CB v. COMMISSIONER OF POLICE AND ANOTHER

CACV 208/2022, [2024] HKCA 1086

On Appeal From [2022] HKCFI 1046

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 208 OF 2022

(ON APPEAL FROM HCAL NO 617 OF 2021)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.  In our judgment dated 22 February 2024,[1] we rejected the Government’s challenge against the finding made by the judge below that there were breaches of its investigative duties under art. 4 of the Hong Kong Bill of Rights as to whether the applicant, CB, was a victim of forced labour, and upheld the judge’s order quashing the decisions of the Commissioner of Police and remitting them for reconsideration. We however allowed the Government’s appeal against the declaration made by the judge below that the failures as regards the investigation as to whether CB was a victim of forced labour were causally connected to the absence of specific legislation criminalising forced labour.

2.  In relation to the declaration that we set aside, CB now seeks this court’s permission to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) on the ground that the following questions of law of great and general importance are involved in the proposed appeal:

“ 1. Whether the failures identified by the Court of First Instance and affirmed by the Court of Appeal regarding the investigation of whether CB was a victim of forced labour were causally connected to the absence of specific legislation criminalizing forced labour, such as to require the Hong Kong SAR Government (‘HKSARG’) to enact a bespoke offence specifically targeting forced labour in fulfilment of its obligations under Article 4(3) of the Hong Kong Bill of Rights (‘BOR4’).

2. In considering whether there is a need to enact a bespoke criminal offence under BOR4, and whether the HKSARG has discharged its positive obligation to provide practical and effective protection to victims or potential victims of forced labour, must the court in addition to inquiring whether the breach of BOR4 was causally connected to the absence of a bespoke criminal offence also be satisfied that a bespoke offence is the ‘only effective solution’ to the problems or failures identified by the court in respect of a given case.

3. Assuming Question 2 is answered in the affirmative, on a correct understanding of the positive constitutional requires of BOR4:

(1) What is the proper approach, and what are the relevant factors, in determining whether a bespoke offence is the ‘only effective solution’? In particular, should a form of proportionality analysis be adopted, having regard to and weighing factors such as (a) the nature and severity of the case-specific failings identified; (b) the likelihood of similar failings recurring in the Hong Kong context absent bespoke legislation; (c) the extent of causal connection and contribution as between the lack of bespoke legislation and the identified failings; and (d) any evidence from the HKSARG on the extent to which, notwithstanding the acknowledged benefits of a bespoke approach, it would be detrimental to the overall public interest or unworkable to specifically legislate on the matter.

(2) Who bears the burden of proof with regard to the question of bespoke legislation in showing systemic compliance or non-compliance?

4. What is the nature and scope of the ‘protection’ that the HKSARG must practically and effectively provide to victims of forced labour pursuant to BOR4? To what extent does this go beyond providing remedies and support for established victims, and extend to investigative, operational or policy measures that are practical and effective in preventing persons from becoming victims of forced labour in the future – for instance effective investigations into the possibility that a person (such as an employer) may engage in forced labour practices in the future?

5. Where a public authority has failed to investigate credible suspicious of exploitation and forced or compulsory labour, and has not followed obvious lines of inquiry, but nevertheless prosecuted and abusive employer of a victim of human trafficking and /or forced labour has the government afforded ‘practical and effective protection’ and fulfilled its obligations under BOR4 and/or its assumed duties to protect victims of forced labour and human trafficking either (1) with regard to persons within generally, or (2) alternatively with respect to FDHs in Hong Kong as a particularly vulnerable category of persons?

6. On a proper constitutional reading of BOR4, is it an intrinsic and direct part of the HKSARG’s positive duty under BOR4 for the government to enact an ‘appropriate legislative and administrative framework’ addressing the scourge of forced labour (see e.g. Rantsev v Cypress and Russia (2010) 51 E.H.R.R. 1 at §85)?”

3.  Counsel for CB submit that whether the investigative failures found in this case stem from systemic inadequacy, and spell the need for the bespoke legislation on forced labour for compliance with BOR 4, is a matter of requisite importance for consideration by the Court of Final Appeal, and is reasonably arguable.  They suggest that the 6 questions set out above are “different but connected vantagepoints” for considering this matter, and that Question 1 is the main question with Questions 2 to 5 being sub-questions which should inform Question 1.

4.  In approaching this application, we bear in mind that although in the ZN case the court stopped short of holding that bespoke criminal legislation on forced labour is required by BOR 4, Cheung CJHC (with whom Lam VP and Poon JA agreed) said in his judgment in the Court of Appeal:

“ … It remains to be seen whether these or other further efforts by the government (absent specific criminal legislation) are sufficient to provide the requisite practical and effective protection. As I said, regardless of whether the learning curve is steep or not, the government should act fast. It may not take too many more cases to be brought to court before it will come to the ultimate conclusion that the enactment of specific criminal law is the only way out.”[2]

5.  In the Court of Final Appeal, Fok PJ, in whose judgment the other members of the Court concurred, expressed agreement with the above passage, and added that it would be wrong for the Government to rest on the laurels of its success in that appeal by relaxing the vigilance with which the measures to combat infringements of BOR 4 are administered and enforced.[3] Holding that it had not been shown on the facts of that case that a bespoke offence criminalising forced labour was necessary, Fok PJ pointed out that this determination “does not preclude a different conclusion being reached in a future case, in the event that the HKSARG is shown in future not to afford practical and effective protection of the rights under BOR 4 by reason of the absence of such an offence.”[4]

6.  In this context we accept that Question 1 is of sufficient general importance to warrant leave to appeal being granted.  It is a question on which this Court disagreed with the judge below, and we are not prepared to say that a conclusion contrary to ours is not reasonably arguable.

7.  We do not give leave on Questions 2 to 5.  They seem to us to be merely arguments or approaches that may be relevant to Question 1.  Further, Questions 2 and 3 raise new arguments not run before this court.  There was no suggestion before us that “the only effective solution” approach outlined in Cheung CJHC’s judgment in ZN (CA) at §168 was defective, inadequate or inapplicable.  Nor was there any argument before us that a proportionality analysis should be applied to the question of causation.  Whether CB should be permitted to run these arguments will be a matter for the Court of Final Appeal.  Questions 4 and 5 seem to us to be questions that are overly abstract and general.

8.  Question 6, to the extent it suggests that there is necessarily a duty inherent within BOR 4 to enact a specific offence targeting forced labour, is precluded by the decision in ZN (CFA), as the Respondents point out in their submissions.  CB’s reply submissions no longer mention this question which we take to have been abandoned.

9.  Accordingly, we grant leave to appeal to the Court of Final Appeal in respect of Question 1.

10.  Costs of the application for leave will be in the cause of the appeal.  CB’s own costs are to be taxed in accordance with the Legal Aid Regulations.