LEE KWOK KEUNG v. CHIEF EXECUTIVE OF THE HKSAR AND OTHERS

HCAL 1403/2023

[2024] HKCFI 1339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1403 OF 2023

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D E C I S I O N

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A.  Introduction

1.  By his Form 86 dated 11 August 2023, the Applicant seeks leave to apply for judicial review for relief so as to put the Government’s new labour importation policy on hold.

2.  The Chief Executive of the Hong Kong Special Administrative Region Government (“CE”), the Labour and Welfare Bureau (“LWB”), the Transport and Logistics Bureau (“TLB”) and the Development Bureau (“DEVB”) were named as the 1^st, 2^nd, 3^rd and 4^th Putative Respondents respectively.

3.  By my directions given on 23 August 2023, I gave leave to the Putative Respondents to file an Initial Response to the application by 20 September 2023 (extended to 4 October 2023), and leave to the Applicant to file a Reply to that Initial Response by 11 October 2023 (extended to 25 October 2023).

4.  The Initial Response dated 4 October 2023 was served by Mr Mike Yau, Government Counsel of the Department of Justice, for all the Putative Respondents. The Applicant’s Reply to the Initial Response dated 25 October 2023 (in English) was filed on 24 October 2023.

5.  To respond to the further submissions made by the Applicant in his Reply, the Putative Respondents sought leave on 6 December 2023 for filing of a Supplementary Initial Response, which was allowed by my direction of that date. By his letter dated 11 December 2023, the Applicant confirmed that he had “no other things to add” in reply to the Supplementary Initial Response.

6.  In short, the position of the Putative Respondents is that leave for judicial review should be refused on various bases (which I shall traverse below).

7.  Having considered the materials, I am satisfied that I can appropriately deal with the application on the papers.

8.  This is my Decision.

B.  Background

B.1  The Government’s decision to import labour

9.  The background has been helpfully summarised in the Initial Response, which I accept. It can be restated broadly as follows.

10.  On 13 June 2023, the Chief Executive in Council (“CEIC”) ordered the adoption of a dual approach (collectively the “Decision”) to tackle the problem of serious shortage of manpower faced by different sectors in Hong Kong, by:

(1)  introduction of sector-specific labour importation schemes for the construction and transport sectors (“Construction LIS” and “Transport LIS”) under section 14(3) of the Employees Retraining Ordinance Cap 423 (“ERO”); and

(2)  enhancement of the coverage and operation of the existing Supplementary Labour Scheme (“SLS”), so becoming the Enhanced Supplementary Labour Scheme (“ESLS”).

11.  The sector-specific LISs and the ESLS are regarded as labour importation schemes under section 14(3) of the ERO, which provides as follows:

For the purposes of this section, the Chief Executive in Council may, from time to time, approve a scheme (“labour importation scheme”) under the terms of which a levy shall be payable by employers in accordance with this Part.

12.  Section 14(4) of the ERO is also relevant:

An employer may, under the terms of the labour importation scheme, apply to the Director for permission to employ such persons as imported employees as the Director may, in accordance with a quota allocated by or with the authority of the Secretary in respect of that employer under that scheme, grant visas to those imported employees for that purpose.

13.  The details of the Decision are set out in the Legislative Council (“LegCo”) Brief on ‘Importation of Labour’ dated 13 June 2023 (“LegCo Brief”) submitted jointly by LWB, TLB and DEVB.

14.  According to the Government, the overall justifications for the Decision are as follows:

(1)  It has been an established policy of the Government that where there is a genuine demand for workers which cannot be satisfied by the local labour market, importation of such workers could be permitted, pursuant to section 14(3) of the ERO.

(2)  The rationale of any such labour importation scheme is twofold: (a) permission of importation of workers when needed, and (b) training or retraining of local workers vulnerable to changes in economic structure. Employers who are allowed to import workers are required to contribute to the training or retraining costs of local employees.

(3)  There is a reduction in the size of the local labour force from the peak of 3.68 million in 2018 to 3.46 million in 2022, which will not be able to meet the long-term development needs of Hong Kong.

15.  The construction and transport sectors have been identified by the Government as the sectors with an urgent need to import labour. Primarily for larger-scale public construction works, the Construction LIS would import technicians and skilled workers with a quota of 12,000. Under the Transport LIS, the aviation industry would be permitted to import a maximum of 6,300 workers (non-supervisory roles) to handle the increasing passenger traffic after the pandemic; and the public light bus trade and the coach trade will be allocated with a quota of importing 1,700 drivers altogether to serve on fixed routes to alleviate the problem of shortage of drivers.

16.  There are some common parameters under the Construction and Transport LISs to protect the imported workers’ interests while according the local workers’ employment priority, including:

(1)  a general 1:2 manning ratio between imported workers and full-time local employees has to be maintained;

(2)  the wage level of imported workers must not be less than the median monthly wages of relevant posts in Hong Kong;

(3)  proof of local recruitment conducted by the applicant employer within 4 months preceding an importation application is required to be submitted;

(4)  the imported workers would be subject to a standard employment contract of maximum term of 24 months; and

(5)  the imported workers would be subject to restrictive conditions of stay imposed by the Immigration Department and would not be regarded as residing ordinarily in Hong Kong during their employment.

17.  Similar to the SLS, to augment the provision of training and retraining for local workers, employers are required to pay the Employees Retraining Levy, currently set at HK$400 per month, to the Director of Immigration under section 14 of the ERO in respect of each imported worker during his or her employment.

18.  According to the Government, whilst the sector-specific LISs are aimed at easing labour shortage in the identified sectors, the SLS would also be refined under the Decision in order better to tackle the problem of acute labour shortage in other sectors, and would be renamed as the enhanced SLS (“ESLS”).

19.  The SLS has been in place since 1996. It allows employers to import workers at technician level or below if there are real difficulties in recruitment in the local labour market as demonstrated by way of submitting proof of attempts in a 4-week recruitment exercise. Nonetheless, applications for importation of labour in 26 job categories (for examples cashier and driver), as well as unskilled or low-skilled workers, are normally not considered (“General Exclusion”). Under the ESLS, in view of the current widespread labour shortage in Hong Kong and hence the inappropriateness to maintain such an exclusion, the Government will suspend the General Exclusion for 2 years, although employers are still required to provide proof of efforts made in recruitment in the local labour market.

20.  Furthermore, the arrangement (under the SLS) of circulating screened-in applications to the Labour Advisory Board (“LAB”) for its views before the Commissioner for Labour (“C for L”) makes decisions on the applications would also be maintained under the ESLS, with the overall workflow streamlined for enhancing efficiency and reducing the time required for processing ESLS applications.

B.2  Consultations before and after the Decision

21.  Before making the Decision, DEVB, TLB and LWB conducted a variety of consultations with stakeholders by:

(1)  listening to the views of employers’ associations, labour organisations, trade/labour unions, training bodies and professional institutes, members of the LegCo, representatives of the relevant sectors, etc. in order to acquire a better understanding on the demand and supply of manpower and labour shortage situation in general for relevant sectors and industries; and

(2)  holding meetings extensively to gather the views on the proposed sector-specific LISs and ESLS from industry representatives, representatives from trade/labour unions (as well as the industry-specific union members under them) and members of the LegCo with relevant background (including business, construction, tourism, labour and transport sectors).

22.  After consideration of the stakeholders’ opinion and concerns, the Government fine-tuned the proposed LISs for the CEIC’s consideration in making the Decision, including requiring employers participating in the aviation labour importation scheme to pay an additional sum of HK$400 per month to the Airport Authority Hong Kong for each imported worker, for subsiding the commuting expenses of local frontline staff in airport operations.

23.  The CEIC made the Decision on 13 June 2023, which was announced through press conference and releases and the LegCo Brief on the same day. The Government then consulted the LAB and the Panel on Manpower of the LegCo on the implementation of the sector-specific LISs and the ESLS on 19 and 20 June 2023 respectively.

24.  For sector-specific LISs, consultative groups have been set up, including a consultative committee for the construction sector scheme, two stakeholder consultative groups for the transport sector schemes and a Task Force on Short-Term Labour Supply under the Construction Industry Council. Trade union representatives, employers, industry representatives and other stakeholders are invited as appropriate through these consultative groups to provide feedback and suggestions to relevant Government bureaux on the details of the implementation and any proposed refinements to the administration of the LISs. Before announcement of the LISs application details in July 2023, meetings were held with these consultative groups to obtain views for finalising the details of the LISs.

25.  The LISs were all launched in July 2023. The Government has stated that it will maintain close communication with the stakeholders via the consultative groups so as to facilitate the smooth implementation and execution of the LISs, and has undertaken to report the progress of the implementation of the sector-specific LISs to the LAB on a half-yearly basis.

26.  As mentioned above, applications for labour importation under the ESLS will be reviewed by the LAB first in a streamlined manner before the C for L decides on them. On 13 July 2023, the LAB’s Working Group on the SLS held a meeting to discuss the proposed implementation arrangements for the ESLS and gave its general support to the arrangements. Subsequently, the proposed measures for implementing the ESLS were endorsed at the LAB meeting on 28 July 2023. On 4 September 2023, the ESLS was launched. The Government will report the progress of the implementation of the ESLS to the LAB on a half-yearly basis.

C.  Labour Advisory Board

27.  In this context, it is helpful to say a little more about the LAB.

28.  The LAB is a non-statutory body appointed by the Secretary for Labour and Welfare in exercise of the authority delegated by the CE, and is chaired by the C for L. It comprises twelve members in total – six members representing employers and six members representing employees.

29.  The C for L, as the ex-officio Chairperson of the LAB, is vested with the authority and has a wide discretion in deciding the LAB’s meeting arrangements, such as whether a meeting should be convened and whether a particular item should be included in the LAB’s meeting agenda. There is neither statutory obligation nor administrative requirement on the Government to consult the LAB on a specific labour issue.

30.  The Applicant was an employee member of the LAB from 1 January 2019 to 31 December 2020.

D.  Proposed Grounds of Review

31.  It is trite that in an application for leave to apply for judicial review, the applicant is mandated properly to identify a specific and proper ground of review, namely by the identification of an alleged public law wrong.

32.  Although not very clearly identified in the Form 86, the Applicant’s Affirmation and the Reply, his complaints or allegations are discernible and can be summarised as follows:

(1)  The SLS, in which applications for labour importation would be considered by the LAB, is an effective supervisory system for labour importation.

(2)  At the LAB meeting on 19 June 2023, six employee members of the LAB walked out of the conference room to express the discontent with the Government’s “termination” of the SLS and replacing it with the new measures without any consultation.

(3)  The International Labour Convention (“ILC”) No. 144 – Tripartite Consultation (International Labour Standards) Convention, 1976 (“ILC 144”) is applicable to the Hong Kong Special Administrative Region (“HKSAR”), and obliges the Government to consult the LAB before making the Decision. The Decision did not comply with ILC 144.

(4)  Before the Decision was made on 13 June 2023, there was no consultation conducted.

(5)  The Decision is of public importance and the Applicant has sufficient interest in lodging this application.

33.  The point about ILC 144 arose from the Applicant’s Reply, and gave rise to the further submissions made in the Supplementary Initial Response.

34.  In short, it seems that the Grounds as relied upon by the Applicant to challenge the Decision could be summarised as follows (and I note that Mr Yau seems to have identified and addressed similar grounds):

(1)  Ground 1 – There was no consultation – a failure to meet the necessity of consulting the LAB – prior to the making of the Decision.

(2)  Ground 2 – There was non-compliance with the requirements of ILC 144.

E.  Locus / Standing

35.  The relevant legal test as to standing is whether an applicant for judicial review has “sufficient interest in the matter to which the application relates” within the meaning of section 21K(3) of the High Court Ordinance Cap 4 and Order 53 rule 3(7) of the Rules of the High Court (“RHC”).

36.  The question is approached, adopting a holistic approach by taking into account a host of relevant considerations. It is trite that, amongst the matters to be taken into account, would fall the merits of the application, the importance of vindicating the rule of law, the importance of the issue raised, and the nature of the public law deficiency against which relief is sought.

37.  The question of the Applicant’s locus or standing to bring the present application has arisen because, in the Initial Response, Mr Yau submitted that the Applicant could not show standing in making the application. As put by Mr Yau:

(1)  There are other better-placed challengers who have a greater stake in the present matter. The Applicant is no longer a current member of the LAB. Serving members of LAB are better-placed to bring the present application, if they so intend. The Applicant did not substantiate himself to be an employer or employee who is directly affected by the Decision;

(2)  The application is devoid of merit, and the Applicant has failed to advance any proper ground of review.

(3)  As the application is entirely unmeritorious, there have been no significant, important or controversial issues raised and the rule of law would not be vindicated by allowing the application.

38.  In the Form 86 and the Reply, the Applicant addressed the issue of standing as follows (in my summary):

(1)  The LAB was established by the Government in 1927. Since 1950, the Hong Kong and Kowloon Trades Union Council (“HKTUC”) has maintained an employee member seat of the LAB through election. As the Chairman of the HKTUC, he was one of the employee members of the LAB from 1 January 2019 to 31 December 2020. During his term, he dealt with issues under the SLS. He and his colleagues in the HKTUC are of the view that the new labour importation schemes will have a long-lasting impact on workers.

(2)  His capacity as the Chairman of the HKTUC, a confederation of trade unions, enables him to have the standing to make the application because at least one of the members or colleagues in the HKTUC may wish to challenge the Decision.

39.  As regards the “importance of the issue and its controversy” as set out in the Reply, the Applicant submitted that:

(1)  Since announcement of the Decision, public opinion has been polarised on the Decision. Concerns about the Decision have been expressed by employees, employers and even some legislative councillors. There were demonstrations organised by some trade union members outside the Government headquarters.

(2)  At the meeting on 20 June 2023 of the Panel on Manpower of the LegCo, the Panel received eleven submissions from trade unions, all opposing the ESLS. The trade unions complained that there was no consultation.

(3)  On 21 June 2023, Mr Luk Chun Hung, Chairman of the Panel on Manpower of the LegCo, criticised in a radio broadcasting programme that there was no consultation with trade unions, LAB and the LegCo before the Decision was made.

40.  Having looked at the various matters, I am persuaded that the Applicant has sufficient standing, in view of the fact that he was one of the employee members of the LAB in 2019 and 2020, and he is the leader of a local confederation of trade unions (i.e. HKTUC), which, according to him, has a long history of serving on the LAB.

41.  In addition, the numbers of workers intended to be imported under the sector-specific LISs and the ESLS (see the figures provided by the Government as set out above) are not insignificant, which would undeniably (indeed, intentionally) cause some impact on the local job market and the composition of the labour force in Hong Kong, and the point raised is therefore perhaps of some public importance.

F.  Are There Merits of Grant of Leave?

42.  However, there are indeed no merits in the application. This is for a number of reasons which individually and cumulatively must result in the dismissal of the application.

43.  Firstly, as to the proposed Ground 1, I see the great force in Mr Yau’s submissions that:

(1)  The SLS has not been “terminated” at, all but was amended so as to become the “enhanced” ESLS (as traversed above). Under the ESLS, screened-in applications will continue to be circulated to the LAB for the views of its members before the C for L decides on the applications, and the applications will be speeded up by the fine-tuned workflow. The role of the LAB under the ESLS has not been changed.

(2)  Prior to the announcement of the Decision, the Government has extensively consulted relevant stakeholders on their opinions on the proposed sector-specific LISs and proposed enhancements to the then SLS (see the background above).

(3)  The LAB and its Working Group on the SLS and other consultative groups newly formed for the purpose of implementation of the LISs are consulted on various occasions on the implementation aspects of the Decision.

44.  As traversed above, the nature of the LAB is a non-statutory body for the Government to seek views from representatives of employers and employees on labour issues. It does not create a statutory obligation to the Government to consult the LAB on the Decision.

45.  With respect, the Applicant’s contentions that the Decision was made without consultation and/or that the LAB must be consulted before the Decision was made were advanced on a mistaken basis. Ground 1 is not reasonably arguable.

46.  As regards Ground 2 alleging non-compliance with ILC 144, in the Supplementary Initial Response Mr Yau submitted that:

(1)  ILC 144 is applied to the HKSAR as follows:

(a)  ILC 144 is one of the 31 ILCs currently applied to the HKSAR. Its aims are to promote tripartite consultations among governments, employers and workers related to the formulation, review and implementation of international labour standards.

(b)  A full report on the application of ILC 144 in the HKSAR was submitted by the Government to the International Labour Office (“IL Office”) in July 1999, following the template provided by the IL Office for full reports. ILC 144 is also applied by administrative measures through the operation of the LAB.

(2)  The matter which requires tripartite consultations as covered in ILC 144 is as follows:

(a)  According to Article 2(1) of ILC 144, the Government is required to operate procedures for ensuring effective consultations between representatives of the government, of employers and of workers, with respect to the following matters concerning the activities of the International Labour Organisation (“ILO”) as set out in Article 5(1) of ILC 144:

(a)  government replies to questionnaires concerning items on the agenda of the International Labour Conference and government comments on proposed texts to be discussed by the Conference;

(b)  the proposals to be made to the competent authority or authorities in connection with the submission of Conventions and Recommendations pursuant to article 19 of the Constitution of the International Labour Organisation;

(c)  the re-examination at appropriate intervals of unratified Conventions and of Recommendations to which effect has not yet been given, to consider what measures might be taken to promote their implementation and ratification as appropriate;

(d)  questions arising out of reports to be made to the International Labour Office under Article 22 of the Constitution of the International Labour Organisation;

(e)  proposals for the denunciation of ratified Conventions.

(b)  Those matters are primarily the responsibility of the Committee on the Implementation of International Labour Standards (“CIILS”) established under the LAB in 1978. The terms of reference of the CIILS are as follows:

(a)  advise on appropriate declarations to be made in respect of the application of ILCs in the HKSAR;

(b)  advise on appropriate measures to be taken to promote the implementation of, or where appropriate, to improve the declarations in respect of, ILCs with the declaration of ‘applied with modification’;

(c)  advise on questions arising out of the reports to be made to the ILO; and

(d)  advise on government replies to questionnaires concerning items on the agenda of the International Labour Conference and government comments on proposed texts to be discussed by the Conference.

(c)  In general, before reports on ILCs under Article 22 of the ILO Constitution are submitted to the IL Office, they would be forwarded to the CIILS for advice.

(3)  The HKSAR has observed the tripartite consultation as follows:

(a)  In the Simplified Reports submitted to the IL Office in July 2015, August 2016 and August 2017, the Government has provided examples of how it has applied the tripartite consultations in formulating labour policies, in addition to the matters concerning the activities of the ILO as set out under Article 5(1) of ILC 144. For example, the Minimum Wage Commission, which is responsible for reviewing the statutory minimum wage rate, is comprised of (among others) equal numbers of members from the labour and business sectors, and the views from various trade unions and employers’ associations are consulted in the process of review.

(b)  In the observations made by the Committee of Experts on the Application of Conventions (“CEACR”) on the 2015-2017 Simplified Reports submitted by the Government, these tripartite consultative efforts were noted by the CEACR.

(c)  In the Simplified Reports submitted in August 2019 and in August 2023, the Government provided further examples of its comprehensive efforts and full respect to the tripartite consultations principle in formulating labour policies, including the review of statutory minimum wage rate, the arrangements for abolishing the use of employers’ mandatory contributions under the Mandatory Provident Fund System to offset severance payment and long service payment, certain matters concerning occupational safety and health, and measures to strengthen protection of employees’ rights and benefits during the Covid-19 pandemic.

(4)  There is no obligation under ILC 144 to consult on the Decision because:

(a)  Through the operation of the LAB and the CIILS under the LAB so that Articles 2(1) and 5(1) of ILC 144 are observed, i.e. matters concerning the activities of the ILO as set out under Article 5(1) are effectively consulted in the LAB as required under Article 2(1), the Government has fully adhered to ILC 144.

(b)  However, the ILC 144 does not require its contracting parties to conduct tripartite consultations on each and every labour matter.

(c)  But, in addition to the matters requiring tripartite consultations as required under Article 5(1) of ILC 144, the principle of tripartite consultations is fully acknowledged by the Government in formulation of important labour policies, as shown in the various policy matters as referred to in the Simplified Reports mentioned above.

(d)  Specifically, for the formulation of the labour importation policy (i.e. the Decision), the principle of tripartite consultations has fully been observed by the Government on its own initiative, by conducting an extensive and comprehensive consultation exercise, involving various stakeholders from different sectors such as notable trade or labour unions and representatives from the industries, whose opinions were absorbed in formulating the Decision.

47.  The Applicant has confirmed that he has no response to Mr Yau’s further submissions in the Supplemental Initial Response. On the facts of the present case and in view of the relevant Articles of ILC 144 as cited by Mr Yau, it appears that there is no arguable non-compliance by the Government with ILC 144. Therefore, Ground 2 as put forward by the Applicant is not reasonably arguable with any realistic prospect of success.

G.  Result

48.  The Applicant has failed to identify any reasonably arguable public law grounds of review with any realistic prospect of success to challenge the Decision. Therefore, the application for leave to apply for judicial review is dismissed.

49.  However, in the exercise of my broad discretion as to costs, I make no order as to costs.