the applicant to work for them in Hong Kong.  They sponsored his work permit and arranged his transportation to Hong Kong.  The applicant had not previously travelled out of Pakistan.  Because of his low education and low socio-economic status he was not familiar with the system and structures in Hong Kong. 

(5) The employer promised the applicant that he would have good working conditions and that he would receive a salary of $4,000 per month, although in the two contracts the monthly salary payment specified was respectively $3,400 plus $300 food allowance, and $3,580 plus $300 food allowance.  I accept that documents may have been presented to him by the employer, but that he did not understand them and in some instances did not sign them.

(6) The applicant was accompanied to Hong Kong in January 2007 by a member of the employer’s family who held the travel and identification documents of the applicant.  These documents were kept by the employer while he was in Hong Kong. 

(7) While in Hong Kong the applicant was kept under the control of the employer and his family.  The applicant was constrained and controlled both psychologically and economically by the employer.

(8) All formal arrangements for the applicant’s employment and residence in Hong Kong were organised and arranged by the employer.  The applicant had no knowledge of his rights and obligations or of those of his employer.  He was placed in a state of dependency on the employer. 

(9) The applicant was employed as a foreign domestic helper.  However, he was required to work in the employer’s trading company (which the applicant agreed to do) and reside at the office premises of the company.  He slept on the carpeted floor of one of the offices at the premises.  He was required to work long hours, seven days a week.  He was given two meals a day and his movements were restricted to the office premises except for office errands.  He was able to take breaks, but it is unclear how often these occurred and for how long they lasted.  As the applicant resided at the office premises, he was under the direction and control of the employer; his movements were restricted; he had limited enjoyment of privacy; and was unable to live a normal life. 

(10) The applicant was regularly abused and beaten by the employer.  Although he did not sustain serious injuries, he was nevertheless treated in a degrading and abusive manner.  He worked under conditions of constant abuse, threats and beatings.

(11) The employer and his family cajoled and deceived the applicant into taking up the employment in Hong Kong.  The applicant was deceived about his working conditions (long hours of work and subjection to abuse and beatings) and payment of wages (unpaid for nearly 4 years).

(12) The employer threatened the applicant that serious harm would result to him and his family if he left his employ, and claimed that he owed the employer a large sum of money for having been brought to Hong Kong.

(13) The employer tricked the applicant into agreeing not to receive his monthly wage, and put off paying him the full remuneration due to him under the terms of his employment contracts. 

(14) At the end of 2010, the applicant asked the employer to give him an advance on his unpaid wages to assist his family in Pakistan.  The employer deceived the applicant into returning to Pakistan, and then terminated his contract and sponsorship in order to avoid paying him the money that he owed him.  This was also designed to prevent the applicant from returning to Hong Kong and claiming his unpaid wages against the employer.

(15) The employer and members of his family and his associates, both in Hong Kong and in Pakistan, threatened the applicant and his family regarding the applicant’s pursuit of his claim for outstanding wages from the employer.

(16) The employer, both directly and through his associates, made threats against the applicant in order to get him to withdraw or settle his unpaid salary claim.

(17) During the period when the applicant worked for the employer, from May 2007 to December 2010, he made no report or complaint to the police or to any other authorities.  He was not aware of his rights or remedies, and in particular he was unaware that his case could amount to one of human trafficking for forced labour. 

(18) The applicant in early December 2010 requested payment of the monies the employer owed him.  The employer arranged the return of the applicant to Pakistan on the basis of him taking a holiday.  While the applicant was in Pakistan, the employer terminated his contract and revoked his sponsorship in order to prevent the applicant from returning to Hong Kong to make a claim against him for the unpaid wages.

(19) The applicant returned illegally to Hong Kong in April 2012 to claim his unpaid wages from his employer and to report the mistreatment that he had suffered from the employer.

(20) The applicant attended the Immigration Department in early April 2012 to report that he had returned illegally to Hong Kong to claim his unpaid wages from his employer, and that he had been mistreated by him. 

(a) On the occasions where there are records of his attendances, these records do not disclose the detailed information that the applicant states he provided at the time.  It is recorded that the applicant did mention that he had returned to claim unpaid wages for nearly 4 years work, and this factor alone should have alerted the officer that his case may have involved a serious abuse of labour. 

(b) There was an occasion in early April 2012 when the applicant attended the office at Skyline Tower and spoke to an Immigration Department officer.  He told the officer that he had come to Hong Kong illegally and was seeking help from the authorities to obtain his unpaid salary from his employer.  He told the officer that he had worked in Hong Kong for almost 4 years and had never been paid.  He gave details of the employer’s name and the place of work.  He told the officer about the unfair treatment he had received from the employer, and mentioned that the employer had assaulted and abused him.  The officer told him that this was a police case and that he should go to the police station. 

(21) From June to September 2013, the applicant was interviewed on several occasions by an officer of the Immigration Department in relation to his CAT claim.  During the interviews, the applicant mentioned to the officer his entire story concerning the circumstances of his four-year employment in Hong Kong, including that he had been mistreated by the employer and that he had not been paid for the work that he had performed. 

(22) The applicant attended the Labour Department on 2 May 2012 and, with the assistance of a Labour Department officer, registered a claim for unpaid wages of over $200,000.  He told the officer that he had worked for the employer for 4 years and was never paid.  He said his employer had beaten him during his employment, and had forced him to return to Pakistan. 

(23) The applicant on various occasions in early April 2012, and on 17 May 2012, 28 May 2012, 27 July 2012 and 18 August 2012, attended various police stations and reported or complained to police officers about matters concerning threats by his employer in relation to his past employment with the employer and his claim for unpaid wages. 

(a) In early April 2012, the applicant attended the Tsim Sha Tsui Police Station, having been told to report his case to the police by an officer of the Immigration Department.  He told a police officer that he had entered Hong Kong without a visa and that he had worked in Hong Kong for 4 years and had not been paid.  The police officer told him to return to the Immigration Department. 

(b) On another occasion in early April 2012, the applicant attended Yau Ma Tei Police Station.  He was spoken to by several police officers.  He told them that he did not have a visa.  He said he had worked for 4 years in Hong Kong and that he had not been paid.  He said he returned to Hong Kong to obtain his unpaid salary.  He said that during his employment he was beaten by his employer.  He also told them that his employer wanted to kill him.  The police officers said it was not a police matter and that he should go back to the Immigration Department. 

(c) On 16 July 2015, the applicant together with his legal representative attended Wan Chai Police Station. They reported to the police recent threats made to the applicant, and mentioned his human trafficking and forced labour case.  A senior officer was informed about the applicant’s human trafficking and forced labour case.  This officer registered the case, but suggested that the matter be referred to the Immigration Department.

(24)  The applicant stood trial in the District Court for an offence of robbery against associates of the employer, of which he was acquitted.  There is a distinct possibility that he was wrongly accused of the crime. 

161.  On the evidence and materials before me, and for the purposes of these proceedings, I accept that:

(1) The applicant was deceived by the employer and his family about his working conditions and payment of wages.

(2) The applicant was regularly abused and beaten by the employer.  Although this was not to a degree that required his hospitalisation, it was to such an extent that that the applicant was put in fear of the employer and placed under his control.

(3) The applicant worked long hours and was taken advantage of by the employer. 

(4) Whilst the applicant was generally able to go out, he was nevertheless subject to restrictions by the employer that prevented him from living a normal life.  His foreignness was exploited by the employer in order to restrict his movements and control him. He was also controlled due to the employer’s psychological and financial power over him. 

(5) The applicant lived in the office premises and relied on handouts, although he may have received some funds.

(6) The applicant did not complain of the ill treatment he was receiving by the employer for the reasons he has given.  He was afraid of the employer and his family and he expected he would receive the money owing to him.  I should point out that the applicant, like many victims of abuse, tolerated and accepted more than he should have. Furthermore, he was unaware of his rights and remedies in Hong Kong and of the fact that the ill treatment he was suffering potentially constituted a case of human trafficking for forced labour.

(7) The employer tricked the applicant into returning to Pakistan and then terminated his contract and sponsorship in order to prevent the applicant from making a claim against him for his unpaid salary.

(8) The employer refused to pay the applicant his unpaid wages and used force and threats in Pakistan against him and his family to stop him from pursuing his claim. 

(9) The applicant returned to Hong Kong to press his claim for his unpaid salary, and to seek justice in relation to the treatment he had received from the employer.

(10) The employer and his associates threatened the applicant and his family in relation to the applicant’s claim for the unpaid salary in Hong Kong.

(11) The applicant attended the offices of the Immigration Department, the Labour Department and the Police on the various occasions that he has claimed, and revealed to the officers whom he saw information about the treatment he had received from the employer, and the fact that he had not been paid wages for a period of 4 years.  The officers concerned should have been alerted that the applicant’s case involved a serious abuse of labour and that the applicant was potentially a victim of human trafficking or forced labour. 

(12) The applicant did not appreciate that he was a victim of human trafficking for forced labour.

The issues in this judicial review

162.  The applicant complains that he was a victim of human trafficking for forced labour, and that he suffered because of the failure and neglect of the relevant authorities to address his situation, both at the time when he was a victim and later when he sought redress for the ill treatment he had received from the employer when pursuing a claim for unpaid wages.  He further complains that this failure and neglect of the relevant authorities stems from a lack of legislative and administrative measures to prohibit and penalise the conduct outlawed under Article 4 of the BOR.

163.  The central issue in the present case is the interpretation of Article 4 of the BOR, which prohibits slavery, servitude and forced or compulsory labour.  Consequently, this judicial review is principally focussed on the general concept of human trafficking and whether it is prohibited under Article 4 of the BOR, and on the concept of forced or compulsory labour which is prohibited under this article.

164.  Before I address these issues, I will first provide a brief overview of the international response to slavery and related practices, and an outline of the relevant legal provisions. 

The legal framework

165.  The inhumane and exploitative practice of slavery has existed in various manifestations from ancient times through to the modern era.  Slavery began to be abolished in the early 1800s, as seen in the United Kingdom in 1833 with the enactment of the Abolition of Slavery Act, and in Hong Kong with the enactment of its first ever Ordinance in 1844, the Slavery Ordinance.[118]

166.  In the early 1900s, the International Labour Organisation (ILO) was established. The ILO implemented a code of global labour standards. 

167.  There followed various international and regional instruments, as well as a host of domestic legislative provisions throughout the world states, that outlawed slavery and related practices.

168.  Two significant conventions were the ILO Convention Concerning Forced or Compulsory Labour in 1930 (1930 Forced Labour Convention),[119] and the ILO Abolition of Forced Labour Convention in 1957 (1957 Forced Labour Convention),[120] which outlawed the imposition of forced or compulsory labour in all circumstances.[121] 

169.  In 1926, the League of Nations approved the Slavery Convention (1926 Slavery Convention), which charged signatories to suppress all forms of slavery and defined slavery as the “status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”.  This was followed in 1956 by the United Nations Supplementary Convention on the Abolition of Slavery and Practices related to Slavery (1956 Slavery Convention).[122] The 1956 Slavery Convention further recognised the prohibitive conduct of debt bondage and serfdom. 

170.  In 1948, the United Nations (UN) General Assembly adopted the Universal Declaration of Human Rights. Article 1 states that “all human beings are born free and equal in dignity and rights”.  Article 4 states that “no person shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms”. 

171.  Later, in 1966, the UN adopted the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).  Article 8 of the ICCPR[123] prohibits slavery and related practices, and Articles 6 and 7 of the ICESCR provide for the right to work and the right to enjoy just and favourable conditions of work respectively.[124]

172.  There has been a growing concern about all forms of human exploitation practices in the modern era. Whilst traditional slavery meant that slaves were legal chattels of their owner, modern slavery or human trafficking is more about the exploitation of one person by another in adverse and unfair circumstances.  The growing prevalence of modern slavery or human trafficking has been recognised internationally and in certain domestic jurisdictions.[125] 

173.  The accepted international definition of human trafficking is contained in the Protocol to Prevent, Suppress and Punish Trafficking in Persons (the Palermo Protocol), which supplements the United Nations Convention on Transnational Organised Crime. 

174.  Article 3 of the Palermo Protocol provides:

“(a) ‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;

(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;

(c)  The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means set forth in sub-paragraph (a) of this article.”

175.  There are also certain general obligations imposed under the Palermo Protocol.  Article 5 contains an obligation upon parties to “adopt such legislative and other measures as may be necessary to establish as criminal offences” the conduct specified in Article 3, namely, human trafficking.  Article 6 contains an obligation upon parties to provide for assistance to and protection of victims of trafficking in persons. Article 9 contains an obligation upon parties to “establish comprehensive policies, programs, and other measures” to prevent and combat trafficking in persons and to protect victims of trafficking in persons.

176.  The Palermo Protocol was put into force in December 2003, and has since been ratified by 170 states parties.  These states parties include the People’s Republic of China and Macau, although a reservation has been entered by China in relation to the Hong Kong Special Administrative Region (HKSAR).  Thus the Palermo Protocol does not apply to the HKSAR. 

177.  Under Article 3 of the Palermo Protocol, there are three constituent elements of trafficking in the case of an adult.^[126] Firstly, the act of trafficking, which is “the recruitment, transportation, transfer, harbouring or receipt of persons”.  Secondly, the means by which it is achieved, which is “the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”.  Thirdly, the purpose for which it is done, which is exploitation, including the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or similar practices, servitude or the removal of organs.  In the case of trafficking of a child there are two constituent elements; the act of trafficking as referred to, and for the purpose of exploitation as defined.^[127] 

178.  In May 2005, the Council of European Convention on Action Against Trafficking in Human Beings (Anti-Trafficking Convention) was adopted.  All member states are parties to the Anti-Trafficking Convention.  By Article 4, the Anti-Trafficking Convention imports the definition of trafficking set out in the Palermo Protocol. Among its purposes under Article 1 are the prevention of trafficking, the protection of the human rights of victims, and the design of a comprehensive framework for their protection and assistance. 

179.  Article 4 of the BOR states:

“No slavery or servitude

(1) No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

(2) No one shall be held in servitude.

(3)     (a) No one shall be required to perform forced or compulsory labour.

(b) For the purpose of this paragraph the term “forced or compulsory labour” shall not include-

(i) any work or service normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;

(ii) any service of a military character and, where conscientious objection is recognized, any national service required by law of conscientious objectors;

(iii) any service exacted in cases of emergency or calamity threatening the life or well-being of the community;

(iv)    any work or service which forms part of normal civil obligations.”

180.  Article 4 of the BOR gives domestic force to international law prohibiting slavery, servitude and forced labour by incorporating the text of Article 8 of the ICCPR, which in turn is based upon Article 4 of the 1948 Universal Declaration of Human Rights.

181.  Article 4 of the BOR is also couched in very similar terms to Article 4 of the European Convention on Human Rights (ECHR),[128] which states:

“Prohibition of slavery and forced labour

1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this Article the term “forced or compulsory labour” shall not include:

(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention [lawful imprisonment or detention] or during conditional release from such detention;

(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

(c) any service exacted in case of an emergency or calamity threatening the life or wellbeing of the community;

(d) any work or service which forms part of normal civic obligations.”

182.  Article 4 of the ECHR, although basically the same as Article 4 of the BOR, differs slightly in format and wording.  Article 4 of the BOR separately addresses the concepts of slavery and servitude, and defines the concept of slavery as well as the slave trade by referring to it “in all their forms”. 

183.  Article 8(1) and (2) of the ICCPR corresponding to Articles 4(1) and 4(2) of the BOR and Article 4(1) of the ECHR are both wholly non-derogable rights, which cannot be restricted in any circumstances.  By contrast, Article 8(3) of the ICCPR and Article 4(2) of the ECHR, which both relate to forced labour, are subject to derogation, but only in cases of public emergency which threaten the life of the nation and to the extent strictly required by the exigencies of the situation.[129]  There are exemptions listed under Article 8(3)(b) and (c) of the ICCPR and Article 4(3) of the ECHR. Except for those exceptional circumstances, the right not to be subjected to slavery, servitude or forced labour is absolute. 

184.  The 1930 Forced Labour Convention came into force on 1 May 1932. Under Article 2(1) it states:

“For the purposes of this Convention the term “forced or compulsory labour” shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”

185.  The definition of forced labour under the 1930 Forced Labour Convention was endorsed by the United Nations Committee on the ICESCR, which reaffirmed the positive obligation of states parties to “abolish, forbid and counter all forms of forced labour”.[130]

186.  Article 39 of the Basic Law (BL) provides that the ICCPR, the ICESCR and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR.

Legal principles of statutory interpretation

187.  It is well settled that courts should approach the task of interpreting statutes by construing the statutory language having regard to its context and purpose.[131] 

188.  Statutory interpretation will require the court “to read all of the relevant provisions together and in the context of the whole statute as a purposive unity in its appropriate legal and social setting”.[132] However, the starting point is to examine the statutory language.  As stated by Fok PJ in Fugro Geotechnical Services Ltd:

“22. When it is said that context is the starting point, together with purpose, in statutory interpretation, that is not to say that one puts the words being construed to one side. On the contrary, since contextual and purposive construction is a tool or aid to assist a court in arriving at an interpretation that gives effect to the legislative intention, one must always have regard to the particular words used by the legislature in expressing its will. A court cannot attribute to a statutory provision a meaning which the language of the statute, understood in the light of its context and the statutory purpose, is incapable of bearing. For that reason, one must necessarily look to the statutory language to see what meaning or meanings it is capable of bearing.”

189.  It has been held that the courts should give a generous and purposive interpretation to the rights expressed in the BOR, in order to give to Hong Kong residents the full measure of the fundamental rights and freedom that are guaranteed.[133] 

190.  In adjudicating cases, the Hong Kong courts may refer to precedents of other common law jurisdictions,[134] and in interpreting the BOR the courts may take account of established principles and international jurisprudence, and the decisions of international and national courts and tribunals on like or substantially similar provisions in relevant international instruments and national constitutions.[135] However, it has been stressed that in considering human rights jurisprudence from overseas jurisdictions, courts must be mindful of both the language of the provisions in the various instruments and the legal context in which the provisions are found. 

191.  It is important to bear these principles in mind when considering the nature and scope of Article 4 of the BOR. 

The applicant’s submission

192.  Mr Paul Harris, SC, for the applicant,[136] advances his case on the proposition that the prohibition under Article 4 of the BOR of forced labour can be regarded as both the implementation of the ICCPR in Hong Kong and an aspect of the implementation of the provisions of the ILO Forced Labour Convention.  He submits that the provision of an effective guarantee of the rights to which Article 4 of the BOR refers must imply a positive obligation on the HKSAR to take effective measures to prevent, prohibit and punish slavery, servitude and forced labour.  He relies on those Hong Kong cases dealing with certain freedoms and rights where it has been held that the HKSAR has a positive obligation to guarantee the freedoms or rights in question to argue that, similarly, the HKSAR has a positive obligation to guarantee the right not to be enslaved or subject to servitude or forced labour.[137]  He also relies on Strasbourg jurisprudence that have extensively defined the positive obligation under the equivalent article of Article 4 of the BOR.[138]

193.  Mr Harris takes the construction of Article 4 of the BOR a step further by arguing that the collective reference of slavery, servitude and forced or compulsory labour covers human trafficking.  In support of this argument he relies on Strasbourg jurisprudence[139] that has interpreted Article 4 of the ECHR, the equivalent article to Article 4 of the BOR.  However, as pointed out by the respondents, the European states are bound by the Anti-Trafficking Convention and the Palermo Protocol, which do not apply to Hong Kong.  They argue that the Strasbourg jurisprudence has been decided in a different legal context to that of Hong Kong. 

194.  The applicant’s case is that he was the adult victim of human trafficking to Hong Kong under Article 4 of the BOR.  Mr Harris submits that human trafficking or modern slavery is similar to traditional slavery except that there is no legal ownership, and involves the effective removal of the personal autonomy of the person trafficked.  He argues that human trafficking amounts not only to forced labour, but also slavery and servitude,[140] and that this is covered by Article 4 of the BOR.[141]

195.  Mr Harris goes on to argue that Article 4 of the BOR imposes a positive obligation on the HKSARG to protect against human trafficking or forced labour.[142]  He submits that it is sufficient to prove breach of Article 4 of the BOR for human trafficking, without the need to decide whether the breach constitutes forced labour, servitude or slavery.  He further submits that courts should either treat the BL as a ‘living instrument’ in modern society,[143] as well as the BOR, or think of the concepts under Article 4 of the BOR as overlapping.

196.  Mr Harris notes that according to Strasbourg jurisprudence there is a positive obligation on state parties to protect potential victims of breaches of Article 4 of the ECHR,[144] and this requires the implementation of effective legal and administrative measures.  He argues that the same positive obligation applies to Hong Kong under Article 4 of the BOR. He also argues that Article 4 of the BOR should be given a generous interpretation in a way that gives Hong Kong residents the full measure of fundamental rights, in keeping with BL jurisprudence.  Hong Kong jurisprudence has already indicated that BOR rights may impose positive obligations on the HKSAR in relation to certain rights and freedoms.[145]

197.  According to Mr Harris, the positive obligation under Article 4 of the BOR includes an obligation to take steps to enact specific legislation criminalising human trafficking and forced labour.  Underlying this argument is the position that effective protection of rights requires measures to secure compliance with those rights, through criminal law provisions.[146]

198.  Mr Harris submits that Hong Kong’s laws are inadequate to deal with adult human trafficking and forced labour, and thereby breach Article 4 of the BOR.  He points out that Hong Kong criminalises some forms of human trafficking but not all, along with some aspects of forced labour.  Specifically, section 129 of the Crimes Ordinance[147] criminalises human trafficking for the “purpose of prostitution”, but does not recognise other forms.  He also points out that Hong Kong’s present laws and measures do not adequately recognise or identify cases of adult human trafficking.[148]  He argues that the effectiveness of alternative measures taken by the HKSARG have been grossly exaggerated.[149] He maintains that there is no effective substitute for the criminalisation of human trafficking and forced labour, as an offence gives a focal point for law enforcement action.

199.  Mr Harris further submits that the positive obligation of the state includes an obligation to investigate.  He argues that there is a clear and widely recognised legal requirement to carry out an effective investigation into possible human trafficking and forced labour cases.[150] He says this is part of the HKSAR’s duty and obligation under Article 10 of the BOR.[151] 

200.  Mr Harris argues that the applicant’s case was not investigated, and that this was not due to there being discretion to investigate, but as a result of a failure to listen to the applicant or pay attention to his circumstances.  He stresses that it is not a defence that the applicant’s sole purpose in returning to Hong Kong was to obtain unpaid wages and gain protection from threats after his employment ended.  As he correctly points out, a trafficking victim often does not identify him or herself as a victim, but rather as a migrant in a difficult situation. 

201.  Mr Harris submits that there is a state obligation to provide adequate training to police and immigration officers, so that they identify victims of human trafficking correctly and promptly, as well as provide protection to them.[152]  He submits that the HKSARG has breached these obligations.  He notes that the published policy of the HKSARG attaches great importance to combating human trafficking and to having in place a comprehensive policy that includes programmes and measures to prevent and combat it.  He says that such a policy is wholly consistent with the HKSARG’s obligation under Article 4 of the BOR.  However, he submits that the present case shows the HKSARG to have been in breach of both Article 4 of the BOR and its own declared policy.[153] Moreover, he argues that there is no legislative deference where a fundamental right is engaged.[154]

202.  Lord Pannick, QC,[155] for the respondents, argues that the Strasbourg jurisprudence does not apply to Article 4 of the BOR and that there is a comprehensive regime in place to address human trafficking or forced labour.  He submits that there has not been any failure by the relevant government agencies to address human trafficking or forced labour generally, or in the specific circumstances of the applicant’s case. 

The Strasbourg jurisprudence

203.  There does not appear to be any relevant local jurisprudence on the nature and extent of any legal obligations imposed on the HKSARG under Article 4 of the BOR.  It is for this reason that the applicant primarily relies on the decisions of the European Court of Human Rights (ECtHR) in support of the contention that the HKSARG is under a positive obligation to take measures to tackle human trafficking.  These decisions are Siliadin v France,[156] Rantsev v Cyprus and Russia,[157] CN & V v France[158] and CN v United Kingdom.[159] 

204.  The first of these decisions was Siliadin.  The applicant in that case was a 16 year-old girl who came to France from Togo on a tourist visa.  The family she went to stay with had undertaken to regularise her immigration status, and to arrange for her education, while the applicant was to do housework until she had earned enough to pay the family back for her air ticket.  The applicant effectively became an unpaid servant, and her passport was confiscated.  After a few months she was lent to a couple to help with household duties and look after their young children.  She became a general housemaid to the couple, who made her work up to 15 hours a day with no days off.  She slept in the children’s bedroom on a mattress.  The ECtHR found that the applicant had been held in servitude and had, at least, been subjected to forced labour.  In reaching its conclusions, the ECtHR adopted the definition of forced labour contained in the 1930 Forced Labour Convention.  Although the applicant had been the victim of misconduct by private individuals, the Court held that Article 4 of the ECHR imposed a positive obligation on the state.  In so holding, it relied on previous decisions of the ECtHR to the effect that children and other vulnerable individuals are entitled to state protection, in the form of effective deterrence, against serious breaches of personal integrity.[160]

205.  The ECtHR also relied on the fact that a strong positive obligation was already held to apply to the state in relation to prevention of breaches of Article 3 of the ECHR (torture, inhuman or degrading treatment) in that states were required “to take measures to ensure that individuals within their jurisdiction are not subjected to torture, inhuman or degrading treatment or punishment, including such treatment administered by private individuals”.[161] The ECtHR held that an equivalent obligation arose in relation to Article 4 of the ECHR. 

206.  The ECtHR also specifically held that, because there was no criminal offence in French law at the material time of slavery, servitude or forced or compulsory labour, the legislation in force did not afford the applicant practical and effective protection against the actions of which she was a victim, which itself constituted a breach of Article 4 of the ECHR. 

207.  The case of CN & V v France[162] involved two young sisters brought to France from Burundi by relatives. The elder of the sisters was found to have been kept as an unpaid housemaid with no prospect of changing her job, and so to have been held in servitude and subject to forced labour.  Again the state was found in breach of its positive obligation to that applicant under Article 4 of the ECHR.  The ECtHR followed Siliadin and identified the following factors as indicating a situation of permanent forced labour amounting to servitude: (a) the victim has a fear of deportation; (b) the victim has no hope of finding paid work outside the workplace; (c) the victim has no days off; (d) the victim is not permitted leisure activities; (e) the victim is vulnerable and isolated; (f) the victim has no means of living other than at the home of the employer; (g) the victim’s passport has been confiscated; (h) the victim’s immigration status has not been regularised; (i) the victim is not permitted to leave the workplace other than for chores and has no freedom of movement or free time.[163]

208.  In Rantsev[164] a Russian woman, aged 20, had gone to work as an artiste in a cabaret in Cyprus.  Soon after her arrival she left her employ, as she was unhappy and wanted to return to Russia.  Her employer apprehended her and took her to the local police station because she had breached the conditions of her permit.  The police decided not to detain her and told her employer to take her away.  The employer collected her and placed her in a room in an apartment.  She was later found dead on the street below the apartment.  An inquest found that there were strange circumstances in relation to her death.  The ECtHR upheld her father’s complaint that Cyprus was in breach of Article 4 of the ECHR in that its regime for the issue of visas for cabaret artistes had failed to afford effective protection to her against trafficking, and that its police had failed properly to investigate events during those weeks which suggested that she was a victim of trafficking.  The ECtHR held:[165]

“There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention.  In view of its obligation to interpret the Convention in light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes “slavery”, “servitude” or “forced and compulsory labour”.  Instead, the Court concludes that trafficking itself, within the meaning of art.3(a) of the Palermo Protocol and art.4(a) of the Anti-Trafficking Convention, falls within the scope of art.4 of the Convention.”

209.  The case of C.N. v UK involved a Ugandan woman who was brought to the United Kingdom illegally on a false passport and visa by a relative.  The relative took her documents and kept her confined to places that were owned by the relative.  The relative warned her not to talk to anyone, as she could be arrested.  The relative arranged for her to work as a carer and a security guard, and received her wages but never passed them on to her.  While working for another couple, the woman was able to escape and contact the police.  She made an application for asylum which was refused.  She appealed the decision but her appeal was dismissed, and the court expressed concerns about the credibility of her account.  There were a series of failed enquiries as to whether the woman was a victim of human trafficking.  It was concluded that there was no evidence that she had been trafficked to the United Kingdom.  Eventually, an assessment was made that she satisfied the indicators and that her situation was consistent with being a victim of trafficking and forced labour.  It was claimed during a police enquiry that it was acknowledged by the police that there was no offence in English law to cover the facts of the woman’s case, and that not every line of enquiry had been pursued due to limited resources. 

210.  The ECtHR held that Article 4 of the ECHR entailed a procedural obligation to investigate where there was a credible suspicion that an individual’s rights under that article had been violated.  The ECtHR also held that for there to be an obligation to investigate, the applicant’s complaints to the domestic authorities had to give rise to a credible suspicion that she had been held in domestic servitude.  The ECtHR further held that the alleged treatment of the woman fell within Article 4 of the ECHR, but that it was not specifically criminalised under domestic law at the relevant time. 

211.  It is common ground between the parties that the Strasbourg decisions suggest the following:

(1) There is an obligation under Article 4 of the ECHR to take positive measures to protect, and not merely to refrain from directly infringing, the right of individuals not to be subject to slavery, servitude and forced labour.

(2) This requires the penalisation and effective prosecuting under criminal law of any act which is aimed at maintaining a person in such a situation.  With respect to human trafficking, it also requires that a legal and administrative framework to prohibit and punish human trafficking should be put in place.

(3) There may be a duty in specific cases, depending on the factual circumstances, to take proportionate operational measures to protect individuals who are victims or potential victims of human trafficking.

(4) There may be a procedural obligation in specific cases, depending on the factual circumstances (i.e. where it is demonstrated that the authorities were aware or ought to have been aware of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being trafficked), to investigate cases of human trafficking in a way that may lead to the identification and punishment of persons responsible for human trafficking.

212.  The respondents urge upon the Court not to follow the Strasbourg jurisprudence.  They argue that, while of persuasive authority, the Strasbourg jurisprudence is not binding on the Hong Kong courts and the case law is fact sensitive and dependent on context.[166]

213.  They refer to various decisions, mainly from England and Wales,[167] where the courts have emphasised the need for caution in looking to Strasbourg authorities for guidance, noting that cases differ factually and in the contexts in which they had been decided.  They also refer to cases where the courts have emphasised that, while it is valuable to have reference to decisions of other common law jurisdictions and of the ECtHR, such decisions are persuasive and are not binding authorities, and that the situation in other jurisdictions may not necessarily be identical to that in Hong Kong.  These principles are well recognised and should be followed. 

214.  The respondents say that it is important therefore that Hong Kong courts determine the validity of domestic legislation having regard to the entrenched provisions of the BOR, which were born from the ICCPR and not the ECHR.

215.  The bottom line is this: the extent to which such decisions are persuasive will depend on their relevance to the issue to be decided upon by a court in Hong Kong.  The extent of a court’s reliance on such decisions will be determined by an assessment of their relevance and applicability, by means of a thorough examination of the facts and circumstances, and of the nature and context of the decisions.

216.  The respondents also argue that, unlike in the European states, the Anti-Trafficking Convention and the Palermo Protocol do not apply to the HKSAR.  It is noted by the respondents that in Rantsev the ECtHR took into account the relevant international conventions in reaching its conclusion as to the obligations arising under Article 4 of the ECHR to investigate, prosecute and penalise effectively human trafficking. 

217.  I accept that this was the case in Rantsev, but the focus of the relevant statements of principle in the Strasbourg cases was on the terms and scope of Article 4 of the ECHR.  As rightly pointed out by the respondents, considering and applying the relevant statements of principle will very much be dependent on context. 

Interpretation of Article 4 of the BOR

218.  Before addressing whether human trafficking is protected under Article 4 of the BOR and whether the article imposes any positive obligation either in relation to human trafficking or forced labour, it is necessary to examine Article 4 of the BOR in some detail.

219.  Article 4 of the BOR consists of three subsections.  Article 4(1) of the BOR contains a prohibition of slavery and the slave trade “in all their forms”.  Article 4(2) of the BOR contains a prohibition of servitude.  Article 4(3)(a) of the BOR contains a prohibition of forced or compulsory labour, with four exemptions listed under Article 4(3)(b) of the BOR, namely, service performed by a person (i) when in detention; or (ii) in the military, or (iii) in an emergency, or (iv) as part of normal civil obligations. 

220.  The prohibitions of Article 4 of the BOR are absolute, and any infringement of the protective scope of the prohibitions constitutes a violation of them. 

221.  The BOR does not provide a definition of slavery, servitude or forced or compulsory labour.  It therefore falls on the Court to draw upon any relevant international instruments, case law or domestic legislation to interpret these concepts. Whilst I will briefly discuss the three concepts, the focus of this judicial review is, as already noted, principally on the concept of human trafficking and forced or compulsory labour as prohibited by Article 4 of the BOR. 

Slavery

222.  It is worth noting how different courts have viewed the legal distinction between chattel slavery and modern slavery.  In reading the 1926 Slavery Convention definition of slavery, the ECtHR in Siliadin^[168] held that it requires ownership, as this is consistent with the “ ‘classic’ meaning of slavery as it was practised for centuries”.[169]  In that case, the victim was not a slave but rather a victim of other forms of human exploitation, namely forced labour and servitude under Article 4 of the ECHR.  By contrast, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v Kunarac[170]defined slavery not as a right of ownership over a person, but over whom “any or all of the powers attaching to the right of ownership are exercised”.^[171]  It further stated, with regard to modern slavery, that:

“…the victim is not subject to the exercise of the more extreme rights of ownership associated with ‘chattel slavery’, but in all cases, as a result of the exercise of any or all of the powers attaching to the right of ownership, there is some destruction of the juridical personality; the destruction is greater in the case of ‘chattel slavery’ but the difference is one of degree”.[172]

223.  The High Court of Australia, in R v Wei Tang, held that the definition of slavery in the 1926 Slavery Convention includes both de jure and de facto slavery, as the “definition turns upon the exercise of the power over a person”, and that in de facto conditions the “definition was addressing the exercise over a person of powers of the kind that attached to the right of ownership when the legal status was possible”.^[173]  

224.  Gleeson CJ (now Gleeson NPJ) noted in that case that it was “unnecessary, and unhelpful” to “…draw boundaries between slavery and cognate concepts such as servitude, peonage, forced labour, or debt bondage”.^[174]  He went on to observe that:

“32   It is important not to debase the currency of language, or to banalise crimes against humanity, by giving slavery a meaning that extends beyond the limits set by the text, context, and purpose of the 1926 Slavery Convention.  In particular it is important to recognise that harsh and exploitative conditions of labour do not of themselves amount to slavery.  The term “slave” is sometimes used in a metaphorical sense to describe victims of such conditions, but that sense is not of present relevance.  Some of the factors identified as relevant in Kunarac, such as control of movement and control of physical environment, involve questions of degree.  An employer normally has some degree of control over the movements, or work environment, of an employee.  Furthermore, geographical and other circumstances may limit an employee’s freedom of movement.  Powers of control, in the context of an issue of slavery, are powers of the kind and degree that would attach to a right of ownership if such a right were legally possible, not powers of a kind that are no more than an incident of harsh employment, either generally or at a particular time or place.”

225.  The language of Article 4(1) of the BOR and its equivalent, Article 8 of the ICCPR, prohibits slavery and the slave trade “in all their forms”.  It may be viewed that the phrase “in all their forms” seeks to address slavery and its trade as it evolves and changes in time and circumstance.  Consequently it is meant to have a wide scope, seeking to embrace all forms of slavery and its trade whenever and however they occur.  It is arguable that it leaves open a possible interpretation of slavery that embraces the concept of modern slavery. 

226.  It was argued before the ECtHR in Rantsev that human trafficking was a form of modern-day slavery, and the necessary consequence of the Kunarac decision was that the definition of slavery did not require a right of ownership over a person to exist but merely that one or more of the powers attached to such a right be present.  Accordingly, the modern concept of slavery could include situations where the victim is subject to violence and coercion in a way that gives the perpetrator total control over the victim.[175]

227.  On this point, it is worth noting the comments made by the ECtHR in Rantsev[176]when discussingthe Kunarac decision:

“The Court observes that the International Criminal Tribunal for the Former Yugoslavia concluded that the traditional concept of “slavery” has evolved to encompass various contemporary forms of slavery based on the exercise of any or all of the powers attaching to the right of ownership. In assessing whether a situation amounts to a contemporary form of slavery, the Tribunal held that relevant factors included whether there was control of a person’s movement or physical environment, whether there was an element of psychological control, whether measures were taken to prevent or deter escape and whether there was control of sexuality and forced labour.”[177]

Servitude

228.  Servitude is described as the obligation on a person to provide services where they are forced to do so and where they feel that their condition is permanent. 

229.  In Siliadin,[178]the ECtHR said in relation to the concept of servitude that:

“123. … it “prohibits a particularly serious form of denial of freedom”.  It includes,

“in addition to the obligation to provide certain services to another … the obligation on the ‘serf’ to live on the other’s property and the impossibility of changing his status”.

    In this connection, in examining a complaint under this paragraph of Art.4, the Commission paid particular attention to the Convention on the Abolition of Slavery.

124. It follows in the light of the case law on this issue that for Convention purposes “servitude” means an obligation to provide one’s services that is imposed by the use of coercion, and is to be linked with the concept of “slavery” described above.”[179]

230.  On the description of slavery, the court in Siliadin stated that although the applicant had been clearly deprived of her personal autonomy, the evidence did not suggest that she was held in slavery in the proper sense, in that her employers exercised a genuine right of legal ownership over her, thus reducing her to the status of an “object”.[180]

231.  In C.N. and V v France,[181] the ECtHR discussed the concept of servitude and adopted the definition as set out in Siliadin.[182]  The Court stated:

“89. … that servitude is a “particularly serious form of denial of liberty” (see the Commission’s report in the Van Droogenbroeck v Belgium case, 9 July 1980, §80, Series B no.44).  What servitude involves is “an obligation to provide one’s services that is imposed by the use of coercion” (see Siliadin, cited above, §124).  As such it is to be linked with the concept of “slavery” within the meaning of Article 4§1 of the Convention (ibid).

90.  Having regard to the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, of 30 April 1956, the Commission considered that “in addition to the obligation to perform certain services for others, the notion of servitude embraces the obligation for the ‘serf’ to live on another person’s property and the impossibility of altering his condition” (Commission report in the Van Droogenbroeck case, cited above, §79).

91.  In the light of these criteria the Court observes that servitude corresponds to a special type of forced or compulsory labour or, in other words, “aggravated” forced or compulsory labour.  As a matter of fact, the fundamental distinguishing feature between servitude and forced or compulsory labour within the meaning of Article 4 of the Convention lies in the victim’s feeling that their condition is permanent and that the situation is unlikely to change.  It is sufficient that this feeling be based on the abovementioned objective criteria or brought about or kept alive by those responsible for the situation.”

232.  In C.N. v UK, the ECtHR[183] also adopted the definition of servitude as set out in Siliadin.

Forced or compulsory labour

233.  Forced labour is defined by Article 2(l) of the 1930 Forced Labour Convention as including “all work or service which is exacted from any person under the menace of any penalty and for which the person has not offered himself voluntarily.” 

234.  This definition was endorsed by the United Nations Committee on the ICESCR in its 18^th General Comment, which reaffirmed the positive obligation of states to “abolish, forbid and counter all forms of forced labour”.[184] 

235.  In C.N. and V v France,[185] the ECtHR in defining forced or compulsory labour relied on the following extract from “The cost of coercion: global report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work”, adopted by the International Labour Conference in 1999:

“24. The ILO’s definition of forced labour comprises two basic elements: the work or service is exacted under the menace of a penalty and it is undertaken involuntarily. The work of the ILO supervisory bodies has served to clarify both of these elements. 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. Situations examined by the ILO have included 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.

25. As regards “voluntary offer”, the ILO supervisory bodies have touched on a range of aspects including: the form and subject matter of consent; the role of external constraints or indirect coercion; and the possibility of revoking freely-given consent. Here too, 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”.

236.  In C.N. v UK, the ECtHR[186] defined forced or compulsory labour in accordance with what had been said in Siliadin:

“In Siliadin the Court defined forced or compulsory labour with reference to the International Labour Organisation Forced Labour Convention, which included

“all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.

The Court itself noted that the term brought to mind the idea of “physical or mental constraint”. In Siliadin the Court found this element to be present where the applicant was an adolescent girl, unlawfully present in a foreign land and living in fear of arrest by the police. In the present case, in light of the definition adopted by the Court and the ILO, and taking into consideration the reports by the POPPY Project and the consultant psychiatrist, the applicant submitted that the police’s conclusion that the lack of payment for the applicant’s work was no more than an absence of “honour among thieves” betrayed a fundamental disregard of the ILO’s key indicators of forced labour and a troubling ignorance of the vulnerabilities of illegal immigrants.”

237.  The ILO and European Commission list of “Operational indicators of trafficking in human beings” (2009) includes a checklist of indicators of trafficking for adults for labour exploitation.[187]

238.  The ILO Toolkit provides that a person qualifies as having been trafficked if their labour migration involves either: (1) two strong indicators of exploitation from the checklist, or (2) one strong indicator and one medium or weak indicator, or (3) three medium indicators, or (4) two medium indicators and one weak indicator.[188]

239.  Ms Klara Skrivankova in her expert report refers to the list of indicators of forced labour developed by the ILO. She notes that where two or more of the indicators are present, the situation qualifies as forced labour.  The indicators include the following:   

“a) Threats or actual physical harm to the worker;

b) Restriction of movement and confinement, to the workplace or to a limited area;

c) Debt bondage, where the worker works to pay off a debt or loan, and is not paid for his or her services.  The employer may provide food and accommodation […]

d) Withholding of wages or excessive wage reduction;

e) Retention of passport and identity documents;

f) Threat of denunciation to the authorities;”[189]

240.  As for the definition of forced or compulsory labour, Lord Pannick noted that the definition under Article 2 of the 1930 Forced Labour Convention was adopted by the court in Siliadin. I In the facts of that case, the young girl had been transferred to another employer and was given no choice about the matter.  He noted that the court stated that what there has to be is work “exacted…under the menace of any penalty” and also performed against the will of the person concerned, that is work for which he “has not offered himself voluntarily”.[190]  The court went on to note in the following paragraph that although the applicant was not threatened by a penalty, “she was in an equivalent situation in terms of the perceived seriousness of the threat” and therefore the first criterion was met.  As to the second criterion, the court found that it could not be seriously maintained that the girl performed the work of her own free will as she was not given any choice.[191] It is on this basis that Lord Pannick argues that the applicant had voluntarily agreed to do the work and was not doing it contrary to his will.  He argues that it must be shown that the applicant’s will was overborne in order for him to satisfy the second criterion, that he performed the work against his will. 

241.  Care should be taken not to equate voluntariness with participation.  A person may perform work but if he or she does so in oppressive circumstances, including those in which violence, threats or inducements have been used or made, it could be regarded as involuntary.  The fact that the applicant did the work does not address the issue of whether he offered himself voluntarily.  He was threatened and beaten, and was made to work long hours seven days a week.  Also, he continued working for the employer because he was induced to do so by being promised that he would be paid his wages for nearly four years of work.

242.  The question of menace or threat of penalty was addressed by the ECtHR in C.N. and V,[192] which I have already mentioned.  It is also worthwhile noting the explanation made by Klara Skrivankova when she said:

“The penalty referred to need not be in the form of penal sanctions.  “There can also be subtler forms of menace, sometimes of a psychological nature.”  The former head of the ILO Special Action Programme on Forced Labour, Mr Roger Plant adds to this explanation that: “Individuals get into work against their freedom of choice and cannot leave without [ ] … the worst forms of coercion are often quite subtle, of psychological nature.  To understand the real nature of forced labour, we need to understand the link of coercive exploitation and the abusive treatment the workers might subject themselves as a result of “rational” choice.  In conjunction with the ILO Convention 105, these conventions also apply to work or service that is extracted by private bodies and individuals.”[193]

243.  From my point of view, “penalty” in this context is not to be interpreted in a strict sense to mean punishment inflicted by a court of law, but instead to mean any penalty or punishment inflicted by a person or body whatever.[194] 

244.  To sum up, forced or compulsory labour is any work or service that is exacted from any person under the menace or threat of a penalty, and which the person has not entered into of his or her own free will.[195] There are thus two elements that characterise forced or compulsory labour.[196] 

245.  The first is that there must be the presence of menace or threat of penalty.  The penalty may consist in a penal sanction, such as arrest or jail, or in the suppression of rights or privileges, such as refusing to pay wages or forbidding a worker from travelling freely. 

246.  The second is that the work or service is undertaken involuntarily.  Deciding whether work is performed voluntarily often involves looking at external and indirect pressures, such as the withholding of part of a worker’s salary as part repayment of a loan, or the absence of wages or remuneration, or the seizure of the worker’s identity documents.[197]

Whether human trafficking is protected under Article 4 of the BOR

247.  In Rantsev,[198] the ECtHR held that the concept of human trafficking came within the terms of Article 4 of the ECHR and explained its conclusion as follows:

“277 The absence of an express reference to trafficking in the Convention is unsurprising.  The Convention was inspired by the Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations in 1948, which itself made no express mention of trafficking.  In its art.4, the Declaration prohibited “slavery and the slave trade in all their forms”.  However, in assessing the scope of art.4 of the Convention, sight should not be lost of the Convention’s special features or of the fact that it is a living instrument which must be interpreted in the light of present-day conditions.  The increasingly high standards required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably require greater firmness in assessing breaches of the fundamental values of democratic societies. 

278 The Court notes that trafficking in human beings as a global phenomenon has increased significantly in recent years.  In Europe, its growth has been facilitated in part by the collapse of former Communist blocs.  The conclusion of the Palermo Protocol in 2000 and the Anti-Trafficking Convention in 2005 demonstrate the increasing recognition at international level of the prevalence of trafficking and the need for measures to combat it.

279 The Court is not regularly called upon to consider the application of art.4 and, in particular, has had only one occasion to date to consider the extent to which treatment associated with trafficking fell within the scope of that article.  In that case, the Court concluded that the treatment suffered by the applicant amounted to servitude and forced and compulsory labour, although it fell short of slavery.  In light of the proliferation of both trafficking itself and of measures taken to combat it, the Court considers it appropriate in the present case to examine the extent to which trafficking itself may be considered to run counter to the spirit and purpose of art.4 of the Convention such as to fall within the scope of the guarantees offered by that article without the need to assess which of the three types of proscribed conduct are engaged by the particular treatment in the case in question.

248.  The ECtHR went on to state:

“281 The Court considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership.  It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere.  It implies close surveillance of the activities of victims, whose movements are often circumscribed.  It involves the use of violence and threats against victims, who live and work under poor conditions.  It is described by Interights and in the explanatory report accompanying the Anti-Trafficking Convention as the modern form of the old worldwide slave trade.  The Cypriot Ombudsman referred to sexual exploitation and trafficking taking place, “under a regime of modern slavery”.

282 There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention.  In view of its obligation to interpret the Convention in light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes “slavery”, “servitude” or “forced and compulsory labour”.  Instead, the Court concludes that trafficking itself, within the meaning of art.3(a) of the Palermo Protocol and art.4(a) of the Anti-Trafficking Convention, falls within the scope of art.4 of the Convention. …”

249.  The wording of Article 4 of the BOR and Article 4 of the ECHR do not explicitly include a general prohibition of human trafficking.  However, as is apparent from the above extract, the ECtHR in Rantsev established such a prohibition based on the very nature of human trafficking and the aim of exploitation, without determining whether it constituted “slavery”, “servitude” or “forced or compulsory labour”. 

250.  The ECtHR held that trafficking without doubt threatened human dignity and the fundamental freedoms of victims, and that it could not be compatible with a democratic society and the values expounded in the European Convention.  It reasoned that with regard to its “obligation to interpret the European Convention in light of present-day conditions”, it was unnecessary to subsume human trafficking under any of the three prohibitions. 

251.  The ECtHR defined the term human trafficking and its application by reference to the Palermo Protocol.  It considered that a main characteristic of human trafficking was that it aims at exploiting a person by exercising powers over that person comparable to the right of ownership.[199]

252.  The respondents note that the non-inclusion of the HKSAR as a party to the Palermo Protocol was a decision made by the Central People’s Government pursuant to Article 153 of the BL, and made as part of its treaty-making power as the sovereign state.[200]  As such, the respondents argue that this is a non-justiciable issue.[201] 

253.  The explanation for the non-inclusion of the HKSAR in the Palermo Protocol was given by Ms Wendy Leung in her affirmation at paragraph 40:

“…whilst the HKSARG attaches significant importance in preventing and combating human trafficking, it is the Administration’s considered view that it is not in the best interests of Hong Kong to apply the Palermo Protocol to Hong Kong. Hong Kong is a place with a dense (and increasing) population, a long coastline, a liberal visa regime and a well-developed transportation network which makes it the hub for the region. Our unique circumstances, coupled with our economic prosperity, makes us particularly vulnerable to the ill-effects of illegal immigrants who purport to come and stay here for a better life. Certain requirements set out in the Protocol, in particular the provision of services to trafficking victims in Article 6 (including appropriate housing, employment education and training assistance), permitting trafficking victims to remain in its territory, temporarily or permanently, under Article 7 will subject Hong Kong to the enormous risk of an influx of illegal, economic migrants applying for stay (and permission to take up employment) in Hong Kong under the pretext of being victims of human trafficking.”

254.  On this point, Mr Harris contends that it is not an acceptable argument that applying the Palermo Protocol principles would increase the influx of economic migrants by enabling them to claim that they are victims of human trafficking.[202]  He submits that this risk has not materialised for current Protocol signatories, nor is this risk of abuses a justification for failing to apply constitutional provisions for human rights in a manner that gives substantial protection.  He points out that a similar argument was rejected in relation to torture claims under Article 3 of the BOR.[203] This is because the right has a non-derogable nature.[204]  Moreover, he argues that modern slavery is a hidden crime and Hong Kong has never conducted an investigation into the estimated number of victims.  He says that even if human trafficking were rare, this would not justify the assertion that there is no positive obligation.  He submits that there are hundreds of forced labour trafficking cases that are undetected in Hong Kong.[205]  He notes that the UN Human Rights Committee has called for the extension of the Palermo Protocol to Hong Kong.[206]

255.  The respondents argue that the question as to the nature and extent of any legal obligations relating to a proper interpretation of Article 4 of the BOR should not be mixed up with the separate and non-justiciable question of whether it is desirable or necessary for the Palermo Protocol to be applied to the HKSAR.  Equally, they argue, the HKSARG’s policy for combating human trafficking is a separate question to that of whether it has an obligation to combat human trafficking under Article 4 of the BOR. 

256.  Article 4 of the BOR in general terms contains a prohibition against slavery, servitude and forced or compulsory labour.  As the respondents point out, it does not refer to human trafficking or prescribe the manner in which the prohibition against slavery, servitude and forced or compulsory labour is to be effected by the HKSARG.  It is silent on the question of human trafficking, and on any measures which may be required of the HKSARG to tackle it.  However, this does not mean that as a consequence there is no obligation on the HKSARG to do something about it.  This will turn on the interpretation of Article 4 of the BOR.

257.  The respondents therefore argue that conceptually it is necessary to differentiate between human trafficking and the conduct which is prohibited under Article 4 of the BOR.  They submit there is no necessary correlation between human trafficking on the one hand, and slavery, servitude and forced or compulsory labour on the other. 

258.  In their analysis, the respondents reason that an individual may, for example, be subjected to forced labour without having been a victim of trafficking in persons. Similarly, a victim of human trafficking who is subject to exploitation may not necessarily be subjected to slavery, servitude, or forced or compulsory labour.  They conclude that exploitation, in the context of human trafficking, carries a wider meaning.  There is merit in their reasoning. 

259.  Curiously, it is acknowledged in the respondents’ submissions that even though the HKSARG is not subject to any applicable international treaty obligations in relation to human trafficking, it is nevertheless committed to dealing with human trafficking and is guided by the definition of human trafficking under Article 3 of the Palermo Protocol in doing so.  The definition attempts to cover all forms or circumstances by which trafficking of persons occurs for the purpose of exploitation.  Exploitation is widely defined, and includes as a minimum the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. 

260.  The respondents describe the terms of Article 4 of the BOR as consisting of three distinct concepts, namely slavery, servitude and forced labour.  Even if the respondents are correct as to the categorisation of Article 4 of the BOR, there is no reason why human trafficking cannot or should not form part of the prohibited conduct covered by each concept.  It seems to me that implicit in each of the concepts is the prohibition against trafficking of a person for slavery, servitude, and forced or compulsory labour respectively. 

261.  The argument developed by Lord Pannick, QC, argues that Article 4 of the BOR does not impose duties to protect against human trafficking because it is only concerned with the concepts of slavery, servitude and forced or compulsory labour.  He does acknowledge however that human trafficking may have relevance to the three concepts when applicable.  He is critical of the approach taken by the ECtHR in the cases relied upon by the applicant.  He argues that the ECtHR approach was to discard the three concepts and define the article by one concept, namely human trafficking, which he says was “simply wrong”. 

262.  He cites the case of Matadeen v Pointu[207]where the Privy Council warned that the question of statutory construction should be an exercise of interpretation not divination.

“… It is perhaps worth emphasising that the question is one of construction of the language of the section. It has often been said, in passages in previous opinions of the Board too familiar to need citation, that constitutions are not construed like commercial documents. This is because every utterance must be construed in its proper context, taking into account the historical background and the purpose for which the utterance was made. The context and purpose of a commercial contract is very different from that of a constitution. The background of a constitution is an attempt, at a particular moment in history, to lay down an enduring scheme of government in accordance with certain moral and political values. Interpretation must take these purposes into account. Furthermore, the concepts used in a constitution are often very different from those used in commercial documents. They may expressly state moral and political principles to which the judges are required to give effect in accordance with their own conscientiously held views of what such principles entail. It is however a mistake to suppose that these considerations release judges from the task of interpreting the statutory language and enable them to give free rein to whatever they consider should have been the moral and political views of the framers of the constitution. What the interpretation of commercial documents and constitutions have in common is that in each case the court is concerned with the meaning of the language which has been used. As Kentridge A.J. said in giving the judgment of the South African Constitutional Court in State v Zuna, 1995 (4) B.C.L.R. 401, 412: “If the language used by the lawgiver is ignored in favour of a general resort to ‘values’ the result is not interpretation but divination.”[208]

263.  Lord Pannick is particularly critical of the reasoning of the ECtHR in Rantsev,[209] where it stated that it considered it unnecessary to identify whether the treatment complained of by the applicant was one of the three listed concepts. Instead the court concluded that trafficking itself fell within the scope of Article 4 of the ECHR.  Lord Pannick described the approach taken by the court as expansive and inconsistent with the approach of considering the purpose and context of the article when addressing the question of its construction. He stressed that there are three concepts, and the construction of the article did not permit extending it to include human trafficking, which is itself a distinct concept.  He points out that the three distinct but related concepts, when considered in their context, present a graduation of seriousness in descending order: from slavery, to servitude, to forced or compulsory labour. 

264.  I agree with Lord Pannick that Article 4 of the BOR addresses three distinct concepts which seem to cover the spectrum of impermissible exploitation, although there could be other forms of human exploitation.  Given the nature of the concepts there is inevitable overlap, because the same facts and circumstances are likely to be relevant to or apply to more than one of them.  The concepts nevertheless are addressed slightly differently from one another, and this would indicate that these are distinct concepts that the article seeks to outlaw, despite the possibility of overlap between them.  As I have already said, slavery and the slave trade are given a broad prohibition by reference to “all their forms”. This in my view covers slavery whatever its form, and seeks to address all its manifestations. 

265.  It is worth noting the comments of Gleeson CJ in Wei Tang[210] when he said that one should guard against seeking to draw boundaries between slavery and cognate concepts such as servitude, peonage, forced labour, or debt bondage, as the various concepts are not all mutually exclusive.  He pointedly remarked: “Those who engage in the traffic in human beings are unlikely to be so obliging as to arrange their practices to conform to some convenient taxonomy.”

266.  Lord Pannick, whilst acknowledging the general persuasive value of Strasbourg jurisprudence, questions reliance on the human trafficking decisions because they are based on different local conditions and a different constitutional imperative.  He points to the fact that these decisions are based on international instruments that are not part of Hong Kong’s commitment in its domestic law.  He says it is significant that the Palermo Protocol is not applicable to Hong Kong, and the Palermo Protocol was clearly a significant matter in the decisions of the ECtHR. 

The positive obligation under Article 4 of the BOR

267.  In Rantsev, the ECtHR discussed the positive obligations arising from Article 4 of the ECHR as follows:

“285 In its Siliadin judgment, the Court confirmed that art.4 entailed a specific positive obligation on Member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour. In order to comply with this obligation, Member States are required to put in place a legislative and administrative framework to prohibit and punish trafficking. The Court observes that the Palermo Protocol and the Anti-Trafficking Convention refer to the need for a comprehensive approach to combat trafficking which includes measures to prevent trafficking and to protect victims, in addition to measures to punish traffickers. It is clear from the provisions of these two instruments that the contracting states, including almost all of the Member States of the Council of Europe, have formed the view that only a combination of measures addressing all three aspects can be effective in the fight against trafficking. Accordingly, the duty to penalise and prosecute trafficking is only one aspect of Member States’ general undertaking to combat trafficking. The extent of the positive obligations arising under art.4 must be considered within this broader context.

…

288 Like arts 2 and 3, art.4 also entails a procedural obligation to investigate situations of potential trafficking.  The requirement to investigate does not depend on a complaint from the victim or next-of-kin: once the matter has come to the attention of the authorities they must act of their own motion.  For an investigation to be effective, it must be independent from those implicated in the events.  It must also be capable of leading to the identification and punishment of individuals responsible, an obligation not of result but of means.  A requirement of promptness and reasonable expedition is implicit in all cases but where the possibility of removing the individual from the harmful situation is available, the investigation must be undertaken as a matter of urgency.  The victim or the next-of-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests.”

268.  In Siliadin, the ECtHR explained the nature and scope of the positive obligations by reference to the importance of the prohibitions under Article 4 of the ECHR.  The Court said:

“112 The Court reiterated that Art.4 enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos 1 and 4, Art.4 makes no provision for exceptions and no derogation from it is permissible under Art.15(2) even in the event of a public emergency threatening the life of the nation.

    In those circumstances, the Court considers that, in accordance with contemporary norms and trends in this field, the Member States’ positive obligations under Art.4 of the Convention must be seen as requiring the penalisation and effective prosecution of any act aimed at maintaining a person in such a situation.”

269.  The Court previously had declined to limit compliance with Article 4 of the ECHR and stated:

“89 … the Court considers that limiting compliance with Art.4 of the Convention only to direct action by the state authorities would be inconsistent with the international instruments specifically concerned with this issue and would amount to rendering it ineffective. Accordingly, it necessarily follows from this provision that governments have positive obligations, in the same way as under Art.3 for example, to adopt criminal law provisions which penalise the practices referred to in Art.4 and to apply them in practice.”

270.  The ECtHR in C.N. and V v France followed the reasoning of Siliadin and explained:

“104. The Court reiterates that States have positive obligations under Article 4 of the Convention (see Siliadin, cited above, §89). In the present case the Court will distinguish between the positive obligation to penalise and effectively prosecute actions in breach of Article 4 (ibid, §112) and the procedural obligation to investigate situations of potential exploitation when the matter comes to the attention of the authorities (see mutatis mutandis, Rantsev, cited above, §288).

105. In order to honour this obligation the States must set in place a legislative and administrative framework that prohibits and punishes forced or compulsory labour, servitude and slavery (see Siliadin, cited above, §§89 and 112, and mutatis mutandis, Rantsev, cited above, §285). So, in order to determine whether there has been a violation of Article 4, the relevant legal or regulatory framework in place must be taken into account (see Rantsev, cited above, §284).

106. The Court reiterates that in the Siliadin judgment, it considered that Articles 225-13 and 225-14 of the Criminal Code in force at the time did not afford the applicant, who was a minor, practical and effective protection against the actions of which she was a victim (Siliadin, cited above, §148).  In reaching that conclusion the Court found that the provisions concerned were open to very differing interpretations from one court to the next (ibid., §147).  It also noted that, as the Principal Public Prosecutor did not appeal on points of law against the Court of Appeal’s judgment acquitting the offenders, the appeal to the Court of Cassation concerned only the civil aspect of the case (ibid., §146).  Emphasising that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably required greater firmness in assessing breaches of fundamental values, the Court found in the Siliadin judgment that there had been a violation of the French State’s positive obligations under Article 4 of the Convention.”

271.  It is well-established that Hong Kong’s BL and BOR impose positive obligations on the HKSARG to protect the rights they contain.[211]

272.  The nature of the duty on the state to carry out an investigation into human trafficking was analysed in Rantsev,[212] where the ECHR stated:

“284 In assessing whether there has been a violation of article 4, the relevant legal or regulatory framework in place must be taken into account. The Court considers that the spectrum of safeguards set out in national legislation must be adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking. Accordingly, in addition to criminal law measures to punish traffickers, art. 4 requires Member States to put in place adequate measures regulating businesses often used as a cover for human trafficking. Furthermore, a state’s Immigration Rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking.

…

286 … In order for a positive obligation to take operational measures to arise in the circumstances of a particular case, it must be demonstrated that the state authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being trafficked or exploited within the meaning of art.3(a) of the Palermo Protocol and art.4(a) of the Anti-Trafficking Convention. In the case of an answer in the affirmative, there will be a violation of art. 4 of the Convention where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from the situation or risk”.

273.  In the English case of O v The Commissioner of Police for the Metropolis,[213] it was held that the police were in breach of duties under the Human Rights Act, 1998 (which incorporated the ECHR into English law) when they failed to investigate adequately a number of cases involving Nigerian girls brought to the United Kingdom and made to work as unpaid domestic servants.  The Court concluded that the ECHR jurisprudence imposes a procedural obligation to investigate cases of possible trafficking, which must be capable of leading to the identification and punishment of individuals responsible; that a requirement of promptness and reasonable expedition is implicit in all cases, but that where there is possibility of removing an individual from a harmful situation, the investigation must be undertaken as a matter of urgency; and that the police investigation must be effective.[214]

274.  In C.N. v UK,[215] the ECtHR found that the absence in United Kingdom law of any other provision criminalising servitude and forced labour, where it arose in a context not falling within the definition of human trafficking in Section 4 of the Asylum and Immigration (Treatment of Claimants) Act 2004, was likewise a breach of the positive obligation arising from Article 4 of the ECHR.[216]  The facts of that case were that the applicant had knowingly entered the United Kingdom under an illegal arrangement that was considered by the police not to engage Section 4 of the 2004 Act.  She was subsequently forced to work without pay or any prospect of changing her employment, with all wages paid for her work being retained by the relative who had brought her to the United Kingdom.[217]

275.  Mr Harris argues that, on an analysis of the Strasbourg jurisprudence, the following aspects of the positive duty arising from Article 4 of the ECHR also apply to Article 4 of the BOR.  They are:

a) Duty to provide a legislative framework criminalising forced labour;[218]

b) Duty to investigate possible cases of human trafficking;[219]

c) Duty to identify victims of human trafficking correctly and promptly;[220]

d) Duty to provide adequate training to police and immigration officials to enable them to identify victims of human trafficking correctly and promptly;[221]

e) Duty to provide protection to victims of human trafficking.[222]

276.  The respondents argue that one must not confuse the concept of exploitation and trafficking in persons, and suggest that Article 4 of the BOR also covers trafficking.  They argue that the applicant relies primarily on Siliadin,which is an authority for the existence of positive duty under Article 4 of the BOR only in the limited sense, and does not include trafficking.  The respondents argue if this is the applicant’s case then there is no legal obligation for the HKSARG to conduct an investigation into his case as a victim of human trafficking.  Instead, the case should focus entirely on the scope of the duty under Article 4 of the BOR, and matters relating to the Palermo Protocol should not be considered relevant.  To answer this submission it is necessary to look at the Strasbourg cases in greater detail, which I will do later in this decision.

277.  Just as is the case with Article 2 of the ECHR (right to life) and Article 3 of the ECHR (prohibition of torture),[223] the ECtHR has derived positive obligations of member states from Article 4 of the ECHR.  In Siliadin, the ECtHR considered it a state’s obligation to effectively investigate and punish the perpetrators of acts prohibited by Article 4 of the ECHR.  In Rantsev, the ECtHR extended the positive obligations in relation to human trafficking.  These positive obligations encompass prevention, protection of the victim when in a situation of immediate danger, prosecution and punishment of offenders, as well as investigation and various procedural obligations.  It is therefore incumbent on member states to establish a legal and administrative framework that prohibits and punishes human trafficking.  Furthermore, they are bound to implement operational measures to protect victims and potential victims as soon as they learn about circumstances that give rise to the credible suspicion of a person being or having been at real and immediate risk.  This extends generally to Article 4 of the ECHR.[224] 

278.  It would appear that a breach of Article 4 of the ECHR occurs when a state fails to take all reasonable measures within the scope of its powers to protect a person from the prohibitions under the article.  In C.N. and V v France, the ECtHR concluded that an underage girl had been subjected to forced or compulsory work by her aunt and uncle.  They also found that the authorities had failed to combat forced labour as no legislative and administrative framework was in place to make it possible to fight servitude and forced labour effectively.[225] Member states also have an obligation to investigate potential cases of human trafficking or other conduct prohibited under Article 4 of the ECHR.  However, this obligation seems only to arise when the situation has come to the authorities’ attention.  If it does, the authorities must conduct an investigation which is effective and independent, and fulfil all the conditions required under Article 4 of the ECHR.[226] 

279.  Lord Pannick argues that even if there is a prohibition against human trafficking under Article 4 of the BOR, there is no breach of any positive duty by the HKSARG.  He says that Article 4 of the BOR does not impose absolute duties, and it suffices if the HKSARG has taken reasonable and appropriate measures in all the circumstances.  He argues that there is a broad discretion in implementing any measures against human trafficking, and that what has been done by the HKSARG as set out in the affirmation of Ms Leung is well within the margin of discretion. 

280.  In the case of Leung Kwok Hung and Others v HKSAR,[227] the Court of Final Appeal was dealing with the right of peaceful assembly and addressing the positive duty on the government under Article 17 of the BOR and Article 21 of the ICCPR by virtue of Article 39 of the BL.  The Court noted that freedom of peaceful assembly is a fundamental constitutional right and “the courts must give such a fundamental right a generous interpretation so as to give individuals its full measure”.[228]  The Court then went on to point out that the right involved a positive duty on the part of the government to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully.  However, it added that this obligation was not absolute, because the government could not guarantee that lawful assemblies would proceed peacefully and “it has a wide discretion in the choice of the measures to be used” and what “are reasonable and appropriate measures must depend on all the circumstances in the particular case”.[229] 

281.  Lord Pannick argued that the enactment of a specific criminal offence of human trafficking was a matter that was within the margin of discretion.  He referred to the case of Rantsev, where the ECtHR discussed the positive obligation on a member state to put in place an appropriate legislative and administrative framework.  There the ECtHR noted that the criminal law in Russia did not specifically provide for the offence of trafficking, and that the conduct about which the applicant complained fell within the definition of other offences.[230]  It was further observed by the court that the applicant did not point to any particular failings in the Russian criminal law provisions, and that in the wider administrative and legal framework, efforts had been made by the Russian authorities to publicise the risk of trafficking.  The court did not consider that the legal administrative framework in place at the material time failed to ensure practical and effective protection in the circumstances of that case. 

Hong Kong’s law and practice

282.  In 2013, the UN Human Rights Committee stated that it was ‘…concerned about the reluctance of Hong Kong, China, to take steps which could lead to the extension of the…Palermo Protocol to Hong Kong’.^[231]  Subsequently, it recommended that:

“Hong Kong, China, should intensify its efforts to identify victims of trafficking and ensure the systematic collection of data on trafficking flows to and in transit through the region, review its sentencing policy for perpetrators of trafficking-related crimes, support private shelters offering protection to victims, strengthen victim assistance by ensuring interpretation, medical care, counseling, legal support for claiming unpaid wages and compensation, long term support for rehabilitation and stability of legal status to all victims of trafficking. The Committee recommends the inclusion of certain practices regarding foreign domestic workers in the definition of the crime of human trafficking. Hong Kong, China, should consider taking steps which could lead to the extension of the Palermo protocol to Hong Kong, China, in order to strengthen its commitment to fight trafficking of persons in the region.”[232]

283.  The respondents on behalf of the HKSARG state that it has in place “a detailed, comprehensive and multi-faceted regime to tackle the problems of human trafficking and forced labour”.^[233]  Ms Leung in her affirmation states that:

“Hong Kong spares no effort in combating human trafficking, which is achieved through a combination of a wide variety of administrative and operational measures, underpinned by a solid and well-proven legislative framework penalizing various conduct encompassed within the definition of trafficking in persons in the Palermo Protocol…”,[234]

and

“…whilst the HKSARG attaches significant importance in preventing and combating human trafficking, it is the Administration’s considered view that it is not in the best interests of Hong Kong to apply the Palermo Protocol to Hong Kong.”[235]

284.  She further states that “the efforts of the HKSARG to combat and deal with issues arising from human trafficking and forced labour are comprehensive and multi-faceted”, in relation to the aspects of “inter-departmental collaboration, enforcement and prosecution, victim identification, victim protection and prevention, and international cooperation”.^[236] Therefore, the respondents submit that “[c]learly, it cannot be suggested that the HKSARG has neglected at a systemic level to give sufficient importance to those issues”.^[237]

285.  As noted by the applicant, Hong Kong is not party to the Palermo Protocol but accepts its definition of human trafficking.^[238] Ms Leung uses the definition of the Palermo Protocol at Article 3 on a number of occasions,^[239] and quotes it in the following passage:

“…our legislation taken as a whole still prohibits the constituent elements of the conduct referred to as ‘trafficking in persons’ (TIP) in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (“Palermo Protocol”). Article 3 of the Palermo Protocol states that “trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.[240]

286.  Ms Leung notes that “the laws of Hong Kong do not have a statutory definition of human trafficking (primarily because Hong Kong is not a party to any relevant international treaty)”,^[241] and that “Hong Kong does not have a single piece of legislation dealing with human trafficking, or forced labour as such”.^[242]  Whilst this is the case, she articulates that “our legislation taken as a whole still prohibits the constituent elements of the conduct referred to as “trafficking in persons” [in the Palermo Protocol]”,^[243] and that:

“we do have a comprehensive and solid legislative framework to deal with various conduct encompassed within the definition of the TIP in the Palermo Protocol, which includes forced labour. Moreover, HKSARG has in place a system of comprehensive and multi-faceted administrative and operational measures to deal with the issue in practice.”[244]

287.  Ms Leung uses the Palermo Protocol’s definition, and then states that “it is the Administration’s considered view that it is not in the best interests of Hong Kong to apply the Palermo Protocol to Hong Kong”.^[245] On behalf of the HKSARG, she submits that the Palermo Protocol is not applicable to Hong Kong for two reasons.  Firstly, to the problem of economic migrants:

“Hong Kong is a place with a dense (and increasing) population, a long coastline, a liberal visa regime and a well-developed transportation network which makes it a hub for the region. Our unique circumstances, coupled with our economic prosperity, make us particularly vulnerable to the ill-effects of illegal immigrants or economic migrants who purport to come and stay here for a better life.”[246]

288.  These characteristics could also contribute to Hong Kong as a destination or transit point for human trafficking. Ms Leung details the obligations that would be entailed if the Palermo Protocol applied to Hong Kong:

“Certain requirements set out in the Protocol, in particular the provision of services to trafficking victims in Article 6 (including appropriate housing, employment educational and training assistance), permitting trafficking victims to remain in its territory, temporarily or permanently, under Article 7, will subject Hong Kong to the enormous risk of an influx of illegal, economic migrants applying for stay and (permission to take up employment) in Hong Kong under the pretext of being victims of human trafficking.”[247]

289.  Although Hong Kong does not implement the Palermo Protocol, Ms Leung concludes that the HKSARG has current legislative, administrative and operational measures in place, and that, “[i]n this manner, Hong Kong maintains a balance between the need to combat human trafficking while at the same time avoiding the potential risk of abuse of the system if Hong Kong were subject to the provisions of the Palermo Protocol”.^[248]

290.  Secondly, in line with the respondents’ claim that human trafficking is rare in Hong Kong, Ms Leung states: “[f]rom the information available to the Security Bureau, there is no indication that Hong Kong is being actively used by syndicates as a destination and transit point for trafficking in persons, or that forced labour is a prevalent or widespread problem”.^[249] Furthermore, the HKSARG responded to issues raised by the United Nations Committee on Economic, Social and Cultural Rights by stating that “[t]he HKSAR is neither a destination for human trafficking nor a place of origin or transit for such illicit activities”.^[250]  This position on human trafficking in Hong Kong is contrary to the findings of the Human Rights Committee, which stated that the Committee was:

“…concerned about the persistence of the phenomenon of trafficking of persons in Hong Kong, China, and reports that Hong Kong, China is a source, destination, and transit point for men, women, and teenage girls from Hong Kong, the mainland of China and elsewhere in Southeast Asia.”[251]

291.  In response to enquiries by the applicant’s solicitor, the Department of Justice confirmed that no studies have been carried out by the HKSARG to establish how widespread trafficking is in Hong Kong.^[252]

292.  The HKSARG claims that it has a comprehensive regime in place to for combat human trafficking:

“…we do have a comprehensive and solid legislative framework to deal with various conduct encompassed within the definition of the trafficking in persons in the Palermo Protocol, which includes forced labour. Moreover, HKSARG has in place a system of comprehensive and multi-faceted administrative and operational measures to deal with the issue in practice.”[253]

293.  Hong Kong’s comprehensive regime for addressing human trafficking purportedly includes international standards and best practices.  Ms Leung identifies that in 2010, an inter-departmental working group was set up that has taken a “holistic and collaborative approach to tackling human trafficking issues”.^[254]  She also cites its Terms of Reference, which includes statements committing it to “prevent, detect and combat, as appropriate, human trafficking activities on various fronts”, and “to monitor the applications of the relevant laws of HKSAR, and where necessary and appropriate, to bring them in line with concepts of prevailing international standards”.^[255] Furthermore, she asserts that there is similarly a focus on international cooperation:

“Law enforcement agencies of the HKSARG have maintained a close working relationship with various overseas consulates, foreign and Mainland law enforcement agencies and actively participate in various international conferences and workshops to learn best practices…”[256]

294.  The HKSARG acknowledges that anti-human trafficking measures, such as training officers in victim identification, are necessary:

“HKSARG appreciates that, to effectively identify victims of human trafficking and forced labour, it needs trained law enforcers, prosecutors, social workers and individuals who may have contact with possible victims of human trafficking and forced labour who are sensitive to the issues, conversant with the criminality, familiar with the law and attuned to best practices at the international level.”[257]

295.  The respondents argue that it is unlikely that any officer from the Immigration Department or Labour Department “would have been alerted to the fact that the applicant was a victim of human trafficking or forced labour, nor should they be so alerted”.^[258] Shum Chi Chung states that, “I need to emphasize again that during the aforesaid events from 22 February 2013 to 12 April 2013, the Immigration Department had no knowledge of the applicant’s alleged exploitation”.^[259]  Regarding internal guidelines for the Labour Department and key factors for identifying victims of human trafficking or forced labour, Chan Wing Han states:

“Although the Labour Department does not have any specific written guidelines on identification of victims of human trafficking/forced labour, when coming across persons complaining of physical abuse, false imprisonment and confiscation of identity documents etc (which are the usual features of human trafficking or forced labour), staff members of the LRD will normally advice the complainants to seek assistance from the Police.”[260]

296.  In terms of enforcement and prosecution, the HKSARG highlights that “legislative provisions have been adaptively and effectively applied over the years to combat human trafficking and forced labour and serve as a strong deterrent for potential offenders”.^[261]

297.  The HKSARG claims to have enacted a “detailed, comprehensive and multi-faceted regime to tackle the problems of human trafficking and forced labour”.^[262]  A representative from the Police explicitly confirms that “the policies, guidelines and matters disposed in the Affirmation of Wendy Leung filed on behalf of the respondents truly and accurately reflect the position of the Police”.^[263] A representative of the Immigration Department made the same statement, except in relation to the Immigration Department.^[264]  Additionally, a representative from the Labour Department wants to “stress that the HKSARG has all along been committed to safeguarding the rights and benefits of all employees in Hong Kong”.^[265] 

298.  The general claims of the HKSARG about what it has achieved in this area, is for others to consider and comment on, but if this case is an example of the effectiveness of the Hong Kong’s regime in tackling human trafficking and forced labour, then it has failed to achieve even the most basic objectives.

299.  They submit that the means adopted by the Hong Kong legislature, namely allowing more general criminal offences to be used and supplemented by other more specific criminal offences to address any social mischiefs recognised by the legislature from time to time, ensures that conduct which offends against Article 4 of the BOR is the subject of criminal prohibition and sanctions.[266]  They give as an example the offence of trafficking in persons for the purpose of prostitution, by section 129 of the Crimes Ordinance, Cap 200, and the enactment of the Prevention of Child Pornography Ordinance, Cap 579.  They go on to say that the allegations made by the applicant, if proved, plainly establish criminal conduct under existing law. 

300.  If it is being suggested that the existing body of criminal offences available under statute and common law appropriately and fully address the problem of human trafficking as it is understood, then I have to disagree with this submission.  One only has to examine the elements of section 129 of the Crimes Ordinance to see the limitations of its application.  It provides that it is an offence for a person who takes part in bringing another person into, or taking another person out of, Hong Kong for the purpose of prostitution.  The trafficking of a person for the purpose of prostitution within the jurisdiction is not covered by this offence, and it limits the trafficking of a person to prostitution only.  The respondents rely on the comments of Ms Leung in her affirmation where she states:

“Although Hong Kong does not have a single piece of legislation dealing with human trafficking, or forced labour as such, we do have a comprehensive and solid legislative framework to deal with various conduct encompassed within the definition of TIP in the Palermo Protocol, which includes forced labour. Moreover, the HKSARG has in place a system of comprehensive and multi-faceted administrative and operational measures to deal with the issue in practice.”

301.  It is argued by the respondents that, when viewed as a whole, the HKSARG has taken sufficient measures at a systemic level to deal with human trafficking, forced labour, slavery and servitude, in compliance with any obligations it may have under Article 4 of the BOR.  The respondents go on to argue that in so far as any authority of the HKSARG does have any duty to investigate any possible cases of human trafficking and/or forced labour once a “credible suspicion” is raised, such a duty to investigate is not absolute but is necessarily subject to a broad discretion of the authorities to decide on priorities in the light of available resources.[267]

302.  Of the measures that the HKSARG has in place to deal with the issue under discussion, the respondents  say that these include comprehensive legislation which prohibits the constituent conduct involved in cases of forced labour or human trafficking. They refer to the comments of Ms Leung in her affirmation where she states:

“These relevant provisions prohibit a wide range of conduct commonly found in human trafficking and forced labour cases, including physical abuse, false imprisonment, criminal intimidation, unlawful custody of personal valuables, child abduction, child pornography, various trafficking activities for the purposes of prostitution and rape or other sexual offences.”

303.  They say that the Immigration Ordinance, Cap 115, covers a wide variety of immigration-related offences that may be found in human trafficking cases.  They refer to section 129 of the Crimes Ordinance, which I have already referred to, and refer to the traditional criminal offences of intimidation, assault, wounding and false imprisonment.  They also refer to the offences relating to the non-payment of wages and other employment-related matters under the Employment Ordinance, Cap 57, as well as other relevant legislative provisions. 

304.  It seems to me that this misses the point.  There is a specific prohibition against a form of conduct and yet there is no legislation that criminalises it.  Claims are made that features or symptoms of the prohibited conduct are  addressed by existing criminal or regulatory offences, but the real mischief is not being criminalised as required.  There is no law that prohibits slavery or trafficking in slavery, servitude or trafficking in servitude, and forced labour or trafficking in forced labour. 

305.  In any event, the respondents argue that the conduct complained of by the applicant if proven would clearly have been unlawful under existing Hong Kong criminal law.  The alleged conduct of the applicant’s employer would be penalised by criminal sanctions.  The point has already been made that features or facets of the alleged conduct may have capably been dealt with by criminal offences.  However, the question is where the overall conduct of an employer can be dealt with if it is considered to be forced labour or trafficking in forced labour. 

306.  The respondents go on to argue that redress in the civil courts is also available in Hong Kong in appropriate cases where the civil rights of individuals have been infringed. They give as an example the ability of an employee to seek redress for unpaid wages and employment benefits through the Labour Tribunal.  They point out that the applicant was able to make use of the civil law system to seek redress against his former employer in this case. 

307.  The respondents seem not to appreciate the circumstances in which the applicant did make his claim against his former employer.  According to his account of the matter, the outcome was a false resolution because of the continued threats he was subjected to by his former employer.  However, this misses the point because the obligation is on the HKSARG to ensure that the reprehensible conduct covered by Article 4 of the BOR is prohibited, and that the state deals with it by protecting victims or potential victims.  The obligation is on the state to prohibit slavery, servitude and forced labour, not on the victim. 

308.  The respondents also point to paragraph 18 of the Prosecution Code, which they say was designed to enable an integrated approach to human trafficking and exploitation, so that such cases are dealt with in a comprehensive, consistent and compassionate manner. 

309.  The respondents also mention other initiatives they have taken in addressing the problem of human trafficking.  They refer to the interdepartmental working group which was established in 2010 to further enhance the policy and enforcement strategy against human trafficking.  This has led to the enhancement of anti-human trafficking training for the staff of relevant government departments and agencies, and greater coordination between relevant investigatory bodies in the exchange of intelligence, joint investigation and cooperation on trafficking activities.  They note in particular that the HKSARG attaches significant importance to the need to identify victims of human trafficking and forced labour, as well as appropriate victim protection and prevention programs. Finally, the respondents submit that the HKSARG has established close working relationships with overseas entities and agencies in order to tackle the problems of human trafficking and forced labour.  They argue on this basis that it cannot be suggested that the HKSARG has neglected at a systemic level to give sufficient importance to the issues and problems of human trafficking and forced labour.

310.  The applicant disagrees with the submissions of the respondents that the existing criminal offences and other measures are sufficient to deal with human trafficking, without a specific law against such trafficking. 

311.  If this is considered as a report card on how the HKSARG has been tackling human trafficking, then it will be for others to assess and evaluate.  I have made appropriate comments in relation to the matters that have been presented in argument by the respondents, but as a report card it seems to suffer by what it does not say as compared to what it does actually say. 

312.  I find on the evidence and material presented to me that the current regime does not address adequately or effectively the positive obligations under Article 4 of the BOR to tackle the practice of forced labour and the trafficking of persons for forced labour.  The evidence of Alexandra Maria Barr,[268] Lam Bik Che[269] and Chan Lui Luna[270] contradicts the respondents’ submissions.  They each describe from their own work experience and case studies a deeply disturbing and upsetting account of the treatment of foreign domestic helpers in Hong Kong who have been allegedly abused by certain unscrupulous employers.  These employers have taken advantage of their vulnerability and their unfamiliarity with the laws and structures of Hong Kong. 

Positive obligation to enact legislation and to implement other measures

313.  The respondents argue that the BOR does not explicitly require the legislature to enact specific legislation in order to address a social issue.  They refer to Ms Leung’s comment that there are wider socio-economic considerations to be taken into account in deciding whether to put in place a specific regime against human trafficking.  The respondents submit that the legislature has a margin of discretion to decide whether to enact specific criminalising legislation, and if so, on what terms.  The respondents further submit that it is not for the courts to tell the legislature how best to combat human trafficking, or what administrative or operational measures should be adopted by the executive.[271] 

314.  The respondents rely on Fok Chun Wa, where the Court of Final Appeal discussed the relevance of the concept of margin of appreciation.  The Court noted that this concept reflected the different constitutional roles of the judiciary on the one hand, and the executive legislature on the other.  It explained that the role of the judiciary was to apply the law, and matters of state or community policies were predominantly those for the executive or legislature. It would not usually be in the province of the courts to adjudicate on the merits or demerits of government socio-economic policies.  I do not believe that this is what the applicant’s submission seeks to do.  The applicant is arguing that the HKSARG has a legal obligation under Article 4 of the BOR to address human trafficking, particularly forced labour, and in this respect it is not addressing the issue according to law. 

315.  As regards the need to enact specific legislation, the respondents submit that unlike the position in C.N. v United Kingdom, the ECtHR in Rantsev held that the legal and administrative framework in place in Russia at the material time did not fail to ensure practical and effective protection against human trafficking.  In that particular case, the Russian Government had argued that the conduct about which the applicant complained fell within the definitions of other offences. It was pointed out by the respondents in their previous arguments that, when referring to decisions of other cases, care has to be taken that the facts and context of those cases are taken into account when deciding if the decision have any relevance or applicability to the case at hand.

316.  The respondents argue, however, that it is wrong to suggest that the Strasbourg cases fully support the applicant’s contention that there should be a single specific piece of legislation.  It is noted that under Article 2(2) of the ICCPR, state parties undertake, “where not already provided for by existing legislative or other measures”, to “adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant.” This shows that whatever obligations the HKSARG has under Article 4 of the BOR, these do not necessarily include adopting legislative measures such as a specific piece of legislation.  The respondents also rely on General Comment No.3 issued by the Human Rights Committee in 1981 which states: “The Committee notes that Article 2 of the Covenant generally leaves it to the states parties concerned to choose their method of implementation in their territories within the framework set out in that article.  It recognises, in particular, that the implementation does not depend solely on constitutional or legislative enactments, which in themselves are often not per se sufficient”.

317.  It is noted by the respondents that the object of the BOR is to implement the provisions of the ICCPR as applied to Hong Kong, not to implement the ECHR or the Palermo Protocol which are inapplicable to Hong Kong.  They argue that these latter two documents  do not form part of Hong Kong law, nor is there any legal obligation on the HKSARG to enact their provisions as local laws.[272] 

318.  It is further argued by the respondents that in considering Article 4 of the BOR, the jurisprudence of the HRC established under the ICCPR should be given substantial weight under Hong Kong law.  It is noted by the respondents that there do not appear to be any decisions of the HRC to the effect that a state party has failed to comply with the obligations under Article 8 of the ICCPR merely because it does not have a piece of legislation specifically dealing with or criminalising human trafficking.  They further submit that the HRC has not issued any general comment on Article 8 of the ICCPR.  I do not see any substance in this argument.  The fact that there is no general comment on Article 8 of the ICCPR does not mean that there is not a positive obligation on state parties to enact specific legislation to criminalise a former prohibitive conduct that has become a concern to the international community, as evidenced by international conventions.

319.  The respondents take issue with the suggested interpretation of Article 4 of the BOR by the applicant.  The applicant states that Article 4 of the BOR must be interpreted “so as to provide at least the same protection from human trafficking for forced labour as is required by the European Convention in relation to France and other European countries”.  The respondents argue that this is wrong in principle because it is for the Hong Kong courts to decide on the meaning and application of Article 4 of the BOR, and whilst they will have regard to judgments of the ECtHR, they are not obliged to follow them.

320.  It has always been the case that the courts in Hong Kong have appreciated the significance of the Strasbourg cases by recognising their persuasive value in appropriate circumstances.  The suggestion by the respondents that the BOR was intended to deny discretion to the Hong Kong courts and required the interpretation of relevant provisions to be subcontracted to Strasbourg is simply not tenable, and no one is suggesting that this is the case.

321.  The respondents argue that there is much to be said for allowing a margin of discretion for the legislature and the executive when addressing the problem of human trafficking. I do not know that I quite understand the respondents’ argument here, or at least what issue they are really addressing.  They say that the BOR does not specify how human trafficking is to be addressed, and this question is left to the legislature.  They then go on to say that there is no one single right answer to the question of how to address the problem. 

The applicant’s case

322.  As is apparent, the thrust of Lord Pannick’s submission is that the sole purpose of the applicant returning to Hong Kong in 2012 was to recover his unpaid wages.  He points out that there were other occasions when the applicant complained about threats that were made to him but he did not, he submits, complain about his past employment to the extent of revealing that he was a victim of human trafficking for forced labour. 

323.  Lord Pannick refers to the lack of official records of his visits to the relevant authorities and to the fact that the applicant, according to his own testimony, disclosed that he had entered into Hong Kong illegally and yet no action was taken against him as an illegal immigrant.  I have already dealt with these matters but I am not totally surprised that there are no records in existence and that no action was taken against him as an illegal immigrant.  He had previously worked in Hong Kong and had in his possession a Hong Kong Identity Card. These facts, combined with a lack of appreciation of the issue that the applicant was raising, may have led the officials concerned not to take him seriously or to address his particular problem. 

324.  Lord Pannick addresses each of the visits that the applicant claimed he made to the Hong Kong authorities, but I am satisfied that the visits occurred and that what he says took place or did not take place were the case. 

325.  Accordingly, in relation to the visits to the relevant authorities, I find that the particulars that the applicant disclosed concerning his period of employment and the failure of the employer to pay his wages, as well as on some occasions his mentioning of the mistreatment he had received at the hands of the employer, should have rung alarm bells to suggest that the applicant had been seriously mistreated in his period of employment to the extent that his case possibly amounted to one of forced or compulsory labour. 

326.  Lord Pannick addresses the hearing at the Labour Tribunal and notes that there was no obligation on the Tribunal as a judicial body to take the matter beyond the issue to be determined.  As far as I am concerned, this is evidence in support of the applicant’s claims.  Further action may have been recommended by the presiding officer if there had been an appropriate legal and administrative framework in place in relation to human trafficking or forced labour. 

327.  Lord Pannick also addresses the torture claim, and argues that even though the applicant gave a detailed account of incidents amounting to potential human trafficking for forced labour, the screening process for a torture claim is confidential and solely focused on that issue.  Again I have difficulty with this argument.  Torture claims are handled by officers of the Immigration Department, and a failure to take the matter further as a potential human trafficking for forced labour case may reflect a lack of an appropriate legal and administrative framework to address this issue. 

328.  Lord Pannick argues that the circumstances of this case do not amount to human trafficking for forced labour.  He points out that the applicant chose to come to Hong Kong and for that purpose obtained the passport.  He also chose to do manual labour for the employer in his business of trading in mobile phones.  He stresses that the applicant in his evidence confirmed that if he had been paid he would not have had any grievance. 

329.  The passage of the applicant’s affirmation that Lord Pannick relies on states that he was faithful to the employer’s family despite the mistreatment, and that he thought if he worked hard, he would be fine and would eventually be paid his salary.[273]  Lord Pannick argues that this is inconsistent with the suggestion that the applicant performed the work against his will.  I do not agree.  A person in a vulnerable and dependent state may perform work even though he or she does so against his or her own will. It is necessary to examine all the circumstances and make an objective assessment of what has taken place in order to determine whether or not the applicant performed the work against his will. 

330.  I do not agree with the main thrust of Lord Pannick’s submission, as it focuses on the single aspect of the applicant’s evidence that he came back to Hong Kong to recover his unpaid wages.  This is only part of the story and needs to be considered in the full factual context of the applicant’s case.

331.  Lord Pannick also suggests that the applicant did not come across as a weak or defenceless person but rather as someone prepared to stand up for himself, as evidenced by his action of coming back to Hong Kong to obtain his wages.  He adds that the threats made against the applicant on his return to Hong Kong did not deter him, and that he maintained his sense of grievance and continued to claim his wages.  He points out that the threats were serious, involving threatens to kill the applicant and his family members.  He also points out that the applicant nevertheless arranged, after a great deal of effort and expenditure, to come back to Hong Kong to pursue his employer through legal means.  He says that this all goes to show that the applicant was of a strong will, and it was more than likely that his will was not overborne during the period of his employment from 2007 to 2010.  Although Lord Pannick does acknowledge that the employer on the evidence was not an exemplary one, he nevertheless submits that the circumstances of the applicant’s case did not display the indicators of human trafficking, and in particular the indicator that his will was overborne.

332.  Lord Pannick submits that the applicant chose not to take any action between 2007 and 2010, and that even though the employer’s conduct was reprehensible it did not establish forced or compulsory labour.  He notes that the applicant was not prevented from leaving the office and did go out from time to time.  The applicant agreed not to be paid periodically because it was suggested that his family members might spend all the money.  The applicant’s passport was kept by the employer, but no issue was taken about that by the applicant.  Lord Pannick suggests that this all suggests that the applicant’s will was not overborne, and that he put up with the treatment he received in the hope that he would be paid. 

333.  I do not agree with this submission, as it misunderstands the very protection that is afforded to a person under Article 4 of the BOR, especially in the case of someone who is vulnerable and in desperate financial circumstances.  In accepting the applicant’s evidence it was clear that his work conditions and treatment were extreme and harsh.  He worked long hours and was required to reside at his work place, and was regularly abused and beaten. 

334.  On the question of the abuse that the applicant was subjected to by the employer, Lord Pannick challenges his evidence and argues that he either exaggerated or did not respond to questions about the injuries sustained as a result of the physical violence he claimed he had been subjected to by the employer.  I have already dealt with this matter.   I found the applicant to be a credible witness, albeit prone to overstate or magnify matters.  I accept that the nature of the abuse and beatings by the employer may not have been so severe as to require medical treatment.  However, the point is that any form of abuse or physical violence by an employer to an employee is totally unacceptable. 

335.  Lord Pannick further questions the credibility of the applicant on the basis that he returned to Hong Kong by unlawful means, and questions how he could have acquired the funds to come to Hong Kong in this way.  He asks how, if the applicant had not received any payment of wages, he could afford to pay for the illegal return to Hong Kong.  The applicant explained, and I accept, that his parents gave him the funds by selling livestock so that he could return to Hong Kong. 

336.  One issue that Lord Pannick has raised warrants careful consideration.  It is because of the anonymity order that the employer has not been interviewed for the purpose of the present proceedings.  I have to acknowledge this is a factor that I have taken into account, but on a consideration of all the evidence before me and having observed and listened to the applicant testify, I am satisfied that I can rely on his evidence for the purposes of addressing the issues in the present proceedings. 

337.  I am satisfied on the evidence before me that the evidence supports a case that the applicant was a victim of trafficking of a person for the purpose of forced labour.  I make this finding bearing in mind that I have not heard evidence from the employer on the issue.  However, for the purposes of present proceedings it suffices if I find that the applicant disclosed sufficient information and details to various officers of the authorities concerned that could and should have identified him as a victim of trafficking or forced labour, and warranted investigation of the matter.

338.  It is accepted that the definition of trafficking is that contained in the Palermo Protocol.  As explained by Klara Skrivankova, there are three elements that should be present in a case of trafficking, referred to as action, means and purpose.  The action is recruitment, transportation, transfer, harbouring or receipt of persons; the means is threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim; and the purpose is for purposes of exploitation, which includes exploiting the prostitution of others, sexual exploitation, forced labour, slavery or similar practices, and the removal of organs.[274] 

339.  The applicant was recruited by the employer and his family and transported to Hong Kong to take up employment with them.  I am satisfied that the employer and his family were aware of the economic circumstances of the applicant and his family, and as a result of his low caste status took advantage of him in recruiting him for employment in Hong Kong.  I am satisfied that the employer deceived the applicant about the conditions of work and the payment of his wages.  He was lured to Hong Kong by false promises of good work conditions and good pay. 

340.  Even though it had been arranged for him to work as a domestic helper, he worked in commercial premises, contrary to the employment contract and to the laws of Hong Kong.  However, it would appear that the applicant was aware that he would be employed in the office of the employer’s business and was prepared to do so. 

341.  As this was sponsored employment, the employer manipulated the situation so that he was in control of the applicant and the applicant was dependent upon him.  The employer also harboured the applicant in his office, where he was required to reside and be on call for work.  Living in the office premises meant that he had little if any privacy or ability to leave without permission.  His state of vulnerability was abused by the employer for the purpose of exploiting him for his labour.  He worked long hours and was abused and beaten. 

342.  As a foreigner having been brought to Hong Kong by the employer under his sponsorship, the applicant had no real alternative but to submit to the abuse that he was subject to by the employer, who used the outstanding payment of his wages as a means of control over him.  The false promise to eventually pay his accumulated wages amounted to serious deception, and this deception was another instrument of control used by the employer.  Eventually, the employer terminated the applicant’s sponsorship and tricked him into returning to Pakistan.  This put him out of the jurisdiction, so as to prevent him from seeking any redress in Hong Kong against the employer for his unpaid salary.  As was noted in the proceedings, without sponsorship the applicant could not return to Hong Kong and therefore could not lay a claim against the employer. 

343.  I am satisfied that the purpose of the exploitation of the applicant was forced labour.  The accepted definition of forced labour is all work which is extracted from any person under the menace of any penalty, and for which the person has not offered himself voluntarily. 

344.  The ILO has developed a list of indicators of forced labour.[275] It is a question of fact and degree as to whether the presence of indicators amount to forced labour.  The indicators include (a) threats or actual physical harm to the worker, (b) restriction of movement and confinement to the work place or to a limited area; (c) debt bondage, where the worker works to pay off a debt or loan, and is not paid for his or her service; (d) withholding of wages or excessive wage reduction; (e) retention of passport and identity documents; and (f) threat of denunciation to the authorities.

345.  It is clear from the circumstances that emerged from the evidence that the applicant was threatened and abused on numerous occasions by the employer; his movement was restricted and he was confined to the office premises; he was not paid for the work that he performed; he was threatened that because he owed the employer a lot of money for bringing him to Hong Kong, if he ran away he would be killed; and his travel and identification documents were held by the employer.

346.  The contact the applicant made with the Immigration Department, the Labour Department and the Police should have alerted the relevant officers of the applicant’s circumstances and caused them to treat the applicant as a potential victim of human trafficking for forced labour.  They failed to follow the policy and measures implemented for tackling human trafficking or forced labour. 

347.  The applicant in his contact with the relevant authorities disclosed sufficient information and details concerning his previous employment, in which he was subjected to serious mistreatment and abuse and denied the payment of his wages.  Even on the basis of the claims of the applicant being simply allegations, they should still have warranted the officers concerned identifying his case as one involving human trafficking or forced labour.  Because this did not happen, there was no investigation or further action.  A critical feature in combating human trafficking in all its forms is victim identification and protection.

348.  According to the applicant’s account of what happened when he returned to Hong Kong to press for his claim of unpaid wages, he was shunted from one government authority to another.  He produced his passport and Hong Kong Identity Card which evidenced that he had worked and lived in Hong Kong as he claimed.  He stated that he had been mistreated and that his employer had refused to pay him his salary for a period of nearly 4 years.  Whilst it is unusual that no action was taken as a result of his illegal entry into Hong Kong, it may be that the officers concerned were swayed by the fact that he had previously worked in Hong Kong and had a Hong Kong Identity Card.  It may have also been due to the unusual circumstances of his case or a failure by the officers concerned to understand or take responsibility for the applicant’s case.

349.  It seems that the officers concerned did not appreciate, sufficiently or at all, that the applicant was possibly a victim of forced labour.  The telltale sign was the applicant’s claim that he had been brought to Hong Kong by a fellow national who mistreated him and returned him to his country of origin having not paid him his salary for nearly 4 years. 

350.  My overall assessment of the applicant’s case is that because of his cultural and ethnic differences and his difficulty communicating with Hong Kong officials, he was not assisted or helped with respect to his situation with the employer. Rather, he was left floundering in a system in which concern for victims of human trafficking for forced labour is mainly a rhetorical manoeuvre.  This was not necessarily the fault of the officers involved, as adequate measures were not in place to readily identify or address a possible case of human trafficking or forced labour.  It does appear that in certain respects some effort was made to try to assist the applicant, albeit on a limited basis, but it seems the officers involved did not have the appropriate training or skills to deal with such a case.  This was clearly the fault of the system, because of the lack of any effective framework or set of measures to address human trafficking or forced labour.  

351.  In my view, the critical flaw in the HKSARG’s obligations under Article 4 of the BOR is the lack of a criminal offence and penalty that addresses the prohibited concept of forced or compulsory labour.

352.  It is also my view that it should have been apparent to an informed official that this was a possible case of human trafficking for forced labour, given that the applicant had been employed as a foreign domestic helper and was alleging mistreatment and abuse by his employer during his 4 year period of employment and non-payment of his salary for the period of over $200,000.  Such alleged facts should have alerted the relevant officers of a possible case of human trafficking or forced labour.  The obligation did not fall on the applicant to identify himself as a victim of human trafficking or forced labour, in order to be protected by the HKSARG.  After all, the law is there to help those who cannot help themselves.

353.  I am of the view that the prohibited concepts of slavery, servitude, and forced or compulsory labour under Article 4 of the BOR include cases where a person is trafficked for such purposes. Whilst the definition of human trafficking in the Palermo Protocol appears to address a broad range of exploitative practices, it mentions and includes the prohibited concepts of Article 4 of the BOR.  The definition of human trafficking is essentially concerned with the transportation of a person for the purpose of the prohibited exploitative practices.  Clearly, anyone involve in the transportation of a person for slavery, servitude or forced labour is caught by Article 4 of the BOR. 

354.  Forced or compulsory labour is prohibited under Article 4 of the BOR.  The accepted definition of forced labour is that contained in Article 2(1) of the 1930 Forced Labour Convention.  It includes any work or service that is exacted from any person under the menace or threat of a penalty, and which the person has not entered into of his or her own free will.  There are two elements that characterise forced labour.  First is the presence of menace or threat of penalty.  The second is that the work or service is undertaken involuntarily. 

355.  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,[276] 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. 

356.  I therefore find that the HKSARG has not adequately fulfilled its positive obligations under Article 4 of the BOR.  I further find that the applicant was denied his rights under Article 4 of the BOR in not having his case recognised by the relevant authorities as one possibly involving human trafficking for forced labour, which prevented any further appropriate action. 

357.  From my point of view, what has happened in this case is not satisfactory.  I believe the fault primarily lies with the lack of criminalisation of the prohibited conduct of forced or compulsory labour and the trafficking of a person for such prohibited conduct.  The enactment of a criminal offence provides a clear and precise reference of the mischief that is sought to be regulated and a focal point for law enforcement action.  In my view this case illustrates a number of fundamental failings and difficulties with the regime in place to tackle the prohibited practices under Article 4 of the BOR and especially when persons are being trafficked for those purposes.  

The issue of delay

358.  It is well recognised that an applicant for leave to apply for judicial review is obliged to act promptly.  Where the application is out of time, the court has discretion to extend time.  However, there must be “good reason” for doing so.^[277] What constitutes a “good reason” is a multi-faceted question, the answer to which depends on the circumstances of the case.  Factors likely to be of significance include: (1) the length of the delay; (2) the explanation for the delay; (3) the merits of the substantive application; (4) prejudice to the parties; and (5) whether the application raises questions of general public importance.[278]

359.  It is a fundamental principle that unless a disciplined approach to applications for judicial review out of time is taken, there is real risk that public administration is unduly disrupted, and policies and decisions are put into uncertainty long after they have been made.  Equally, however, where public administration engages in a continuing breach of constitutional rights, the time factor may be less important.[279]

360.  The primary submission of the applicant is that his treatment by the HKSARG is an ongoing and current failure of law and administrative practice with no support provided for a victim of human trafficking, so in fact there is no delay.^[280] Alternatively, the delay from the dates of the relevant failures of HKSARG officials to investigate claims was beyond the applicant’s control, so it would be unjust and very harsh to debar him from relief on this ground.^[281]

361.  It is submitted by the applicant that there is no inexcusable delay on his part, on the basis that time spent seeking legal aid is not delay to an applicant in a judicial review.^[282]

362.  The respondents point out that approximately three years passed between the applicant returning to Hong Kong and the filing of the present proceedings.  They argue that the delay is substantial and has caused prejudice to them in addressing the present proceedings.  They also say that there was nothing to prevent the applicant from seeking legal advice soon after his arrival back in Hong Kong in 2012.^[283]

363.  I do not accept the respondents’ submissions. 

364.  As I have found on the evidence presented in this judicial review, the applicant was subjected to constant threats and harassment by the employer and his associates.  He reported these to officers of the relevant authorities, who did not seem to appreciate that the applicant’s circumstances may have amounted to him being a victim of human trafficking for forced labour.  This possibly led to him being prosecuted for a robbery of the associates of the employer on what may have been false allegations.  He was not in a position to understand his rights and remedies, or recognise that his circumstances may have amounted to him being a victim of human trafficking for forced labour.

365.  As a consequence, the applicant was embroiled in dealing with other matters.  He was not in a position to seek redress by way of judicial review because of the very failure of the relevant officials and the HKSARG which he now seeks to have addressed by these proceedings.

Conclusion

366.  For the foregoing reasons, I am satisfied, that on the evidence presented, the evidence points to the applicant having been a victim of human trafficking for forced labour, or forced labour, and that he, on various occasions from April 2012, approached officers of the relevant authorities and gave an account of his case that should have been sufficient to alert them, at least on some occasions, that this was a possible case of human trafficking for forced labour, or forced labour, and prompted them to take appropriate action.

367.  In consequence, the applicant was denied protection under Article 4 of the BOR, which in turn was due to the failure of the HKSARG to fulfil its obligations under Article 4 of the BOR.

Relief and damages

368.  It was agreed by the parties at the outset of the proceedings that any question of relief or damages would be separately argued following the Court’s decision.  Accordingly, the parties are directed to fix a hearing date for argument on the question of relief and damages.