LUBIANO NANCY ALMORIN v. DIRECTOR OF IMMIGRATION

CACV 112/2018

[2020] HKCA 782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 112OF 2018

(ON APPEAL FROM HCAL 210/2016)

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JUDGMENT

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The Court:

A.     Introduction

1.  This is an appeal by the applicant against the judgment of Chow J on 14 February 2018 by which he dismissed the application for judicial review and ordered the applicant to pay the costs of the application.

2.  The application for judicial review concerns a systemic challenge to the “Live-In Requirement” applicable to foreign domestic helpers (“FDHs”) admitted to work as such in Hong Kong.  In the court below, the challenge was wider in scope.  However, in the appeal the applicant relied only on the rights under International Covenant on Economic, Social and Cultural Rights (“ICESCR”) article 7, which the applicant contended were constitutionally entrenched by article 39 of the Basic Law (“BL 39”).  The relevant provisions in article 7 are as follows:

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

…

(b) Safe and healthy working conditions;

…

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

3.  The applicant said that these rights under article 7 had been incorporated and applied in Hong Kong by Section 17(1) of the Employment Ordinance, Cap 57 (“EO”).  The section read:

“ Subject to the provisions of this Part, every employee who has been employed by the same employer under a continuous contract shall be granted not less than 1 rest day in every period of 7 days.”

4.  Section 2 of the EO defines rest day as follows:

“ rest day (休息日) means a continuous period of not less than 24 hours during which an employee is entitled under Part IV to abstain from working for his employer”

5.  There is statutory sanction against compulsory work on rest days under Section 19 of the EO:

“ (1) Subject to subsection (2), no employer shall require an employee to work on any of his rest days.

(2) An employer may require an employee to work on his rest day if it is necessary to do so by reason of a breakdown of machinery or plant or other unforeseen emergency of any nature.

(3)   An employer shall substitute for any rest day on which an employee is required to work under subsection (2) some other rest day within the period of 30 days next following, notice of which shall be given to the employee within 48 hours after the employee is so required to work.”

6.  Under Section 63(2) of the EO, any employer who without reasonable excuse, fails to grant any rest day or contravene Section 19 commits an offence. 

7.  On the other hand, an employee can choose to work on a rest day: either at the request the employee and with the agreement of the employer (Section 20(1) of the EO) or at the request the employer and with the agreement of the employee (Section 20(2) of the EO). 

8.  It is not the applicant’s case that the provisions for rest day under the EO fail to give effect to article 7 of the ICESCR.  On the contrary, the applicant said Section 17(1) of the EO was the implementation of such rights under article 7 of the ICESCR.  Her case was built upon the contention that by virtue of the Live-in Requirement, there is a heightened risk of the denial of her right to rest day by her employer under Section 17.  Because of that, the Live-in Requirement is a disproportionate incursion of her right under article 7 of the ICESCR as entrenched by BL 39.    

9.  After hearing submissions in the appeal on 17 and 18 March 2020, we reserved our judgment.  The judgment that we now give is the judgment of the Court, to which all members have contributed.

B.     Background for the scheme of FDH and the Live-In Requirement

10.  The background facts of the case are not disputed.  The applicant is a Filipino national who came to Hong Kong to work as a FDH in October 2011.  She had to apply to the Director for a visa in accordance with the scheme for admission of FDH to work in Hong Kong.  As the focus of this appeal is on the systemic challenge to the Live-in Requirement under the scheme, we need to set out the history and the rationale for the scheme at some length.  

11.  The Foreign Domestic Helpers Scheme (“FDH Scheme”) is one of the two labour importation schemes by which low-skilled workers (workers at technician level or below) can apply to work in Hong Kong. The importation of FDHs first started in 1969 when a small number of FDHs were permitted by the Director of Immigration (“Director”) to come to work in Hong Kong with their expatriate employers on a case-by-case basis.  Since 1970s, there has been a continually increasing demand from Hong Kong families for service by FDHs.

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

13.  A key feature of the FDH Scheme is that it is a scheme for the provision of a “full-time live-in domestic service” to Hong Kong families.  This feature of the FDH Scheme was discussed in 1978 by the Secretary for Security (in response to Question 30) in the Legislative Council on 26 April 1978:

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

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

14.  This requirement to live in the employer’s house (the “Live-In Requirement”) was also mentioned by the Secretary for Education and Manpower on 2 November 2001.

15.  Prior to April 2003, the Live-In Requirement was not enforced as an absolute bar.  FDHs and their employers could apply for the FDHs to live outside the employers’ residences based on their mutual agreement and by consent of or notification to the relevant authorities (viz. the Director or the Commissioner for Labour (“Commissioner”)) according to the requirements contained in the Standard Employment Contract then in force at the time.

16.  After a review in 2000, the Government proposed to enforce the Live-In Requirement strictly and the rationale for that was set out in a paper for the Legislative Council Panel on Manpower entitled “Promotion of Job Opportunities for Local Domestic Helpers” dated October 2001:

(a)     A survey revealed that among the households employing domestic helpers, 87.9% were employing FDHs.  The ratio of households employing FDHs to households employing Local Domestic Helpers (“LDHs”) was about seven to one;

(b)     Those employing LDHs did so on a part-time basis for a median of 12 hours per week.  For full-time LDHs, the majority of them did not stay overnight at their employers’ residences;

(c)     The majority of LDHs were not prepared to work full time, and for those who were so willing, most did not wish to stay overnight in the employers’ residences; and

(d)     The survey findings suggested that FDHs and LDHs were addressing the needs of different types of households.  The survey findings indicated that FDHs were filling a void as LDHs were generally not prepared to undertake full-time, live-in vacancies.  However, the situation was different in respect of the part time market.  There was a growing pool of LDHs looking for jobs in that sector. Hence, FDHs should not be allowed to live outside of the employers’ residences as such arrangements would affect the job opportunities of LDHs.

17.  At a meeting of the Legislative Council Panel on Manpower on 2 November 2001, the Secretary for Education stated that the Government would propose a series of measures to encourage prospective employers to employ LDHs and encourage local people to take up the vacant posts of domestic helpers.  The Secretary further stated that a fundamental principle of the FHD policy was the provision of a full-time live-in domestic service, and that the Government considered it necessary to uphold the principle and tighten up the enforcement of the Live-in Requirement.

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

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

20.  The Government considered that the Live-In Requirement was justified for the following reasons:

(a)     Given that there is no shortage in the supply of non-live-in LDHs, if FDHs do not reside in their employers’ residences, they would come into direct competition with non-live-in LDHs in the labour market; and

(b)     The lifting of the Live-In Requirement could or might have serious repercussions for Hong Kong’s economy and society, including the impact on families with minor children, elderly persons or persons with disability requiring close and constant care and attention; housing demand; employers’ liabilities in respect of medical costs; families who currently employ FHDs; and impact on local workforce (in particular, the ability or willingness of “housewives”, who might otherwise be tied down by household duties or the need to take care of family members requiring close and constant care and attention, to enter the labour market).

21.  The Live-In Requirement is stated in the following documents issued by the Immigration Department:

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

(b)     the standard “Employment Contract (For a Domestic Helper recruited from abroad)”, ID 407 (“the Standard Employment Contract”).  Particularly Clause 3 - the FDH shall work and reside in the employer’s residence at a specified address and Clause 4 - the employer shall provide the FDH with suitable and furnished accommodation;

(c)     the “Visa/Extension of Stay Application Form for Domestic Helper from Abroad”, ID 988A (08/2014) (“the Visa Application”); and

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

22.  In terms of legal analysis, as between the employer and the FDH, the Live‑In Requirement is a matter of “contract” between them.  As between the FDH and the Director, the Live-In Requirement is a matter of “undertaking” given by the former to the latter in her visa application.  Similarly, the employer has to give an undertaking to the Director in the former’s application for entry visa for the FDH.  These undertakings are part of the eligibility criteria for the exercise of the Director’s discretion to permit the employer to employ the FDH and to grant an FDH visa.  The Live-In Requirement is not imposed by the Director on the FDH as a condition of stay.  Notwithstanding this, since it is not possible to obtain approval from the Director for the necessary visa application without the undertakings it can hardly be disputed that the Live-in-Requirement is in substance a requirement imposed for immigration control in the exercise of the power of the Director under the Immigration Ordinance. 

C.     Judgment Below

23.  In the Form 86 dated 17 November 2016 and in the draft Amended Form 86, the applicant advanced the following grounds for judicial review, as summarized by the judge:

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

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

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

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

24.  In the judgment handed down on 14 February 2018, the judge rejected all the grounds of challenge.  As the applicant had reduced the scope of arguments in the appeal (as discussed further below) and concentrated on the Fundamental Rights Ground, we only need to refer to the disposal of the other grounds by the judge briefly.  In relation to the Ultra Vires Ground, the judge held at [43] of the judgment that the Live-In Requirement was not imposed as a condition of stay.  The judge further held that the Director has flexible and wide power to impose conditions of stay under Section 11(2) of the Immigration Ordinance (“IO”) and that there was no warrant for reading it down to exclude the imposition of the Live-In Requirement as a lawful condition of stay.  The judge derived support from the judgment of the Court of Final Appeal in Vallejos and Domingo v Commissioner of Registration [2013] 2 HKLRD 533.  The applicant’s contention based on the Director’s lack of power to include the Live-In Requirement as a precondition for the exercise of his discretion to allow the FDHs to come to work in Hong Kong was similarly dismissed.

25.  At [103] of the judgment, the judge also did not accept that the FDHs had been discriminated against by the Live-In Requirement when compared with imported workers admitted under the Supplementary Labour Scheme.  The judge held that the two sets of workers are not comparable or analogous and in any event the Live-In Requirement was justified.

26.  The judge considered the Live-In Requirement was a lawful policy and that the lack of any general exception to the Live-In Requirement based on the parties’ mutual consent should not lead to the conclusion that the Director was acting irrationally or wrongfully fettering his discretion.  The Irrationality Ground was therefore dismissed.

27.  As for the Fundamental Rights Ground, the focus has shifted on appeal.  In the court below, the applicant relied heavily on rights against servitude and forced labour based on the first instance judgment in ZN v Director of Immigration [2017] 1 HKLRD 559.  Since then, the appeal from that judgment was heard in the Court of Appeal and thereafter in the Court of Final Appeal, culminating in the judgment of the Court of Final Appeal in ZN v Secretary for Security [2019] HKCFA 53.

28.  In light of that judgment, Mr Shieh quite properly abandoned the reliance on those rights.  Instead, the focus of the appeal was shifted to the right for adequate rest and limitation on working hours under the ICESCR.  For the ICESCR rights, the judge held that they have not been given domestic effect and as such are not entrenched under BL 39.  Further, the judge found that there was insufficient evidence to show that the Live-In Requirement heightened the risks of those rights being infringed upon as alleged by the applicant.  The judge also alluded to the immigration reservation (“Immigration Reservation”) under Section 11 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBORO”) in holding that the rights against servitude and forced labour could not affect the Live-In Requirement which falls within the scope of immigration control.

29.  The judge held that the Live-in Requirement does not engage any of the fundamental rights relied upon and the issue of justification does not arise for consideration.

D.     Grounds of Appeal

30.  As confirmed in paragraph 2 of her submissions dated 20 February 2020, the applicant only relied on §§2.2(b), 51-65, 101-104, 82-100 of the Form 86 and §§1-4 of the Re-Re-Amended Notice of Appeal in this appeal.

31.  The applicant’s grounds advanced in the appeal are that the judge erred in:

(a)     holding that the right to rest days (as provided by articles 7(b) and (d) of the ICESCR) has not been given domestic effect by the EO and;

(b)     holding that the Live-In Requirement did not unacceptably increase the risk of violation of this right.  The applicant contended that with such increased risk, the judge ought to have held that the Live-In Requirement was not justified.

32.  The applicant emphasized that she does no seek to outlaw the living in arrangement altogether.  She only sought to revert to the pre-2003 situation that FDH and employer could be at liberty to agree for the FDH to live out without adverse immigration consequences.

33.  The Director contended that the relevant provisions of the ICESCR are aspirational in nature and were not given domestic effect by the EO.  The EO makes no reference to the ICESCR and there is not a manifestation of an intention on the part of the legislature to implement the right in the ICESCR via the EO. 

34.  In the Respondent’s Notice, the Director contended that the constitutionality of a governmental measure may not be challenged on the basis that it increases or heightens the risk of violation of fundamental rights.

35.  Before the hearing of the appeal, the Court indicated that we would invite parties to make submissions on the effect of the judgment by the Court of Final Appeal in Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 at [61] in connection with the Immigration Reservation.  Subsequent to the hearing, the Court directed further submissions in this regard in connection with the reservation under article 6 of the ICESCR (“ICESCR 6 Reservation”) which was discussed in GA v Director of Immigration (2014) 17 HKCFAR 60 at [65] to [68].  

36.  The appeal involves consideration of the following issues:

(a)     The effect of the Immigration Reservation and ICESCR 6 Reservation in respect of the ICESCR rights relied upon by the applicant;

(b)     Whether articles 7(b) and (d) of ICESCR (“ICESCR 7(b) and (d)”) have been given domestic effect by the EO;

(c)     Whether the constitutionality of a government measure may be challenged on the basis that it increases or heightens the risk of violation of fundamental right;

(d)     Whether the Live-In Requirement has causal connection to the risk of harm relied on by the applicant;

(e)     If the answers to (2) to (4) are affirmative, whether the Live-in Requirement is justified.

E.     The Immigration Reservation and the ICESCR 6 Reservation

E.1    No implication for ICESCR 7 rights simpliciter     

37.  We have already alluded to Mr Shieh’s reliance on his heightened risk argument at [8] above.  Without such argument, it is plain that no challenge under ICESCR 7 can succeed in light of the availability of protection to FDH under Section 17 of the EO.  As should be apparent from the discussions below, our analysis as to the implications flowing from the Immigration Reservation and the ICESCR 6 Reservation would only be engaged if Mr Shieh could make good his submission on his heightened risk approach.  The analysis also informed us on the correct interpretation of ICESCR 7 in the BL 39 context.  As we shall further explain below, we are unable to conclude that Mr Shieh was correct in his heightened risk argument.

38.  Therefore, insofar as one is confining oneself to the right to rest day simpliciter (viz without expanding it with reference to the heightened risk of its not being observed by an employer in practice), there is nothing in the Immigration Reservation nor the ICESCR 6 Reservation to water down the protection conferred by Section 17 of the EO.

E.2    Immigration Reservation

39.  The Immigration Reservation had its origin in a reservation by the United Kingdom Government upon her ratification of the International Covenants on Civil and Political Rights (“ICCPR”) on 20 May 1976. In terms of domestic legislation, it is reflected in Section 11 of HKBORO:

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

40.  According to the jurisprudence of our Court of Final Appeal, the Immigration Reservation has a constitutional status.  It reflects BL 154(2) which authorises the HKSAR to exercise immigration controls on entry into, stay in and departure from Hong Kong.  In GA v Director of Immigration (2014) 17 HKCFAR 60 at [29(3)], the Chief Justice explained the underlying intention of these provisions as follows:

“ The intention of Article 154(2) of the Basic Law and the Reservation, both of which are couched in general terms, must have been, one would have thought, for the purpose for enabling effective immigration control to be exercised. This is hardly a novel or surprising view to take, and is one that is reflected in jurisdictions other than our own. In Ubamaka, reference was made to a passage in the Judgment of the European Court of Human Rights in Chahal v United Kingdom in which it was said that Contracting States (to the European Convention on Human Rights) had the right ‘as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens’ (emphasis added). The highlighted words emphasize the broad nature of the immigration control: it governs each stage of a person’s stay in any particular place, from entry through his or her stay to departure.

41.  The Immigration Reservation was given constitutional effect by BL 39 and it applies to rights in the BOR as well as cognate rights under the Basic Law as explained in Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 60 and Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59.  The rights conferred under the Basic Law must operate with consistency as a coherent scheme.  Thus, at [35] of Comilang, the following was said:

“ It was therefore held that the exception created by the immigration reservation, given constitutional force by BL 39, is not confined in its operation to rights in the BOR but extends by necessary implication to cognate rights in the Basic Law, requiring them to be interpreted consistently with section 11 as laying down a coherent scheme in the specified immigration context.”

42.  The rights asserted in Comilang were rights under BL 37[1], BOR 14, 19 and 20 and article 10 of ICESCR and article 3 of the Convention on the Rights of the Child (“CRC”).  Section 11 applied directly to the rights under BOR.  There was a similar reservation for CRC when the Government of the PRC notified the United Nations that CRC would apply to Hong Kong.  But there was no such reservation in the ratification of the ICESCR.  Notwithstanding this, it was held in respect of BL 37:

“ 60. First, the approach to interpretation of the Basic Law is now well-established: see Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 at pp.28-29 and Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45 at [76]-[77]. Provisions of the Basic Law are to be construed in the light of their context and purpose. The context of a provision of the Basic Law includes other provisions of the Basic Law and the provisions of the ICCPR as applied to Hong Kong. Context and purpose are to be considered in the first instance and not merely in the case of ambiguity.

61. Applying those settled principles, the Basic Law rights relied upon must be construed as a coherent whole together with BL 39 and s.11 which, for the reasons explained above, is given constitutional status. Although s.11 in terms only applies textually to the rights set out in HKBORO, by necessary implication it limits the application of cognate rights in the BL whether they are invoked directly or in connection with the enjoyment of another right (as further discussed in relation to BL 24 below). To seek to isolate s.11 would frustrate BL 39, especially when the family rights relied upon under the Basic Law (in particular BL 37) are also contained in the ICCPR (arts.17, 23 and 24) and BOR (arts.14, 19 and 20).

…

63  … the linkage between BL 154(2) and s.11 demonstrates that, save for non-derogable rights, the drafters of the Basic Law thought it appropriate to exclude all other rights, be they in the BOR or the Basic Law, in the context of a decision relating to entry into, stay in or departure from Hong Kong by someone without the right to enter and remain.”

And in respect of the ICESCR right:

“ 77. Even accepting that the provisions of ICESCR 10 have been incorporated into domestic legislation through BL 37, BOR 19 and BOR 20, as explained above, those rights, properly construed, are subject to the immigration reservation in s.11 and therefore reliance on ICESCR 10 cannot give the appellants any greater rights than under those provisions so construed. It is an established principle that ‘any legitimate expectation has to give way to contrary statutory provisions’: see Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR 1 at [132]. In the present case, there can be no greater expectation than that arising under the provisions of BL 37, BOR 19 or BOR 20, all of which are qualified by s.11. This excludes the appellants’ reliance on ICESCR 10 whether directly or indirectly by way of legitimate expectation.”

43.  Mr Shieh submitted that there is no right under the BOR which is cognate or similar to the rights under ICESCR 7(b) and (d).  Therefore, the protection of these rights under BL 39 are not qualified by the Immigration Reservation. 

44.  Mr Yu submitted that the ratio in Comilang is that one must consider the constitutional rights under the Basic Law as a coherent scheme.  The Immigration Reservation is underpinned by BL 154(2).  Whenever one is dealing with someone who has no right to enter and stay in Hong Kong, the Immigration Reservation operates as a constitutional reservation in respect of matters coming within the scope of immigration control.  He submitted that the concept of cognate rights should be given a wide purport.

45.  In substance, counsel submitted, be it a challenge based on the right to be protected from forced labour under BOR 4 (relied upon by the applicant at the court below) or a challenge based on ICESCR 7(b) and (d) (being the only remaining challenge in this appeal), the applicant’s case was that immigration control in terms of the Live-in Requirement could not lawfully be imposed as the incursion on the right to rest day effectively (as the applicant had tried to argue below) gives rise to a forced labour situation.  It would be incongruent if a challenge based on protection against forced labour under BOR 4 cannot be raised (by reason of the Immigration Reservation) whilst such a challenge based on ICESCR 7(b) and (d) can be entertained.  Viewed thus, the right under ICESCR 7(b) and (d) and the right under BOR 4 are allied or cognate rights.     

46.  In our judgment, the applicant has to rely on BL 39 to claim that the entitlement of rest day under Section 17(1) of the EO is constitutionally entrenched as the implementation of the rights under ICESCR 7(b) and (d)[2] on domestic law level.  Thus, any interference on such right has to be justified.  Hence, the principles discussed in Comilang on the constitutional impact of the Immigration Reservation is applicable in ascertaining the limit of the constitutional entrenchment under BL 39.

47.  On a proper reading of the principles discussed in Comilang, the fundamental point is that the Basic Law must be construed as a coherent scheme and in the immigration context due effect must be given to the Immigration Reservation.  Thus, in explaining the relevant principles, the Court of Final Appeal alluded to the well-established approach to construction at [60] and highlighted that the context of a provision of the Basic Law includes other provisions of the Basic Law and the provisions of the ICCPR as applied to Hong Kong.

48.  The key principle for present purposes is set out at [61] in these words:

“ Although s.11 in terms only applies textually to the rights set out in HKBORO, by necessary implication it limits the application of cognate rights in the BL whether they are invoked directly or in connection with the enjoyment of another right ...”

49.  The Court of Final Appeal also highlighted the significance of the Immigration Reservation being constitutionally underpinned by BL 154(2) at [62] to [63].    

50.  In the context of the present appeal, it is important to note that the argument of Mr Shieh on ICESCR 7(b) and (d) (the validity of which is examined at greater length below) is not confined to the effect of Section 17(1) of the EO.  There is no doubt that the right of an employee under Section 17(1) is equally conferred on a FDH who can seek legal redress based on such right if there is a breach of the same by her employer.

51.  Mr Shieh’s submission was that by virtue of the heightened risk of breach of Section 17(1) arising from the Live-in Requirement, the constitutionally entrenched ICESCR 7(b) and (d) right under BL 39 is engaged.  In a nutshell, the heightened risk argument (the validity of which we shall examine below) is that by virtue of the Live-in Requirement there is a heightened risk that a FDH would be forced to work on a rest day or undertake some work involuntarily within the 24 hours in a rest day notwithstanding the legal requirement to the contrary.

52.  It is illuminating that the argument under ICESCR 7 was originally run together with the argument under BOR 4 (right against servitude and forced labour) and the argument under BOR 5 (customary international law right against forced labour), see Section B in the Form 86.

53.  Viewed thus, the substance of the right relied upon under the heightened risk argument (if it is a viable argument) is forced and involuntary labour which is not different from the BOR 4 and BOR 5 rights originally relied upon by the applicant at the court below.  As such, they are cognate rights and the reasoning in Comilang on the universal applicability of the Immigration Reservation by virtue of BL 39 is similarly engaged in the present context.     

54.  Though it was also held in Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 that the Immigration Reservation cannot be relied upon to derogate some fundamental non-derogable rights identified under Section 5 of the HKBORO, the judge held at [97] and [98] that the rights against servitude and forced labour were not absolute rights and are subject to the Immigration Reservation.  Mr Shieh did not advance any argument against such analysis in this appeal.

55.  In the context of a challenge to the Live-in Requirement based on the argument that it gives rise to heightened risk of breach of ICESCR 7 right as analysed above, it is a cognate right to the right against forced labour rather than the right against servitude.  As the right against forced labour under BOR 4(3) is not a right included in Section 5(2)(c) of the HKBORO, there is no basis for suggesting that the Immigration Reservation is not applicable.

56.  Hence, by reason of the Immigration Reservation, an FDH, being a person not having the right to enter and remain in Hong Kong, cannot rely on the argument of heightened risk of breach of the ICESCR 7 right which is in substance a claim of forced labour (and as such a cognate right to the right under BOR 4(3)) to challenge the Live-In Requirement in the FDH Scheme which is part of the immigration control policy set by the Director.  The appeal can be dismissed on this ground alone.

E.3    ICESCR 6 Reservation

57.  Article 6 of the ICESCR deals with the right to work:

“ The State Parties to the present Covenants recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right…”

58.  When the United Kingdom ratified ICESCR she did so with a reservation.  The reservation has been applied to Hong Kong:

“ The Government of the United Kingdom reserve the right to interpret article 6 as not precluding the impositions of restrictions, based on place of birth or residence qualifications, on the taking of employment in any particular region or territory for the purpose of safeguarding the employment opportunities of workers in that region or territory.”

59.  The reservation continued to apply in Hong Kong after the resumption of sovereignty over Hong Kong by the People’s Republic of China (“PRC”).  When the PRC ratified the ICESCR on 27 May 2001, it was subject to a similar reservation set out in a communication dated 20 April 2001:

“ Article 6 of the [ICESCR] does not preclude the formulation of regulations by the HKSAR for employment restrictions, based on the place of birth or residence qualifications, for purpose of safeguarding the employment opportunities of local workers in the HKSAR.”

60.  As we have seen, the Live-in Requirement was designed as an integral part of the immigration policy to safeguard employment opportunities for non-live-in LDHs.  With such requirement in place, there is a segregation of the labour market in Hong Kong for domestic helpers: FDHs cannot enter into competition with LDHs (who are not interested in taking up jobs as live-in domestic helpers).

61.  Viewed thus, the Live-in Requirement falls within the scope of the ICESCR 6 Reservation.  Not surprisingly, the applicant advanced no claim based on ICESCR 6 regarding the prohibition for her to work as a non-live-in LDH.  But one may ask rhetorically: is she not in effect contending for the same when it is argued on her behalf (albeit through the platform of a heightened risk argument founded upon ICESCR 7) that the Live-in Requirement should be relaxed or removed? With the lifting of the Live-in Requirement, the segregation of the market between the non-live-in LDHs and the live-in FDHs would become ineffective.  There will be no material difference in the domestic helper market between a FDH not subject to a Live-in Requirement and a LDH. 

62.  Based on such analysis, the true substance of Mr Shieh’s heightened risk argument in respect of the right to rest day protected by Section 17(1) of the EO (if viable) can be regarded an attempt to circumvent the ICESCR 6 Reservation by the back-door.  If that were so, the principle of coherence discussed in Ghulam Rbani v Secretary for Justice, supraand Comilang Milagros Tecson v Director of Immigration (2019) supra is engaged: the application of ICESCR 7 to Hong Kong under BL 39 should not be interpreted in such a way to frustrate the ICESCR 6 Reservation in respect of a cognate right under the same regime.

63.  Mr Yu submitted that the presence of the ICESCR 6 Reservation reinforces the Director’s position that the applicant is precluded from invoking the right to rest and periodic holidays with pay under ICESCR 7 for her systemic “heightened risk” challenge.

64.  On the other hand, Mr Shieh submitted that ICESCR 6 and ICESCR 7 conferred different rights and they engaged different facets of “work”.  The ICESCR 6 Reservation only modified the rights under ICESCR 6 in respect of opportunities to work but not the working conditions protected under ICESCR 7.  Thus, the ICESCR 6 Reservation only comes into play when the government is considering whether to allow or disallow entry to a person to take employment, but not after such decision has been made.

65.  He further submitted that it would be wrong to equate the right to legal status of a worker to the rights of all workers to just and favourable conditions of work.  ICESCR 7 protects the latter irrespective of the legal status of a worker.  Thus even illegal workers can claim compensation for workplace injuries.

66.  In our judgment, in this part of the analysis, Mr Shieh failed to draw a distinction between ICESCR 7 rights simpliciter and the ICESCR 7 rights based on the heightened risk argument which he advocated.  Insofar as ICESCR 7 rights simpliciter is concerned, as observed at [8] above, there is no suggestion that the ICESCR 6 Reservation can be relied upon to deprive a FDH of the protection under Section 17(1) of the EO and the Live-in Requirement is perfectly consistent with ICESCR 7.  The crux of Mr Shieh’s argument in this appeal however depends on his heightened risk argument which has the effect of transforming the right protected by Section 17(1) into a platform for nullifying the Live-in Requirement as an immigration control for segregation of the domestic helper labour market in Hong Kong.  It is this very element of Mr Shieh’s argument which engages the ICESCR 6 Reservation.     

67.  In our view, the heightened risk argument of Mr Shieh in respect of ICESCR 7 rights entails the frustration of the ICESCR 6 Reservation.  Adopting a coherent construction of BL 39, we hold that it is not a permissible course.  This analysis assists in informing the Court that the heightened risk argument is not the proper construction approach to be adopted in respect of ICESCR 7 rights.

F.     ICESCR 7 under domestic law

F.1    The dualist principle and BL 39

68.  The ICESCR is an international convention.  In Hong Kong the domestic effect of international treaty obligations is governed by the common law dualist principle and BL 39 as expounded by the Court of Final Appeal in GA v Director of Immigration (2014) 17 HKCFAR 60 at [58]:

“ The provisions of the international covenants and conventions referred to in art.39(1) of the Basic Law are not directly enforceable in Hong Kong by any individual unless implemented by domestic or municipal law. As Ribeiro PJ summarised in Ubamaka v Secretary for Security, ‘It has long been established under Hong Kong law (which follows English law in this respect), that international treaties are not self-executing and that, unless and until made part of our domestic law by legislation, they do not confer or impose any rights or obligations on individual citizens’. This is sometimes called the common law dualist principle and the wording of art.39(1) of the Basic Law, both in English and in Chinese, is declaratory of this. One clear example is the incorporation into domestic law of the ICCPR. It is well recognized that the HKBORO is the domestic embodiment of the ICCPR as applied to Hong Kong. One of the consequences of the principle is where an international obligation has not been made part of domestic law, then, whatever the international position may be, an individual cannot rely on the content of that international obligation.”

69.  The English text of BL 39 provides:

“ The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.  Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”

70.  Mr Shieh accepts the dualist principle.  The crux of the dispute between Mr Shieh and Mr Yu on the approach in determining if an international obligation has been made part of domestic law is whether domestication requires a conscious and deliberate legislative act to render and transmute the obligation into one enforceable on the domestic level.  Mr Yu submitted that it is required.  Mr Shieh submitted otherwise.     

71.  This is an issue that appears to be unique to Hong Kong.  In other countries subscribing to the dualist principle, at the domestic court level it is unnecessary to consider if the domestic law is an implementation of some international obligation.  As Lord Hoffmann held in R v Lyons [2003] 1 AC 976 at [27]:

“ Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then, the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so.”

72.  However, under the Hong Kong constitutional order, BL 39(2) provides that restrictions (which must be prescribed by law) imposed in Hong Kong cannot contravene BL 39(1).  Thus, for rights and obligations stemming from the implementation of the ICESCR in Hong Kong by domestic legislation, restrictions upon the same would engage BL 39(2) and for non-absolute rights such restrictions must be examined by reference to the proportionality test.  For this reason, it is important to consider the domestication issue in the Hong Kong context.

73.  Further, it should be noted that BL 39(1) refers to the relevant international treaty “as applied to Hong Kong”.  Thus, if there were relevant reservations in place (like the Immigration Reservation for the ICCPR), the continued application of such international treaty shall also be subject to the same reservations.

74.  BL 39(1) then referred to the implementation of the international treaty obligations through the laws of Hong Kong (which accords with the dualist principle).  It is noteworthy that there is no temporal limit to the implementation.  It could be implementation prior to 1 July 1997, it could also be implementation after that date.  The only requirement is that it has to be implemented before it can have effect on a domestic law level which would then attract the entrenched protection under BL 39(2).

75.  The crucial question is whether implementation for the purpose of BL 39 has to be a conscious and deliberate legislative act.      

76.  The judge’s approach was the same as Mr Yu’s.  He said at [80] of the judgment:

“ I also do not consider the EO Provision to incorporate ICESCR 7(b) and (d). The right to ‘rest days’, in one form or another, has been in the Employment Ordinance since no later than the early 1970s, whereas the UK Government did not extend the ICESCR to Hong Kong until May 1976. In the 1970 Revised Edition of the Employment Ordinance, the provision relating to ‘rest days’ was contained in Section 11E(1), which provided that ‘every employee who has been employed by the same employer under a continuous contract shall be granted not less than four rest days in each month’. In November 1976, the number of rest days was increase[d] to 1 rest day in every period of 7 days. There is nothing in the Official Report of Proceedings of the Legislative Council on 24 November 1976 (recording the resumption of debate on the second reading of the Employment (Amendment) (No 2) Bill) which suggests that the amendment had anything to do with the ICESCR. Moreover, the EO Provision relates to a specific aspect of conditions of work (namely, rest days), whereas ICESCR 7(b) and (d) covers a much wider field. There is, in my view, no reasonable or objective basis to support the contention that the legislature enacted the EO Provision to domesticate ICESCR 7(b) and (d)…”

77.  In GA, supra, Ma CJ said at [60(2)]:

“ (2) However, where it is said that a particular Convention or a provision of that Convention has been incorporated into domestic legislation, it is important to analyse that piece of domestic legislation to see whether it has actually done so and to what extent. This becomes then largely a matter of statutory construction.”

78.  Mr Shieh read this passage as suggesting that one should only compare the contents of the domestic legislation with the provision of the international treaty to see if the same kind of obligations were provided for and if so, to what extent.  It is an objective comparison of the contents of the domestic statutory provisions and the relevant treaty obligation.  Whether the legislature has the intention to incorporate the international treaty obligation is irrelevant.

79.  At one stage, counsel said what is important was that there was an objectively evinced intention by a domestic statute to confer the very benefit which the international treaty conferred.  However, later on he expanded the scope of comparison to cover similar or matching rights or benefits.  

80.  Mr Yu submitted that because of its reference to implementation, BL 39(1) carries with it the requirement of an objectively manifested intention on the part of the legislature to implement the international obligation when the domestic law was made.  Such intention can be manifested by various means: it can be manifested from the wording of the domestic law itself if it tracks the language of the international obligation or from its preamble making cross reference to the international obligation; it can be manifested from the temporal link of the domestic legislation with the international treaty; it can be manifested in the legislative materials like explanatory memorandum for the domestic law or speeches of Government officials moving for the passing of the law in the Legislative Council.  Mr Yu further accepted that there could be case where a statute is passed in anticipation of the coming into force of an international treaty obligation.  The fact that the domestic statute pre-dated the international obligation is not necessarily a bar to a finding that the statute implements such obligation.

81.  Counsel submitted that the approach proposed by the applicant by way of comparison between the contents of the domestic statute and the contents of the international obligation is unworkable.  This is particularly so when Mr Shieh advocated a loose concept of matching or similar rights or benefits as the criterion for comparison.

82.  We agree with Mr Yu that the implementation envisaged under BL 39(1) involves an objectively manifested intent on the part of the legislature to domesticate the relevant international obligations mentioned at the earlier part of that article.

83.  In our judgment, this must be the conclusion if BL 39(1) is construed in the context of the Basic Law as a whole.  Starting from the undisputed premise that the dualist principle continues to apply in Hong Kong, it necessarily follows that international obligations do not automatically have the force of law on the domestic level.  An act of domestication is required and under the scheme of the Basic Law such act, being a legislative act by nature, must be an act of the legislature, not the act of the executive arm of the Government.

84.  Such analysis is supported by the exposition of the dualist principle in J H Rayner Ltd v Department of Trade and Industry [1990] 2 AC 418 at p. 500.  The judgment of the House of Lords highlighted that the distinction between the power of the executive branch of the government (by the exercise of prerogative) in the making of treaties and the power of the legislature (the Parliament) in enacting domestic law.  Lord Oliver said:

“ … as a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties … are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court …because, as a source of rights and obligations, it is irrelevant.”

85.  Thus, there has to be an act by the legislature to incorporate (in other words, to implement) the international obligation by a domestic statute.  To hold otherwise is a distortion of the dualist principle as the legislature’s role in deciding if the international obligation should be given effect by way of domestic statute is taken away[3].  We do not believe the judgment of Ma CJ in GA at [60(2)] held otherwise.  The Chief Justice alluded to the need to analyse the piece of domestic statute to see if it has actually implemented the international obligation.  There was no suggestion that such analysis needs not involve the examination of the legislative intent.  Nor was there any suggestion that the Chief Justice intended to modify the dualist principle as discussed above.  

86.  Under Mr Shieh’s argument, there is simply no need to have any act on the part of the legislature to implement the international obligation.  All that is needed is to search within the domestic law at any point in time to see if there is any statutory provision which deals with similar or matching subject matter as provided for under the international obligation.  So long as it is possible to identify a provision dealing with similar or matching subject matter, the international obligation is automatically domesticated for the purpose of BL 39(1) even though the legislature did not have such international obligation in mind when it passed the domestic legislation.  As we have seen, by virtue of the entrenched status under BL 39(2), domesticated obligation could affect the operation of other domestic law or decisions made pursuant to authority conferred by such law.  According to Mr Shieh, this could happen automatically upon the contracting of the international obligation without deliberation through the legislative process.

87.  If Mr Shieh were correct, a gloss is put on the dualist principle: whether a treaty obligation is relevant depends on the court’s ability to identify in domestic law a matching or similar right as the one prescribed by the treaty.  Logically speaking, in accordance with such line of argument, such matching or similar right in domestic law can be a right conferred by the common law instead of statute.  There is no need for the legislature to be involved and no act of incorporation will be required.   

88.  Such argument is a distortion of the dualist principle and fails to give effect to BL 39(1).

89.  Another difficulty in Mr Shieh’s approach is that, according to him, the content of the domestic law does not have to be in complete alignment with the international obligation in order to implement the same.  So long as it covers one or more subject matters as provided under ICESCR, it can arguably be regarded as the domestication of the international obligation.  This would give rise to the kind of arguments on comparison between the domestic statutory provisions and the international obligation rejected by the Court of Final Appeal in GA at [59] to [61].  This problem is particularly acute in respect of international obligations framed in generic and aspirational language as those set out in the ICESCR.

90.  In GA, supra, at [58] Ma CJ cited the comments of the Committee on Economic, Social and Cultural Rights[4] to the effect that the ICESCR does not stipulate specific means by which its obligations are to be implemented in the national legal order.  The means to be adopted is a matter for each State party to decide and it would be reviewed by the Committee as part of the examination of the State Party’s compliance with its obligation.

91.  Take the present case as an illustration: ICESCR 7 refers to right to the enjoyment of just and favourable conditions of work which ensure, amongst other things, under 7(d), rest, leisure and periodic holidays with pay.  It does not prescribe any minimum standard for periodic holidays: it could be one day in each week or four days within a month or even less.  Mr Shieh referred to General Comment No 23 of the Committee in 2016[5] for the normative contents of the ICESCR 7 right on weekly rest day which in turn referred to two conventions of the International Labour Organization (“ILO”)[6].

92.  Of the two conventions, China ratified the Weekly Rest (Industry) Convention of 1921 on 17 May 1934 and notified ILO on 1 July 1997 that it is applicable to Hong Kong “in the same manner as prior to that date”[7]. As for the Weekly Rest (Commerce and Offices) Convention of 1957, it has not been ratified by China and no notification has ever been given for its applicability to Hong Kong.  

93.  Employment of domestic helpers do not come within the scope of these conventions.  The 1921 Convention applies to industrial undertakings whilst the 1957 Convention applies to trading establishments, offices, mixed commercial and industrial establishments.  

94.  It is rather unfruitful to build the premise for a proposition that the EO provision implements ICESCR 7(d) upon the similarity between the requirement in Section 17 of the EO and the standards imposed under these Conventions since:

(a)     The scopes of application of the Conventions and ICESCR 7(d) and Section 17 are different;

(b)     The 1957 Convention is not applicable in Hong Kong;

(c)     There are exceptions provided for in the EO which have no equivalent in the Conventions;

(d)     The dates do not match: Section 17(1) was amended to its present form in November 1976 whilst China only gave notification on 1 July 1997 regarding the application of the 1921 Convention to Hong Kong.  General Comment No 23 was only issued in 2016;

(e)     Insofar as it is suggested that the Conventions reflected the normative contents of the ICESCR 7(d) rights at the time when the ICESCR was ratified and applied to Hong Kong in May 1976, Mr Shieh did not provide any foundation for this suggestion.  Counsel’s reference to paragraph 10 General Comment No 3 cannot assist him since it only referred to the need for each State party to have its own minimum core obligation taking account of its own resource constraints.

95.  Thus, Mr Shieh has to rest on his fall-back position which depends on a loose comparison between the contents of the domestic law and the international obligation.  Whilst we do not agree with Mr Yu in his submission that the domestic courts cannot construe provisions in the international instrument for such purposes (see the observations of Lord Oliver in this regard in J H Rayner Ltd v Department of Trade and Industry, supra at p.500D to H), it would not be a task which the Court finds itself institutionally equipped to adjudicate upon due to the aspirational and generic formulation in the ICESCR which addresses interests within the spheres of socio-economic and cultural rights.  The benchmark of irreducible minimum core obligations (as suggested in General Comment No 3) with reference to the current condition of Hong Kong involves the balancing of many socio-economic factors which is a function institutionally within the province of the executive and the legislative arm of the Government.

96.  Bearing in mind the design for the Government of the Hong Kong Special Administrative Region in the Basic Law, we believe the construction of BL 39(1) set out at [83] above is the correct one having regard to its context and the purpose.  Thus, there has to be objectively manifested legislative intent to implement ICESCR 7 before it has the effect of being enforceable under domestic law with entrenchment under BL 39(2).

F.2    Incorporation

97.  Mr Shieh relied on the following to contend that ICESCR 7(b) and (d) had been partly incorporated into domestic legislation in the form of Section 17 of the EO:

(a)     Section 17 addressed the right to rest and periodic holidays under ICESCR 7(d) and the right to a safe and healthy working conditions under ICESCR 7(b); 

(b)     The statement of Mr Leung Tat Shing JP, a member of the LegCo, made on 24 November 1976 in the debate for the Employment (Amendment No. 2) Bill 1976;

(c)     Statements in the government’s Third Report to the Economic and Social Council.

98.  In our judgment, whether individually or cumulatively, these matters cannot constitute the objective manifestation of a legislative intent to implement ICESCR 7(b) and (d).

99.  We have examined the argument of similar or matching right at [76] to [82] above.  In addition, the legislative history for the rest day requirement in Hong Kong is relevant.  As noted by the judge at [80] of his judgment, before the extension of the ICESCR to Hong Kong by the UK Government in May 1976, our EO already had a provision relating to “rest days” in Section 11E(1) of the 1970 Revised Edition of the Employment Ordinance.  In that old version, “every employee who has been employed by the same employer under a continuous contract shall be granted not less than four rest days in each month”.  In November 1976, the number of rest days was increased to 1 rest day in every period of 7 days.

100.  Mr Shieh submitted that the amendment in November 1976 was merely “icing on the cake”.  Based on his approach (which does not require any act of implementation so long as comparable rights existed under domestic statute), ICESCR 7(d) was implemented by the old version of the EO once the UK Government extended the application of ICESCR to Hong Kong in May 1976.

101.  With respect, once the argument of the applicant on construction of BL 39(1) regarding implementation is rejected (as we did in Section E.1), given the differences in the contents of Section 17 and the provision in ICESCR 7(b) and (d), Mr Shieh cannot rely on the similarity in subject matter as objective manifestation of a legislative intent to implement ICESCR 7.

102.  Given that the statutory entitlement to rest days in Hong Kong predated the application of the ICESCR here for almost 6 years, there is no basis to suggest that the Hong Kong legislature made provision for the same by way of anticipation of application of ICESCR to Hong Kong. 

103.  The relevant part of the speech of Mr Leung Tat Shing JP in the course of the LegCo debate on 24 November 1976 in respect of the Employment (Amendment No. 2) Bill 1976 was as follows:

“ MR LEUNG: — Your Excellency, I wish to support fully the Employment (Amendment) (No 2) Bill 1976 as presented to this Council. The four extra days of rest in a year coincide with the internationally accepted practice of providing one rest day in each seven days’ period, exclusive of any statutory holiday. Such practice and such provision are of long-standing and it is only appropriate for us to fall in line with modern trends of up-holding human rights and promoting workers’ benefits. The Hong Kong employers are beginning to be more and more enlightened on the mutual benefits which flow from better industrial relations, a gesture most welcomed by the multitude of workers.”

104.  Mr Shieh submitted that “the internationally accepted practice” Mr Leung had in mind was the ICESCR.

105.  We cannot accept that submission.  At the highest, given the standards laid down in the two ILO Conventions (which were not applicable to Hong Kong in November 1976), all that one can say is that Mr Leung was saying that the domestic law was on par with such standards.  We cannot see any basis for suggesting that in such statement Mr Leung had the ICESCR in mind.  It is all the more far-fetched to suggest that because of such statement the LegCo is taken to have manifested an intention to implement ICESCR 7(b) or (d) through the Employment (Amendment No. 2) Bill 1976.

106.  The applicant further drew support from paragraphs 7.17 and 7.18 of the government’s Third Report to the Economic and Social Council which formed part of the second periodic report of China under the ICESCR which provides:

“ 7.17 The Committee expressed concern in its previous Concluding Observations on the legal protection and benefits for foreign domestic workers. In this aspect, we emphasise that the Government attaches great importance to protecting the rights of all migrant workers (including imported workers and FDHs). In Hong Kong, FDHs enjoy the same rights

and protection as local workers under the labour legislation. It grants equal statutory rights and benefits to migrant workers regardless of their race. In addition, the Government has long provided to migrant workers, especially FDHs, additional rights and benefits which are not usually enjoyed by local workers.

Same statutory protection to FDHs as local workers

7.18    Among others, the Employment Ordinance and the Employees’ Compensation Ordinance, the two major pieces of labour legislation in Hong Kong, are applicable to both local and migrant workers.  As such, FDHs enjoy the same and full labour rights and benefits as local workers, e.g. maternity protection, rest days, statutory holidays, annual leave, long service payment, and employees’ compensation”

107.  Mr Yu submitted that one cannot conflate the steps taken by the Government to meet the aspirations of a treaty with the question whether the international obligation has been incorporated into domestic law.  The fact that the Government said in the report that Hong Kong has complied with the international obligation at the international plane does not necessarily mean that there is an implementation of the obligation on the domestic law level.  In this regard, Mr Yu referred to this Court’s endorsement of the approach of the Court of First Instance in Comilang at [2018] 2 HKLRD 534 at [113] to [115].

108.  We agree with Mr Yu’s submission.  The statements in the Third Report cannot be regarded as the objective manifestation of a legislative intent to implement the international obligation under ICESCR 7 on a domestic level giving rise to implications under BL 39(2).  At the highest, those statements only reflected the Government’s commitment to honour its international obligation under the ICESCR.  It is not the same as implementation of the ICESCR by conferring a domestic right on an individual to enforce the ICESCR right as such.   

109.  Neither the EO nor its legislative materials contain explicit reference to the ICESCR.  While such absence of such reference in the EO is not a bar to finding that an obligation under the ICESCR has been incorporated, there must still be some material to support a finding of objectively manifested intent of implementation on the part of the legislature. In the present case, we cannot find any basis to enable such a finding to be made.

110.  We therefore hold that ICESCR 7 has not been incorporated into domestic law.

G.     Challenge based on heightened risk of harm

111.  In light of our above conclusions in Sections E and F above, it is not strictly necessary for us to consider the arguments based on heightened risk of harm.  However, Mr Yu submitted whether an approach for judicial review based on heightened risk of encroachment of fundamental rights should be adopted is of general importance for the development of public law in Hong Kong.  It is therefore desirable for us to express some views on the applicability of such approach in this judgment.

112.  On the other hand, we are slightly handicapped in addressing this challenge in the present context.  The precise effect of the Live-in Requirement over a rest day has not been the focus in the court below: there was no detailed consideration on whether a FDH is required to sleep overnight at the employer’s residence during the 24-hour rest day period by virtue of the Live-in Requirement.  Due to the way in which the matter was canvassed in the Court of First Instance, the evidence filed by the parties did not address this aspect specifically.

113.  In terms of the formulation of the policy in the relevant documents, the issue seems to depend on the meaning one gives to the word “reside”.  The point was raised by this Court at the hearing of the appeal, first with Mr Shieh[8], then Mr Yu[9]. Mr Yu tried to assist at best he could with the existing materials and drew a distinction between establishing a residence at some other place with some degree of permanence and spending overnight elsewhere during a holiday.  He said it is a fact-sensitive question.

114.  Mr Yu also informed us that there is a pending judicial review in HCAL 3215/2019 in which the point would be debated in the context of maternity leave and counsel understandably did not want anything he said on his feet to prejudice the arguments in that set of proceedings.   

115.  As far as we are aware HCAL 3215/2019 is still pending.  We do not intend this judgment to pre-empt the course of that piece of litigation.

116.  For the purpose of this appeal, we see no reason for disagreeing with Mr Yu on the effect of the Live-in Requirement in terms of the FDH not staying at the employer’s home during the rest day.  On that footing, it is difficult to see any viable challenge based on the heightened risk argument in the present context: the Live-in Requirement does not generate any heightened risk to a breach of Section 17 since a FDH is at liberty to stay away from the home of the employer during the 24-hour rest period.

117.  Further, as a matter of law, we agree with Mr Yu that the heightened risk approach advocated by Mr Shieh is not an approach that is applicable in Hong Kong.  As further explained below, there is a substantial difference between the heightened risk approach (as advocated by Mr Shieh) and the unacceptable and significant risk of violation of fundamental rights (as discussed in the English cases and by Chow J).  

118.  A general proposition that a policy could be struck down as unconstitutional on a mere heightened risk basis, Mr Yu submitted, is wrong in principle for several reasons.  Whilst we may not agree with each and every reason put forward by Mr Yu, we do accept that in formulating policy or legislating the executive and the legislature have to exercise in many instances a polycentric judgment.  The promotion of one sector’s interests very often incidentally increases the risk of encroachment on other’s rights.  It is inherent in the exercise of such governmental discretion to balance all the relevant interests and risks in the overall public interest.  Judicial intervention on a mere heightened risk basis when a measure or policy itself does not actually infringe any fundamental rights is an unwarranted expansion of judicial review and would involve the courts in risk and benefit analyses which are beyond the institutional competence of our courts. 

119.  At the court below, the Judge proceeded on the assumed basis[10] that unacceptable or significant increase in risk of violation of fundamental right could ground a challenge against governmental measure.  He did so because the position adopted by Director below[11] was different from the one Mr Yu now advocated before us.  At [57], the Judge made several observations in respect this kind of challenge:

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

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

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

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

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

120.  The authorities cited by the Judgeare decisions on systemic challenges based on breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the European Convention”) for which similar rights can be found in the HKBOR.  Whilst there are parts of the judgments in the English cases making references to unacceptable or significant risks, we do not read them as formulating a general approach across the board, particularly in respect of a challenge based on the international obligations formulated in aspirational language as in the ICESCR.

121.  Regina (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148 was a case on the seclusion policy of a high security hospital.  The challenge was based on articles 3, 5 and 8 of the European Convention.  Particular regard was placed on article 3 (which prohibits, amongst other things, inhuman and degrading treatment) and under European jurisprudence (binding on the United Kingdom as a matter of domestic law) there was a positive obligation on the public authority to take steps to guard against the risk of breach, see Lord Hope at [78] to [79][12].  It was against such context that the Lord Bingham and Lord Hope adopted the test of significant risk of ill-treatment at [29] and [80].

122.  MK v Secretary of State for the Home Department [2012] EWHC 1896 (Admin) was also decided on a challenge based on article 3 of the European Convention though the factual background was quite different. An asylum seeker challenged the systemic delay for temporary accommodation and assistance occasioned by the regime for dealing with repeated asylum applications.  At [152] and [184], Foskett J followed Munjaz and applied the test of significant risk laid down by Lord Hope.

123.  R (Suppiah) v Secretary of State for the Home Department [2011] EWHC 2 (Admin) was another challenge by asylum seekers against the detention policy regarding families with children and they relied on articles 3, 5 and 8 of the European Convention.  The argument was that though the language of the policy was consistent with the Convention, it was unlawful because in the particular context of its operation it failed to provide or contain procedural safeguards which were required.  It gave rise to an unacceptable risk of unlawful decision-making.  Wyn Williams J took the law from R (Refugee Legal Centre) v Secretary of State for the Home Department [2005] 1 WLR 2219 which concerned safeguards for the inherent fairness of the proceedings.      

124.  Subsequently, Richards LJ in R (Tabbakh) v Staffordshire Probation Trusts [2014] 1 WLR 4620 reviewed the cases and preferred to adopt a test without using unacceptable or significant risk as a benchmark.  Due to the stance taken at the court below, this case was not cited to the Judge.

125.  Tabbakh was a judicial review by way of a systemic challenge to the imposition of licensing conditions for the halfway release of a person convicted of an offence of preparing a terrorist act.  The thrust of the challenge was that the arrangements leading to the licence conditions provided no meaningful opportunity to a subject to have his views taken into account and therefore in breach of procedural rights under article 8 of the European Convention.

126.  Counsel for the applicant asked the court to assess if the arrangements, across the full range of cases, created an unacceptable risk that the individual will be subject to unlawful decision-making in breach of article 8[13]. The Court of Appeal rejected that approach and held that the test was a more straightforward one asking if the system is inherently unfair[14].  Richards LJ considered the English authorities at some length and regarded R (Refugee Legal Centre) v Secretary of State for the Home Department, supra as the key authority.  There is obviously some correlation between risk of unfairness and the inherent fairness of a system[15]. But His Lordship did not adopt counsel’s formulation of the test by reference to unacceptable risk.  He also held that Munjaz was only concerned with the risk of article 3 ill-treatment and did not establish any wider principle.  Suppiah and MK also added nothing to the debate[16].

127.  The latest English appellate decision on this line of cases is the judgment of Hickinbottom LJ in Regina (Woolcock) v Secretary of State for Communities and Local Government [2018] 4 WLR 49.  After reviewing the authorities, he set out the relevant approach at [68].  As counsel did not refer us to the same, we shall not go through the propositions in that paragraph at length save to note that at (iii) there was reference to unacceptable risk of procedural unfairness,

“ (iii) An administrative scheme will be open to a systemic challenge if there is something inherent in the scheme that gives rise to an unacceptable risk of procedural unfairness.”

And distinction was drawn between something inherent in a system and individual instances of unfairness which do not touch upon the system’s integrity at (iv):

“ (iv) Although Laws LJ said in Sthat ‘the dividing line between multiple instances of unfairness and an inherent failure in the system is in considerable measure a matter of degree, and therefore of judgment’, there is a conceptual difference between something inherent in a system that gives rise to an unacceptable risk of procedural unfairness, and even a large number of decisions that are simply individually aberrant. The former requires, at some stage, consideration and analysis of the scheme itself, and the identification of what, within the scheme, gives rise to the unacceptable risk. As Garnham J properly emphasised recently in R (Liverpool City Council and others) v Secretary of State for Health [2017] EWHC 986 (Admin); [2017] PTSR 1564, paragraph 57 and following, the risk identified must be of, not simply some form of illegality, but of proceduralunfairness. Despite the difficulties of distinguishing an inherent failure in the system and individual instances of unfairness which do not touch upon the system’s integrity, that is a distinction which the court is required to draw, eg by distinguishing examples which signal a systemic problem from others which, no matter how numerous, remain cases of individual failure.”

128.  Thus, it is clear that the line of cases discussed in Refugee Legal Centre, Tabbakh and Woolcock concerned rights to systemic procedural fairness which the courts have a positive duty to maintain even in the context of traditional judicial review grounds.

129.  As we said above, as presently advised, we are not persuaded that these English authorities and those on article 3 of the European Convention could automatically be transposed to other kinds of right to support a general approach for systemic challenge based on unacceptable or significant risk of encroachment of socio-economic rights like ICESCR 7 rights in light of the polycentric balance a policy-maker has to undertake in the formulation of general socio-economic policy and the institutional limitation of courts.  As we do not find it necessary to express our final conclusion on such approach in judicial review applications in general, we would prefer to leave the issue open in this judgment.  

130.  Also, as noted earlier, the approach advocated by Mr Shieh is of wider scope than the one applied by the Judge.  Relying on the judgment of the Canadian Supreme Court in Canada v Bedford [2013] 3 SCR 1101, Mr Shieh submitted that heightened risk of incursion would be sufficient to trigger the challenge and the threshold is “a sufficient causal connection” which does not require that the impugned government action or law be the only or the dominant cause of the prejudice suffered by the claimant.  Such causal connection can be satisfied by a reasonable inference, drawn on a balance of probabilities.

131.  Canada v Bedford, supra, was a decision on the right to security of the person under the Canadian Charter of Rights.  The challenge was brought against the criminal code which criminalized the keeping or being in a bawdy-house, living on the avails of prostitution and communicating in public for the purposes of prostitution.  It was argued that these restrictions put the safety and lives of prostitutes at risk as they could not implement certain safety measures like hiring security guards or screening potential clients.  Such challenge was upheld by the Canadian Supreme Court.  The court held that such restrictions imposed dangerous conditions on prostitution and prevented people engaged in a risky but legal activity from taking steps to protect themselves from the risks.

132.  In our view, the judgment in Canada v Bedford, supra does not support Mr Shieh’s approach in the present case.   

133.  First, as McLachlin CJ observed at [58] of the judgment, the question in that case was whether the impugned laws negatively impact or limit the applicants’ security of the person.  The court answered that question in the affirmative at [65], [67], [72].  Though there were references to increase in risk in the process of reasoning, the benchmark of “heightened risk” was used in reciting the argument of the applicants, see [59]. The Chief Justice herself referred to “materially increased the risk” at [63] and “significantly increases the risks” at [71].  Reading the judgment as a whole, it is clear that the court did not say any increase in risk would trigger the challenge.  At [91], the Chief Justice referred to the principle that trivial impingements on security of the person do not engage such constitutional challenge.

134.  Second, the Chief Justice observed at [88] that the court was not asked to hold that the government had to put into place measures making prostitution safe.  Rather, she repeatedly emphasized that the challenge was advanced because the impugned laws prevent the applicants from taking steps to reduce the risk faced by prostitutes and thereby materially or significantly increase such risk: see [63], [64], [66], [69], [71], [89].

135.  Third, the challenge was based on Section 7 of the Canadian Charter of Rights and Freedoms which provides as follows:

“ Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

136.  Canadian jurisprudence on Section 7 and the concept of fundamental justice was discussed extensively by McLachlin CJ at [93] to [129].  In particular, at [124] to [129], the learned Chief Justice explained the conceptual differences between Section 7 and Section 1 of the Charter.

137.  We do not have a provision in Hong Kong similar to Section 7 of the Charter.  Our proportionality test has some resemblance with the Section 1 justification analysis under the Charter though there are also material differences.  However, Section 7 challenge, as explained by McLachlin CJ is entirely different.  By reason of the difference in the nature of the examination (the burden on establishing a Section 7 challenge is on the individual as opposed to a Section 1 challenge for which the justification burden is on the government, see [125] to [127]), the overall burden under Section 7 is more individually oriented[17]and a less stringent standard (sufficient causal connection standard) was adopted as the threshold burden[18].

138.  We are not persuaded by Mr Shieh that the Canadian jurisprudence on Section 7 can be transplanted to Hong Kong when our Basic Law does not provide for a similar constitutional regime.  Whilst article 5(1) of the HKBOR (“HKBOR 5(1)”) protects the right to liberty and security of person, that article did not provide for challenge based on the notion of fundamental justice as developed in Canada.

139.  HKBOR 5(1) protects against deprivation of liberty in a different manner.  There are Hong Kong authorities[19] holding that the right of liberty and security under HKBOR 5(1) is a conjoint right.  We need not address that issue in the present appeal since we are not dealing with right to liberty and security of a person.  Neither ICESCR 7 rights nor the right to rest day under Section 17 of EO fall within the scope of such matters.

140.  In the circumstances, we do not find the approach in Canada v Bedford under Section 7 of the Charter to be relevant for present purposes.

141.  We reiterate our views at [117] and [118] above and firmly reject Mr Shieh’s approach.

H.     Causation

142.  In light of our observations on the inapplicability of Canada v Bedford in the present context, we do not accept that the sufficient casual connection standard should be adopted.  According to the English authorities where an unacceptable or significant risk were taken into account, the threshold was held to be high[20].  It is also necessary to demonstrate that it is a risk inherent in the system as opposed to being a matter of individual failures not matter how numerous those failures were.

143.  Given that the only remaining challenge is about the right to rest day as provided under Section 17 of the EO and the absence of prohibition against FDH staying out during rest day, such high threshold cannot be met in any event.

144.  We also agree with Mr Yu that Mr Shieh’s argument based on his alleged everyday experience cannot fill in the evidential gap in meeting the threshold.  In our judgment, the judge’s agreement with Mr Yu at [82] of the judgment is well-founded:

“ … as submitted by Mr Yu, one has to recognize that the inherent nature of an FDH’s employment is the provision of domestic service, which necessarily requires him/her to work in his/her employers’ residence. A domestic helper working in his/her employer’s residence would necessarily be exposed to a risk of ill-treatment by the employer while working there, regardless of whether he/she also lives in the employer’s residence. It is plain that if an employer were to engage in acts of violence or other unlawful or unacceptable conduct towards the FDH, those acts could take place whenever the FDH is physically at the employer’s residence, which is his/her only place of work as a domestic helper. While the fact that the FDH is living in the employer’s residence would mean that there may be more opportunities for the employer to apply ill-treatment on the FDH if the employer is minded to do so, I am by no means satisfied that the risk of ill-treatment is unacceptably or significantly increased by the fact that the FDH is living in the employer’s residence. Where ill-treatment does occur, it seems to me that the real cause of the problem lies in the employer, instead of in the fact that the FDH is required to live in the employer’s residence.”

145.  Despite Mr Shieh’s submissions, we do not find any basis to suggest that the judge’s assessment of the Justice Centre Report at [85] to [92] was flawed.  There is no proper ground for us to disturb the judge’s conclusion at [95]:

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

I.     Disposition

146.  For all the reasons above, the judge was correct in holding that the issue of justification does not arise for consideration.

147.  We dismiss the appeal and make an order nisi that the Applicant shall pay the costs of the Respondent, such costs are to be taxed if not agreed.  The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

148.  Last but not least, we wish to thank counsel for their valuable assistance in this appeal.