ZN v. SECRETARY FOR JUSTICE AND OTHERS

HCAL 15/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 15 OF 2015

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D E C I S I O N

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Introduction

1. In an unprecedented application by the respondents, namely, the Secretary for Justice, the Director of Immigration, the Commissioner of Police and the Commissioner for Labour, I have been asked to recuse myself from hearing an application for judicial review involving an issue of human trafficking, because of the positive stance I took in combating this problem when I was the Director of Public Prosecutions (DPP).

Background

2. The applicant in the judicial review proceedings is a Pakistani national who claims he is a victim of human trafficking for forced labour. 

3. The brief facts as alleged by the applicant giving rise to the application are as follows.  The applicant was brought to Hong Kong from Pakistan on 1 May 2007 under a standard domestic helper contract.  His employer, a Pakistani national who is resident in Hong Kong, comes from a prominent and well connected family in the same village as the applicant.  The applicant was illegally put to work by the employer in commercial premises where he was required to reside.  He was repeatedly beaten and threatened, was rarely permitted to leave the premises except for the employer’s purposes, was not paid any wages for over two years, and was told that he could not leave his employment unless he repaid substantial sums of money allegedly spent by the employer in bringing him from Pakistan to Hong Kong.  Throughout this time the employer retained his passport.

4. The employer continuously put off paying the applicant his wages.  In December 2010, he needed the money and when he asked the employer to pay him, the employer arranged his return to Pakistan where he was threatened by members of the employer’s family and told not to demand payment of his wages.  There followed a series of threats and altercations against the applicant and his family members from the employer’s family members and associates.

5. In April 2012, the applicant came illegally to Hong Kong to press his claim against the employer for his unpaid wages.  Immediately upon his arrival, he went to the Immigration Department to seek assistance about his wages dispute with the employer where he was referred first to the Police and later to the Labour Department. 

6. On 2 May 2012, he registered a claim against the employer for unpaid wages in the sum of $220,310.59.  During this time, the employer initiated attacks and threats against him in Hong Kong and his family in Pakistan.  He reported the incidents to the police in Hong Kong but no action was taken.  He claims he was forced by an associate of the employer to settle his claim against the employer in the sum of $32,500.  Afterwards, the same associate of the employer threatened to kill him.  He reported the matter to the police and sought their protection but was turned away.  There was another occasion in August 2012, when he noticed he was being followed by persons associated with the employer.  He went to a police station and sought assistance.  Police officers made inquiries of his employer and over the next few days checked on him to see if he was alright.

7. On 26 August 2012, he was attacked by a group of associates of the employer, which included the employer’s brother.  They beat him and unsuccessfully tried to push him into a car.  He broke free and contacted the police through the emergency telephone line.  After the police officers had made inquiries, the applicant was charged with robbery and with illegal entry into Hong Kong.  He was placed in custody.

8. The applicant’s case was heard in the District Court and on 20 February 2013, he was acquitted of the offence of robbery.  The judge commented in her reasons that the actions of the applicant “were wholly irreconcilable with that of a robber”.

9. Thereafter, the applicant sought protection as a torture claimant.  On 1 June 2013, he married a local resident and is seeking to remain in Hong Kong as a dependent spouse.

Application for judicial review

10. On 30 January 2015, the applicant filed a notice of application for leave to apply for judicial review against the respondents in relation to his case on the ground of the continuing breach of his rights under Article 4 of the Hong Kong Bill of Rights (BOR).  Article 4 reads:

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

(2) No one shall be held in servitude.

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

(b) For the purpose of this paragraph the term "forced or compulsory labour" shall not include –

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

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

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

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

11. It is alleged that the applicant complained to officers of the Immigration Department, the Hong Kong Police and the Labour Department about what had happened to him but no steps were taken to investigate his complaints as a case of human trafficking.  It is complained that the applicant was denied the protection of his right not to be subjected to servitude or forced labour pursuant to Article 4 of the BOR.  It is further complained that these failures were systematic and occurred primarily because of the absence of any legislative framework to prevent human trafficking or protect victims of human trafficking.

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

Procedural history

13. On 19 December 2014, the applicant made an ex parte application for an anonymity order before Au J which he granted.  On 2 June 2015, Au J heard the application for leave to apply for judicial review where both the applicant and the putative respondents were legally represented.  His Lordship reserved judgment after submissions were presented on behalf of the parties. 

14. On 9 June 2015, His Lordship granted leave to the applicant to apply for judicial review and directed that the judicial review would be handled and heard by myself and that the parties were to write to me to fix a directions hearing. 

15. On 3 July 2015, a directions hearing took place before me where both the applicant and the respondents were legally represented.  After a lengthy discussion, available hearing dates were suggested and a timetable was agreed to address various matters in relation to the substantive hearing of the judicial review.  A case management conference was fixed for 15 October 2015.  It was directed that if the applicant wished to rely on expert evidence he should apply to the Court for an order to admit the evidence by way of summons and file and serve all relevant papers for the hearing on 15 October 2015. 

16. On 24 July 2015, after an exchange of correspondence between the parties, the substantive hearing for the judicial review was fixed for 13 to 15 January 2016.

17. On 12 October 2015, three days prior to the case management conference, Ms Phyllis Wong, the Senior Assistant Law Officer (Civil Law) of the Department of Justice, forwarded a letter to my clerk which was copied to Daly & Associates, the solicitors for the applicant.  It read:

“1. We write on behalf of the Respondents.

2. Having obtained advice from Counsel and upon client bureau's instructions, we invite the Court to consider an issue arising from the subject matter of these proceedings and the previous role of Zervos J as the Director of Public Prosecutions (“DPP”) of the HKSAR. Given the nature of the issue, we believe it is appropriate to raise it in advance of the case management hearing fixed before him on 15 October 2015.

3. This judicial review concerns issues and allegations relating to forced labour and human trafficking. The Applicant challenges, inter alia, the adequacy of the existing administrative and legal regime in the HKSAR to combat human trafficking. It is alleged that the existing regime is insufficient to discharge an alleged positive obligation arising under Article 4 of the Bill of Rights imposed on the HKSAR Government to curtail human trafficking.

4. Zervos J held the position of DPP from 25 March 2011 to 8 September 2013 and was appointed as a judge of the Court of First Instance with effect from 16 September 2013. Most, if not all, of the material events in this judicial review took place while Zervos J was DPP.

5. From publicly available information and the records of the Prosecution Division, it appears that Zervos J assumed an active role in his capacity as DPP in considering the issue of human trafficking and its prevalence, the need for reform, communicating with NGOs, foreign governments and the media and also in the formulation and implementation of new initiatives to address human trafficking.

6. To assist the consideration of the learned judge, we have compiled a chronological table (annexed herewith) together with supporting materials of matters and events with respect to human trafficking in which Zervos J was involved (or reported to have been involved) as DPP and thereafter.

7. We would draw attention to the fact that Zervos J previously identified human exploitation as an area for reform in his speech at the Opening Ceremony for Prosecutions Week 2013. Moreover, he was reported by the media in 2013 as stating that the HKSAR is not exempt from the problem of human exploitation, and that there is a need for an integrated approach and for the HKSAR to move with the times. He was also reported as stating that sex trafficking, forced labour and abuse of domestic helpers is equivalent to ‘modern-day’ slavery. In the Pearl Report, a televised program, he stated in 2013 that trafficking in persons was a growing problem in Hong Kong.

8. Moreover, while acting as the DPP in 2012-2013, the learned judge was also responsible for overseeing certain new initiatives to combat human trafficking including introducing amendments to the Prosecution Code and the more systematic recording of cases to better monitor trends and the size of human trafficking cases in the HKSAR.

9. Further, there are a number of occasions from March 2013 onwards where the DPP met with representatives of NGOs, the US Consulate General and the media to discuss issues in relation to human trafficking. He also appears to have been a representative of an Advisory Committee which in May 2013 discussed the identification and extent of the problem in Hong Kong together with possible initiatives to assist frontline officers.

10. In these circumstances, we would respectfully invite the learned judge to consider whether it is appropriate for His Lordship to continue as the judge responsible for hearing this judicial review. The applicable legal test in such cases is objective in nature and is well-established in the CFA decision of Deacons v. White & Case (2003) 6 HKCFAR 322. The test is whether, after ascertaining all relevant circumstances on the issue, the fair-minded and informed observer would conclude that there was a real possibility or a real danger that the tribunal was biased.

11. Viewed objectively, and having regard to all the circumstances and the issues arising in the judicial review, we consider that the apparent bias test is satisfied in the present case and that the learned judge should decline to continue acting as the judge responsible for this case.

12. For the avoidance of doubt, it is not suggested that Zervos J has any actual bias in favour of any party to these proceedings. That is expressly disavowed. While we feel duty bound to raise the matters set out above, we would like to stress that the Department of Justice and the Respondents have the highest possible regard for the independence, integrity and professionalism of Zervos J in carrying out his judicial functions.

13. In the event that the learned judge decides that it would not be appropriate to continue hearing this case, we respectfully request that this judicial review be assigned to a different judge in the Constitutional and Administrative Law list and any potential interlocutory application(s) to be heard on 15 October 2015 be heard by the new judge.

14.  We would be most grateful if you could place this letter before the learned judge soonest possible for his consideration.”

18. Attached to the letter from the Department of Justice was a chronological table of matters and events in which I said or did things in addressing the problem of human trafficking. Some of the material is very general and even unrelated to the subject of the application as illustrated by the interview of me in the publication of Hong Kong Lawyer, November 2013, where I said that it was important for lawyers to be conversant in human rights. 

19. Under cover of letter dated 13 October 2015, Daly & Associates gave the following reply to the letter from the Department of Justice.

“We refer to the letter from the Respondents dated 12 October 2015 and the direction from the Court of even date. We would be grateful if you can place this letter before His Lordship, the Honourable Mr Justice Zervos J, for his consideration.

Having taken advice from Counsel, the Applicant does not agree that there is a real possibility or danger of apparent bias in this case with regard to the previous statements or actions of His Lordship, the Honourable Mr Justice Zervos J, acting in his previous position as the Director of Public Prosecutions or that His Lordship should recuse himself for that reason. Furthermore, the Applicant does not object to His Lordship continuing as the judge in this matter.

This case concerns the application of the right to freedom from forced labour under Article 4 of the Hong Kong Bill of Rights, and the non-criminalization of forced labour in Hong Kong. To our knowledge, His Lordship has not expressed any views on that issue.

His Lordship has not previously expressed any views in respect of the Applicant, his allegations or his case, nor has he had any contact with the Applicant or his witnesses whatsoever. Although His Lordship has previously expressed his support for existing HKSARG policy to combat and prevent human trafficking in his statements as a public servant, those statements (and the policy they represent) are not in dispute in this case.

At best, the Respondents have demonstrated that His Lordship is experienced in, and has previously been involved in the area of human trafficking. In the Applicant’s view, this merely means he has relevant expertise – making him more suitable. Further, it is the Applicant’s view that this will enhance the quality of the trial.

Indeed, it is the normal practice of the Court to assign cases to specialist lists, with specialist judges, experienced in the relevant area of law. In such cases, it is often normal that a judge will have spoken publicly about reform or development of an area of law in which he or she is well acquainted. Such a relationship is beneficial to the rule of law. Excluding such judges necessarily undermines the rule of law.

The Respondents appear to conflate the question of “bias” with “pre-conditions” (please see the recent article on this question “Recent Developments (and problems) in the law of bias” by Philip Havers QC and Alasdair Henderson, published at the Hart Publishing and Judicial review 4th International Conference – a copy of which is appended to this letter). Pre-conditions are views held on a topic before the commencement of a trial. A lay person may not be able to exclude such pre-conditions if trying a case (e.g. a lay member of a tribunal). A trained judge will normally be able to exclude them.

It is only where the judge’s pre-conditions appear to be so entrenched that he is unable to set them aside and consider the evidence objectively that a pre-condition gives rise to apparent bias. The mere fact that a judge has previously expressed a view on an issue which he is now required to try is not a proper basis for a judge to recuse himself.

As the leading American jurist, Judge Jerome Frank (US Court of Appeal, 2nd Circuit) put it in Re JP. Litzahan Inc 138 F 2nd 650 (1943): “If “bias” and “partiality” be defined to mean the total absence of pre-conditions (in the mind of the judge) then no one has ever had a fair trial and no-one ever will.”

The Applicant takes issue with the approach of the Respondent in bringing this application to the Court at such a late juncture, a short time before the coming pre-trial hearing.

Thank you for your kind attention to this letter, which we hope will help to save the Court’s time on 15 October 2015.”

20. On 13 October 2015, I directed that in light of the nature and timing of the respondents’ application the matter should be raised at the hearing fixed for 15 October 2015.  Skeleton submissions for the respondents from counsel together with a list of authorities were then filed and served. 

21. On 14 October 2015, a summons was taken out by the respondents returnable on 15 October 2015 for an order that I recuse myself from continuing to act as the judge responsible for hearing these proceedings and to transfer them to a different judge, that the applicant’s summons dated 12 October 2015 (for an order to admit expert evidence) and the case management hearing be adjourned to a date to be fixed to be heard before a newly assigned judge and that time for service be abridged.  Ms Wong Hwa Yih, Senior Assistant Law Officer (Civil Division) of the Department of Justice, filed an affirmation duly authorised by the respondents in support of the summons. 

22. At the hearing on 15 October 2015, the parties made brief submissions in relation to the recusal application which were carried over to 19 October 2015 for full argument.

Recusal application

23. The respondents explain that the basis of the application is on the question of apparent bias only. 

24. The respondents summarise their case of apparent bias in their written submission as follows:

“13. … There is of course no dispute or disagreement that human trafficking and forced labour are evils which need to be combated. However, that is not the issue in this case, but the adequacy of the legal and administrative measures in place to combat them.  Because of the firm, active, close and deep involvement of Zervos J while acting as the Director of Public Prosecutions (“DPP”) regarding the combating of human exploitation in Hong Kong by the Government, both in terms of the measures and reforms Zervos J had put in place or was involved in putting in place, and the very clear and firm view Zervos J had expressed publicly on human exploitation, regarding the extent of the problem in Hong Kong and the need for further measures and reforms, the fair minded observer would conclude that there is a real possibility or a real danger, that Zervos J is biased, in that he would not have a mind open to persuasion by the evidence and submissions, because the observer would think that Zervos J would have some very firm, clear and even entrenched view as to:

(1)  the adequacy of the administrative and legislative measures in Hong Kong to combat human exploitation before the relevant measures and reforms were put in place;

(2)  the effect of the measures and reforms; and

(3)  the adequacy of the measures and reforms put in place.

These are central issues in this case.  The informed and fair-minded observer would conclude that the possibility of unconscious bias on these issues as a result of his prior statements, actions and involvement on issues of human trafficking as DPP cannot be discounted.  In particular, it is submitted that the relevant material would lead the informed and fair-minded observer to think that there is a real possibility that the judge will, by reason of his past involvement and interest, and of course unconsciously, look more favourably to a solution on the legal issues which advance legal protection for those who are trafficked.”

Relevant legal principles

25. It is deeply rooted in the common law that the appearance of impartiality is essential for public confidence in the administration of justice.  This is founded on the principle that justice should not only be done, but should be seen to be done.  At the same token, it is equally important that judicial officers discharge their duty to hear and adjudicate cases and resist unjustified applications for their recusal by tactical or manipulative considerations.

26. The Appeal Committee of the Court of Final Appeal in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd (2014) 17 HKCFAR 281 addressed the issue by noting at paragraph 38:

“Judges must be wary of unjustified applications for their recusal motivated by tactical or forum-shopping considerations. By its very nature, it is generally in quite exceptional cases that recusal is called for. As Kwan JA noted, judges can generally be expected to exercise proper judicial standard even after they have found it necessary to criticize wayward legal representatives. Judges should accordingly feel confident of appellate support if they continue with the case where there are no reasonable grounds for apprehending a risk of bias. On the other hand, if there is a real possibility that a risk of bias might objectively be apprehended, this should be recognized and they should prudently arrange for a colleague take over the proceedings. To press on with hearing the matter in such cases poses a risk of costs being thrown away if, on appeal, it is held (as in the present case) that the judge should not have continued to hear the case. Even if there is a suspicion that forum shopping motivates an application, the fact and appearance of judicial impartiality must have priority and the prudent course should be followed where a real risk of apprehended bias exists.”

Reasonable apprehension of bias test

27. It is a fundamental rule of natural justice that every judicial officer is free from bias.  A recusal application can be found on either actual bias or apparent bias, and is generally a matter of whether the judicial officer might not bring an open mind to the resolution of the question that he or she is required to decide. 

28. The application in the present case is based on apparent bias.  Where a recusal application is made on the grounds of apparent bias, the test to be applied is one of a “reasonable apprehension of bias”.  The test has been expressed by the Appeal Committee of the Court of Final Appeal as follows:

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.”[1]

29. The reasonable apprehension of bias test underwent some adjustment upon concern that the “reasonable likelihood” and “real danger” tests in R v Gough [1993] AC 646 tended to emphasise the court’s view of the facts and to place inadequate emphasis on the public perception of the irregular incident. 

30. Lord Hope of Craighead in Porter v Magill [2002] 2 AC 357 at 494H articulated the test in the following way which emphasises the need to consider the relevant established facts.  

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

31. Kwan JA in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd [2014] 3 HKLRD 375, at paragraph 51, explained the test in terms of “…whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge had not brought or will not bring an impartial mind to bear on the adjudication of the case, that is, a mind open to persuasion by the evidence and the submissions of counsel…”.

32. A recusal application is therefore to be objectively considered through the prism of an observer who is fair-minded and informed.  The courts have provided guidance on how the fair-minded and informed observer should be conceived and it has been best explained by Lord Hope of Craighead in Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 where he said: 

“2. The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. The approach must not be confused with that of the person who has brought the complaint. The ‘real possibility’ test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.

3.   Then there is the attribute that the observer is ‘informed’.  It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant.  She is the sort of person who takes the trouble to read the text of an article as well as the headlines.  She is able to put whatever she has read or seen into its overall social, political or geographical context.  She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.”

33. From this comprehensive description, we can glean that the fair-minded observer always reserves judgment on every point until she has seen and fully understood both sides of the argument.  She is not unduly sensitive or suspicious, and her approach must not be confused with that of the person who has brought the complaint.  The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively.[2]

34. On how a fair-minded observer would assess a situation, Kirby J in Johnson v Johnson (2000) 201 CLR 488 at paragraph 53 said:

“… Such a person is not a lawyer (118). Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided (119). Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers (120). The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted (121). The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality (122). Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context (123). Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious (124).”

35. The fair-minded and informed observer, as conceptualised by the courts and as employed in the reasonable apprehension of bias test, will have regard to all the relevant circumstances pertaining to the recusal application, as a statement or act exhibiting apparent bias may be displaced when considered in its full and proper context.

36. In deciding a recusal application, the court must first ascertain all the circumstances which have a bearing on the suggestion that the judicial officer was biased, but this should cover more broadly all relevant circumstances, and then to ask whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judicial officer was biased. 

37. The importance of the appearance of justice being seen to be done cannot be overstated, but there is a strong need for courts to apply realistic criteria in considering whether a reasonable apprehension of bias has been established.

38. Care should be taken when addressing an application of apparent bias. Bare claims of the appearance of bias are not sufficient.  As observed by Mason J (as he then was) in Re JRL ex parte CJL (1986) 161 CLR 342 at 352:

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

39. A vague or general contention of ‘bias’ is not sufficient to mount a recusal application and the complaining party must specify how the judicial officer would be biased towards a particular party or on a particular issue, or what that bias would be.  As noted, the allegation of bias must be assessed objectively by the fair-minded and informed observer by having regard to all the relevant circumstances pertaining to the recusal application.

40. An applicant must show a logical connection between the asserted apprehension of bias and a particular party or issue.  This was explained by Kwan JA in Falcon Private Bank Ltd at paragraph 55, where she said:

“…it is incumbent on the party seeking recusal to articulate the relevant reasoning by which the fair-minded observer would attribute a level of prejudgment justifying recusal. There must be an articulation of the logical connection between the conduct giving rise to the apprehension of bias and the possibility of departure from impartial decision-making (Barakat v Goritsas (No 2) [2012] NSWCA 36 at [9]-[12]).”

Judicial duties

41. The observer is taken to be fair-minded and informed, and the person being observed is a professional judicial officer whose training, tradition and oath or affirmation requires the judicial officer to discard the irrelevant, the immaterial and the prejudicial.

42. It is incumbent upon judicial officers to be true to their oath of office to uphold the Basic Law and to decide cases without fear, favour or self-interest or deceit.  To this end, judicial officers are required to discharge their professional duties unless disqualified by law.  They should not accede too readily to suggestions of an appearance of bias, “lest parties be encouraged to seek such disqualification without justification.” See Johnson v Johnson (2000) 201 CLR 488 at 504 per Kirby J. 

43. The judicial oath of office reads:

“I swear that, in the Office of a Judge/a judicial officer of the Judiciary of the Hong Kong Special Administrative Region of the People’s Republic of China, I will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China, serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self-interest or deceit.”[3]

44. Lord Mance in Helow at paragraph 57 addressed the significance of the judicial oath by referring to a passage from the following Canadian case:

“In R v S (RD) [1997] 3 SCR 484, L'Heureux-Dubé and McLachlin JJ identified the taking of the judicial oath as often the most significant occasion in the career of a judge (para 116), and said (para 117) that:

“Courts have rightly recognised that there is a presumption that judges will carry out their oath of office … This is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high. However, despite this high threshold, the presumption can be displaced with ‘cogent evidence’ that demonstrates that something the judge has done gives rise to a reasonable apprehension of bias.” ”

45. He went on to say:

“So viewed, the judicial oath appears to me more a symbol than of itself a guarantee of the impartiality that any professional judge is by training and experience expected to practise and display. But on no view can it or a judge’s professional status and experience be more than one factor which a fair-minded observer would have in mind when forming his or her objective judgment as to the risk of bias.”

46. It is clear that the judicial oath is no more than one factor to be taken into account when objectively assessing the risk of bias.  However, I consider it to be more than a symbol for the judicial oath is sacrosanct and imposes on the judicial officer the strict duties and obligations as stated therein.

Judicial officers

47. The Court of Appeal in Locabail (UK) Ltd at paragraph 25 laid down that, while everything will depend upon the facts and the nature of the issue to be decided, objections could not be based on religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge.  Nor, ordinarily, would the judge’s educational, social, employment or service background, nor his political associations, professional associations, membership of social, sporting or charitable bodies, prior judicial decisions or views expressed in textbooks, lectures, speeches, articles, interviews, or reports or responses to consultation papers, nor the fact that he had in the past received instructions from a party.  

48. Judicial officers are not automatons.  They will normally have views or positions on legal principles or policies, which may change from time to time, and this will usually be reflected in their decisions.

49. In R v S (RD) [1997] 3SCR 484, L'Heureux-Dubé and McLachlin JJ at paragraph 119 pointedly observed that:

“The requirement for neutrality does not require judges to discount the very life experiences that may so well qualify them to preside over disputes. It has been observed that the duty to be impartial ‘does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those with whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge. Rather, the wisdom required of a judge is to recognise, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave. True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind’.”

50. Mr Dykes referred to the case of Sengupta v Holmes [2002] EWCA Civ 1104 where Laws LJ at paragraphs 30 and 31 discussed the distinction between two types of putative bias. 

“30. … The first is where the judge is on the facts subject to extraneous influences such as a financial interest in the case’s outcome or a personal connection with one of the parties. In those situations, as a general rule there is no need to show that the judge is actually influenced by such considerations, the suspicions of the parties and the public that he may be so influenced, even unconsciously, are reasonable, cannot be allayed, and the judge must stand down. The second situation is where, absent any extraneous influence, there is an apprehension that the judge will approach the case with a closed mind. Here there is no brightline rule, like the presence or absence of a financial interest, which will tell the judge whether or not he must stand down.

31.  Such an apprehension of a closed mind on the judge’s part will only arise in reality where it is said that he has pre-judged the issue, and in consequence it is reasonably feared that he cannot or will not revisit the issue with an open mind.”

51. Mr Dykes argues that a distinction must be drawn between preconceptions and bias.  He says preconceptions are views held on a topic before the commencement of a trial. He gives the example of a layperson, such as a tribunal member, who may not be able to exclude such preconceptions from his or her decision-making.  However, he argues that a trained judge will normally be aware of them and able to exclude them.  He submits it is only where the judge’s preconceptions appear to be so entrenched that he is unable to set them aside and consider the evidence objectively that a fixed preconception gives rise to apparent bias.  He stresses however that the mere fact that a judge had previously expressed a view on an issue which he is now required to try is not a proper basis for a judge to recuse himself.  Of course, this will all depend upon the particular facts and circumstances of the case and how it would be viewed by a fair-minded and informed observer. 

52. Mr Dykes points out that it is normal practice of the court to assign cases to specialist lists, with specialist judges, experienced in the relevant area of law.  In such cases, it is often normal that a judge will have spoken publicly about reform or development of an area of law in which he or she is well acquainted.  The judge cannot help having views about particular issues but such views are put to one side in the process of adjudication.  However, such experience is beneficial to the rule of law and excluding judges in such a situation would be counter-productive.

53. Mr Dykes has referred to the Bangalore Principles of Judicial Conduct (2002) adopted by the United Nations in 2006.  The UN Commentary the Bangalore Principles (March 2007) deals with Value 2 Impartiality and so far as material states:

“57. Bias or prejudice has been defined as a leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to judicial proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind, an attitude or point of view, which sways or colours judgment and renders a judge unable to exercise his or her functions impartially in a particular case. However, this cannot be stated without taking into account the exact nature of the bias. If, for example, a judge is inclined towards upholding fundamental human rights, unless the law clearly and validly requires a different course, that will not give rise to a reasonable perception of partiality forbidden by law.

…

60. A judge’s personal values, philosophy, or beliefs about the law may not constitute bias. The fact that a judge has a general opinion about a legal or social matter directly related to the case does not disqualify the judge from presiding. Opinion, which is acceptable, should be distinguished from bias, which is unacceptable. It has been said that “proof that a judge’s mind is a tabula rasa (blank slate) would be evidence of a lack of qualification, not lack of bias”. Judicial rulings or comments on the evidence made during the course of proceedings do not fall within the prohibition, unless the judge appears to have a closed mind and is no longer considering all the evidence.”

(Emphasis added)

54. Mr Dykes has helpfully directed my attention to two judicial guides of conduct, the Guide to Judicial Conduct, England & Wales (2013) and the UK Supreme Court Guide to Judicial Conduct (2009).  The 2013 Guide gives advice at paragraph 3.10 that where judges have ‘strong views’ on matters relevant to a case and says a risk of apparent bias may arise only if the matter is ‘controversial or political’. The Supreme Court Guide notes at paragraph 3.14 that “previous participation in public office or public debate on matters relevant to an issue” will not normally be a problem unless the Justice has committed himself or herself to a view “irrespective of the arguments” that may be canvassed.  The Supreme Court Guide also notes at paragraph 3.4 that it is important for Justices to deliver lectures and speeches, to take part in conferences and seminars, to write and teach and generally to contribute to debate on matters of public interest in the law, the administration of justice, and the judiciary.  Impartiality is not compromised by participation in public debate about an issue and it is recognised that it is important to engage in legal issues outside court for the purpose of enhancing “professional and public understanding” of an issue. 

Waiver

55. It is open to a party not to raise an objection on grounds of bias.  It has been held that a party can waive its right of objection if it has acted freely and in full knowledge of the facts: R v Bow Street Magistrate, ex parte Pinochet (No 2) [2000] 1 AC 119, at 137 per Lord Browne-Wilkinson.  Lord Bingham of Cornhill in Millar v Dickson [2002] 1 WLR 1615 at paragraph 31, explained that for a waiver to be valid, it must be a voluntary, informed and unequivocal election by a party not to raise an objection which it is open to that party to claim or raise. 

56. The vital requirements for a waiver as stated by Lord Phillips CJ in Smith v Kvaerner Cementation Foundations Ltd [2007] 1 WLR 370 at paragraph 29 are “that the party waiving should be aware of all the material facts, of the consequences of the choice open to them, and given a fair opportunity to reach an unpressured decision.”

57. I raise the issue of waiver because it is open to the respondents not to raise an objection on grounds of bias.  There seems to me to be two very good reasons why this is open to them which I will briefly discuss even though the respondents have chosen to raise an objection. 

58. First, the respondents have stated that they have the highest possible regard for my independence, integrity and professionalism and expressly disavow any suggestion that I am actually biased in favour of any party.  With such a strong endorsement for my impartiality from the respondents who are seeking the recusal, would not a fair-minded and informed observer ask that if there is no possibility of actual bias, how can there be the appearance of it? 

59. Secondly, the appropriateness of the HKSARG, through the respondents, in making such an application which is not in the same category as an ordinary litigant. 

60. The respondents argue that the principles of apparent bias apply to judicial officers and should be applied objectively irrespective of whether the party who raises the issue is a public authority.  Does that mean that from now on, the past or even current role or function of a judicial officer in the law or in law reform will be examined and scrutinised in order to address any apparent bias.  Most judicial officers are deeply involved in the law and have or do commit themselves heavily to its reform and development and without such contribution the law and our legal system would suffer.

61. As commonly seen, an application for the recusal of a judicial officer on the appearance of bias is normally made by an ordinary litigant because of a lack of familiarity with the legal process and a heightened sensitivity to any appearance of bias.  When the litigant is the HKSARG, it should be rare indeed that it would make an application for the recusal of a judicial officer, and if it does it should be only in the most obvious cases.  For it should be less reluctant for the HKSAR to do so than the ordinary litigant, and thereby display greater confidence in and respect for the workings of the judiciary. 

62. The respondents argue that there have been at least four prior occasions in Hong Kong when recusal applications have been made by the HKSARG in the context of a criminal trial, in other words, by the prosecution.  Without going into the details of each case, one case involved a District Court judge refusing to hear a case,[4] another case involved a doubtful recusal application[5] and another case was a judicial review where it was held that the District Court judge incorrectly disqualified himself.[6] 

63. The final case was a judicial review of a District Court judge’s decision to refuse to recuse himself on the application by the prosecution and the defence.[7] It was alleged that at a legal conference the judge commented that he did not believe in the offence of careless driving and thought it was of little efficacy.  The judge then had a case involving that offence and a recusal application was made.  Hartmann J in his judgment refusing leave to apply for judicial review noted that the judge’s comments were of a jurisprudential nature and that:

“Judges are at the centre of the judicial process and it has long been accepted that they may in appropriate circumstances state their views as to deficiencies in the law and how they see those deficiencies being rectified. The law after all, is a social institution, constantly changing and demanding of change. Judges must be able to contribute to ensuring that the law changes for the better.”[8]

64. These comments are apposite to the present application. 

Lateness of the application

65. There is an obligation on a party to make a recusal application expeditiously, and lateness of an application and the absence of any explanation for the delay will be conclusive that there has been a waiver.  It will depend upon whether the applicant was aware of all the material facts and has decided not to raise an objection on the grounds of bias when it was open to him to raise such an objection.  See Millar v Dickson [2002] 1 WLR 1615 at paragraphs 33(1) and 34; JSC BTA Bank v Ablyazov [2013] 1 WLR 1845. 

66. Recusal applications should be made promptly as soon afterwards when enough relevant facts are known.  Late applications are discouraged, unless there is good reason for the delay, for it is highly undesirable that cases should be aborted unless the reality or the appearance of justice clearly requires that that should be done.  See JSC BTA Bank v Ablyazov (No 9) [2013] 1 WLR 1845 (CA) at paragraphs 77 to 84; Locabail (U.K.) Ltd v Bayfield Properties Ltd [2000] QB 451 at paragraph 26.

67. In the second affirmation of Ms Wong Hwa Yih, she states that towards the end of June 2015 a meeting was held between the Department of Justice’s legal team and the client departments to discuss matters in relation to the directions hearing on 3 July 2015.  She claims that it was during this meeting that the issue of possible apparent bias on my part was first raised and the article in the South China Morning Post dated 10 March 2013 was briefly mentioned.  Upon counsel’s advice, the legal team took the view that the article alone was insufficient to form the basis for a recusal application and that further material, if any existed, would be required to justify a recusal application.  She said the legal team took the position that the matter should be kept under review.

68. Ms Wong states that in consequence of the directions hearing on 3 July 2015 the main focus of the respondents was filing affirmation evidence in opposition to the judicial review and this significantly occupied both the client departments and the legal team.  She said in the meantime, however, pursuant to counsel’s advice, the legal team continued to retrieve further material and information in respect of my involvement in the subject of human trafficking.  She said that leading counsel’s advice was sought and was received towards the end of September 2015.  She said careful consideration was given to the matter in consultation with the clients, after which a decision was made to make the application for my recusal.

69. I should say that my involvement in the subject of human trafficking was when I was the DPP and a law officer of the Department of Justice which was both public and publicly recorded.  That is evident by the material that the respondents rely on in support of this application.  The material, such as papers presented by me and the Prosecution Code, would have been known to the client departments, in particular the Department of Justice, and readily available to them.  Clearly, the matters raised in support of the recusal application would have been and were known by the client departments as evidenced by the reference to the South China Morning Post article which was discussed by the legal team in late June 2015.

70. In any event, I accept that the legal team involved in the case may not have known all the relevant facts as to my involvement in the subject of human trafficking and although the application was made late did not constitute a waiver.

Relevant circumstances

71. The following is a brief description of the relevant and salient circumstances to be considered in objectively assessing whether there is apparent bias.  For the sake of clarity, I have referred to myself as the Judge.

(1)   Application for the Judge’s recusal is made by the respondents, namely, the Secretary for Justice, the Director of Immigration, the Commissioner of Police and the Commissioner for Labour.

(2)   The Judge has sworn a judicial oath and is a professional jurist.

(3)   The respondents expressly disavow any suggestion that the Judge is actually biased in favour of any party.

(4)   The Department of Justice and the respondents have the highest regard for the independence, integrity and professionalism of the Judge in carrying out his judicial functions.

(5)   The applicant does not object to the Judge continuing in the matter and he believes that he will receive an impartial and fair hearing from the Judge.

(6)   The application for judicial review relates to the continuing breach of the applicant’s rights under Article 4 of the BOR occasioned by the respondents’ failure since April 2012 to fulfil their obligations under the Article to protect the applicant from forced labour and/or servitude in Hong Kong and further by the failure of the HKSARG to enact legislation against forced labour and/or servitude; of the Immigration Department, the Hong Kong Police and the Labour Department, to investigate the applicant’s case as possible human trafficking.  In consequence, appropriate declaratory relief and damages are sought.  It seems that the issue that needs to be addressed in the context of the applicant’s case is a question of law as to the nature of the duty that is imposed on the HKSARG under Article 4 of the BOR and whether there has been any failure to fulfil that duty.

(7)   The Judge was personally involved as the DPP in the formulation of new initiatives adopted by the Department of Justice to address and combat human trafficking as follows:

(i)  the introduction of amendments to the Prosecution Code in 2013;

(ii)   the more systematic reporting of cases to better monitor trends and the size of human trafficking in Hong Kong;

(iii)  public statements he made include:

(a)  the Opening Ceremony for Prosecution Week 2013 where human exploitation was expressly identified as an area which required reform;

(b)   media accounts in 2013 where the Judge is reported as saying that the HKSAR was not exempt from human exploitation, there was a need for an integrated approach and to deal with human exploitation in a comprehensive, consistent and compassionate manner and the HKSAR needed to move with the times; and saying sex trafficking, forced labour and abuse of domestic helpers are equivalent to “modern-day slavery”; and saying human trafficking is a growing problem for the Hong Kong. 

(iv)  from March 2013 onwards the Judge as the DPP met with different sectors and interest groups to discuss issues in relation to human trafficking;

(v)   the Judge established an Advisory Committee and was a representative on it which discussed the identification and extent of the problem in HKSAR together with possible initiatives to assist frontline officers. 

(8)   The article in the South China Morning Post dated 10 March 2013 contains the following comments:

“Hong Kong has launched a bold initiative that could lead to a fundamental change in the way the city tackles international human traffickers and their victims.

Justice officials will record and map cases of sex trafficking, enforced labour and abuse of domestic helpers in the fight against what Director of Public Prosecutions Kevin Zervos has described as “modern-day slavery”.

…

Zervos said: “We want to ensure there’s an integrated approach to the problem of human exploitation, not only as a criminal offence, but also to address any underlying social problem.

“We need to deal with human exploitation in a comprehensive, consistent and compassionate manner, in particular with those who have been exploited.”

He said while the city’s law enforcement authorities and courts had been effective in prosecuting those behind exploitation, there was no “systematic data collection” to monitor trends and indicate the size of the problem.

He added: “I have been aware of the increasing problem of human exploitation in other jurisdictions.  We need to start moving with the times.”

…”

(9)   In an address at the Opening Ceremony of the Prosecutions Week 2013 on 21 June 2013 I said the following comments:

“ It is opportune to raise an important issue of concern that is facing our community and the rest of the world. It is Human Trafficking or as I would prefer to refer to it Human Exploitation. Late last year we introduced a range of measures to recognize and tackle this nefarious activity. The exploitation of people is something that should be condemned in the strongest terms and not tolerated under any circumstances. Regretfully, the exploitation of people can and does occur in a variety of situations and ways, for example, the trafficking of women for sexual services, the abuse of children and enforced labour.

We have sought to tackle this issue by recording and collating cases with a human exploitation element, by speaking to groups and individuals about the problem and by setting up an Advisory Committee comprised of legal practitioners with an interest in and concern for this problem. The issue of human exploitation has featured predominantly in our list of priorities both in the prosecution of cases and as an area for reform.

  We need to ensure that our offence regime appropriately addresses human exploitation in its various forms and situations.  To this end, we will seek to put forward appropriate measures and reforms.”

(10)  The respondents acknowledge that the matters attributed to the Judge were undertaken by him “in good faith” and what was considered to be “a fair and proper discharge of his public responsibilities as the DPP in the public interest.”

(11)  The respondents’ position is that they do not dispute or disagree that human trafficking and forced labour are evils which need to be combated.

(12)  The initiatives above involving the Judge, such as the amendments to Prosecution Code 2013, systematic reporting cases involving human trafficking and the establishment of an Advisory Committee to address the problem of human trafficking are all part of the HKSARG’s program in combating human trafficking.

Respondents’ view of the Judge

72. The respondents have stated that they have full confidence in my impartiality as a judge. 

73. In the letter from the Department of Justice dated 12 October 2015 it is stated:

“12. For the avoidance of doubt, it is not suggested that Zervos J has any actual bias in favour of any party to these proceedings. That is expressly disavowed. While we feel duty bound to raise the matters set out above, we would like to stress that the Department of Justice and the Respondents have the highest possible regard for the independence, integrity and professionalism of Zervos J in carrying out his judicial functions.”

74. In the respondents’ written submission it is stated:

“3. … To avoid doubt, the Respondents do not make, and expressly disavow, any suggestion that Zervos J is actually biased in favour of any party. This is not a challenge against the independence, integrity or professionalism of the learned judge, for which the DOJ and the Respondents have the highest possible regard. This is therefore not a case of the Respondents seeking to avoid a judge which they consider may be more likely to hold against them, and it is important that this application is made before the Court has made any substantive determinations in this judicial review.”

75. The significance of these statements by, or on behalf of the respondents, is that they go further than what is usually said in other cases because they are positive assertions by the applicants to the recusal application of there being no doubt as to my impartiality. 

The subject matter of human trafficking

76. The respondents in their written submission acknowledge the evil of human trafficking and forced labour.  In paragraph 13 it is stated: “There is of course no dispute or disagreement that human trafficking and forced labour are evils which need to be combated.” 

77. If I have said or done no more than to further the objectives to which the respondents also seek to further, then how would a fair-minded and informed observer consider the matter?  Take as an example, a trial judge who has in the past expressed his condemnation of the crime of murder or has recommended reform to the elements of the offence of murder.  Does that prevent him from trying a murder case?  I do not believe it creates any impediment for the trial judge to hear such cases.

78. The respondents seem to be suggesting that what I have said and done on human trafficking is to comment that the current legislative and law enforcement framework is inadequate in dealing with this problem, but I point out that none of the comments concern the duties and obligations of the HKSARG under Article 4 of the BOR, or make reference to any failure by the HKSARG in this regard.  My comments could be taken that the problem of human trafficking is being addressed by the HKSARG and on this the applicant takes no issue. 

The respondents’ submission

79. Mr Stewart Wong, SC, appearing with Mr Jin Pao, for the respondents firstly notes that the application for judicial review concerns a wide ranging challenge in relation to the adequacy of the existing administrative and legal regime to combat human trafficking and forced labour.  

80. He points out that I was the DPP from 25 March 2011 to 8 September 2013 and that most, if not all, of the material events in this application for judicial review took place within that timeframe.  However, that is not the basis for the recusal application by the respondents and the applicant who may have reason to raise this matter as an objection has specifically declined to do so. 

81. Mr Wong submits that the major concern arises from my active involvement in matters relating to human trafficking and exploitation while I was the DPP.  He acknowledges that there is no question that these matters were undertaken by me except “in good faith” and what was considered to be “a fair and proper discharge of his public responsibilities as the DPP in the public interest.”  It begs the question, given this endorsement by the respondents (the applicants of the recusal application), then how is a fair-minded and informed observer to view the issue when deciding whether there is a real possibility that I was biased. 

82. Mr Wong prays in aid that I was personally involved as the DPP in the formulation of new initiatives adopted by the Department of Justice to address and combat human trafficking.  He says this included at least two major fresh initiatives, namely, the introduction of amendments to the Prosecution Code in 2013 (in the form of a new chapter, which replaced the previous Statement of Prosecution Policy and Practice) and the more systematic reporting of cases to better monitor trends and the size of human trafficking in Hong Kong.  But how does this impact on my duties as a judge in adjudicating this case?  As the DPP, I handled and dealt with a whole range of matters and initiatives in relation to criminal offences.  Does that mean that I should be disqualified from handling such cases as a judge in the future?  I do not think so.

83. Mr Wong argues that these matters must be considered in the context of public statements made at the time.  He refers to a speech I gave at the Opening Ceremony for Prosecutions Week 2013, where I expressly identified human exploitation as an area which required reform.  He also refers to print media accounts in 2013 where I was reported to have said that the HKSAR was not exempt from human exploitation, and that there was a need for an integrated approach, that human exploitation should be dealt with in a comprehensive, consistent and compassionate manner, and that the HKSAR needed to move with the times.  He points out that I was also reported as saying that sex trafficking, forced labour and abuse of domestic helpers are equivalent to ‘modern-day slavery’, and in televised media I stated that human trafficking is a growing problem for the HKSAR.  This is all true, but the point is that all that I said and did was and is consistent with the claimed objectives of the HKSARG and the respondents.

84. Mr Wong also mentioned that there are a number of occasions from March 2013 onwards where I met with different sectors and interest groups to discuss issues in relation to human trafficking and that I was a representative of a newly established Advisory Committee which in May 2013 discussed the identification and extent of the problem in Hong Kong together with possible initiatives to assist frontline officers.  I have difficulty seeing how these matters would impact on a fair-minded and informed observer when applying the reasonable apprehension of bias test with respect to the case that I have to adjudicate upon.  I appreciate that the question remains whether any of these matters display an improper predisposition on my part to decide an issue one way rather than in another. 

85. However, the connection between what I have said and done as the DPP and the subject matter of the present judicial review is that they come under the rubic of human trafficking. Whilst I have expressed firm views about addressing human trafficking, so has the HKSARG and the respondents, but more significantly I have not previously expressed any views as to Article 4 of the BOR and the legal duties and obligations of the HKSARG in relation to it. 

86. Based on the foregoing matters, Mr Wong submits that I clearly had a pivotal role to play in the formulation of policy, implementation of measures and reforms, and in accounting to the public on issues relating to human trafficking, exploitation and forced labour in my capacity as the DPP.  He further submits that by expressed views and involvement went further than a government lawyer or officer merely explaining government policy and that that I took the lead, introduced measures and reforms, and expressed very firm views.  He argues because the application for judicial review will involve, inter alia, an examination of those measures and policies to determine their adequacy from a legal standpoint under Article 4 of the BOR, there is a risk that I would be biased.  This has to be assessed from the viewpoint of the fair-minded and informed observer.

87. From these circumstances, Mr Wong submits that a fair-minded and informed observer would conclude that there is a real possibility that I would be influenced by my previous involvement in policy-making on human trafficking, the strength of the views I expressed in public statements as to the extent of the problem and the need for reform and the implementation of measures over which I oversaw, in the determination of the very issues arising in this application for judicial review.  I disagree. 

88. Whilst I addressed the issue of human trafficking as the DPP, what I am being asked to decide in the present judicial review proceedings is to address essentially a question of law.  Also, one would expect that a fair-minded and informed observer when considering all the circumstances would take into account that I am a professional jurist trained to discard the immaterial, the irrelevant and the prejudicial. Although it is acknowledged this is only one factor to be taken into account by the fair-minded and informed observer it is nevertheless a factor that should be considered, given the subject matter of the recusal application. 

89. In Davidson v Scottish Ministers (No 2) 2005 1 SC (HL) 7, the House of Lords was satisfied that the earlier involvement of Lord Hardie, as Lord Advocate in Scotland, in promoting a bill in Parliament would render the fair-minded and informed observer concerned that he may seek to uphold his earlier views in a case where he sat as a judge in relation to interpretation on the same issue.  Lord Bingham of Cornhill held at paragraph 17:

“... it is difficult, if not impossible, to lay down hard-edged rules to distinguish between a case where apparent bias may be found from one where it may not. Much will turn on the facts of the particular case. But the judgment also holds, consistently with authority cited above, that a risk of apparent bias is liable to arise where a judge is called upon to rule judicially on the effect of legislation which he or she has drafted or promoted during the parliamentary process. ... The fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that Lard Hardie, sitting judicially, would subconsciously strive to avoid reaching a conclusion which would undermine the very clear assurances he had given to Parliament.”

90. The case of Davidson is cited by Mr Wong as authority for my recusal.  He submits that in that case the prior involvement of a judge in an official capacity as to the introduction of a matter (in that case, legislation), the correctness of which he is then called upon to later adjudicate upon as a judge may give rise to an appearance of bias warranting recusal.  I do not believe that the case goes that far and seems to have been decided on its own particular set of circumstances.  In any event, the court was at pains to stress that there are no hard edge rules in this area. 

91. Mr Wong also refers to the judgments of Lord Hope of Craighead where he said at paragraphs 55-57: “He committed himself to the view ...”; “... Lord Hardie was actively promoting the legislation ...”; and a fair-minded observer “would appreciate the importance of the issue to the Government's principal law officer”; and Lord Cullen of Whitekirk at paragraph 79 where he referred to Lord Hardie as committing himself to a particular view. 

92. Mr Wong acknowledges that whilst the facts and circumstances were different, those cases demonstrate that it is a question of how firm, committed or entrenched the fair-minded observer would perceive the views held by the judicial officer to be so as to affect his impartiality.  I agree with this proposition but with the qualification that the views have to be of relevance to the issues to be decided upon, or as explained by Kwan JA, have a logical connection with each other, and that the views exhibit a prejudgment incapable of being altered by evidence or argument after taking everything into account as viewed by the fair-minded and informed observer. 

93. It is acknowledged that the case for the respondents is not that a judge must have no preconceived ideas or views at all on the issues, or on the parties (or their legal representatives), that are before him but whether the fair-minded observer would think that the holding of any such views by the judge is such that there is a real possibility that he would not judge the matter impartially and with an open mind.  Mr Wong submits this raises the question of how firm, or entrenched, the observer would consider those views to be in the judge’s mind in all the circumstances, and to focus on the relationship of those views to the particular issues arising from the matter requiring adjudication by the judge. Mr Wong gives examples of cases where the relevant judge was considered to be apparently biased because of the firm and strong views he had expressed.  But this will depend on the nature and the context of such firm and strong views. For instance, a judge expressing the strong view that he is against human trafficking is no more than a judge expressing the strong view that he is against the offence of murder.  Both are universally accepted views shared by all law abiding citizens and the HKSARG.  Would that warrant the recusal of a judge in deciding a case of human trafficking or murder?

94. Mr Dykes in response to the two cases that are relied upon by the respondents in their submission he addresses as follows.  The first case he addressed was Davidson.  He explains that in that case Lord Hardie, in his position as Lord Advocate, had made assurances to the legislature, when passing legislation that the Scottish Government would have certain powers upon devolution.  However, Lord Hardie, then in the Court of Sessions and sitting as an appellate judge, refused the applicant’s case that the legislation did not confer those powers on the Scottish Government.  The House of Lords agreed with the applicant’s concern that the “fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that Lord Hardie, sitting judicially, would subconsciously strive to avoid reaching a conclusion which would undermine the very clear assurances he had given to Parliament.”[9]  This case is heavily relied upon by the respondents as being on all fours with the present application.  I do not agree for the two situations are very different.  The second case he addressed was Falcon Private Bank Ltd.  He explains that the Court of Appeal at paragraph 66 agreed that the trial judge’s attacks on the professional integrity of the applicant’s legal representatives were such that the observer would conclude “the judge’s mind was closed to persuasion by the defendants’ submissions and that his ability to impartially adjudicate upon them was affected by the view he had taken of their counsel.”  Mr Dykes argues that these two cases are quite distinct from the present application and a clear instance where there is a logical connection between the conduct giving rise to the apprehension of bias and the possibility of departure from impartial decision-making.  I agree with his submission. 

95. Mr Wong also makes the point that as in this case, the petitioner in Davidson expressly disavowed any allegation of actual bias, but at paragraph 7 was “at pains to disclaim any challenge to the personal honour or judicial integrity of Lord Hardie. They are not in question”.  Indeed, the fair-minded and informed observer would also be aware that the judge would have taken the judicial oath.  While these are relevant matters to be taken into account, they cannot be a sufficient answer to the challenge, but are to be balanced against all other relevant facts and considerations including those pointing to (apparent) bias. Otherwise, no case of application for recusal based on apparent bias (as distinct from actual bias) would ever succeed.  In Davidson, where the challenge on apparent bias was upheld despite the express disavowment, Lord Bingham dealt with the question of judicial oath at paragraph 18 as follows (which reasoning also applies to the question of the party's own view of the integrity of the judge): 

“In reaching this opinion I do not overlook or disparage the significance of the judicial oath. The Lord Justice-Clerk, in para 33 of his judgment, went too far when describing this as ‘beside the point’. Primarily, I agree, the judicial oath is relevant to a complaint of actual bias, with which this case is not concerned. But the fair-minded and informed observer who is ‘neither complacent nor unduly sensitive or suspicious’ (Johnson v Johnson, p 509, para 53), would be aware in general terms that judges take an oath and would accept that judges try to live up to the high standard which it imposes. Such an observer would, I think, regard the judicial oath as ‘an important protection’ (as Lord Reed called it in Starrs v Ruxton, p 253) but not as ‘a sufficient guarantee to exclude all legitimate doubt’ (Starrs v Ruxton, p 253).”

96. At paragraph 57, Lord Hope also referred to, and took into account, the fact that Lord Hardie had taken the judicial oath, but taking everything into account concluded that the apparent bias test had been satisfied.

97. It is also argued by Mr Wong that unlike, for example Davidson, where the challenge was made after an unfavourable judgment had been handed down against the party challenging, this application is made before I have made any adjudicative ruling of an adversarial nature.  He points out that even then the court is duty bound to consider the challenge on its merits.  He refers to Lord Hope’s comments at paragraph 46 that: “The court’s duty is simply to examine the information that is put before it and to assess its consequences”.  I do not see the relevance of this point in applying the reasonable apprehension of bias test.  A classic case of forum shopping would normally be attempted before the judicial officer sought to be recused has decided upon the case. 

98. It is the respondents’ submission that the fair-minded observer would consider the views held by me as mentioned in their submissions to be such that there is (apparently) bias. 

The applicant’s submission

99. Mr Philip Dykes, SC, who appears with Mr Azan Marwah, for the applicant submits that the issue to be resolved in the judicial review proceedings is the constitutional question as to whether the HKSARG has met its positive obligations under Article 4 of the BOR to protect the applicant from forced labour and/or servitude and that what I said when I was the DPP about the HKSARG’s response to the issue of human trafficking and associated crimes would not lead a fair-minded and informed observer to conclude that there was a real possibility of apparent bias on my part.

100. He notes that Article 4 of the BOR restates the obligation that the HKSARG has undertaken through Article 8 of the International Covenant on Civil and Political Rights (ICCPR).  The article is non-derogable both domestically and as a matter of conventional obligation.  He submits that the public statements attributed to me are not in any way inconsistent with the HKSARG’s publicly stated position on Article 4 and its international obligations, and therefore would not attribute to me the appearance of bias because of that. 

101. He refers to the affirmation of Ms Wendy Leung, the Administrative Assistant to the Secretary for Security, who made the affirmation duly authorised on behalf of the respondents in opposition to the application for judicial review.  She states that although the HKSARG is not a party to any instrument relating specifically to human trafficking, it nevertheless attaches significant importance in dealing with issues relating to and in ultimately preventing human trafficking, and believes its laws are effective in preventing it.  She states that the HKSARG is serious about combating servitude and forced labour, even though it does not possess dedicated legislation on the topic and that it does combatant deal with these matters.  She states that the HKSARG has effective enforcement and prosecution measures to deal with trafficking, exploitation and forced labour; it has procedures that enable identification of victims; it assists and protects human trafficking and forced labour victims; it cooperates with other countries and overseas enforcement agencies.  In respect of prosecution she states this on behalf of the respondents:

“19.  As regards prosecution, to enhance awareness of the issues of human trafficking and forced labour, the Prosecution Code published by the Prosecutions Division of the DoJ in September 2013 contained a new paragraph on “Human Exploitation Cases” (paragraph 18).  In early 2013, prompted by the growing international concern over trafficking and trans-national exploitation problems, the DoJ launched an initiative with the aim and purpose of developing a strategy to deal with human trafficking problems by mapping cases of such trafficking and exploitation, including forced labour and abuse of FDHs, with more aid provided to victims.  Such initiative was designed to ensure that there is an integrated approach to deal with human trafficking and exploitation (including forced labour) cases in a comprehensive, consistent and compassionate manner, in particular with those who have been trafficked or exploited.  A Coordinator of Human Exploitation Cases was appointed to lead this initiative.

20.  With the aforesaid in mind, when the DoJ on 7 September 2013 released the Prosecution Code 2013, which replaced the Statement of Prosecution Policy and Practice – the previous Code for prosecutors published in 2009, it took into account the initiative and prevailing circumstances in which the prosecutors operate by adding a new paragraph entitled “Human Exploitation Cases” to the new Prosecution Code.  Paragraph 18, which is set out at paragraph 93B of the Amended Form 86, serves to provide useful guidelines and pointers to prosecutors in the identification of human exploitation cases as well as broad principles regarding their handling, having regard to internationally accepted principles.  It demonstrates the determination of the DoJ to tackle the human trafficking/exploitation issues.  It mandates and provides the basis for prosecutors to handle such cases with the necessary understanding, skill and sensitivity.  With the introduction of the new paragraph, and by virtue of paragraph 18.2, prosecutors are required, in appropriate cases, to consider any credible claim that a defendant or intended defendant is a victim of trafficking.  If such a claim is substantiated, a prosecutor should appropriately deal with the case bearing in mind that the person is a victim of trafficking.  An extract of the Prosecution Code is now produced and shown to me and marked Exhibit “LW-4”.

21.  Thus the introduction of the new paragraph 18 now requires prosecutors in the exercise of prosecutorial discretion, to take a principled approach with an acute awareness of the relevant issues concerning human trafficking and exploitation, and mandates them to heighten their scrutiny in respect of cases involving a credible claim of such trafficking or exploitation.

22.  The paragraph makes reference to the activities which come under the definition of TIP and “human exploitation”.  It also provides guidance to prosecutors as to what may amount to human trafficking as well as the proper approach to be adopted in cases involving these elements.  Through the established TIP working group mechanism, the DoJ has drawn to the attention of law enforcement agencies and the LD the new paragraph 18, enhancing the latter’s capacity to consider incidents which may have any human trafficking implication with increased awareness and sensitivity.

23.  The Prosecution Code 2013 is published on the DoJ’s website and is readily accessible by anyone who logs on to it.  It has also been specifically circulated to all counsel and court prosecutors in the Prosecutions Division, all departmental prosecutors as well as all barristers and solicitors on the standard briefing-out lists.  All prosecutors are expected to follow the applicable guidelines and relevant principles contained in the Code when making prosecutorial decisions.

24.  There have been cases with suspected human trafficking or forced labour elements submitted by law enforcement agencies, including the HKPF, the LD and the ImmD in respect of which attention from the Prosecutions Division is warranted, either for legal advice, or for hearing of legal arguments involving such issues.  This has led to more effective implementation of the relevant policy and practice set out in the Prosecution Code.”

102. Mr Dykes addresses the specific remarks made by me that have been identified by the respondents as supporting their application for my recusal.

103. The first is the statement in June 2013 that the offence regime addresses human exploitation in its various forms and “to that end” we seek to put forward appropriate measures and reforms.  He submits that the statement does not say that the regime is in fact legislatively deficient and that the preceding paragraph talks about room for improvement in the prosecution of cases and that the changes to the Prosecution Code which were introduced a few months later are an improvement that a fair-minded and informed observer would assume I was foreshadowing. I have to disagree to some extent because my statement is open to the interpretation that measures and reforms need to be introduced to address the offence of human exploitation in its various forms.  But having said that, a fair-minded and informed observer would consider these remarks together with all the other circumstances, and in particular that I made the statement as the DPP when addressing a legitimate public concern from which the HKSARG does not disassociate itself.

104. The second are the statements in the press in March 2013 about “moving with the times” and dealing with the phenomenon of exploitation in a better way.  He submits that these statements do not suggest that the existing legislative regime is constitutionally deficient, and that the same point can be made in relation to the later press report that is relied upon by the respondents.

105. The third is the television interview records that the prosecution policy has been updated to better define categories of human exploitation.  As he rightly submits this is more to do with how the presenter has bridged comments from various contributors.

106. The respondents make a point or express concern about the change to the prosecution policy which I initiated and the statements I made about changes to address the problem of human trafficking. 

107. Like Mr Dykes, I am unclear how these matters support the recusal application as they were said and done when I was the DPP and a law officer of the Department of Justice, and were and are heavily relied upon by the HKSARG as part of its response to combating human trafficking as seen in the extracted passages from the affirmation of Ms Wendy Leung.  The making of public statements by government lawyers in relation to a current legal topic or policy is common practice. 

108. Mr Dykes makes a similar point in relation to the reference that I had meetings with different sectors and interest groups to discuss issues in relation to human trafficking.  He submits that this amounts to no more than promoting the issue as part of the HKSARG’s fulfilment of its own policy objectives. 

109. In any event, as Mr Dykes rightly points out the revised prosecution policy has nothing to do with the issue in the present case, which is a question of law, namely what are the HKSARG’s obligations under Article 4 of the BOR and whether there has been any breach of such obligations.

110. Mr Dykes submits that the respondents’ case taken at its highest amounts to no more than I have spoken about matters that are uncontroversial and not in dispute between the parties.  He articulates his case against the respondents’ application as follows:

“33. In his previous employment, the Judge was involved within the area of human trafficking law and policy as part of his role as DPP. A role he discharged “in good faith” and in “fair and proper discharge of his public responsibilities as the DPP in the public interest”. Both parties agree.

34. Since then, the Judge has appeared in public talks on this area of law, and as a ‘judge’ in an art competition – matters for which he, rightly, has not been criticized. If such activities can be said to demonstrate a disapproval of the practice of human trafficking – this is a matter on which he is in agreement with the HKSARG, the Applicant, the international community and the public at large.

35. There is no suggestion of a predisposition (or any reason to be predisposed) towards Applicant, his witnesses or his legal representatives – still less the Respondents.

36. There is no suggestion of bias (or any opinion) regarding any of the factual or legal points actually in contention between the parties. At most the Judge announced a reform in prosecution policy – a reform that remains part of the HKSARG’s public policy. The intention behind that policy and its effect of that policy are not in dispute.

37. The Judge’s background suggests what is undoubtedly true: the Court is competent and knowledgeable in this area of law. Both of these facts will enhance the quality of decision-making in these proceedings.

38. Any apprehension of apparent bias that an impartial and informed observer might have is totally dissipated by the Respondents’ own statement that it disavows any suggestion that the Learned Judge is actually biased and acceptance that they will receive a fair hearing before an unbiased, independent, fair and impartial tribunal when they declare that they hold the Learned Judge’s “independence, integrity [and] professionalism” in the “highest possible regard.” The Applicant entirely agrees with these statements.”

111. I think Mr Dykes’ submissions are well made and I agree with them.

Conclusion

112. I have carefully considered the relevant circumstances and submissions made by the parties and have concluded that it is not the case that a fair-minded and informed observer would conclude that there is a real possibility that I would bring an impartial mind to these proceedings.  I am not persuaded that there are exceptional circumstances of the type that would warrant my recusal on the grounds of an appearance of bias. 

113. A fair-minded and informed observer may view the application with some degree of scepticism in light of all the circumstances but the appearance of justice is everything. That is why a recusal application should not be lightly made and should not be lightly considered.

114. Whilst a fair-minded and informed observer would come to the view that I took an active role in addressing the problem of human trafficking when the DPP, I am not persuaded that the observer when taking everything relevant into account would conclude that there is a real possibility that I would be biased.  The observer would appreciate that I have been active in this area in the past and have an understanding of the relevant law and principles in relation to it and that I have not said or done anything that would be considered an improper predisposition to decide the case, one way rather than in another.  In other words, that I would have a closed mind or put another way, the absence of an open mind, on the matters I am to decide. 

115. The fair-minded and informed observer is not without common sense and she would view my actions and statements in the past as being general in nature in relation to my duties as the DPP in addressing the problem of human trafficking.  She would also take into account that the issue to be decided upon in the present judicial review application is primarily a question of law concerning a determination of the duties and obligations of the HKSARG under Article 4 of the BOR and whether there has been any failure to fulfil such duties and obligations as determined to apply in the context of the present case.

116. I am not in the same situation as Lord Hardie in Davidson.  I am in a very different situation and one in which a lot of judicial officers would find themselves in because they have been active in the learning and the reform of the law.

117. It is appropriate to repeat the comments of Mason J (as he then was) in Re JRL ex parte CJL (1986) 161 CLR 342 at 352, where he said:

“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.  There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties.  But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.  In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of pre-judgement and this must be “firmly established.” ”

118. For the foregoing reasons, I dismiss the application seeking my recusal from this case.  I make an order nisi that the respondents pay the applicant’s costs, to be taxed if not agreed. 

[1]  Deacons v White & Case Ltd Liability Partnership & Ors (2003) 6 HKCFAR 322, at paras 20 to 24; Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd (2014) 17 HKCFAR 281, at para 11

[2] See Chau Siu Woon v Cheung Shek Kong [2010] 3 HKLRD 49 at paras 13 and 42 per Cheung JA

[3] Oaths and Declarations Ordinance, Cap 11, s 17 and Schedules 2, Part V and 3

[4] R v Flickinger [1993] HKLY 163

[5] HKSAR v Yuen Kwok-keung, HCMA 609/2007, 31 January 2008

[6] Nattrass v AG [1996] 1 HKC 480

[7] SJ v Li Chau Wing, HCAL 143/2004, 22 November 2004

[8] At para 23

[9] Davidson v Scottish Ministers (No 2) 2005 1 SC (HL) 7 at para 17