N v. SECRETARY FOR SECURITY AND OTHERS

HCAL 961/2021

[2024] HKCFI 1983

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 961 OF 2021

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________________________

AND

HCAL 1034/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1034 OF 2021

________________________

________________

(Heard together)

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J U D G M E N T

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A.  Introduction

1.  Both Applicants (“N” in HCAL 961/2021 and “M” in HCAL 1034/2021, respectively) are Kenyan nationals who were recruited to work in Hong Kong as a foreign domestic helper (“FDH”). N and M worked for the same employer at the same residential address in Hong Kong in sequence, and each was recruited by the same employment agency. Both were exploited and treated in a way which does nothing to enhance the reputation of employers of FDHs in Hong Kong and the agents who assist in the recruitment process.

2.  These two applications for judicial review therefore require revisiting some of the ground trodden by me in my Judgment in CB v Commissioner of Police [2022] HKCFI 1046 (“CB (CFI)”), and perhaps an analysis of the similarities and differences between that case and these two. After this present matter was argued, the CB (CFI) case was heard on appeal, leading to the decision of the Court of Appeal [2024] HKCA 172 (“CB (CA)”), a decision also relevant to at least one of the grounds advanced by N and M in this case.

3.  N and M were screened by the Hong Kong Government for victimhood of trafficking in person (“TIP”) pursuant to its policy for TIP activities and were classified as “not a TIP victim” (“Classification”). Their respective Classification is the first decision they seek to challenge.

4.  N and M also contend that they were victims of forced or compulsory labour within the meaning of Article 4 of the Hong Kong Bill of Rights (“BOR4”). The second decision they seek to challenge is, as they put it in their Form 86s, the Government’s decision not to enact bespoke offences against acts in breach of BOR4 and TIP for the purpose of exploitation and/or for the purpose of acts prohibited by BOR4.

5.  Both N and M were late in filing their Form 86. They both seek and need an extension of time to apply for leave for judicial review. N and M are represented by the same law firm, Choy Yung & Co, Solicitors (“Choy Yung”), and advanced nearly identical grounds of review in their Form 86s.

6.  I ordered the cases to be heard together, and directed a rolled-up hearing of (a) the applications for an extension of time, (b) the applications for leave to apply for judicial review, and (c) if apt, the substantive applications for review.

7.  By my Decision dated 12 May 2022 [2022] HKCFI 1388, I refused N’s and M’s application to adduce expert evidence.

8.  At the hearing N and M were represented by Mr Kay KW Chan and Mr Tasman Tam of Counsel. They predominantly acted on a pro bono basis, but a Legal Aid Certificate was subsequently granted in relation to M’s case for Mr Chan, albeit limited to her application for an extension of time and the arguments and consequential relief sought on Grounds 1 and 2 in her Form 86, and N’s case for Grounds 1, 2 and 3 in her Form 86 – the remaining grounds being conducted still pro bono.

9.  All Putative Respondents in both cases were represented by the same Counsel team of Mr Jin Pao SC leading Mr Martin Ho.

10.  The matter was previously listed for hearing on 25 May 2022, but was adjourned on that day for the then rather confused legal aid situation to be sorted out. The matter was re-fixed for 15 and 16 August 2022.

11.  At the conclusion of the hearing, I reserved judgment. This is my Judgment.

B.  HKSARG’s TIP Screening Policy & Procedures

B.1  Introduction / Single Framework

12.  A rather fuller consideration of the various matters of policy and procedure can be found set out by me in the CB (CFI) case at §§17-63 and in CB (CA) at §§7-23. Reference can made to those passages, but for convenience a further summary is provided below.

13.  A further brief summary of the Government’s framework in combating forced labour can be found at in ZN v Secretary for Justice (2020) 23 HKCFAR 15 (“ZN (CFA)”) at §§110-113. The CFA held that the Government’s framework – or “approach” – was an acceptable method to comply with its duty to provide practical and effective protection against BOR4 breaches: see ZN (CFA) at §114.

14.  The framework is modelled upon the Palermo Protocol, which is an instrument adopted by the United Nations (“UN”) to supplement the 2000 Convention against Transnational Organized Crime. The protocol was adopted to prevent, suppress and punish TIP. It is perhaps fair to say that the framework, modelled upon the Palermo Protocol, was originally designed to tackle TIP alone. However, the Government also relies on the same framework for combating forced labour. Indeed, the same framework has previously been relied upon by the Government to show that it had met its positive duty to provide practical and effective protection against forced labour under BOR4.

15.  The Government takes the view that TIP and forced labour commonly manifest themselves in an array of shared forms of exploitation such as physical confinement, assault, criminal intimidation, threats of physical abuse or death, fraud, deception, misrepresentation, and so forth. Therefore, the same framework is deployed to tackle both evils.

16.  According to Article 3(a) of the Palermo Protocol, TIP is defined as:

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

17.  This definition can be broken up into ‘act’, ‘means’ and ‘purpose’, being (1) the prohibited act (2) the prohibited means by which the act was achieved, and (3) the prohibited purposes for which the act was carried out. This trio of the elements of act, means and purpose is key to the design of the framework.

18.  Under this definition, forced labour is identified as one of the prohibited purposes in TIP. This has been relied upon by the Government to justify why it is apt to deploy a single framework to address both evils.

19.  However, it is worth emphasis that the duty to investigate TIP and the duty to investigate under BOR4 are separate duties. Whilst it is obviously correct that there might be overlapping indicia, what might not amount to TIP might still be forced labour, and vice versa.

B.2  The Legal Basis for Protection against TIP

20.  The Palermo Protocol is not applicable to Hong Kong because the Central People’s Government, when it acceded to it in 2010, specifically excluded Hong Kong from its application.

21.  But, although the Hong Kong Government has no international obligation to give effect to the provisions of the Palermo Protocol the Government has chosen to adopt the Palermo Protocol as a matter of policy given that the entire framework is built around it. Any attempt to claim protection against TIP has to rely on such policy, rather than the Palermo Protocol directly.

22.  The ‘Handbook on Initial Victim Identification and Assistance for Trafficked Persons’ (“Handbook”), which was developed by the Civil Society Anti-Human Trafficking Task Force (a multi-disciplinary and collaborative consortium of organisation advocates launched in 2016 with the United Nation’s Migration Agency Hong Kong SAR serving as the secretariat), also divides TIP into the three elements mentioned above, all of which must be simultaneously present:

(1)  There must be an ‘act’ in relation to human beings: i.e. (a) recruitment; (b) transportation; (c) transfer; (d) harbouring; or (e) receipt.

(2)  The ‘act’ must be done by one of the prohibited ‘means’, i.e. (a) threat or use of force; (b) coercion; (c) abduction; (d) fraud; or (e) deception.

(3)  The ‘act’ done by one of the prohibited ‘means’ must be for a prohibited ‘purpose’, namely exploitation. That requires, at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation; forced labour or services, slavery or practices similar to slavery; servitude; or removal of organs.

23.  As was noted in ZN (CFA) at §36, the exploitation need not have actually occurred for TIP to have taken place. It is the act by use of the means for the purpose of exploitation that constitutes TIP. Hence, TIP is a process, and is not directed to the outcome or substantive conduct, which is the carrying out of the actual exploitative purpose for which someone is, for example, deceptively recruited.

24.  Although the Palermo Protocol has not been applied to Hong Kong, the conduct of TIP (as defined in the Palermo Protocol) is addressed and prohibited by various pieces of legislation in Hong Kong, including but not limited to physical abuse, false imprisonment, criminal intimidation, fraud, unlawful custody of personal valuables, child abduction, child pornography, and exploitation of children. As I noted in CB (CFI), there are over 50 legal provisions against various forms of conduct which are deployed to address and combat TIP – sometimes referred to as the “patchwork” of provisions scattered across various statutes and the common law, used to address TIP (and, indeed, forced labour).

B.3  The Legal Basis for Protection against Forced Labour

25.  On the other hand, the right for protection against forced labour is grounded in BOR4(3), which is constitutionally entrenched via Article 39 of the Basic Law. With the focus on Article 4(3), BOR4 in full provides:

Article 4

No slavery or servitude

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

(2) No one shall be held in servitude.

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

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

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

(ii) any service of a military character and, where conscientious objection is recognised, 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.

26.  ZN(CFA) held that BOR4 imposes on the Hong Kong Government a positive duty to provide practical and effective protection to victims of forced labour. The Government has a wide margin of discretion as to how to comply with such a positive duty, but such duty also entails a procedural obligation to carry out investigation once the Government is aware or ought to be aware of circumstances giving rise to a credible suspicion of such abuses.

27.  Whilst BOR4(3)(b) excludes certain work or service from the scope of forced labour, otherwise there is no positive definition of forced labour. In ZN (CFA), the Court adopted the definition of forced or compulsory labour under Article 2(1) of the Forced Labour Convention 1930 (“FLC”), which states forced or compulsory labour should mean:

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

28.  As put by the CA in ZN v Secretary for Justice [2018] 3 HKLRD 778 (“ZN(CA)”) at §6, what is required are: (1) work or service; (2) menace of a penalty; and (3) involuntariness on the part of the victim.

29.  The FLC is applicable to Hong Kong and imposes its own treaty obligation upon the Hong Kong Government at the international law level. But it seems that the Government also relies on the indicators of forced labour as adopted by the International Labour Organization (“ILO”) (the UN organ overseeing the FLC) to justify its view that the TIP and forced labour often involve a mix of substantially overlapping criminal conduct. The ILO has listed 11 indicators of forced labour: (1) abuse of vulnerability, (2) deception, (3) restriction of movement, (4) isolation, (5) physical and sexual violence, (6) intimidation and threats, (7) retention of identity documents, (8) withholding of wages, (9) debt bondage, (10) abusive working and living conditions, and (11) excessive overtime.

B.4  The Central Coordinating Authorities of the Framework

30.  In the absence of a single piece of legislation targeting either TIP or forced labour, reliance is placed on the patchwork of statutory or common law offences enforced by different law enforcement agencies (“LEAs”), the most relevant of which are the Police and the Immigration Department (“ImmD”), but also the Customs and Excise Department. Cases may involve the Labour Department (“LD”), more likely not necessarily to involve criminal investigation.

31.  The framework is centrally coordinated via a Steering Committee (acting as a high-level steering committee set up to offer strategic guidance and policy steer to different bureaux or departments in tackling TIP) and a Working Group (led by the Security Bureau (“SB”) and comprising representatives from the same departments as on the Steering Committee). At the operations level, there is an inter-departmental Joint Investigation Team (“JIT”), set up to enable cooperation in day to day operations.

B.5  The TIP Guideline and the Action Plan

32.  The most important documents setting out the Government’s framework are (1) the ‘TIP Guideline on Inter-Departmental Cooperation for the Handling of Suspected Cases of Trafficking in Persons’ (“TIP Guideline”) which was first published in December 2016 and revised in March 2019, and (2) the ‘Action Plan to Tackle TIP and to Enhance Protection of FDHs in Hong Kong’ (“Action Plan”), which was published in March 2018 and annexed to the TIP Guideline.

33.  The title of the Steering Committee and the Action Plan identify that the Government singles out FDHs as a group warranting special attention in the TIP/forced labour context.

34.  The TIP Guideline sets out the general guidance for the executing departments regarding victim identification, investigation, prosecution, protection and provision of assistance for victims, and so forth. It also briefly instructs departments to provide TIP training to its officers.

B.6  Victim Identification and Protection

35.  As stated in the TIP Guideline, departments which may encounter potential TIP victims should put in place a suitable mechanism best suiting their enforcement circumstances. The mechanism should identify the scope of potential victims (FDHs are listed as an example), a list of standard questions/parameters for identifying such victims, the follow-up actions to be taken once a victim is identified, and provide for guidelines on referral of cases to other departments if necessary.

36.  The questionnaire adopted by the Police, ImmD and C&ED for victim identification screening (“VIS”) is annexed to the TIP Guideline. The questionnaire is produced below:

Part A – INITIAL SCREENING

1	Are their identification/travel documents being kept by someone else involuntarily	Yes/No
2	Are they coached/taught with a cover story on what to say to police/immigration officers	Yes/No
3	Did they mention about salary being involuntarily deducted to pay off a debt/smuggling fee	Yes/No
4	Are they forced to perform sexual acts or other unexpected forms of work/labour	Yes/No
5	Are they prohibited from contacting others	Yes/No
6	Have they been threatened with harm or sexually/physically abused	Yes/No
7	Are they juveniles and suspected to be employed illegally	Yes/No

Part B-FULL DEBRIEFING (to be completed only if one or more “YES” to Q1-7 in Part A)

Element 1: Act
Q1	How were you recruited to come to Hong Kong? By what means and for what purpose
Q2	Did the recruiter promise you anything for your coming to Hong Kong, such as nature of job/activities, job securities, expected income/rewards, immigration status etc?
Q3	How did you travel to Hong Kong? How much did you pay for that?
Q4	Did anyone accompany you to the airport/ports at your home country?
Q5	Did anyone receive you and/or others in Hong Kong?
Q6	Where did you and/or others go afterwards for stay?
Element 2 -Means
Q7	Were you required to involuntarily pay any money, sign and debit note or undertake to pay any money for your coming to Hong Kong? If yes, how much?
Q8	Were you forced, beaten, threatened, deceived or subject to other illegal means in relation to your purpose of coming to Hong Kong or your activities in Hong Kong?
Q9	Have you or your family been afraid of, or threatened by anyone in Hong Kong or elsewhere, in relation to your purpose of coming to Hong Kong or your activities in Hong Kong?
Element 3 - Purpose
Q10	What is your purpose of coming to Hong Kong? What kind of activities /works did you do in Hong Kong?
Q11	Who told you to do such activities/works as mentioned in Q.10? Were you forced, beaten, threatened, deceived or subject to other illegal means to do so?
Q12	How much money did you earn? Who paid you and did you and did anyone keep a portion of your earnings?
Q13	Did you work all by yourself or with others? Where are those people now?
Q14	Were you exploited in any way? E.g. forced prostitution, organ removal, slavery, forced labour, physical/sexually abused, threatened, etc (examples not exhaustive)
Victims Assurance
What kind of assistance do you need? 󠆒Shelter 󠆒Food󠆒/clothes 󠆒Medical health services 󠆒Transportation back to country of origin 󠆒Visa extension 󠆒Legal assistance 󠆒Other, please specify: _________
Are you currently receiving any assistance from any person/organization?
󠆒Yes, please specify_______________________________ 󠆒No

37.  The VIS mechanism as outlined in this questionnaire consists of two parts. The first part is an initial screening (Tier 1). The language of the seven questions suggests that the questions are to be answered by the relevant officer rather than the suspected victim. The initial screening may be conducted without interviewing the suspected victim. Only when there is one or more “Yes” answer in the initial screening should the process proceed to the second part: a full debriefing (Tier 2). The language suggests the full debriefing is to be completed by way of an interview with the suspected victim. The questions are designed specifically to find out the existence or not of the three elements of TIP (act, means and purpose) as defined by the Palermo Protocol.

38.  In the evidence, it has been identified that more than 30,000 Tier 1 screenings have been conducted since 2016 – though no figure seems to be available for the number of Tier 2 screenings.

39.  Obviously, appropriate record-keeping of any VIS performed is important for various reasons. On the version of the form under HQO 12/2019, both Part I (i.e. Tier 1) and Part II (i.e. Tier 2) bear the following instruction or admonition:

Please keep this form in the case file and it may be subjected to disclosure

Divisions / District / Regional units to fax a copy of this form to the TIPIT and DIS

PHQ units to fax a copy of this form to SP A OCTB

40.  I note that, in the context of VIS, a deponent on behalf of the Labour Department (“LD”) made the following points (emphasis in original):

(1)  The initial victim screening interview, comprising a questionnaire-filling process and invitation for provision of additional information where necessary, serves as a guided path to assist the designated officer to detect possible TIP scenario, exploitation or irregularities and to facilitate subsequent assessment and/or investigation by other LD divisions/units or LEAs.

(2)  It also serves as a guided path for the vulnerable person to present his/her circumstances and articulate his/her misgivings in an organised and comprehensive manner.

(3)  The initial victim screening process is not merely a questionnaire filling process. When making their visits to LD offices, the vulnerable persons may not volunteer information about exploitation and irregularities upfront as these may not be directly related to their enquiries or employment claim.

(4)  Through an interview with the aid of a questionnaire setting out the core questions and directions, the initial victim screening serves as a process of discovering the vulnerable person’s actual situation, such that the designated officer could be prompted to invite the vulnerable person to provide additional information and clarifications whenever necessary.

41.  On the other hand, the deponent for the Security Bureau (“SB”) identified that the current VIS mechanism adopted by the LEAs maintains a proper balance between (1) identifying vulnerable victims and (2) the risks of (a) confusing a vulnerable person and prompting him/her to provide TIP-related information only rather than all the necessary facts and evidence he/she originally intended to report as part of the crime investigation, and (b) any explicit express reference to a TIP assessment causing the vulnerable person to exaggerate his/her story so as to come within the definition of a TIP victim. The deponent disagreed, as a matter of principle, that there is any policy reason why the vulnerable person must be informed that he/she is being initially screened for the TIP assessment, which is but one component element of an investigation and not an application by the vulnerable person for a particular ‘status’.

42.  Following positive identification, the officer is asked to ascertain the types of assistance which the victim needs, presumably applicable if the officer is satisfied after the full debriefing that the interviewee is a victim. Among the list of assistance, at least visa extension seems to have been provided with FDHs in mind. In the Action Plan, one of the objectives set out under victim protection is to provide dedicated support for FDHs.

B.7  Criminal investigation and prosecution

43.  In the TIP Guideline, the Government identified a non-exhaustive list of 50 statutory or common law offences as relating to TIP, forced labour and slavery. When a TIP case is identified through VIS by any department, that case is to be transferred to the Organized Crime and Triad Bureau (“OCTB”) of the Police for coordination and follow-up.

44.  It is said that where there is a credible suspicion that an arrested person is a TIP victim, that case must be approached with care. Departments are to bring these cases to the attention of the Department of Justice (“DoJ”) which will then decide if it is appropriate to prosecute the person for violation of immigration laws or for the very criminal conduct which is consequent upon the arrested person’s status as a TIP victim and whether that victim should be granted immunity from prosecution for such crimes.

B.8  Police’s TIP/Forced Labour Framework

45.  The Commissioner of Police issued Police Headquarter Orders (“HQOs”) to govern how the Government’s general framework is to be implemented within the Police. The relevant HQO was HQO 12/2019 titled ‘Trafficking in persons and Exploitation of Foreign Domestic Helpers’. In the HQO, the definition of TIP under the Palermo Protocol is reiterated, with the emphasis that the three elements of “act, means and purpose” must be present simultaneously.

46.  HQO 12/2019 sets out more details about how the VIS mechanism is to be implemented within the Police and how cases of “TIP and/or Exploitation of FDHs” are to be handled. I do not need to rehearse the details here, save to note: (1) the initial screening is a thinking process by the screening officer, who only needs to check whether any one of the 7 indicators has already surfaced during normal enquiries with the vulnerable person and it is not necessary to inform the vulnerable person of the screening process; (2) the 7 indicators in the initial screening and the 14 questions in the full debriefing should only serve as guidance for the evaluation process, and consideration should be given to the circumstances of the case as a whole during the process.

47.  Each region has established a specialized team to handle all TIP and Exploitation of FDHs cases within their region, known as the ‘Trafficking in Persons Investigation Team’ (“TIPIT”). It seems that suspected cases in the category “Exploitation of FDH” will be transferred to the TIPIT of the respective region after the two-tier VIS mechanism, regardless of the screening result. But suspected cases involving other types of vulnerable persons will only be transferred to the TIPIT if the VIS result is positive.

B.9  ImmD’s TIP/Forced Labour Framework

48.  Within the ImmD, a specialized ‘Foreign Domestic Helpers Special Investigation Section’ was set up to handle all TIP cases, the victims of which are FDHs. Amongst other things, ImmD will provide assistance to abused or exploited FDHs taking into account such information in their future visa applications, allowing them to change their employer and to stay in Hong Kong on visitor basis to assist criminal investigation or to pursue labour claims if the circumstances so warrant.

C.  Underlying Facts in N’s case

C.1  Recruitment and Employment

49.  N worked as a FDH in Hong Kong for Madam Cheung Nga Sze (“Employer”) from 14 August 2019 to 16 October 2019. N was then 39 years old. She had a college diploma in pharmacy and had worked as a pharmacist and was involved in a family business before she came to Hong Kong.

50.  She started searching for foreign employment opportunities from June 2018. In early June 2019, she was contacted by a Ms Ivy Lau (“Ivy”) from a recruitment agency known as Talent (Kenya) Company (“TKC”) for an opportunity to work as a FDH in Hong Kong. TKC charged a fee of Ksh15,000 (which was equivalent to HK$10,950, according to N) which would cover the costs of her Hong Kong visa, air fare, medical examination fee, transportation fees from Hong Kong airport to her employer’s residence, consular service fees in Kenyan Consulate and Hong Kong identification card (“HKID card”) application fee. N also had to pay Ksh3,000 more as an administration fee. N eventually paid all the fees asked of her, to the recipients designated by Ivy, before she left Kenya. The payment was financed by N’s father who in turn had to take out a loan from a collaborative scheme in their village.

51.  On 18 June 2019, N signed the 2-year employment contract to work for the Employer, in the Immigration Department (“ImmD”) standard form for FDH employment contracts, in TKC’s office in Kenya. N eventually departed Kenya on 11 August 2019, landed in Hong Kong on 12 August 2019 and started working on 14 August 2019.

52.  The employment only lasted for about 3 months. N complained that she had to endure difficult working conditions which rendered her both a victim of TIP and forced or compulsory labour. These difficult working conditions included a three-month probation period in which she would have no rest day or paid holidays and the prohibition on using her phone.

53.  The existence of a probation period must have been made known to N before she signed the contract, since she noticed that the contract did not contain such a term on the day of signing and asked Ivy about that. But it appears that they did continue to discuss about what such a probation period would entail after signing. As shown in the WhatsApp records, on 11 July 2019, N asked if she could go to church and Ivy said she could only do so after the probation period. On 9 August 2019, N said she hoped that she should be paid extra for having no rest days or paid holiday during the probation period to which Ivy offered no reply. On 12 June 2019, N also signed a home-made document which stated that holidays are to be arranged by employer and N will be monetarily compensated if the employer does not allow holiday.

54.  For the prohibition on use of a phone, N was also made aware of that before she left Kenya. The prohibition was emphasized by Ivy to N many times from July to August 2019 on WhatsApp before N left Kenya. It was also stated in the home-made document she signed on 12 June 2019 and made known to her in her interview with the Employer during WhatsApp video call conducted before she signed her contract. On 16 July 2019, Ivy also told N not to communicate with other Kenyans in Hong Kong.

55.  On her first day of work in Hong Kong, she discovered that she was not to be accommodated in a 50 square feet servant room as stated in her contract. She had to sleep in a fold-up bed which could barely fit her, at the corridor between the kitchen and the outdoors laundry facilities, where her movements could be easily viewed from the outside and by the Employer and her family who came in and out of the kitchen from time to time. She had long working hours from 5:30am to 11pm every day. The Employer always kept her busy and had a poor attitude towards her. She was provided very little food in the first week – with noodles for breakfast and no lunch. After the first two weeks, the Employer gave her HK$70 to HK$100 as food allowance every 10 days, which was below the food allowance required under the contract.

56.  She did not leave the Employer’s residence (“Employer’s Residence”) in the first two weeks. She did not have the access code to the entrance, since she was only quickly shown the code and had no time to record it. She only started to go outside the Employer’s Residence about two weeks later (i.e. around early September) when she began to have to deliver lunch to the Employer’s children.

57.  She could not use her phone for communication initially. The Employer told her to put her phone in the living room and would only give it back to her after the work day ended at night. The Employer refused to supply her with a local SIM card and did not grant her access to the Wi-Fi connection at home. But the Employer would let her use the former’s phone at 11pm every Saturday to speak to her family. N received intermittent Wi-Fi connection nearby and she used that to send a message to her brother and ask the brother to buy data for her. After N received her first month’s salary in mid-September 2019, she bought herself a local SIM card and from then onwards she had regular communication with her family.

58.  N did not have a HKID card up until the end of her employment on 16 October 2019. She only found out later from another Kenyan FDH that she had to apply for a HKID card within the first 30 days. After N raised this issue with the Employer, she said she had booked appointment in early September 2019 with ImmD. But the Employer rescheduled the appointment later, and this pattern repeated a few times and the last appointment was fixed on 12 October 2019. They did not attend the 12 October 2019 appointment in the end since the employment relationship had soured by then. N did not apply for a HKID card throughout her employment period.

59.  It appears that the crucial dispute which eventually led to the termination of the employment relationship was N’s entitlement to rest days and other paid holidays. The negotiation, as stated in N’s affidavit, started in mid-August 2019, i.e. almost as soon as she started to work on 14 August 2019. According to N, the Employer initially said that N would have a rest day per week on Sunday starting in September 2019 but later retracted to the position that there would be no rest days during the three-month probation period. On 29 September 2019, the Employer said N should have from noon to 8pm every Friday as her rest day, and she might change the day to Sunday instead of Friday once every month. On 2 October 2019, N proposed to have two half-days off. The Employer offered noon to 5pm every Friday this time which was rejected by N. The Employer then told her to resign. On 3 October 2019, N’s sister communicated with Ivy via WhatsApp to insist that N should have some rest days and Ivy suggested that N should resign if she was not satisfied with the Employer’s arrangement.

60.  On 4 October 2019, the Employer approached N again to reiterate her offer of having rest days from noon to 5pm every Friday. When N rejected the offer again, the Employer told her to resign and insisted that she should write a resignation letter. The resignation letter, with 2 months’ notice period provided, was written up and signed by both parties. N recorded the conversation between her and the Employer on this day. It can be seen from the transcript of the recording that the Employer insisted that N had agreed to having no rest days before she started working and if N did not agree to the Employer’s requirement, N was free to leave her employment.

61.  On 16 October 2019, the Employer asked N to pack and leave and attempted to bring her to the office of TKC. N called the police and eventually sought shelter from a non-governmental organization (“NGO”) known as Christian Action.

62.  N also complained that Ivy had lied to her about Hong Kong law before N left Kenya. Ivy told her that the three-month probation period was the law in Hong Kong. Ivy also told her that clause 8 of the standard contract – stipulating that the employer should be responsible for medical examination fees, authentication fees by the relevant Consulate, visa fee, insurance fee and other fees necessary for the departure of the FDH to Hong Kong – was only for Filipino FDHs, but not for Kenyans.

C.2  Investigation, Prosecution, and TIP Screening by ImmD

63.  N had already contacted law enforcement agents (“LEAs”) before her employment was terminated on 16 October 2019. On 25 September 2019, she sent an email to ImmD to seek help regarding the application for HKID card. In the email, she also told ImmD that she had had no rest days since she started working. On 27 September 2019, ImmD replied by email and suggested that she might be in a false imprisonment situation and suggested referring the case to the Hong Kong Police (“Police”).

64.  On 26 February 2020, N was interviewed by ImmD. She was cautioned for the offence not having applied for a HKID card within the prescribed time and breach of conditions of stay. N refused answering further questions upon being cautioned. It was later revealed that N was also screened by ImmD for TIP victimhood on the same day, and the screening result was negative.

65.  On 6 April 2020, ImmD contacted N for a further interview. On 15 April 2020, N’s then legal representative enquired about the scope of interview and whether N would undergo VIS for TIP victimhood. By a letter dated 17 April 2020, ImmD informed N that she had already been negatively screened for TIP victimhood “after preliminary assessment”.

66.  In the 17 April 2020 letter, ImmD also explained that the intended interview would be a cautioned interview for N’s suspected breach of conditions of stay and failure to apply for a HKID card. On 24 April 2020, N attended the interview. On 17 June 2020, N was informed by ImmD that no prosecution was intended against her.

67.  It was not until 11 January 2021 that N – by then represented by her current solicitors, Choy Yung – sought discovery from the Police for all materials relating to her TIP screening. As shown in N’s evidence (to be elaborated below), and as canvassed above, the TIP VIS mechanism adopted by the HKSARG consists of two tiers – a Tier 1 initial screening, which may be followed by a Tier 2 full debriefing.

68.  Choy Yung later obtained a “TIP Screening/Debriefing Form” which was completed by ImmD. It was stated in the form that the screening was conducted on 26 February 2020. Only part A of the Form (i.e. the Tier 1 screening) is shown. “No” was checked for all 7 trafficking indicators and, following the flow indicated on the Form, her screening process came to an end, and no Tier 2 full debriefing was performed.

69.  In May 2020, N was separately screened as a potential TIP victim by an NGO known as Liberty Shared. She was considered to be a TIP victim, for the following reasons:

(1)  with reference to the Palermo Protocol:

(a)  there were ‘acts’ constituting the actus reus of human trafficking: recruitment by Ivy, arrangement of transport from Kenya to Hong Kong, received by Ivy upon arrival, harbouring at Ivy’s residence on the night of 12 August 2019, transferring the Applicant to TKC’s office and then to the Employer on 13 August 2019;

(b)  there existed deception, abuse of power and coercion by Ivy and the Employer over the Applicant as the ‘means’ of human trafficking; and

(c)  the Applicant was trafficked for the purpose of forced labour or labour exploitation;

(2)  with reference to the ILO indicators, the Applicant was a victim of forced labour presenting strong indicators of involuntariness as well as nine medium to strong indicators of penalty (or menace of penalty). The Applicant:

(a)  was in a position of vulnerability and abused;

(b)  was deceived by the Employer;

(c)  was restricted in her movements;

(d)  was isolated from family and seeking help;

(e)  was intimidated and threatened;

(f)  had her wages withheld by the Employer;

(g)  was subject to debt bondage by the commission paid to Ivy in instalments, which was financed by and borrowed from the Applicant’s retired father;

(h)  was subject to abusive working and living conditions from the Employer; and

(i)  worked excessive overtime with the Employer.

C.3  Investigations and Prosecutions by Labour Department

70.  N was interviewed by Labour Department (“LD”) on 23 December 2019, 13 January 2020, and 21 August 2020 for prosecution intended against Ivy and the Employer. The Employer was eventually prosecuted in January 2021 for failing to pay N’s wages within the prescribed time under the Employment Ordinance Cap 57 (“EO”). N testified against the Employer, who was acquitted after trial.

71.  N was also interviewed by LD on 3 March 2020 and 9 July 2020 for potential prosecution against Ivy. On 29 March 2021, Ivy was prosecuted for receiving payment from N in respect of her seeking of employment opportunity other than the prescribed amount – being no more than 10% of her monthly salary – under the EO. N also testified against Ivy, who was convicted on 31 May 2021 and ordered to pay N compensation in the sum of HK$4,779.49.

72.  After argument in this case, I was informed that Ivy’s appeals against convictions by the magistrate were dismissed.

C.4  N’s Civil Actions in Lands Tribunal and Small Claims Tribunal

73.  On 27 November 2019, N initiated proceedings in the Labour Tribunal against the Employer for a total sum of HK$30,373.66, being the arrears of wages, wages in lieu of notice, rest day pay, and other entitlements under her employment contract. On 15 October 2020, the Labour Tribunal awarded her the total sum of HK$23,070.10 and costs of HK$2,139.80, with interest. The Employer later applied to review the decision and was partially successful.

74.  On 26 March 2021, N also filed a claim in the Small Claims Tribunal against TKC for a total sum of HK$11,584.37 on the basis of the tort of deceit, negligence and/or unjust enrichment.

D.  Underlying Facts in M’s case

D.1  Recruitment and Employment

75.  M’s experience in Hong Kong tells a more disturbing story. She was the FDH working for the Employer before N. M worked for the Employer for 4 months – from 10 February 2019 to 10 June 2019. At that time, she was 28 years old and unmarried with no children. She attained high school level education and had worked in Saudi Arabia as a FDH for two years before coming to Hong Kong.

76.  In mid-December 2018, she contacted TKC’s office in Nairobi for FDH opportunities in Hong Kong. She contacted Ivy, who mentioned that TKC’s “fees” could be either paid in one go or by a 6-month instalment plan.

77.  Around December 2018, M paid a registration fee of Ksh4,000 (equivalent to HK$310) and signed a contract in ImmD’s standard form for employment contract for FDH, in TKC’s office in Kenya.

78.  After signing the contract, M was pressured by TKC’s staff to a pay a total of Ksh150,000 (equivalent to about HK$12,000) as commission to TKC, which could be paid in one sum upfront or by monthly instalments to be deducted from the salary M would earn under the contract. Believing that TKC was entitled to receive commission and that the non-payment of commission to employment agents was a criminal offence punishable by imprisonment in Hong Kong (which was the case in Kenya), she felt she had no choice but to accept what was asked of her. She could not afford to pay Ksh150,000 upfront so she agreed to the monthly instalment option.

79.  The staff further explained that HK$4,000 would be deducted from her monthly salary (which would be HK$4,520) every month for 6 months. She agreed. Back then, she did not know there was a significant difference between Ksh150,000 and HK$24,000 (the total deduction over 6 months).

80.  After signing the contract, M was interviewed by Ivy via a WhatsApp video call. Ivy asked if M was informed of the commission and M said yes and that she had agreed to pay by monthly instalments.

81.  She was not interviewed by the Employer before coming to Hong Kong. Nor was she told about any probation period, typical working hours or the living/working conditions.

82.  On 28 January 2019, M arrived in Hong Kong and was driven by Ivy to her residence in Kowloon (“Ivy’s Residence”). From 28 January 2019 to 10 February 2019, M had to serve Ivy and her family without any remuneration or rest days. She had to perform all sorts of household chores, washing their car and taking the daughter to school. She worked 17 hours a day from 6am to 11pm. Ivy did not tell M when she would be picked up by her employer.

83.  During M’s stay with Ivy, her contact with the outside world was limited. She had to hand over her phone to Ivy in the morning and would only be able to get it back late at night. Wi-Fi connection would be switched off when Ivy was not at home. She was only allowed to go out of Ivy’s Residence when she dropped off and picked up the daughter from the nearby school bus stop. Whilst M was allowed to wash the car unsupervised, she had to return immediately after finishing washing the car.

84.  M questioned Ivy why M had to work for her without pay. Ivy said M was being trained.

85.  On 10 February 2019, Ivy took M to meet up with the family she would serve over a meal in a shopping mall in Tuen Mun. During the meal, Ivy asked M to sign documents in English and said M would have deducted HK$4,000 per month from March to August 2019. Ivy badgered M to sign the documents without giving her opportunity to read them. M signed them and was not given a copy of them.

86.  Over the meal, M was told for the first time that she would be subject to a three-month probation period. Ivy told her that it was the law in Hong Kong for a FDH to have a probation period. During the probation period, there would be no rest days, holidays or annual leave. But after the probation period, M would be paid for the rest days not taken during that period. M would not be allowed to leave the Employer’s Residence except to drop off and pick up her daughters from school and so she would not have any money or allowance. M would not be allowed to use her phone and the Employer would lend her a phone if M had to contact her family. M was not to make any friends in Hong Kong.

87.  M asked the Employer for a local SIM card. At this juncture, Ivy asked M to hand over her phone and M did so. Ivy then took the phone and put it in her bag. M asked Ivy to give her phone back but Ivy refused, saying that M would not be permitted to use the phone during the probation period anyway and the Employer would provide M with another phone and a local SIM card if she needed it.

88.  Since then and up to 20 June 2019, M was “phoneless”, except that she was permitted to use the Employer’s phone on a few Saturday nights to call her father.

89.  On 15 February 2019, M was asked to meet up with Ivy at Mong Kok MTR Station to apply for a HKID card. M received her HKID card sometime after.

90.  Around late February to March 2019, M was asked to meet up with Ivy to open a bank account with the Bank of China (“BOC”). Ivy told M that her salary would be deposited directly into that account. After visiting the bank, M was taken to TKC’s office in Mong Kok where Ivy hurried her into signing some documents before M had a chance to figure out what they were. About 2 weeks later, M received her BOC ATM card but she had never used it since there were no BOC branches on the way to the children’s school.

91.  The living and working conditions during M’s 4-month stay with the Employer were difficult, as M summarized in her affidavit. She had to sleep in a fold-out bed in the kitchen area which was infested with cockroaches. She had no privacy as she would be easily seen from the outside of the Employer’s Residence and her sleeping area had no door. The food for her was small in portion and consisted mainly of vegetables and noodles, with no meat. She was often hungry. M estimated herself to have lost 10 pounds.

92.  M was not allowed to leave the Employer’s Residence in the first month. She was not given the access code or access key to the entrance. If she went out, there would be no one inside to let her in and she would be caught by the CCTV camera installed at the entrance. After the first month, she was asked to drop off and pick up the children to and from school on weekdays. But still, she was not given the access code or key to the entrance. The Employer’s mother-in-lawyer would be there to let her in after she had dropped-off/picked-up the children.

93.  M was only given the access code after working for 3 months, i.e. in early May 2019. But M still did not attempt to leave the house since she was warned by the Employer not to do so and that she would be caught by the CCTV camera if she tried.

94.  She worked 16 hours per day, from 6am to 10pm, with 30 minutes for meal breaks. The Employer had a poor attitude towards M and would threaten to send her back to Kenya if the Employer was dissatisfied with M’s work.

95.  On two occasions, the Employer brought M over to her sister-in-law’s house to cook and do cleaning work there.

96.  M had not had a single day off throughout her entire employment period. She is a Christian, and she was not allowed to attend church or other religious events.

97.  M was cut off from any meaningful outside world contact. She was only permitted to use the Employer’s phone to call her father on two Saturday nights in April 2019. She was otherwise phoneless, and could not make new friends since she could not leave the Employer’s Residence and had no rest days. However, she befriended two FDHs from the Philippines, known as Myra and Salome, when she delivered lunch boxes to the children’s school or picked them up from school.

98.  She would come across Myra and Salome almost every weekday. It was through talking to them that M came to realize that she had been ill-treated and it was illegal to take away her phone and not to give her any rest days. They advised M to seek help from ImmD.

99.  Around early May 2019, M wrote a handwritten letter (“May Letter”) and gave it to Myra and Salmone. The May letter was then passed on to the Consulate of the Republic of Kenya and ImmD. She listed the following questions (sic) in the letter, rather rhetorically:

1. Why I have to work without holidays?

2. Why do I have not to talk to my family?

3. Why they have to take my phone away from me?

4. Am my suppose to pay my agent 24,000 HK Dollars?

5. Am my not allowed to have friends or talk to any one?

6. Work while hungry is that the rule here?

7. Why am not paid on time for three months?

13 weekends 150hkd→1,950

3 months 4250 hkd→13,560

Ask my Agent to give back my phone. I need to talk to my family→[redacted] Agent/Employer”

100.  On 30 May 2019, five law enforcement officers visited the Employer’s Residence and asked if M was safe. M told them that she had no money, no means of contacting the outside world and no holidays. M said that the officers left after the Employer said she would pay M later and Ivy (over the phone) said she would give M’s phone back to her.

101.  M’s relationship with the Employer worsened afterwards. On about 7 June 2019, she signed a resignation letter written by the Employer which stated that M would work until 12 August 2019. M said the last day was dictated by Ivy who wanted M to work out the 6 months period in which her salary would be deducted to pay the commission owed to TKC.

102.  In early June 2019, M borrowed the phone of Salome and contacted a cousin in Iraq who eventually connected M with a man known as Taylor who worked for an NGO in Hong Kong. On 20 June 2019, under Taylor’s advice, M packed her belongings and left the Employer’s Residence and eventually sought shelter at Christian Action.

D.2  Investigation and Prosecution by ImmD

103.  On 11 July 2019, Christian Action wrote to ImmD to follow up on the investigation of M’s May Letter. On 16 August 2019, M was interviewed under caution regarding her suspected breach of conditions of stay for working in Ivy’s Residence from 28 January to 10 February 2019. On 20 March and 20 April 2020, M attended two more cautioned interviews with ImmD regarding her work in the house of the Employer’s sister-in-law.

104.  From November to December 2020, M was granted various immunities from prosecution, in exchange for her testimony against Ivy and the Employer for the charges of aiding and abetting breach of condition of stay, charging commission beyond prescribed limit and non-payment of wages in arrears.

105.  Form late 2020 to early 2021, both Ivy and the Employer were prosecuted and tried for the immigration offence of aiding, abetting, counselling and procuring M to breach of M’s condition of stay for working in Ivy’s Residence or the residence of the Employer’s sister-in-law. Ivy was convicted and the Employer was acquitted. As already indicated, I was informed after the argument in this case that Ivy’s appeal against convictions was dismissed.

D.3  Investigation and Prosecution by Police

106.  After taking shelter with Christian Action, M contacted BOC to enquire about her bank account. It was discovered that 3 sums of HK$4,520 were deposited into her account on 18 March 2019, 17 April 2019 and 10 May 2019. These appeared to be her monthly salary.

107.  On 15 May 2019, there was also a remittance in the sum of US$1,527.39 (equivalent to about HK$12,000) from her account to a Kenyan bank account. The transmittance was effected by a remittance application form bearing M’s signature. But she said the signature was either forged or that this form was among the various documents she was asked by Ivy to sign in TKC’s Mong Kok office on the day M opened the bank account. M reported the case to Police.

108.  On 15 July 2019, Christian Action wrote to the Police regarding the unauthorized transaction of her bank account, forged signature, confiscation of her phone by Ivy, overcharging of agency fees and requested the police to investigate the matter as a TIP incident.

109.  The Police invited M to make statements on 6 November, 10 December, and 12 December 2019 and 20 May 2021, mainly regarding the unauthorized transaction in her bank account and the forged signature. No prosecution in that regard was initiated by the Police against Ivy or the Employer in the end.

D.4  Investigation and Prosecution by Labour Department

110.  On 24 June 2019, Christian Action made an online complaint about TKC/Ivy’s overcharging of commission on M’s behalf. M was interviewed by LD in July 2019, October 2019, and May 2020. Subsequently, Ivy was tried but acquitted of the offence of receiving excess commission from M under the EO. In early 2021, the Employer was also tried for various charges for failing to pay M wages, annual leave and statutory holiday pay within the prescribed time under the EO. The Employer was convicted and fined a total of HK$12,500, and was also ordered to pay M HK$6,522.96 being the outstanding wages or leave/rest day pays. The Employer appealed against her convictions.

D.5  M’s Civil Actions against Ivy/TKC and the Employer

111.  On 13 August 2019, M filed a claim with the Labour Tribunal claiming that she had been constructively dismissed on 20 June 2019 and claimed against the Employer a total sum of HK$38,130.75 being payment in lieu of notice, wages in arrears, annual leave pay, statutory leave pay, rest day pay, various expenses incurred by M before she came to Hong Kong and the cost of her mobile phone. The Employer also filed a counterclaim for wages in lieu of notice.

112.  The Labour Tribunal made orders that the Employer should pay compensation to M.

D.6  Investigation by the Office of Privacy Commissioner

113.  In around late July 2019, M discovered that her name and part of her passport number was disclosed among a list of Kenya FDHs who were alleged to be blacklisted by the government on Facebook. Christian Action lodged a complaint on M’s behalf to the Privacy Commissioner for Personal Data of Hong Kong. The post was eventually removed in September 2019.

D.7  TIP screening by HKSARG

114.  In July 2019, M was screened for TIP victimhood by an NGO known as International Organization for Migration (“IOM”) which concluded that there were facts indicative of TIP victimhood. Around late 2019 to early 2020, M was also screened by Liberty Shared which positively identified M as a TIP victim, for the following reasons (as were set out in the Form 86):

(1)  with reference to the Palermo Protocol:

(a)  there were ‘acts’ constituting the actus reus of human trafficking: recruitment by Ivy and staff at TKC, arrangement of transport from Kenya to Hong Kong, received by Ivy upon arrival, harbouring at Ivy’s residence between 28 January and 10 February 2019 and then at the Employer’s residence until 20 June 2019, transferring the Applicant to the Employer on 10 February 2019;

(b)  there existed deception, abuse of power and coercion by Ivy and the Employer over the Applicant as the ‘means’ of human trafficking; and

(c)  the Applicant was trafficked for the purpose of forced labour;

(2)  with reference to the ILO indicators, the Applicant was a victim of forced labour presenting strong indicators of involuntariness as well as four medium to strong indicators of penalty (or menace of penalty). The Applicant:

(a)  was in a position of vulnerability and abused;

(b)  was deceived by the Employer;

(c)  was restricted in her movements;

(d)  was isolated from family and seeking help;

(e)  was intimidated and threatened;

(f)  had her wages withheld by the Employer;

(g)  was subject to debt bondage by the commission paid to Ivy in 6 instalments;

(h)  was subject to abusive working and living conditions from the Employer; and

(i)  worked with excessive overtime with the Employer.

115.  On 7 February 2020, M, through her then lawyers, requested ImmD to formally screen M for TIP victimhood and labour exploitation. By email dated 12 May 2020, LD informed M that:

victim screenings (both initial screening and full debriefing) were conducted by the Police in December 2019 and [M] was not classified as a TIP victim. Notwithstanding this, the case is still under active investigation by the Police and Immigration Department.

116.  This was the first time M was made known of her screening result. M had never attended any screening interviews for the purpose of TIP victim identification by the Police, ImmD or LD.

117.  On 28 October 2020, M collected all materials related to her TIP victimhood screening from ImmD. I shall mention a few documents.

118.  The first document is her “TIP Screening/Debriefing Form” completed by ImmD on 16 August 2019. Among the seven TIP indicators, three indicators were checked positive by her assessor: salary being involuntarily deducted to pay off debt/smuggling fee; forced to performed sexual acts or other unexpected forms of work/labour; and prohibited from contacting others.

119.  By memo dated 23 August 2019 issued by ImmD to the Police, ImmD said that M was referred to them as TIP victim in July 2019 and a witness statement was taken on 16 August 2019 regarding illegal deployment of work. Since that subject was also under the Police’s investigation, ImmD sent to the Police the relevant statements obtained on their side.

120.  By memo dated 27 August 2019 issued by the Police to ImmD, the Police said they had received a complaint from M regarding non-grant of holidays and withholding of her mobile phone. On 30 May 2019, police officers had attended the Employer’s Residence. Criminal investigation had been completed and no crime elements were disclosed.

121.  By memo dated 3 March 2020 issued by ImmD to the Police, it was stated that:

the statements and TIP Screening form are now forwarded to your office for your information and action on the suspected TIP matters. Meanwhile, your assistance is sought to advise the case result / progress of your investigation and confirm whether your office regard the subject as a victim of TIP.

122.  By memo dated 19 May 2020, ImmD further followed up on previous memo sent to the Police. It was stated that:

Relevant statements and initial TIP screening form taken by our Department had been passed on to the Police for assessment on 03-03-2020. As it was learnt that the TIP full debriefing on the captioned person was completed, in order to facilitate our investigation, your assistance is sought to advise whether your office regards the captioned person as a victim of TIP after full debriefing and the case progress of your side.

123.  By memo dated 20 May 2020 issued by the Police to ImmD, it was stated that:

A full debriefing has been conducted with her and it is concluded that the Subject is not regarded as a victim of TIP.

124.  Thus, by letter dated 29 October 2020, Choy Yung sought discovery of records of the Tier 2 full debriefing from ImmD. On 5 November 2020, ImmD replied all materials had already been provided.

125.  By letter dated 14 December 2020, Choy Yung sought discovery of the same records from the Police. By letter dated 22 December 2020, the Police replied that “No material relating to the Trafficking in Persons screening, neither the Tier 2 debriefing nor record of the full debriefing under TST RN 19033242”. The Police did not reply to a chaser letter from the solicitors asking for disclosure of the relevant Tier 2 documents under KW RN 19000417.

126.  Nevertheless, in his affirmation evidence, Detective Senior Inspector Lee (“DSI Lee”) deposed to the following facts:

(1)  M was interviewed (with her then legal representative present) on 12 December 2019, to obtain further information regarding the case of forgery and theft.

(2)  As M was an FDH alleging mistreatment by the Employer and the Agency, he identified the case as subject to HQO 12/2019 and required a screening.

(3)  Upon initial (Tier 1) TIP screening conducted right after the interview on 12 December 2019, it was considered that one of the seven indicators was met – namely the prohibition from contacting others.

(4)  As one indicator was met, a full debriefing was required.

(5)  The full debriefing was conducted by the officer who interviewed M on 12 December 2019.

(6)  The answers to the 14 questions (i.e. Tier 2) were based on the verbal enquiries with M as well as the written statement obtained in the interview on 12 December 2019.

(7)  That information was sufficient to answer all 14 questions, and therefore no separate debriefing session was conducted.

(8)  DSI Lee’s assessment was that:

(a)  The element of “act” was satisfied, as M was “recruited” to be a FDH to work in Hong Kong.

(b)  The element of “means” was not met, as M had never been threatened, forced, coerced, abducted, deceived, abused by power or position of vulnerability nor required to make involuntary payments in relation to the purpose of her coming to Hong Kong. On the contrary, she came to Hong Kong to be a FDH on her own volition and agreed to pay the requested agent fee in six instalments.

(c)  M was not recruited for the “purpose” of exploitation. Whilst she complained about mistreatment by her employer, not every case of mistreatment amounts to exploitation, or the inference that the employee was recruited for the purpose of exploitation.

(9)  Apart from assessing whether M was a TIP victim, consideration was also given as to whether she was a victim of forced labour. The conclusion was reached that she was not such a victim, as she signed a contract and agreed to work as a FDH in Hong Kong with salary payment, being provided with food and safe accommodation all along.

(10)  After receiving the report of Liberty Shared and two further statements taken from M, DSI Lee reconsidered whether M was a TIP victim, but the answer remained unchanged because there was no significant difference from the previous information provided by M to the Police.

127.  It might usefully be noted at this juncture that:

(1)  Though the ImmD had conducted a Tier 1 VIS which led to a positive result, ImmD did not go on to perform any Tier 2 full debriefing.

(2)  The Tier 2 full briefing said to have been conducted by the Police was not triggered by the result of the ImmD’s having identified the need for one.

(3)  Indeed, the Tier 2 full briefing said to have been conducted by the Police was apparently conducted on 19 December 2019 before the ImmD sent its Tier 1 assessment to the Police on 3 March 2020.

(4)  Instead, the Tier 2 full debriefing is said to have resulted from the Police’s conduct of its own Tier 1 assessment.

(5)  As it happens, the ImmD found three of the seven TIP indicators present on its Tier 1 assessment, but the Police found only one indicator present.

(6)  However, there is a rather fundamental chronological mismatch, in that (a) the Tier 1 screening was said to have been conducted by the Police after the interview on 12 December 2019, yet (b) the Tier 2 full debriefing is said to have been performed using verbal answers and a written statement obtained during the interview, hence before the decision was even taken that there should be a full debriefing.

(7)  Further, despite the categorical confirmation previously provided to M’s solicitors by the police that there was no Tier 2 debriefing nor record of the full debriefing to be produced in relation to one report number and no reply to a request under another report number, DSI Li relied on such a document which he exhibited to his affirmation filed for these proceedings. That document with the reference KW RN 19000417 bears no date, other than the stated date of 12 December 2019 given for the date of screening on Part I or Tier 1.

(8)  But, I also note that whoever hand wrote that date originally wrote “2020-12-12” before that was amended to “2019-12-12”. Though I draw no particular forensic conclusion from that fact, I would think that whilst it may be understandable and not unusual inadvertently to use last year’s date on documents made at the beginning of this year, it would seem unusual to use next year’s date on a document made even before the end of the current year.

128.  The chronological mismatch and the doubt as to any actually contemporaneous documentation raise at least serious questions as to the VIS process now said to have been followed.

129.  The evidence filed (in March 2022) also revealed that M had apparently been screened by the North NT Team, and the result was negative at Tier 1. But no corresponding form was disclosed.

130.  Chief Inspector Lau Chun Piu Bill (“CI Lau”), deponent for the OCTB, says he has also reviewed the case based on the documents related to M’s application in these proceedings, including but not limited to Christian Action’s letters, Liberty Shared’s Report, witness statements of M and other documents – for the purposes of performing a “fresh assessment”. Whilst he accepts that there was an ‘act’ in that M was recruited from Kenya, there were no relevant ‘means’ because M had never been threatened, forced, coerced, abducted, deceived, abused by power or of a position of vulnerability nor required to make involuntary payments in relation to the purpose of her coming to Hong Kong. This is because, before she came, she agreed with a Kenya agent to pay commission of HK$24,000 and six instalments for the purpose of working in Hong Kong, and despite the fact that the commission fee is higher than the threshold permitted by the law, the overcharging issue had been duly followed up by LD, and “most importantly” M had come to Hong Kong on her own will and she was fully aware that she needed to pay back the commission fee. As to ‘purpose’, he thought M had never been in exploitation. CI Lau also considered that M was not a victim of forced labour, because there is nothing to show that M was forced to work under the menace of penalty.

131.  His conclusion was that whilst M was an unfortunate victim suffering from the overcharged commission fee and the alleged unfavourable working conditions, those circumstances did not give rise to a case of TIP, but merely a case involving the violation of labour rights or maltreatment by the Employer. He also emphasised that, whether M is classified as a TIP victim or not, proper actions had already been taken by various LEAs against the Employer and agent in respect of violation of labour rights, overcharging, alleged forgery and theft, and aiding, abetting, counselling and procuring M to breach of conditions of stay by taking up unapproved employment in Hong Kong. Further, a wide range of protections and assistance were offered to M upon full debriefing, but M confirmed that she had received assistance from Christian Action and therefore requested no assistance from the Police at the time.

E.  Intended Grounds of Review and Relief Sought

132.  The four intended grounds of review set out in the Forms 86 of N and M respectively are largely similar.

133.  Ground 1 seeks to quash the Applicants’ Classifications as not being a TIP victim. They contend that: the HKSARG failed to adhere to its published policy and procedures for screening TIP victims (Ground 1A); the HKSARG’s policy and procedures for TIP victim screening is procedurally improper and the screening results were tainted by irrationality (Ground 1B); and there was a failure to separate the criminal investigation from the screening for victimhood, infringing rights to silence etc (Ground 1C – N’s case only).

134.  Ground 2 is that the HKSARG has failed to discharge its investigative duty owed to the Applicants under BOR4. The failure is said to lie in the absence of a distinct screening mechanism to screen for victims of forced or compulsory labour within the meaning of BOR4. The current TIP screening procedures are said to be ill-suited for this purpose.

135.  Ground 3 asserts that the current patchwork of offences are ineffective and impractical within the meaning of §122(4) of ZN v Director of Immigration (2020) 23 HKCFAR 15 to address the prohibition against forced or compulsory labour under BOR4 and, thus, it is necessary to enact bespoke criminal offences against violation of BOR4.

136.  Ground 4 seeks to rely on a list of international conventions applicable to Hong Kong to argue for the enactment of bespoke criminal offences for not only activities expressly prohibited by BOR4, but also all forms of exploitation and TIP activities for the purpose of such prohibited activities. Two arguments are run. First, using those international conventions as an aid to interpret BOR4(1), (2) and (3)(a), the scope of BOR4 includes not only slavery, servitude, and forced or compulsory labour, but also TIP activities for such purposes and exploitation in all forms (Ground 4A). Second, those conventions create a substantive legitimate expectation that the HKSARG shall act accordingly or at least consider them when it decides whether or not to enact bespoke offences (Ground 4B).

137.  As can be seen, Ground 1 focuses on the TIP Classifications, and the process involved. Grounds 2, 3 and 4 all concern BOR4.

138.  As to the relief sought, Mr Chan felt constrained not to pursue all of the relief sought in the Forms 86. In light of my decision in the CB(CFI) case, Mr Chan did not seek declarations that N and M were in fact victims of TIP or forced/compulsory labour – he accepted that is a question for the LEAs not for the Court. (On the other hand, nor will I accede to Mr Pao’s invitation to find or declare that N and M were in fact not victims of TIP or forced labour.)

139.  So the relief pursued by Mr Chan – in addition to the requested extension of time – was in essence:

(1)  A declaration that there has been a breach of the Applicants’ procedural legitimate expectation that they would be screened for victimhood in compliance with the published policy and procedures.

(2)  An order quashing the Classifications.

(3)  A declaration that there has been failure to discharge the investigative duty owed to the Applicants under BOR4, by failing to devise and adopt a screening and/or investigation mechanism that would identify them as victims of forced or compulsory labour.

(4)  A declaration that, in respect of slavery, servitude, forced or compulsory labour prohibited under BOR4, the current patchwork of offences is insufficient, so that there has been failure to afford practical and effective protection, and it is necessary in the circumstances for there to be enact bespoke offence(s) criminalising prohibited acts.

(5)  A declaration that BOR4, when interpreted under (the listed) international treaties and conventions that are declared by the Central People’s Government applicable, and/or are held out to be applicable, to Hong Kong, includes prohibitions against slavery, servitude, forced or compulsory labour, exploitation in any forms, and also TIP.

(6)  A declaration that there has been breach of the Applicants’ substantive legitimate expectation that the HKSARG would fulfil the obligations imposed by those treaties and conventions to enact bespoke offence(s) criminalising activities of slavery, servitude, forced or compulsory labour.

(7)  Alternatively, a declaration that the HKSARG has breached the Applicants’ substantive legitimate expectation in that, in arriving at the Decision, it has failed to consider as a relevant matter the positive obligations imposed by those treaties and conventions.

(8)  Alternatively, a declaration that it is necessary for the HKSARG, so as to fulfil the substantive legitimate expectation, or by reason of the declarations of otherwise sought above, to enact bespoke offence(s).

(9)  An order of mandamus that the HKSARG shall enact bespoke offence(s) criminalising the activities as declared necessary.

(10)  Damages.

140.  I can consider the various Grounds, each in turn.

141.  But it is perhaps first helpful to identify the broad answer offered by Mr Pao on behalf of the Putative Respondents. He submitted that the gravamen of the Applicants’ complaints related to their employment disputes with the Employer and the agent, Ivy (i.e. overcharging of commission, denial of rest days, unpaid wages, poor working conditions, being unlawfully required to work for Ivy, etc). Those matters could be, and had been, properly investigated and dealt with under the existing legislative framework.

142.  Further, Mr Pao submitted that: (1) there was no failure to comply with the policy relating to screening for TIP/forced labour; (2) there was no failure to comply with the investigative duty under BOR4, and that duty does not require a separate screening process; (3) it is unnecessary to enact bespoke criminal offences against violation of BOR4, and the Applicants have failed to identify the requisite causation between any relevant BOR4 breach and the need to enact bespoke legislation; and (4) the suggestion that there is a substantive legitimate expectation that international treaties and conventions which are not implemented by local legislation in Hong Kong nevertheless require the HKSAR Government to enact bespoke legislation targeting forced labour and TIP issues is misplaced.

F.  Ground 1 (HCAL 961/2021 – N’s case)

143.  There are three main complaints under this ground. But it is worth keeping in mind that – although I might touch on aspects of the decisions made on the facts – I am not acting as an appellate court relating to the merits of the Classification decision, but instead reviewing the integrity of the decision-making process.

144.  The first complaint (i.e. Ground 1A) is that ImmD failed to follow the HKSARG’s own policy and procedures for screening TIP victims since a Tier 2 full debriefing was not conducted. N argued that she should have been checked positive for at least 1 of the 7 indicators in the Tier 1 screening, namely she was ‘restricted’ from contacting friends and family, which should have led her to Tier 2. This is the 5^th indicator in screening Form adopted by ImmD as set out above. In the Form, this indicator is phrased as “Are they prohibited from contacting others?”, in identical terms to the questionnaire for initial screening said to be adopted by ImmD at Annex F of the TIP Guideline.

145.  As an aside, I think that question/indicator (and probably the others) has to be approached with some flexibility and pragmatism. The TIP Guideline does not set out a strict ‘Q&A’ approach, but is rather aimed at triggering appropriate mental awareness for LEA officers during their normal work (see below). Therefore, I do not think the 5^th question is likely concerned with only a total prohibition of contact with any or all other persons. Rather, what is being – or what should be – assessed is an indicator of the type of conduct or control exerted as may credibly suggest TIP. Even if no total prohibition exists, certain restrictions on contact with others may be sufficient to lead to a ‘yes’ answer to the question, depending on the extent, breadth or width of those restrictions in context. For example, the ability to contact others only within earshot of the alleged or potential abuser might lead to a ‘yes’ answer. So might a total prohibition on contact with certain people or types of people (even if contact with some others is permitted). So might a restriction on the times when contact is allowed, or the rarity of when contact is allowed.

146.  On the facts, N was allowed to use the Employer’ phone to contact her family once a week. Initially she was able to communicate via her mobile phone by intermittent Wi-Fi connection nearby and through data purchased by her brother. After she bought herself a local SIM card with her first month’s salary, she had regular contact with her family. It might be said that the Employer was certainly not keen to assist N in contacting the outside world, e.g. by refusing to buy N a local SIM card and by refusing her Wi-Fi access. But it was not unreasonable for the ImmD officer to reach the view that this indicator was not met, because this did not add up to “prohibiting” her from contacting others.

147.  It was also suggested that N was forced to work, which was not reflected on the form. This concerns the 4^th indicator which the ImmD officer also checked “No”. But N did agree to work without rest days in the first 3 months and based on all the information provided by her, the ImmD officer was entitled to form the view that this indicator was not hit. Since none of the 7 indicators existed, there was no need to proceed to the full debriefing under the HKSARG’s own procedures. The HKSARG did not breach its own policy.

148.  I have also borne in mind Mr Pao’s point on the chronology that N’s approach to an LEA occurred before the current screening process was implemented and that statements were taken from her in the transitional period.

149.  The second complaint (i.e. Ground 1B) is that the screening process breached N’s procedural legitimate expectation or was otherwise procedurally improper because the Classification was reached with no representations from N, no substantive screening interview(s) conducted with her, and no reason was provided for the negative screening result.

150.  What a person could legitimately expect from a policy must start with the policy itself. The information provided in the SB website, the Action Plan and the TIP Guideline suggest that the Tier 1 initial screening does not require an interview with the subject for the purpose of TIP screening. Law enforcement officers are expected to ask themselves whether any one or more of the 7 trafficking indicators exist in the cases they handle, using information collected from their “normal enquiry”.

151.  In ImmD’s Initial Screening/Debriefing Form, the preface to Part A (i.e. Tier 1 or initial screening) is “Officers should ask themselves whether any of the below indicators did come up during their normal enquiry, interview or interrogation with the subject vulnerable persons.” (emphasis added). This suggest that officers are expected to collect information from their daily investigative enquiries, including criminal interrogation against the vulnerable person, and ask themselves using that information whether any indicators came up.

152.  An interview of the subject person for TIP victimhood identification will only need to be conducted if the case is proceeded with to Tier 2.

153.  As shown in N’s case, it appears that if the subject person is not dealt with at Tier 2, she would not be told that she was screened for such purpose at Tier 1, or the result and reasons of the Tier 1 screening. But such information/materials will be disclosed to her if she seeks them. In N’s case, she was given her Initial Screening/Full Debriefing Form. As shown in the form, it is clear that the negative screening result was because the ImmD officer considered that none of the 7 trafficking indicators at Tier 1 existed in her case.

154.  There is no relevant representation in the sense that a potential victim would be invited to make her own case before the law enforcement officer determines whether to classify her as a TIP victim or not (on initial review). Indeed, she will not even be made aware of the screening if her case does not proceed to Tier 2.

155.  What procedural fairness requires must be viewed in light of the function of the process and role the decision maker has. As is often noted, the content of procedural fairness is infinitely flexible and variable. It must depend on matters such as the character of the decision-making body, the nature of the inquiry, the subject matter under consideration and the kind of decision which has to be made, as well as the statutory or other framework in which the decision-maker operates.

156.  As Mr Pao sought to emphasise, the VIS process is not a quasi-judicial or adjudicatory process by which contested legal rights and obligations are determined. It is not adversarial or accusatorial in nature. There is no legal right as such to be given the status as a TIP victim. The screening mechanism is an investigative process which the LEAs of the HKSARG would use as an aid to identify and ultimately offer appropriate assistance to TIP victims under its own policy. The decision-maker in the present case is an ImmD officer who was asked to screen for potential TIP victims he may come across in his daily investigation works. To ask that an investigator from an LEA, before he decided whether N should be classified as a TIP victim, should have conducted a substantive interview with N and invited her to make representations on her own case is to impose on the investigator the role of an adjudicator making findings on legal rights and obligations.

157.  The screening process was not procedurally unfair nor was N entitled to any legitimate expectation to be afforded procedures which are not part of the HKSARG’s policy. The Classification reached through such a procedure was not tainted by Wednesbury unreasonableness.

158.  The third complaint (i.e. Ground 1C) is that the screening for TIP victimhood was not separated from criminal investigation against N. Mr Chan made the overarching point that the screening process is not just part of an investigation, but should have and does have a distinct purpose, where TIP victimhood is a ‘status’ in its own right. The distinct purpose is the identification of victims. That is, he said, because a classification of victimhood will bring active help for the victim in various potential ways, most of which will be outside – and therefore should be separate from – the process of criminal investigation.

159.  Mr Chan also suggested that screening for TIP victimhood might in any event take place separate from, or wider than, any criminal law context. He also points out that often a TIP victim will likely have committed an offence, or at least be suspected of having done so. Indeed, in practical terms, it seems to me that screening would only in fact occur when a person comes ‘onto the radar’ of an LEA, often as a suspect, though that does not necessarily mean that screening should not be separate – or sufficiently separate – from the criminal law context in which it is performed.

160.  However, the complaint raised first starts with a misunderstanding of the HKSARG’s policy. In the SB Website, it is stated that “After investigation officers finished all the questions, they should be able to assess whether the subject vulnerable person is TIP victim. Criminal investigation will be commenced if subject is identified as TIP victim.”. It is argued that this suggests that criminal investigation, against both TIP suspects and the potential victim being screened, is separate from the Screening Process. However, in my view, the sentence “Criminal investigation will be commenced if subject is identified as TIP victim” suggests that the potential criminal investigations refer to investigation against the abuser(s) of the TIP victim – not against the victim herself. Further, as seen above, ImmD’s Initial Screening/Full Debriefing Form suggests that it is permissible under the policy to collect information regarding potential TIP victimhood during criminal interrogation against the potential victim. ImmD did not fail to follow the HKSARG’s policy.

161.  Under the third complaint, it was also argued that alternatively the non-separation of TIP screening process from a criminal investigation against the potential victim would lead to a “high and/or heightened risk” of violating the potential victim’s right to silence and right against self-incrimination. This is hard to follow. N was not compelled to forgo her right to silence or right against self-incrimination at any point of the screening process. Indeed, she exercised those rights once she was cautioned during the interview on 26 February 2020, to give any witness statement because of “personal reasons” which she did not disclose.

162.  A potential TIP victim is not compelled to provide any information to prove her TIP victimhood. Indeed, she would not even be informed that she would be subject to the Tier 1 initial screening. Whilst she would be asked questions pertaining to victim status in Tier 2, she is not compelled by law or otherwise to answer those questions. The design of the two-tier screening procedure does not entail actual breach or any heightened risk of breaching the subject’s right to silence or right against self-incrimination. The “heightened risk” approach, in any event, was rejected by the Court of Appeal in Lubiano Nancy Almorin v Director of Immigration [2020] HKCA 782, at §§117-118.

163.  On the other hand, I see that the practical effect of a person exercising his or her right to silence will – or, at least likely, will – be to hamper the obtaining of any information of the sort which might be used when the officer asks him/herself the Tier 1 questions. If a vulnerable person says nothing (i.e. remains silent) when questioned in relation to potential prosecution against that person him/herself, it may be that the officer will simply have no materials on which to make any effective assessment of whether there exist any TIP indicators at Tier 1 warranting a full debriefing at Tier 2.

164.  In other words, whilst the non-separation of the TIP screening process from a criminal investigation against the potential victim does not logically lead to a “high and/or heightened risk” of violating the potential victim’s right to silence and right against self-incrimination, it does logically potentially – and perhaps likely – limit the ability to make any or the most accurate effective assessment in the TIP screening process.

165.  This point seems to me to be implicitly acknowledged by Mr Pao’s submission that ImmD had exhausted all means of trying to elicit information from N herself, but encountered problems. As he put it, ImmD had already obtained all the information from N which it could reasonably expect to have obtained, given N’s stance in refusing to provide further information at the interview. As a result, it seems obvious that, though ImmD proceeded to perform the Tier 1 screening, its approach to that screening was necessarily hampered.

166.  The evidence of the ImmD officer Fu Pak Ka seemed to recognize this point, by stating that because N chose not to give any informational statement to ImmD on her own accord (after being given the warning that information volunteered by her might be self-incriminating), it was difficult for ImmD to verify the matters which N had stated in her email.

167.  But this is not the complaint made in Ground 1C. On the other hand, this is an area which could usefully be the subject of some further consideration as to how LEAs can practically avoid the potential problem in any given set of circumstances.

168.  There is also a more force in Mr Chan’s point that the failure of the statements given to the LD by N being also available to ImmD at the time of the Tier 1 screening meant that full information available to the LEAs as a whole was not available to the LEA which conducted the actual screening. But I note that N requested the ImmD not to share information with other departments. Anyway, I do not think this assists in establishing Ground 1C. Nevertheless, Mr Chan also relies on the fact that LD took statements from N, which might have triggered a TIP screening, but LD did not itself actually perform a screening, as being relevant to Ground 3 (see below).

169.  In respect of N, Ground 1 fails.

G.  Ground 1 (HCAL 1031/2021 – M’s case)

170.  M argued that the HKSARG had failed to follow its own policy by carrying out a Tier 2 full debriefing (Ground 1A), and that M’s screening process was procedurally improper and/or in breach of her procedural legitimate expectation and/or was otherwise tainted by Wednesbury unreasonableness.

171.  The observations regarding the two-tier screening process adopted by the HKSARG also apply in M’s case.

172.  The ImmD officer assessed M’s case in the initial screening found that three TIP indicators existed. As shown in the internal memo between ImmD and Police, her case was referred to Police for Tier 2 full debriefing. Police confirmed to ImmD that a full debriefing had been conducted and the ultimate result was negative. However, no records were produced to show that a full debriefing was conducted.

173.  The HKSARG’s policy required M to be interviewed in Tier 2 and that records of such process be kept. M said that she was not interviewed for TIP victim identification by any LEAs. If that is true, the HKSARG has failed to follow its own policy without providing any justification. Reaching a final decision on her victimhood without conducting a Tier 2 full debriefing as suggested by the policy is unreasonable in the public law sense.

174.  The answer offered to Ground 1 in M’s case is that the screening occurred at the same time as the statement was taken by the police from M in relation to the allegation of theft. However, I accept Mr Chan’s submission that the questions posed in taking that statement were “crime-centric” questions, which might have been capable of informing a Tier 2 screening, but where not all of the Tier 2 questions were asked. I have already pointed out above the problems arising from the chronological mismatch in the supposed Tier 2 screening process using information which was only elicited for a different purpose (namely the reporting of crime) at a time prior to even realising that a Tier 2 screening process would be required. Further, as Mr Chan submitted, and I accept, taking the statement on this occasion was clearly not a Tier 2 full debriefing as required once triggered by the indicators of TIP identified at the Tier 1 screening.

175.  Not only has M’s Ground 1 met the arguability threshold for granting leave to apply for judicial review, it is established on the substantive hearing basis.

H.  Ground 2

176.  Ground 2 presents a factual challenge – that in the specific circumstances of M and N, the HKSARG has failed to discharge its investigative duty. Mr Chan submitted that N’s email on 25 September 2021 and the letter from Christian Action for M dated 15 July 2019 were sufficient to have alerted the LEAs that there were possible cases of forced labour raising a credible suspicion of a BOR4 violation. The subsequent prosecution only strengthened the suspicion, and the duty to investigate was therefore triggered. But no real investigation was in fact performed.

177.  The particular failure was said to lie in, or arise from, the failure to devise a VIS mechanism which would positively identify them as forced or compulsory labour victims. But, again, I keep in mind that I am not myself deciding whether either N or M should be categorized as victims of forced labour – the attack in this case is as to the failure of the system which allegedly meant that in fact no proper BOR4 investigation or identification/assessment took place.

178.  Mr Chan submitted that these two actions presented the right opportunity to examine why a single framework (the VIS) cannot address the two evils of TIP and BOR violations. That question, he said, was left untouched in the CB(CFI) case at §§19, 23 and 157.

179.  Mr Chan’s submission was that the single framework adopted in Hong Kong cannot address the two evils of TIP and forced labour, not least where the latter is only one ‘purpose’ in the former. But, he also submitted that, even if the relevant test was the same, they arise in a different legal context because BOR4 has the force of law in Hong Kong and, in any event, there can be no argument with the principle that the duty to investigate under BOR4 arises separately from any duty to investigate TIP.

180.  Mr Chan also made the submission – which obviously has real force – on the facts relating to N. Prior to the commencement of these actions, N had not reached Tier 2 in the VIS process (having been screened out at Tier 1), so that there was in fact no examination of the three elements of TIP and consideration of whether N was nevertheless a victim of forced labour or other BOR4 violations. Whilst Mr Yip Tzs Fai of the ImmD belatedly expressed in his affirmation that, contrary to Liberty Shared’s Report, he does not share the view that N was a victim of forced labour, that was made without interview of N, and was long after any VIS ought to have occurred.

181.  As to M, Mr Chan submitted that whilst her Tier 2 form was marked negative for ‘purpose’, Mr Lee now says he had already considered the matter of forced labour, which is difficult to follow. Mr Chan also submitted that, to discharge its BOR4 investigative duty, what ought to have occurred (but did not) was taking into account the possibility of patterns of behaviour or syndicate where these two cases involved the same employer, the same agent and similar maltreatment.

182.  Mr Chan submitted that the screening process for potential BOR4 violations was flawed: (1) in its implementation; (2) in its design – in being hampered by imprecise language used in the standard indicators/questions, with a structure lacking a timeline, notice of outcome, opportunity to make representations, and appeal or review mechanism; and (3) because a design rooted on the concept of TIP under the non-binding Palermo Protocol is ill-matched to screening in discharge of the investigative duty owed under BOR4.

183.  Mr Pao sought to summarise his argument on Ground 2 in five propositions:

(1)  The Applicant’s case is as regards an alleged breach of the investigative duty owed under BOR4. Whether Hong Kong should have a separate screening system for BOR4 does not arise on that investigative duty.

(2)  Whilst the CB(CFI) case was one where the Court found a failure to investigate, the Applicants have not demonstrated their individual rights have been infringed by use of the present screening process.

(3)  The Applicants’ complaint is artificial, as they have not been prejudiced by use of the current screening system. They were able to convey information to alert the authorities to their situation. Their real complaint is as to the merits and product of the screening system.

(4)  Even if their complaints about the system were properly made, BOR4 still does not require a separate screening process. This is a question of policy or judgment for the HKSARG, which should be given a wide margin of appreciation.

(5)  The body of evidence in the two cases of N and M was insufficient to identify a systemic failure so as to impose a legal requirement for separate screening.

184.  Mr Pao also submitted that the Applicants have proceeded on a fundamental misunderstanding of what the relevant duty requires.

185.  It is, therefore, important to understand that duty correctly. By reference to CB(CFI) at §195 and ZN(CFA) at §191, it can be identified the positive duty on the part of the government to carry out investigation arises once it is aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an identified individual has been, or is at real and immediate risk of being, required to perform forced or compulsory labour within the meaning of BOR4. Also, BOR4 further entails: (1) a procedural obligation to investigate situations of potential forced labour and/or exploitation; (2) which does not depend on a prior complaint; (3) where the investigation must be independent from those implicated in the event; (4) where there is a requirement of expedition and urgency; and (5) where the victim (as may potentially be found) must be involved in the procedure.

186.  Mr Pao also submitted that the question is not what might be done better, but whether the HKSARG is entitled to have chosen to perform the duty in this particular way, and the CFA has already said that is acceptable. Indeed, I accept that in ZN(CFA), after summarizing the HKSARG’s measures, the CFA stated at §114 that:

Given the wide margin of discretion that is to be afforded to the HKSARG in respect of its positive obligations under BOR4, the approach described in the respondents’ evidence is an acceptable method of compliance providing it affords practical and effective protection of the rights under BOR4.

187.  Further, Mr Pao submitted, unlike the cases involving CB and ZN, the Applicants in this case have not identified what further investigation might have been performed which was not. Indeed, he submitted, their main complaints were dealt with and were investigated, and though no finding of forced labour was made, the investigations led to various prosecutions and offers of assistance. The Applicants themselves were not treated as criminals, although they were technically in breach of certain requirements of immigration law, but treated as vulnerable persons and victims of crimes for which the perpetrators were prosecuted.

188.  In reply, Mr Chan pointed out that he was not actually asking for a new screening process, but was asking for a proper investigation – where, he said, it is important not to conflate screening and investigation, which are two different things. The focus should not be on what was done, but how.

189.  As already identified above, forced or compulsory labour means all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. What is required is (1) work or service, (2) menace of a penalty, and (3) involuntariness on the part of the victim.

190.  No doubt, M and N had worked or served. However, to amount to forced labour the work or service had to be caused by menace of a penalty, though this is generously interpreted towards the victim (and which may be in psychological form and include economic penalty linked to a debt), and involuntariness (where initial voluntariness can be vitiated by fraud, deception, misrepresentation or a lack of real choice – whether at the initial stage or as events unfolded subsequently).

191.  As stated, BOR4 imposes a positive duty on the HKSARG to have in place measures providing practical and effective protection against the activities prohibited under BOR4. But the decision on how to achieve such protection must necessarily be a matter for the HKSARG and a wide discretion is given to the HKSARG as to the choice of measures to be adopted.

192.  Of course, the positive duty includes a duty to investigate, which was confirmed by the CA and not further appealed to the CFA. However, the investigative duty does not necessarily entail a mechanism which would, as the Applicants suggest, formally recognize a person’s victim status. The ultimate duty imposed on the HKSARG is the provision of effective and practical protection against BOR4 breaches, which might be provided without the victim being given a formal recognition of victim status of the kind suggested.

193.  It is possible to take the view that the range of criminal conduct commonly found in forced or compulsory labour had been properly investigated and effectively addressed by the criminal justice system in the two current cases. In both cases, both TKC/Ivy and the Employer were investigated by the Police, ImmD and LD for general crimes, immigration offences and employment offences. TKC/Ivy and the Employer were prosecuted for various immigration or employment offences and were convicted on some of the charges, as discussed above. M and N were granted prosecution immunities and new FDH visas which allow them to be employed by another employer. Their needs as forced or compulsory labour victims were, at least to a substantial extent, investigated into and addressed.

194.  It could not be argued that there has been no investigation into the BOR4 prohibited conducts committed against the applicants or into the assistance required by them.

195.  As to the argument that what the LEAs have done in N’s and M’s cases could not have been and was not, in their circumstances, commensurate with the nature, seriousness and/or elements of forced or compulsory labour prohibited under BOR4, that seems to be a submission that the only investigative measures that would be commensurate with the nature, serious and/or elements of forced or compulsory labour is a screening mechanism which aims at providing formal identification of victimhood for forced or compulsory labour. If so, the presumption has predetermined the conclusion.

196.  I do not think the Applicants have advanced a proper argument to explain how the current investigative measures was unable to deliver effective and practical protection, which is ultimately what the HKSARG had to achieve at the end. In view of the wide margin of discretion given to the HKSARG in choosing the appropriate measures, and in the circumstances of these cases, I consider that Ground 2 is not reasonably arguable.

I.  Ground 3

197.  Ground 3 and Ground 4 seek to overturn the two issues decided in ZN(CFA).

198.  The two issues before the CFA in ZN were: (1) Does BOR4 include a prohibition against human trafficking and, if so, what is the scope of that prohibition? (2) Does BOR4 impose a positive duty on the Government of the Hong Kong Special Administrative Region (“HKSARG”) to maintain a specific offence criminalising the activities prohibited under the article?

199.  I have already set out the provisions in BOR4 above.

200.  The CFA’s answers to Question 1 and Question 2 can be found in §§80 and 122-123 of the Judgment:

80. I would therefore answer Question 1 as follows.

(1) Although BOR4(1) may, by referring to “slavery and the slave-trade in all their forms”, prohibit trafficking for the purposes of slavery, BOR4(1) does not prohibit human trafficking generally for the purposes of exploitation.

(2) Nor does BOR4(1) prohibit human trafficking for the purposes of servitude and forced or compulsory labour (even assuming it prohibits human trafficking for slavery).

(3) BOR4(3)(a) does not prohibit human trafficking for forced or compulsory labour.

122. I would therefore answer Question 2 as follows:

(1) The HKSARG has a wide margin of discretion in the manner in which it complies with its positive obligations under BOR4 and there is no absolute duty on the HKSARG to maintain an offence specifically criminalising forced or compulsory labour.

(2) To comply with its obligations in respect of BOR4, the HKSARG must take steps to afford practical and effective protection of those rights. Whether practical and effective protection has been provided will depend on the facts of any given case.

(3) On the facts of this case, it has not been shown that a bespoke offence criminalising forced or compulsory labour is necessary in that the patchwork of offences already in existence failed to afford the appellant sufficient protection.

(4) The determination that a bespoke offence is not required does not preclude a different conclusion being reached in a future case, in the event that the HKSARG is shown in future not to afford practical and effective protection of the rights under BOR4 by reason of the absence of such an offence. Nor should this judgment be taken to indicate that a patchwork of offences would necessarily be sufficient to address a prohibition on human trafficking, if the HKSARG were under a constitutional duty to prohibit that activity.

123. The appellant’s failure to establish a breach of his BOR4 rights by reason of the absence of a bespoke offence criminalising forced or compulsory labour is distinct from the question of whether the respondents were in breach of BOR4 in failing adequately to investigate the appellant’s complaints, for which a damages hearing will in due course be fixed in accordance with the Judge’s direction.”

201.  Ground 3 and Ground 4 challenge both the scope of prohibited activities under BOR4 as construed by the CFA and its conclusion that the it was not necessary for the HKSARG to enact a bespoke offence to guard against breach of BOR4.

202.  Ground 3 attempts to make use of the possibility left open by CFA that a future case with a different set of facts may be able to persuade the Court that the time has come for the Court to conclude that enacting a bespoke offence is the only way to offer effective and practical protection. In ZN, there was finding on HKSARG’s failure to discharge its investigative duty, but the applicant failed to show that such a failure was due to the absence of a bespoke offence. N and M argue that the causal linkage (which was missing in ZN) was established in their cases. They have also sought to elaborate how the enactment of a bespoke offence prohibiting forced or compulsory labour could improve the screening and investigation mechanism.

203.  Mr Chan submitted that the cases of N and M showed that the evidence part various criminal investigations by more than one LEA as to multiple offences ultimately prosecuted against Ivy, TKC and/or the Employer. Hence, the LEAs were left to revert to focusing on an assorted number of possible offences which even further develops the focus away from a due investigation of BOR4 violations required. By reference to the points canvassed in the relevant Forms 86, Mr Chan also submitted that the causal linkage is shown because: (1) there is an absence of a legally binding definitional foundation; (2) there is an absence of effective linkage between the screening process, or any screening mechanism for victims of BOR4 violations, to what might flow from criminal prosecutions; (3) the ‘patchwork’ of offences does not engage law enforcement awareness; and (4) the current screening process is fundamentally flawed in design, not strictly adhered to in practice, and is procedurally unfair.

204.  Mr Chan also referred to the case of X and Y v. The Netherland [1985] ECHR 4 at §27, where it was emphasised that that effective deterrence is indispensable in this area of law, and that can be achieved only by criminal law provisions, and that, indeed, it is by such provisions that the matter is normally regulated. However, I do not think that passage necessarily requires a bespoke criminal offence, as opposed to other criminal law provisions which are or may be deployed.

205.  In addition to pointing out that the particular declaration sought by the Applicants is expressed in mandatory terms and overbroad, Mr Pao countered those submissions by stating: (1) there was no breach of the BOR4 duties owed to N and M in the first place; (2) the HKSARG enjoys a wide margin of discretion in deciding on the manner in which it complies with the positive obligations; (3) the approach adopted by the HKSARG – i.e. by reference to inter-departmental collaboration, victim identification, investigation, enforcement and prosecution, victim protection and support, prevention and partnership with stakeholders – has been held in ZN(CFA) at §§92, 109-118, 122 to be an acceptable method of compliance, provided it afforded practical and effective protection of the rights under BOR4; and (4) the complaint under Ground 3 is about the structure of the screening process, but the Applicants cannot show that a specific offence against forced labour is the only effective solution to that complaint. Mr Pao also submitted that it cannot be said in this case that fairness has been sacrificed on the altar of speed and convenience or expediency.

206.  In argument, Mr Chan naturally placed reliance on my decision in CB(CFI) at §§ 210-264, where I opened the door left ajar by the CFA, and held that the nexus was established between the breach of the BOR4 investigative duty in that case and the lack of a bespoke offence. However, subsequent to the argument, the case went on appeal in CB(CA) and the particular point of causal connection was addressed at §§119-142.

207.  There, the Court of Appeal emphasised that (1) the question is not whether the breaches found would not have occurred if there had been a bespoke offence of forced labour, and (2) that a simple ‘but for’ connection is not sufficient, because if the victim’s rights could also have been protected effectively in other ways, it was for the Government to decide which way to adopt, and the Court would have no basis to hold that a specific offence was required. Therefore, what is necessary is to show that enacting a specific offence is the only effective solution, a sine qua non of compliance. Though that question must be approached not on the theoretical plane, but with realism and common sense, the threshold is not low.

208.  It was also noted that whether existing measures afford practical and effective protection in a given case is a highly fact-sensitive issue, and the Court, in its adjudicatory role, must keep its primary focus on the resolution of the dispute between the parties, and can only proceed on the evidence before it which is shaped by the facts and issues involved in the case. In its conclusion, the Court of Appeal held that I had not applied the correct approach on causal connection and that I took into account general and hypothetical shortcomings in the existing system and how they might perhaps be remedied, instead of focusing on the actual breaches of BOR4 found in that case. Hence, it set aside the declaration that the identified investigative failures in relation to CB were causally connected to the absence of specific legislation criminalising forced labour.

209.  I suppose it can still be said that the door left ajar by the CFA remains ajar. But, of course, in these particular cases, I have already decided that the Applicants fail on their Ground 2, so that the HKSARG did not breach their investigative duty. It is, therefore, unnecessary to go on to decide whether any breach was caused by the absence of a bespoke offence.

J.  Ground 4

210.  Ground 4 goes beyond the realm of ZN(CFA). The Applicants sought to rely on 10 articles (“Articles”) in 7 international conventions (“Conventions”) which are applicable to Hong Kong to expand the scope of BOR4 as decided in ZN(CFA) to include “exploitation in all forms and human trafficking for the purpose of slavery, servitude, forced and compulsory labour and exploitation in all forms”.

211.  The 10 Articles were set out §131 in N’s Form 86 and §141 in N’s Form 86. They are:

(1) Article 3 of the United Nations International Convention for the Suppression of the White Slave Traffic (“1910 Convention”): The Contracting Parties whose legislation may not at present be sufficient to deal with the offences contemplated by the two preceding Articles engage to take or to propose to their respective legislatures the necessary steps to punish these offences according to their gravity.

The two preceding articles referred to are set out for convenience: (1) article 1: The High Contracting Parties agree that, in the event of their not being already Parties to the Agreement of 18 May 1904 and the Convention on 4 May 1910 mentioned above, they will transmit, with the least possible delay, their ratifications of, or adhesions to, those instruments in the manner laid down therein; and (2) article 2: The High Contracting Parties agree to take all measures to discover and prosecute persons who are engaged in the traffic in children of both sexes and who commit offences within the meaning of Article 1 of the Convention of 4 May 1910.

(2) Article 3 of the International Convention for the Suppression of the Traffic in Women and Children (“1921 Convention”): The High Contracting Parties agree to take the necessary steps to secure the punishment of attempts to commit, and, within legal limits, of acts preparatory to the commission of, the offences specified in Articles 1 and 2 of the Convention of 4 May 1910.

Articles 1 and 2 referred to are set out for convenience: (1) Article 1: The High Contracting Parties agree that, in the event of their not being already Parties to the Agreement of 18 May 1904 and the Convention on 4 May 1910 mentioned above, they will transmit, with the least possible delay, their ratifications of, or adhesions to, those instruments in the manner laid down therein, and (2) Article 2: The High Contracting Parties agree to take all measures to discover and prosecute persons who are engaged in the traffic in children of both sexes and who commit offences within the meaning of Article 1 of the Convention of 4 May 1910.

(3) Article 6 of the Slavery Convention (“1926 Slavery Convention”): Those of the High Contracting Parties whose laws do not at present make adequate provision for the punishment of infractions of laws and regulations enacted with a view to giving effect to the purposes of the present Convention undertake to adopt the necessary measures in order that severe penalties may be imposed in respect of such infractions.

Article 2 is also set out for convenience: The High Contracting Parties undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, so far as they have not already taken the necessary steps: (a) To prevent and suppress the slave trade; (b) To bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.

(4) Article 1 of the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices similar to Slavery (“1956 Supplementary Convention”): Each of the States Parties to this Convention shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices, where they still exist and whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention signed at Geneva on 25 September 1926: (a) debt bondage…(b) serfdom…

(5) Article 3(1) of the 1956 Supplementary Convention: The act of conveying or attempting to convey slaves from one country to another by whatever means of transport, or of being accessory thereto, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to very severe penalties.

(6) Article 6(1) and 6(2) of the 1956 Supplementary Convention: 1. The act of enslaving another person or of inducing another person to give himself or a person dependent upon him into slavery, or of attempting these acts, or being accessory thereto, or being a party to a conspiracy to accomplish any such acts, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.

2. Subject to the provisions of the introductory paragraph of article 1 of this Convention, the provisions of paragraph 1 of the present article shall also apply to the act of inducing another person to place himself or a person dependent upon him into the servile status resulting from any of the institutions or practices mentioned in article 1, to any attempt to perform such acts, to being accessory thereto, and to being a party to a conspiracy to accomplish any such acts.

(7) Article 1(1) of the International Labour Organisation Forced Labour Convention 1930 (“1930 Forced Labour Convention”): Article 1. Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period.

(8) Article 25 of the 1930 Forced Labour Convention: The illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced.

(9) Article 6 of the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”): States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.

(10) Article 1 of Universal Declaration of Human Rights (“UDHR”): No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

212.  In Ground 4A, the Applicants argued that the Articles require obligations to enact offences criminalizing acts of slavery, servitude, forced or compulsory labour, exploitation, related to inchoate offences and/or human trafficking for the purposes of the same. They further argued that since these Conventions formed part of the ‘chronological background’ before the Hong Kong Bill of Rights Ordinance came into force, they should be used as an aid to construe BOR4. Using them as an aid to interpretation, the argument went, would mean that the prohibition of human trafficking for slavery, servitude, forced or compulsory labour, and exploitation in any form, are implied into BOR4 at the time that it domesticated Article 8 of the International Covenant on Civil and Political Rights (“ICCPR”).

213.  Mr Chan submitted that the duty to investigate has been interpreted as arising under BOR4, and a duty to legislate can aid a similar interpretation because it deals with the same subject matter.

214.  In Ground 4B, the Applicants sought to identify another gateway leading to the enactment of bespoke offences, by relying on the Conventions themselves, without also relying on BOR4. The Applicants accepted that international instruments are not self-executing under the common law dualist principle (see below) and that they do no confer rights on individuals unless they have been domesticated. However, they argued that the Conventions give rise to a substantive legitimate expectation that the HKSARG would act in accordance with the positive covenants it had accepted. In the alternative, they argued that there is a limited substantive legitimate expectation that in making a decision whether to maintain the current patchwork of criminal offences or to enact bespoke offences, those Conventions/Articles would be considered. Both expectations were suggested to be enforceable as a matter of the principle of fairness.

215.  Essentially, Mr Chan submitted, focus should be on the flavour and texture of the proposed substantive legitimate expectation, namely that the Government would legislate to create bespoke offences with heavy penalties against the matters guarded against by BOR4 and/or the Articles and Conventions.

216.  It is well settled that Hong Kong practices what is commonly called the dualist principle. International treaties are not self-executing and unless and until that they are made part of our domestic law, they do not confer nor impose any rights or obligations on individual citizens: see GA v Director of Immigration (2014) 17 HKCFAR 60 at §58. The legal effect of such treaties or conventions in Hong Kong are to be determined as a matter of Hong Kong law. I also accept Mr Pao’s submission that the act of domestication is a legislative act in nature, such that what is required is an objectively manifested intent on the part of the legislature to domesticate the relevant international obligations.

217.  Mr Pao also referred to the case of Fernandez Yvette Dingle v Commissioner of Labour [2021] HKCFI 307 at §40, where Chow J (as Chow JA then was) pointed out that in the absence of domestic embodiment of the treaty obligation by local legislation, the relevant obligation cannot be brought in by the back door, by requiring the Government to exercise discretion consistently with the treaty obligation, or to take account is a relevant factor in the exercise of a discretion. He further held that the same conclusion must follow in so far as it is sought to bring in the treaty obligation through the doctrine of legitimate expectation, whether substantive or procedural. I agree.

218.  I also agree that suggesting a ratified but undomesticated international treaty – although falling short of creating an enforceable right or obligation – may somehow nevertheless create a substantive legitimate expectation that the treaty obligations would be implemented on a domestic level would appear to render the dualist principle meaningless. Ratification is an act on the international plane, and may give rise to obligations under public international law, but gives rise to no legal rights or obligations under domestic law.

219.  Mr Chan relied on the case of Mok Chi Hung v Director of Immigration [2021] 2 HKLRD 125, where Cheung J (as the CJ then was) referred to an earlier case decided by him which considered the application of international covenants to decisions of the Director of Immigration, namely Chan Mei Yee v Director of Immigration [2000] 1 HKLRD 28. In that case it perceived the position to be that: (1) an international covenant is not part of the law, unless it is incorporated into domestic legislation; (2) but ratification of an international covenant gives rise to a legitimate expectation, absent statutory or executive indication to the contrary, that administrative decision-makers will act in conformity with the international covenants. In support of the second point, reference was made to a decision of the Australian High Court in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273.

220.  But I think Mr Pao was correct when he pointed out that: (1) both cases are relatively dated decisions, decided before more recent expositions of the law by the CFA and the UK Supreme Court; (2) the Teoh case is distinguishable on its facts, and where the Court of Appeal has in any event recently held that it should be confined to the Australian context, and has no application in Hong Kong: see PVQ v Permanent Secretary for Security [2021] HKCA 444 at §73.

221.  In any event, the contents of the Articles vary greatly. They are also formulated in very wide and generic language. Some of them expressly prohibit human trafficking. Some of them may be construed as prohibiting not only the main activities (e.g. slavery) but also the preparatory acts to the main activities (e.g. attempt or conspire to enslave). Not all of them refer to human trafficking expressly. The obligations imposed on states are imprecise. Not all of them mention legislation, still less enacting bespoke offences. When they mention legislation, the states are not mandated to do so but, often, to take progressive steps towards that end.

222.  Be that as it may, the fact that there some international conventions (applicable to Hong Kong) capable of being construed as prohibiting human trafficking per se or human trafficking for slavery, servitude and forced labour has very little relevance, if any, either to inform the construction of BOR4, or to identify a clear and unambiguous representation made by a public body to individual persons such as the Applicants. BOR4 is not based on any of the Articles relied by the Applicants, but on Article 8 of the ICCPR (“ICCPR8”), which would be the logical place to look for any aid to interpretation. BOR4 is very different from the Conventions as a whole, and very different from any of the 10 Articles. It is hard to see how the Articles (individually or cumulatively) are relevant to how BOR4 should be construed. The Applicants are effectively arguing that because the Articles were there before BOR4 came into effect, BOR4 must also prohibit activities which were prohibited by those Articles (read alone or as a whole). I do not think that is logically correct.

223.  Further, Ground 4B is tantamount to saying that undomesticated treaty obligations could have the force of a binding domestic law such that the HKSARG should act in accordance with it. This cannot be right.

224.  In any event, even when the Articles mention legislation, it is framed in aspirational and promotional language instead of imposing an absolute and immediate obligation on the state. Even if the HKSARG has to take the 10 Articles into consideration, it is hard to see how such consideration would lead to the conclusion that they should enact a bespoke offence prohibiting BOR4 violations.

225.  Ground 4 is not reasonably arguable.

K.  Extension of Time

226.  It is well established that in deciding whether to grant an extension of time for making the application for leave to apply for judicial review, the Court has to consider at least: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended application; and (4) the prejudice to the putative respondent if extension of time was granted.

227.  Mr Chan submitted that the delay in these two cases was not long or inexcusably long, given that: (1) there were delays on the Putative Respondents in particular as to making disclosure; (2) the Applicants have been proactive in pursuing the subject matter with the LEAs and by themselves for civil redress; (3) the matter is of some real complexity; and (4) time was necessary taken to prepare the case and to obtain anonymity orders.

228.  Mr Pao submitted that the period of delay was substantial and no satisfactory explanation had been given for it, not least where the Liberty Shared reports were dated 22 May 2020 (for N) and 14 January 2020 (for M). Mr Pao emphasised that the particular cases are fact sensitive, and turn on the specific circumstances of the screenings in question, and that it would be contrary to good administration to permit the cases to proceed in view of the number of cases which LEAs screen under the Action Plan. For myself, that latter point seems to me potentially to point in the opposite direction.

229.  On the chronology, N was informed of her Classification on 17 April 2020 and she filed her Form 86 on 8 July 2021. The length of delay is about 1 year and 3 months. M was informed of her Classification on 12 May 2020 and filed her Form 86 on 21 July 2021. The length of delay is about 1 year and 2 months. I shall mention that although both applicants frame the absence of the bespoke offences as a “decision” the subject of review, it is not the type of decision from which the length of delay shall run. The delay is not insubstantial in both cases. Further, I do not think that the delay is excused by the time taken to obtain disclosure, when the request for disclosure were not pursued with any great speed. I also do not think the pursuit of civil proceedings need have affected the decision to seek to apply for judicial review.

230.  As to merits, I have considered above all grounds advanced on behalf of M and N above. For N, I consider that none of the 4 Grounds has met the arguability threshold. For M, only Ground 1 met the arguability threshold, and also is of sufficient merit that it succeeds on the substantive argument.

231.  Taking into account all relevant factors, I would grant an extension of time to M to apply for leave for judicial review on Ground 1.

L.  Conclusion

232.  Extension of time and leave to apply for judicial review are rejected for all grounds of review in HCAL 1034/2021.

233.  The necessary extension of time and leave to apply for judicial review are granted for Ground 1 in HCAL 961/2021. I also accept Ground 1 is substantively established. However, in the overall circumstances, and in the exercise of my discretion as it arises, I see no benefit or practical utility to the grant of any relief at this juncture. In short, whilst I think there was a failure in fact properly to screen M in accordance with the stated policies, it would seem that a proper screening would unlikely lead the Respondents to reach a different conclusion. Further, the various steps which might have flowed from a proper screening even leading to a positive conclusion of TIP victimhood would unlikely have led to any fundamentally different subsequent steps and assistance in this case.

234.  As to costs, and where public funds are involved on both sides of the argument, I shall make a nisi order that there be no order as to costs. That order will become absolute should no party seek a variation of it within 14 days.

235.  The Applicants’ own costs should be taxed in accordance with the legal aid regulations.