ZN v. SECRETARY FOR JUSTICE AND ANOTHER

CACV 14/2017

[2018] HKCA 473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 14 OF 2017

(ON APPEAL FROM HCAL 15/2015)

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J U D G M E N T

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Hon Cheung CJHC:

A. INTRODUCTION

1.  This is the respondents’ appeal from the order and judgment of Zervos J (as he then was) dated 23 December 2016 granting an application for judicial review concerning forced labour and human trafficking for that purpose.

2.  The judge granted the application on the basis that on the evidence presented, the applicant, an imported labourer from Pakistan, was a victim of human trafficking for forced labour, or a victim of forced labour, between 2007 and 2010; that he, on various occasions from April 2012 approached officers of the 2^nd to 4^th respondents (ie the Director of Immigration, the Commissioner of Police and the Commissioner for Labour) and gave an account of his case that should have been sufficient to alert them, at least on some occasions, that this was a possible case of human trafficking for forced labour, or forced labour, and prompted them to take appropriate action; and that the applicant was denied protection under article 4 of the Hong Kong Bill of Rights, which in turn was due to the failure of the Hong Kong Special Administrative Region Government to fulfil its obligations under article 4.

3.  The judge directed that a further hearing be held to deal with the question of relief and damages.

4.  Before turning to the facts as found by the judge, a brief introduction of the relevant concepts and issues involved in this appeal would be useful.  After all, this is the first case of forced labour and human trafficking for forced labour, which has come before this court.

5.  Forced or compulsory labour is prohibited under article 4(3)(a) of the Hong Kong Bill of Rights.  Article 4 implements article 8 of the International Covenant on Civil and Political Rights (“ICCPR”).  Article 4 also prohibits slavery and the slave trade in all their forms (article 4(1)), as well as servitude (article 4(2)).

6.  The parties are agreed that forced or compulsory labour, though undefined in the Hong Kong Bill of Rights or the ICCPR, bears the same meaning as forced labour as defined under article 2(1) of the Forced Labour Convention 1930.  According to that definition, forced labour includes “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, therefore, is first, work or service; secondly, the menace of a penalty; and thirdly, involuntariness on the part of the victim.

7.  In relation to the latter, 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.

8.  One important dispute, resolved by the judge in favour of the applicant, is the scope of protection of article 4 of the Hong Kong Bill of Rights.  The issue centres on whether article 4 merely prohibits forced or compulsory labour, or whether, in light of developments at the international level against human trafficking, and in particular, European jurisprudence influenced by these international developments, it extends to cover human trafficking for forced labour.

9.  Pausing here, human trafficking, it is common ground, involves trafficking of human beings for the purpose of exploitation: article 3(a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (“the Palermo Protocol”).  In the case of adults, it essentially requires three elements, namely, action (recruitment, transportation, transfer, harbouring or receipt of persons); means (threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or vulnerability, giving payments or benefits); and purpose (exploitation which includes, at a minimum, the exploitation of 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).  Self‑evidently, there is a substantial overlap between forced labour and human trafficking, given the definitions concerned.

10.  The People’s Republic of China is a signatory to the Palermo Protocol which imposes various obligations on state parties to take positive and concrete actions to combat human trafficking.  It is binding on almost all member states to the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 on which the European jurisprudence mentioned above is based.  However, by a declaration made by the PRC, the Palermo Protocol does not apply to the Hong Kong SAR.  The Protocol, on the other hand, applies to the Macau SAR.

11.  The applicant argues and the respondents disagree, that this notwithstanding, article 4 of the Hong Kong Bill of Rights, when interpreted generously as a living instrument, covers not only forced labour, but human trafficking for forced labour, given the substantial overlap between human trafficking and forced labour.

12.  This is plainly a dispute of significance. It affects, among other things, what the government is obliged to do under article 4, another important issue that divides the parties.  However, as I will presently explain, this dispute, on the facts of the present case, does not seem to really matter, for, as mentioned, the judge has found on the facts that the applicant was a victim of both human trafficking for forced labour, as well as forced labour.  It may, however, affect the question of relief and damages, if the expansive interpretation of article 4 favoured by the judge and his finding that there has been a breach on that basis also are upheld on appeal.

13.  As mentioned, a further dispute between the parties relates to what the government is obliged to do under article 4 when properly interpreted and understood.  The answer must first depend on what the true scope of prohibition under article 4 is.  That aside, the parties are essentially agreed that article 4 imposes on the government positive duties to combat forced labour or, depending on its true scope, human trafficking for forced labour.  The dispute centres on what those positive obligations entail on the ground.  In particular, the judge took the view, and that remains the applicant’s position on appeal, that there is a positive obligation on the part of the government to enact a specific criminal offence against forced labour, or human trafficking for forced labour.  Such an offence, the applicant contends, would deal squarely with the vice of forced labour and human trafficking for forced labour.  It would focus the minds of all those concerned, including in particular, law enforcement agencies and other related authorities such as the Labour Department and the Immigration Department, in terms of early identification of possible victims and possible occurrences of forced labour/human trafficking for forced labour.  It would also focus their minds in terms of the measures of protection of victims, investigation of crimes, prosecution and punishment of offenders, and so forth.  The respondents’ arguments are essentially that they have been doing a lot, and even more will be done, but article 4 does not entail a positive obligation on the part of the government to enact a specific offence to combat forced labour (or human trafficking for forced labour).

B.    THE PRIMARY FACTS AS FOUND BY THE JUDGE

14.  With that introduction made, I now turn to the facts of the present case.  Although some of the factual matters were hotly disputed at the hearing below, the primary facts, as found by the judge, are no longer in issue on appeal.  They are essentially set out in paragraphs 160 and 161 of the judge’s judgment.  Before I turn to them, one caveat must be made. Whilst the applicant, rather exceptionally for a judicial review, gave viva voce evidence before the judge, and various affidavits/affirmations were also filed for the purpose of the hearing below, the former employer, that is, the (alleged) perpetrator of forced labour and human trafficking for forced labour in the present case, was never called by either side to give evidence at the hearing. He was not made an interested party to the proceedings.  He did not appear at the hearing, nor did he put in any evidence.  The “findings” of the judge were made without the benefit of considering what the former employer might have to say about the many allegations made against him by the applicant (which were essentially accepted by the judge).  The judge was careful in the order that he made – he simply said that on the evidence presented before the court, the evidence pointed to the applicant having been a victim of human trafficking for forced labour, or forced labour.  And he adjourned the hearing of the question of relief and damages to a later date for argument.  Whilst the findings of the judge in favour of the applicant are not challenged on appeal and are therefore binding on the parties, at least in theory, there is a possibility that if and when the former employer’s story is heard at some other forum, someone else may come to a different conclusion regarding what has actually happened.  Such a (hypothetical) eventuality may have a bearing on the question of relief and damages.  Or it may not.  But, that is not a matter that we should concern ourselves with in this appeal.  Nonetheless, what I set out below should be read and understood in light of the caveat that I have just mentioned.

15.  In paragraph 160 of the judgment, the judge made the following findings of primary fact:

“(1) The applicant is a Pakistani national who is a member of the Malik caste, which is considered in Pakistan, and accepted by the applicant, as being inferior to the Rana caste.

(2) The employer and his family belong to the Rana caste. The employer comes from a prominent and well-connected family in Punjab, Pakistan, with extensive business interests in Pakistan, South Africa and Hong Kong.

(3) The applicant worked for the employer and his family in Pakistan. Socio-economic and cultural norms led to the employer asserting considerable command and control over the applicant.

(4) The employer and his family arranged for the applicant to work for them in Hong Kong. They sponsored his work permit and arranged his transportation to Hong Kong. The applicant had not previously travelled out of Pakistan. Because of his low education and low socio-economic status he was not familiar with the system and structures in Hong Kong.

(5) The employer promised the applicant that he would have good working conditions and that he would receive a salary of $4,000 per month, although in the two contracts the monthly salary payment specified was respectively $3,400 plus $300 food allowance, and $3,580 plus $300 food allowance. I accept that documents may have been presented to him by the employer, but that he did not understand them and in some instances did not sign them.

(6) The applicant was accompanied to Hong Kong in January 2007 by a member of the employer’s family who held the travel and identification documents of the applicant. These documents were kept by the employer while he was in Hong Kong.

(7) While in Hong Kong the applicant was kept under the control of the employer and his family. The applicant was constrained and controlled both psychologically and economically by the employer.

(8) All formal arrangements for the applicant’s employment and residence in Hong Kong were organised and arranged by the employer. The applicant had no knowledge of his rights and obligations or of those of his employer. He was placed in a state of dependency on the employer.

(9) The applicant was employed as a foreign domestic helper. However, he was required to work in the employer’s trading company (which the applicant agreed to do) and reside at the office premises of the company. He slept on the carpeted floor of one of the offices at the premises. He was required to work long hours, seven days a week. He was given two meals a day and his movements were restricted to the office premises except for office errands. He was able to take breaks, but it is unclear how often these occurred and for how long they lasted. As the applicant resided at the office premises, he was under the direction and control of the employer; his movements were restricted; he had limited enjoyment of privacy; and was unable to live a normal life.

(10) The applicant was regularly abused and beaten by the employer. Although he did not sustain serious injuries, he was nevertheless treated in a degrading and abusive manner. He worked under conditions of constant abuse, threats and beatings.

(11) The employer and his family cajoled and deceived the applicant into taking up the employment in Hong Kong. The applicant was deceived about his working conditions (long hours of work and subjection to abuse and beatings) and payment of wages (unpaid for nearly 4 years).

(12) The employer threatened the applicant that serious harm would result to him and his family if he left his employ, and claimed that he owed the employer a large sum of money for having been brought to Hong Kong.

(13) The employer tricked the applicant into agreeing not to receive his monthly wage, and put off paying him the full remuneration due to him under the terms of his employment contracts.

(14) At the end of 2010, the applicant asked the employer to give him an advance on his unpaid wages to assist his family in Pakistan. The employer deceived the applicant into returning to Pakistan, and then terminated his contract and sponsorship in order to avoid paying him the money that he owed him. This was also designed to prevent the applicant from returning to Hong Kong and claiming his unpaid wages against the employer.

(15) The employer and members of his family and his associates, both in Hong Kong and in Pakistan, threatened the applicant and his family regarding the applicant’s pursuit of his claim for outstanding wages from the employer.

(16) The employer, both directly and through his associates, made threats against the applicant in order to get him to withdraw or settle his unpaid salary claim.

(17) During the period when the applicant worked for the employer, from May 2007 to December 2010, he made no report or complaint to the police or to any other authorities. He was not aware of his rights or remedies, and in particular he was unaware that his case could amount to one of human trafficking for forced labour.

(18) The applicant in early December 2010 requested payment of the monies the employer owed him. The employer arranged the return of the applicant to Pakistan on the basis of him taking a holiday. While the applicant was in Pakistan, the employer terminated his contract and revoked his sponsorship in order to prevent the applicant from returning to Hong Kong to make a claim against him for the unpaid wages.

(19) The applicant returned illegally to Hong Kong in April 2012 to claim his unpaid wages from his employer and to report the mistreatment that he had suffered from the employer.

(20) The applicant attended the Immigration Department in early April 2012 to report that he had returned illegally to Hong Kong to claim his unpaid wages from his employer, and that he had been mistreated by him.

(a) On the occasions where there are records of his attendances, these records do not disclose the detailed information that the applicant states he provided at the time. It is recorded that the applicant did mention that he had returned to claim unpaid wages for nearly 4 years work, and this factor alone should have alerted the officer that his case may have involved a serious abuse of labour.

(b) There was an occasion in early April 2012 when the applicant attended the office at Skyline Tower and spoke to an Immigration Department officer. He told the officer that he had come to Hong Kong illegally and was seeking help from the authorities to obtain his unpaid salary from his employer. He told the officer that he had worked in Hong Kong for almost 4 years and had never been paid. He gave details of the employer’s name and the place of work. He told the officer about the unfair treatment he had received from the employer, and mentioned that the employer had assaulted and abused him. The officer told him that this was a police case and that he should go to the police station.

(21) From June to September 2013, the applicant was interviewed on several occasions by an officer of the Immigration Department in relation to his CAT claim. During the interviews, the applicant mentioned to the officer his entire story concerning the circumstances of his four-year employment in Hong Kong, including that he had been mistreated by the employer and that he had not been paid for the work that he had performed.

(22) The applicant attended the Labour Department on 2 May 2012 and, with the assistance of a Labour Department officer, registered a claim for unpaid wages of over $200,000. He told the officer that he had worked for the employer for 4 years and was never paid. He said his employer had beaten him during his employment, and had forced him to return to Pakistan.

(23) The applicant on various occasions in early April 2012, and on 17 May 2012, 28 May 2012, 27 July 2012 and 18 August 2012, attended various police stations and reported or complained to police officers about matters concerning threats by his employer in relation to his past employment with the employer and his claim for unpaid wages.

(a) In early April 2012, the applicant attended the Tsim Sha Tsui Police Station, having been told to report his case to the police by an officer of the Immigration Department. He told a police officer that he had entered Hong Kong without a visa and that he had worked in Hong Kong for 4 years and had not been paid. The police officer told him to return to the Immigration Department.

(b) On another occasion in early April 2012, the applicant attended Yau Ma Tei Police Station. He was spoken to by several police officers. He told them that he did not have a visa. He said he had worked for 4 years in Hong Kong and that he had not been paid. He said he returned to Hong Kong to obtain his unpaid salary. He said that during his employment he was beaten by his employer. He also told them that his employer wanted to kill him. The police officers said it was not a police matter and that he should go back to the Immigration Department.

(c) On 16 July 2015, the applicant together with his legal representative attended Wan Chai Police Station. They reported to the police recent threats made to the applicant, and mentioned his human trafficking and forced labour case. A senior officer was informed about the applicant’s human trafficking and forced labour case. This officer registered the case, but suggested that the matter be referred to the Immigration Department.

(24) The applicant stood trial in the District Court for an offence of robbery against associates of the employer, of which he was acquitted.  There is a distinct possibility that he was wrongly accused of the crime.”

16.  In paragraph 161 of the judgment, the judge accepted the following:

“(1) The applicant was deceived by the employer and his family about his working conditions and payment of wages.

(2) The applicant was regularly abused and beaten by the employer. Although this was not to a degree that required his hospitalisation, it was to such an extent that that the applicant was put in fear of the employer and placed under his control.

(3) The applicant worked long hours and was taken advantage of by the employer.

(4) Whilst the applicant was generally able to go out, he was nevertheless subject to restrictions by the employer that prevented him from living a normal life. His foreignness was exploited by the employer in order to restrict his movements and control him. He was also controlled due to the employer’s psychological and financial power over him.

(5) The applicant lived in the office premises and relied on handouts, although he may have received some funds.

(6) The applicant did not complain of the ill treatment he was receiving by the employer for the reasons he has given. He was afraid of the employer and his family and he expected he would receive the money owing to him. I should point out that the applicant, like many victims of abuse, tolerated and accepted more than he should have. Furthermore, he was unaware of his rights and remedies in Hong Kong and of the fact that the ill treatment he was suffering potentially constituted a case of human trafficking for forced labour.

(7) The employer tricked the applicant into returning to Pakistan and then terminated his contract and sponsorship in order to prevent the applicant from making a claim against him for his unpaid salary.

(8) The employer refused to pay the applicant his unpaid wages and used force and threats in Pakistan against him and his family to stop him from pursuing his claim.

(9) The applicant returned to Hong Kong to press his claim for his unpaid salary, and to seek justice in relation to the treatment he had received from the employer.

(10) The employer and his associates threatened the applicant and his family in relation to the applicant’s claim for the unpaid salary in Hong Kong.

(11) The applicant attended the offices of the Immigration Department, the Labour Department and the Police on the various occasions that he has claimed, and revealed to the officers whom he saw information about the treatment he had received from the employer, and the fact that he had not been paid wages for a period of 4 years. The officers concerned should have been alerted that the applicant’s case involved a serious abuse of labour and that the applicant was potentially a victim of human trafficking or forced labour.

(12) The applicant did not appreciate that he was a victim of human trafficking for forced labour.”

C.    THE JUDGMENT BELOW

17.  Having made those findings of fact, the judge dealt with the issues that he had to decide in the remainder of his detailed judgment.  The judge first examined in a comprehensive manner the relevant international instruments and law, and considered closely the submissions of counsel.  He dealt with the European jurisprudence, and noted the points made by the respondents that the Strasbourg jurisprudence was influenced to a substantial extent by the Palermo Protocol and article 4(a) of the (European) Anti‑Trafficking Convention 2005, none of which applies to Hong Kong.  Nonetheless, he noted that the Strasbourg decisions suggested the following (para 211):

“(1) There is an obligation under Article 4 of the ECHR to take positive measures to protect, and not merely to refrain from directly infringing, the right of individuals not to be subject to slavery, servitude and forced labour.

(2) This requires the penalisation and effective prosecuting under criminal law of any act which is aimed at maintaining a person in such a situation. With respect to human trafficking, it also requires that a legal and administrative framework to prohibit and punish human trafficking should be put in place.

(3) There may be a duty in specific cases, depending on the factual circumstances, to take proportionate operational measures to protect individuals who are victims or potential victims of human trafficking.

(4) There may be a procedural obligation in specific cases, depending on the factual circumstances (i.e. where it is demonstrated that the authorities were aware or ought to have been aware of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being trafficked), to investigate cases of human trafficking in a way that may lead to the identification and punishment of persons responsible for human trafficking.”

18.  The judge then turned to the proper interpretation of article 4 of the Hong Kong Bill of Rights, and discussed the overlapping concepts of slavery, servitude and forced or compulsory labour.

19.  He referred to a checklist of indicators of forced labour developed by the International Labour Organisation (“ILO”) (para 239).  These indicators include:

“a) Threats or actual physical harm to the worker;

b) Restriction of movement and confinement, to the workplace or to a limited area;

c) Debt bondage, where the worker works to pay off a debt or loan, and is not paid for his or her services.  The employer may provide food and accommodation […]

d) Withholding of wages or excessive wage reduction;

e) Retention of passport and identity documents;

f) Threat of denunciation to the authorities.”

20.  In paragraph 241 of his judgment, the judge cautioned against equating voluntariness with participation:

“ Care should be taken not to equate voluntariness with participation. A person may perform work but if he or she does so in oppressive circumstances, including those in which violence, threats or inducements have been used or made, it could be regarded as involuntary. The fact that the applicant did the work does not address the issue of whether he offered himself voluntarily. He was threatened and beaten, and was made to work long hours seven days a week. Also, he continued working for the employer because he was induced to do so by being promised that he would be paid his wages for nearly four years of work.”

21.  The judge then turned to the true scope of article 4, that is, whether it includes protection against human trafficking for forced labour.  He examined the competing submissions of the parties without expressing a view of his own.

22.  Instead, he turned to the positive obligations imposed under article 4 of the Hong Kong Bill of Rights, and referred to the European jurisprudence as well as the parties’ arguments, particularly on the question of whether the positive obligations entailed the enactment of a specific criminal offence of human trafficking or whether that was a matter within the margin of appreciation that should be accorded to the government.

23.  From paragraph 282 of the judgment onwards, the judge examined in detail the position in Hong Kong and the evidence filed by the respondents in that regard.  He also dealt with the respondents’ submissions.  After referring to the argument that a wide range of conduct commonly found in human trafficking cases is already covered by various immigration offences in the Immigration Ordinance (Cap 115), traditional offences of intimidation, assault, wounding and false imprisonment under the Crimes Ordinance (Cap 200), as well as offences relating to non‑payment of wages and other employment‑related matters under the Employment Ordinance (Cap 57), the judge commented:

“304. It seems to me that this misses the point. There is a specific prohibition against a form of conduct and yet there is no legislation that criminalises it. Claims are made that features or symptoms of the prohibited conduct are addressed by existing criminal or regulatory offences, but the real mischief is not being criminalised as required. There is no law that prohibits slavery or trafficking in slavery, servitude or trafficking in servitude, and forced labour or trafficking in forced labour.

305. In any event, the respondents argue that the conduct complained of by the applicant if proven would clearly have been unlawful under existing Hong Kong criminal law.  The alleged conduct of the applicant’s employer would be penalised by criminal sanctions.  The point has already been made that features or facets of the alleged conduct may have capably been dealt with by criminal offences. However, the question is where the overall conduct of an employer can be dealt with if it is considered to be forced labour or trafficking in forced labour.”

24.  In paragraph 312, the judge said:

“ I find on the evidence and material presented to me that the current regime does not address adequately or effectively the positive obligations under Article 4 of the BOR to tackle the practice of forced labour and the trafficking of persons for forced labour. The evidence of Alexandra Maria Barr,[1] Lam Bik Che[2] and Chan Lui Luna[3] contradicts the respondents’ submissions. They each describe from their own work experience and case studies a deeply disturbing and upsetting account of the treatment of foreign domestic helpers in Hong Kong who have been allegedly abused by certain unscrupulous employers. These employers have taken advantage of their vulnerability and their unfamiliarity with the laws and structures of Hong Kong.”

25.  Under the heading “Positive obligation to enact legislation and to implement other measures”, the judge, starting from paragraph 313 of his judgment, reverted to the parties’ respective arguments and the relevant jurisprudence.

26.  Then in a lengthy section entitled “The applicant’s case”, the judge returned to the facts of the case.  In paragraph 325, he found:

“ Accordingly, in relation to the visits to the relevant authorities, I find that the particulars that the applicant disclosed concerning his period of employment and the failure of the employer to pay his wages, as well as on some occasions his mentioning of the mistreatment he had received at the hands of the employer, should have rung alarm bells to suggest that the applicant had been seriously mistreated in his period of employment to the extent that his case possibly amounted to one of forced or compulsory labour.”

27.  In paragraph 332, the judge outlined an argument advanced on behalf of the respondents, and in the following paragraph, he rejected it:

“332. Lord Pannick submits that the applicant chose not to take any action between 2007 and 2010, and that even though the employer’s conduct was reprehensible it did not establish forced or compulsory labour. He notes that the applicant was not prevented from leaving the office and did go out from time to time. The applicant agreed not to be paid periodically because it was suggested that his family members might spend all the money. The applicant’s passport was kept by the employer, but no issue was taken about that by the applicant. Lord Pannick suggests that this all suggests that the applicant’s will was not overborne, and that he put up with the treatment he received in the hope that he would be paid.

333. I do not agree with this submission, as it misunderstands the very protection that is afforded to a person under Article 4 of the BOR, especially in the case of someone who is vulnerable and in desperate financial circumstances.  In accepting the applicant’s evidence it was clear that his work conditions and treatment were extreme and harsh.  He worked long hours and was required to reside at his work place, and was regularly abused and beaten.”

28.  In paragraph 337, the judge found:

“ I am satisfied on the evidence before me that the evidence supports a case that the applicant was a victim of trafficking of a person for the purpose of forced labour. I make this finding bearing in mind that I have not heard evidence from the employer on the issue. However, for the purposes of present proceedings it suffices if I find that the applicant disclosed sufficient information and details to various officers of the authorities concerned that could and should have identified him as a victim of trafficking or forced labour, and warranted investigation of the matter.”

29.  In paragraph 350, the judge gave his overall assessment of the applicant’s case:

“ My overall assessment of the applicant’s case is that because of his cultural and ethnic differences and his difficulty communicating with Hong Kong officials, he was not assisted or helped with respect to his situation with the employer. Rather, he was left floundering in a system in which concern for victims of human trafficking for forced labour is mainly a rhetorical manoeuvre. This was not necessarily the fault of the officers involved, as adequate measures were not in place to readily identify or address a possible case of human trafficking or forced labour. It does appear that in certain respects some effort was made to try to assist the applicant, albeit on a limited basis, but it seems the officers involved did not have the appropriate training or skills to deal with such a case. This was clearly the fault of the system, because of the lack of any effective framework or set of measures to address human trafficking or forced labour.”

30.  In the following paragraph, the judge said that in his view, “the critical flaw in the HKSARG’s obligations under Article 4 of the BOR is the lack of a criminal offence and penalty that addresses the prohibited concept of forced or compulsory labour”.

31.  Then in paragraph 353, the judge stated his view that “the prohibited concepts of slavery, servitude, and forced or compulsory labour under Article 4 of the BOR include cases where a person is trafficked for such purposes”.  The judge added at the end of that paragraph, “[c]learly, anyone involve[d] in the transportation of a person for slavery, servitude or forced labour is caught by Article 4 of the BOR”.

32.  Importantly, in paragraphs 355 and 356, the judge found that the government was in breach of article 4:

“355. I find that the HKSARG has positive obligations under Article 4 of the BOR to enact measures to ensure the prohibition of forced or compulsory labour, and these include criminalising and penalising any offender of forced or compulsory labour or trafficking for that purpose, and having appropriate measures in place to investigate such cases. It seems to me that trafficking a person for forced or compulsory labour is within the ambit of criminal liability as formulated by the prohibition under Article 4 of the BOR. There is no offence against forced or compulsory labour and the reliance on other provisions of the criminal law does not adequately if at all address the need for the criminalisation of this prohibited conduct. The criminalisation of forced or compulsory labour satisfies two important objectives. First, it outlaws the prohibited conduct by a specific offence provision and penalty, and sets out the elements of the conduct that is prohibited. Secondly, it provides an important measure for law enforcement and the general public of the conduct that is prohibited. It seems to me that this case has illustrated the ineffectiveness of this important prohibition because of a lack of criminalisation.

356. I therefore find that the HKSARG has not adequately fulfilled its positive obligations under Article 4 of the BOR.  I further find that the applicant was denied his rights under Article 4 of the BOR in not having his case recognised by the relevant authorities as one possibly involving human trafficking for forced labour, which prevented any further appropriate action.”

33.  In paragraphs 366 and 367, the judge gave the following conclusion:

“366. For the foregoing reasons, I am satisfied, that on the evidence presented, the evidence points to the applicant having been a victim of human trafficking for forced labour, or forced labour, and that he, on various occasions from April 2012, approached officers of the relevant authorities and gave an account of his case that should have been sufficient to alert them, at least on some occasions, that this was a possible case of human trafficking for forced labour, or forced labour, and prompted them to take appropriate action.

367. In consequence, the applicant was denied protection under Article 4 of the BOR, which in turn was due to the failure of the HKSARG to fulfil its obligations under Article 4 of the BOR.”

34.  From the judge’s judgment and order, the respondents appealed.

D.    THE RESPONDENTS’ ARGUMENTS ON APPEAL

35.  Lord Pannick QC (Mr Steward Wong SC and Mr Jin Pao – now a senior counsel – with him), on behalf of the respondents, very helpfully sets out four issues for determination in this appeal, that is, (1) whether article 4 of the Hong Kong Bill of Rights covers human trafficking for forced labour; (2) whether the applicant was a victim of forced labour; (3) whether the government is in breach of its positive duties under article 4 by not enacting a specific criminal offence to combat forced labour (or human trafficking for forced labour); and (4) whether the government has breached its investigative duty under article 4 in the case of the applicant.

36.  Lord Pannick submits that human trafficking and the three prohibited categories of conduct under article 4 of the Hong Kong Bill of Rights are conceptually distinct and separate concepts, despite the possibility of overlap between them.  He notes that the Palermo Protocol does not apply in Hong Kong, and it would be wrong for the court to give article 4 an expansive meaning to effectively implement the Palermo Protocol in Hong Kong.  He reminds the court that the State has made a deliberate decision, when acceding to the Palermo Protocol on 8 February 2010, to apply it to the Macau SAR, but not the Hong Kong SAR, given Hong Kong’s own unique situation in terms of economy and immigration.  He points out that the European jurisprudence which the judge referred to extensively was heavily influenced by the Palermo Protocol.  In Hong Kong, however, the question as to the nature and extent of any legal obligations under article 4 should not be confused with the separate and non‑justiciable question of whether it is desirable or necessary for the Palermo Protocol to be applied to Hong Kong.  Indeed what is politically desirable for Hong Kong to do as a matter of policy in combating human trafficking is a separate question from whether it has any obligation to do so under article 4.

37.  Lord Pannick criticises the judge for conflating the actual prohibited conduct under article 4(3) with human trafficking for that purpose.  He emphasises that article 4 clearly does not prohibit trafficking per se.  Nor does it prohibit trafficking for forced labour.  That provision is concerned with forced labour itself, not with the process by which a person arrives in Hong Kong.  This is clear when comparing article 4(1) which prohibits “slavery and the slave‑trade in all their forms” with article 4(3) which only prohibits requiring a person “to perform forced or compulsory labour”.  There is no mention of trade or trafficking in article 4(3).  Counsel emphasises that these are important points because the Palermo Protocol is concerned with trafficking, and it does not apply to Hong Kong.

38.  As regards the case of the applicant in terms of forced labour, Lord Pannick basically argues that the applicant offered himself voluntarily to work in Hong Kong between 2007 and 2010.  He points out that onerous conditions of work do not transform the nature of employment into forced labour.  Beatings and physical abuse, if proven, would amount to punishable breaches of the criminal law.  Such conduct does not make the employment forced labour.  The employer’s failure to pay wages was a breach of Hong Kong law.  Yet it does not establish forced labour.  On his own evidence, the applicant expected that he would receive the money owing to him at the end of his contracts.  Counsel also points out that it was not the evidence of the applicant that at any time prior to his return to Pakistan in December 2010 he wished to stop working for the employer.  Indeed he agreed to a second contract because he hoped to be paid.  Counsel therefore argues the judge erred in concluding that the applicant was a victim of forced labour, or was trafficked for that purpose.

39.  As for the positive duties on the part of the government under article 4, Lord Pannick points out that article 4(3) does not explicitly require legislation to criminalise forced labour or human trafficking for such purpose.  Nor is there any general comment issued by the United Nations Human Rights Committee on article 8 of the ICCPR to that effect.

40.  Importantly, Lord Pannick argues that it is a matter for the government to decide how best to address forced labour generally or in any specific cases of trafficking for forced labour.  He contends that the positive obligations are not absolute and the government has a wide discretion as to the choice of the means to be used.  The discretion on the legislature and executive is a broad one as to how they should address trafficking for forced labour – if the prohibition under article 4(3) can properly be construed as extending to such conduct.

41.  Lord Pannick refers to the evidence filed as to what the government has been doing in relation to human trafficking and forced labour. He submits that we do have in Hong Kong a comprehensive and solid legislative framework to deal with various conduct encompassed within the definition of human trafficking in the Palermo Protocol, which includes forced labour. In short, the government has in place a system of comprehensive and multi faceted administrative and operational measures to deal with the issue in practice. In particular, there is in existence a criminal legal regime which prohibits a wide range of conduct commonly found in human trafficking and forced labour cases. It covers, among other things, physical abuse, false imprisonment, criminal intimidation, unlawful custody of personal valuables, child abduction, child pornography, and various trafficking activities for the purpose of prostitution and rape or other sexual offences. Lord Pannick, by reference to the latest evidence filed before this court (with leave) to update the court on what the government has done recently, points out that the measures described above are under continuous review and updating. They cover legislation and enforcement, inter departmental collaboration, victim identification, prosecution, victim protection and prevention, and enhancement in staff training and forming partnership with local and overseas stakeholders. The measures also include an action plan to tackle trafficking in persons and to enhance protection of foreign domestic helpers in Hong Kong, which include a number of new initiatives such as expanding victim screening and setting up dedicated teams in relevant departments.

42.  In short, Lord Pannick argues that first, there is no obligation to enact a specific offence to combat human trafficking for forced labour, or forced labour itself.  Secondly, the government has put in place sufficient measures to combat forced labour, and human trafficking for forced labour; those measures are under constant review and improvement.  Thirdly, the existing measures are effective and efficient to combat forced labour, and human trafficking for such purpose.  In other words, there is no breach on the part of the government of article 4(3) at the systemic level.

43.  Finally, on the specific case of the applicant, Lord Pannick points out that upon his return to Hong Kong in 2012, the applicant did not do or say anything to alert the authorities in Hong Kong to the treatments he had received before he left Hong Kong in December 2010.  When he returned two years later, he came back to seek redress for his unpaid wages.  He was not subject to slavery, servitude or forced labour after his return to Hong Kong in 2012.  He was not in a vulnerable state nor was he under the influence of a trafficker.  It was for the applicant to make any complaint which he wished to make to the relevant government authorities about what had happened to him between 2007 and 2010. Lord Pannick notes that the applicant did avail himself of civil proceedings in the Labour Tribunal in respect of unpaid wages.  If and to the extent that the applicant made specific allegations of forced labour or human trafficking to the police or other authorities, and he was dissatisfied with their response, Lord Pannick argues, he could have pursued the matter further and started legal proceedings if necessary.  Counsel points out that this he did not do.  On the contrary, the fact that the applicant, an adult, was making complaints about unpaid wages and about threats made to him since he returned to Hong Kong in 2012 strongly suggested that this was the extent of the complaint.  Counsel argues that the authorities were entitled to assume that he was not making allegations of human trafficking for forced labour, or any other complaints about his treatment up until 2010.  Counsel argues that the applicant cannot blame the authorities for his own failure to make his complaint clearly about what he now says should have been investigated.

E.    THE APPLICANT’S ARGUMENTS

44.  Mr Raza Husain QC (Mr Paul Harris SC and Mr Azan Marwah with him), for the applicant, supports the judge’s conclusion on the scope of protection of article 4, that the applicant was a victim of forced labour and human trafficking for such purpose, that the government has violated Hong Kong’s positive duties under article 4 in failing to maintain a specific offence criminalising force labour and human trafficking for forced labour, and that the respondents have violated the investigative duty under article 4 in failing to identify the applicant’s case as one potentially involving forced labour or human trafficking for forced labour.

45.  Mr Husain submits that the judge was right in finding that the applicant was a victim of forced labour and human trafficking for the purpose of forced labour.  He relies on the ILO indicators of forced labour and submits that the applicant did not voluntarily choose to work for the employer 15 hours a day, 7 days a week, for 43 months, without pay, and to be subjected to regular abuse, beatings and threats.  He submits that indeed shortly into his employment, the applicant withdrew his consent, but was coerced with threats to life to continue working for the employer – this was hardly a choice.  Like many victims of abuse, the applicant tolerated and accepted more than he should have.  Counsel emphasises that where deceit and fraud were involved in the original work offer, the worker’s acceptance could not be regarded as knowing or voluntary.  He submits that involuntariness consists in the absence of consent or free choice when the situation of forced labour begins or continues.  This can occur for different reasons, such as deception or psychological coercion: Ituango Massacres v Columbia, Series C, No 148, 1 July 2006, para 164, p 79, a decision of the American Court of Human Rights.  Counsel emphasises that prior consent will not defeat a finding of forced labour, if the burden imposed on the individual is disproportionate, for instance, where the terrible working conditions are such that it is obvious there could be no genuine consent.

46.  Mr Husain argues that whilst the onerous conditions of employment and beatings and abuse would amount to the commission of other offences, and they of themselves may not amount to forced labour, the totality of the circumstances may indicate a case of force labour. The present case is an example.

47.  On the question of the scope of prohibition of article 4 of the Hong Kong Bill of Rights, Mr Husain submits that forced labour and human trafficking for that purpose are cognate concepts with a very considerable overlap.  Very many, indeed arguably all cases of forced labour, will also be cases of human trafficking for the purpose of forced labour.  There would be prohibited actions such as recruitment, harbouring or receipt (and transnational movement is not necessary); use of prohibited means (such as coercion or deception); and a prohibited purpose (that is, forced labour).

48.  As far as the language, context and purpose of article 4 are concerned, Mr Husain relies on article 4(1) which states in its second clause that “slavery and the slave‑trade in all their forms shall be prohibited”.  Human trafficking, counsel submits, is regarded as a modern form of slavery and the reference to slave trade obviously contemplates transnational movement.  Secondly, article 4(3)(a) prohibits not simply forced labour, but more importantly, the requirement to perform it also.  Again, counsel submits, this is a wide provision.  It embraces actions preliminary to the forced labour itself.  Counsel submits that the overlap with human trafficking is plain: a person may be required to perform forced labour at the point at which the trafficker recruits the victim, because the trafficker knows that he requires the victim to perform forced labour (in the future).  It follows, counsel argues, that human trafficking for purposes of slavery, servitude and forced labour are “implicit” in the language.

49.  As for context and purpose, counsel emphasises that article 4 should be given a generous interpretation, thereby giving to individuals the full measure of the fundamental rights and freedoms conferred.  The Hong Kong Bill of Rights should be construed as a living instrument so as to preserve its relevance to contemporary problems.

50.  Counsel recognises that the Palermo Protocol does not apply to Hong Kong.  However, he contends that it is legitimate to use article 3 of the Protocol as an aid to interpretation of our article 4.  He notes that the UN Human Rights Committee has stated in paragraph 12 of its General Comment 28 on article 3 (The Equality of Rights Between Men and Women), that having regard to their obligations under article 8 (that is, article 4 of the Hong Kong Bill of Rights) state parties should inform the committee of measures taken to eliminate trafficking of women and children, within the country or across borders.

51.  Counsel also submits that the reasons for not applying the Palermo Protocol to Hong Kong relate to concerns about risk of an influx of illegal, economic migrants under the pretext of being victims of human trafficking, with its entailing consequence in terms of housing, employment or permission to stay in Hong Kong.  Counsel argues that the issues here only concern the practical and effective protection of victims of human trafficking for forced labour, through proper enforcement of the criminal law, victim identification, protection and prevention, in line with concepts of prevailing international standards.  He reminds the court that the government has said in evidence that it attaches great importance to these international standards.

52.  As for the European jurisprudence, Mr Husain accepts the influence of the Palermo Protocol and the Anti‑Trafficking Convention. But counsel submits that it remains nonetheless of significant persuasive value because the cases have established a principle which does not depend upon the particular circumstances of the case; they do so in light of a global rather than regional phenomenon, that is human trafficking; and the Palermo Protocol and the Anti‑Trafficking Convention were cited to the European court for evidential rather than legal purposes.  Therefore, there is no basis to marginalise the European jurisprudence.

53.  As regards the positive duties under article 4, counsel essentially submits that despite what the government says and claims in evidence, the existing regime is clearly inadequate and inefficient in terms of victim identification, protection, prevention and prosecution, as is illustrated by the facts of the present case.

54.  Counsel also relies on article 25 of the Forced Labour Convention, which says:

“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”.

55.  Counsel argues that under article 39(1) of the Basic Law, Hong Kong has a duty to implement article 25. Secondly, article 25 informs the meaning of article 4 of the Hong Kong Bill of Rights.  Thirdly, article 25 informs the interpretation of articles 2 and 8 of the ICCPR, and the ICCPR as applied to Hong Kong is in turn implemented by the Hong Kong Bill of Rights.

56.  Mr Husain also prays in aid European decisions, such as Siliadin v France (2006) 43 EHRR 16; CN & V v France ECHR 67724/09, 11 October 2012; CN v United Kingdom (2013) 56 EHRR 24, and argues that where a patchwork or adaptive approach to criminalisation is not shown to be efficient and effective, there is a positive obligation to adopt specific criminal provisions which penalise the practices referred to in article 4 and to apply them in practice.  In the last‑mentioned case, the European court held that in light of earlier authorities, it cannot but find that the legislative provisions in the United Kingdom were inadequate in that instead of enabling the authorities to investigate and penalise treatments prohibited under article 4, the authorities were limited to investigating and penalising criminal offences which often – but do not necessarily – accompany the offences of slavery, servitude and forced labour (para 76). Counsel argues that the position in Hong Kong is no different in substance from the position in the UK as criticised by the European court in CN v United Kingdom.

57.  As regards the breach of investigative duty under article 4, counsel submits that first, the absence of a specific criminal offence penalising the conduct prohibited meant that there was no focal point for law enforcement action.  Secondly, the authorities failed to investigate the applicant’s case as one of possible human trafficking for forced labour or forced labour.  Instead he was shunted from one government authority to another and left floundering.

58.  As regards victim identification and protection, Mr Husain argues the applicant himself did not appreciate that he was a victim of human trafficking for forced labour.  He could not possibly be criticised for failure to articulate that of which he was not aware.  Counsel submits that the positive duties under article 4 go beyond reactive investigation, and do not depend upon a complaint from the victim or next‑of‑kin. Once the matter has come to the attention of the authorities, they must act of their own motion.

F.    SOME PRELIMINARY OBSERVATIONS

59.  Before I turn to deal with the four questions raised, in particular, the two general questions regarding the true scope of protection under article 4 and the extent of the positive duties of the government under that article, some preliminary observations are helpful.

60.  The conventional wisdom and a strong advantage of the common law is that case law, including case law on statutory interpretation, is developed on an incremental basis.  Each incremental development is based on and shaped by the particular facts and dispute, as well as the evidence and arguments presented before the particular court, in the case concerned.  Experience of common law courts has taught us that different factual matrixes provide the courts with different perspectives even when they are dealing with the same or similar law point or statutory provision.  The same is equally if not more true with respect to different evidence and arguments presented to the courts in different cases.  The primary focus of the court in a case must be and remain on the actual dispute raised in the case, and the determination and application of the relevant law required to resolve that dispute.  In the process, the court may, and this is particularly true with a higher or the highest court, need or find it desirable to survey and comment on the general area of law involved, before telescoping on the particular legal principle or legal provision that is required to be determined or applied in order to decide the dispute in hand.  But what is general and incidental should not be confused with what is central and required.  Of course, this is a matter of degree for, as I said, a higher or the highest court may find it necessary or desirable to set out the law generally, going beyond what is required to decide the instant case, for the guidance of all concerned in future.  Nonetheless, the court’s primary focus must remain on the resolution of the dispute between the parties in the case in question, and any development of the law should be incremental.  This reflects not only the self‑recognition by the court of its own institutional limitations and the inherent restrictions of the case law approach, but also the constitutional constraints of the court’s judicial power in terms of law making.

61.  All this, I am sure, is trite.  I have found it necessary to mention these trite propositions only because what we have here is the first appeal from a first judicial review case concerning forced labour and human trafficking for that purpose.  What we have, in terms of actual facts and dispute, is one single case of the applicant.  It is true that the evidence presented below as well as the latest evidence presented before us with leave mention many other “undetected cases” said to have occurred within this jurisdiction, based on which different persons may come to different views or draw different inferences.  Nonetheless, what have been established by means of admissible evidence and cross‑examination are only the facts involving the applicant in the present case.  Qualitatively, there is a substantial difference between what we know for sure, based on the civil burden and standard of proof, about the facts involving the applicant in the present case, and the facts and allegations involved in these other undetected cases. It is certainly hoped that as society, and the courts as well, become more aware of and alerted to the wholly reprehensible and deplorable practices prohibited under article 4 of the Hong Kong Bill of Rights, and more resources and assistance are made available to the victims or alleged victims of the human rights violations concerned, more and more cases will come to light and be brought before the courts – both civil and criminal.  When this happens – and I can see no reason why it will not or should not happen if what is suggested in the material presented in this case is true or substantially true – the courts, when performing their common law courts’ role, will no doubt develop the relevant law even further – on an incremental basis.

62.  What is, in my view, premature and even dangerous to do, in the novel situation faced by the court in this appeal, is for the court to rely on the experience of the applicant in this one single case, and the evidence and material presented before the court, to make and develop the law beyond what is reasonably required for resolving the present dispute and for general guidance.  As will be seen from the remaining part of this judgment, concepts of forced labour, modern slavery and human trafficking can cover or potentially cover a very wide and diverse range of activities.  From the core cases of migrant workers who are ill-treated by their employers to a pupil advocate in Belgium who is compulsorily required to do pro bono work in order to get qualified; from transnational transportation of people from one continent to another to the taking of a MTR trip from Kowloon to Hong Kong Island; from people imported to Hong Kong for the purpose of forced labour, to people on transit at the airport who are not even required to go through immigration; from someone from Hong Kong who is tricked into going abroad to work in a foreign land under harsh and inhuman treatment to an aspiring artiste who has signed a lopsided agency agreement with open eyes and is enduring all types of hardship in his or her endeavour, sustained only by the dream that one day he or she will make a big name in the entertainment industry; from a foreign domestic helper who is forced to work 7 days a week, almost 24 hours a day without sleep to an up and coming professional who works without sleep in his or her office for days if not weeks in order to clinch an international deal involving different time zones, concepts of forced labour, modern slavery, and human trafficking may, or may potentially be engaged.

63.  This is no floodgate argument against developing the law.  What I am driving at is that what we have here is just a single case.  To require the court to develop the law simply on the basis of one single case beyond what is reasonably required to resolve the dispute in the present appeal and to provide appellate guidance for future, is to ask us to depart from the conventional wisdom of the incremental approach of the common law.  I can see no good reason to yield to that temptation.

64.  With all these perhaps trite observations made, I now turn to the four issues raised in this appeal.

G.    THE SCOPE OF PROTECTION UNDER ARTICLE 4

65.  First, the scope of protection under article 4, that is, whether article 4 covers not only forced labour, but also human trafficking for forced labour.

G.1  Construing article 4 as a provision in a living instrument

66.  Both the judge and Mr Husain emphasised that the Hong Kong Bill of Rights, domesticating the ICCPR, is a living instrument, and article 4 should be construed accordingly.  Its interpretation and scope of protection must move with the times so as to preserve its relevance to contemporary problems.  I accept this approach.  As has been pointed out in the literature, for instance, modern instances of slavery which is covered by article 4(1) of the Hong Kong Bill of Rights rarely take the classic form of slavery such that the slave is owned by and regarded as the chattel or property of the slave master.  Rather, what happens today is more about people being exploited and completely controlled by someone else, without being able to leave.  Women and children are the primary victims.  Very often, they are enslaved in the form of bonded labour, domestic servitude, sexual exploitation, or forced marriage.  Indeed, the term “modern slavery” has been coined for quite some time, and, as explained in the Explanatory Notes to the UK Modern Slavery Act 2015, it covers a variety of situations:

“4. Modern slavery is a brutal form of organised crime in which people are treated as commodities and exploited for criminal gain. The true extent of modern slavery in the United Kingdom, and indeed globally, is unknown. Modern slavery, in particular human trafficking, is an international problem and victims may have entered the United Kingdom legally, on forged documentation or clandestinely, or they may be British citizens living in the United Kingdom. Modern slavery takes a number of forms, including sexual exploitation, forced labour and domestic servitude, and victims come from all walks of life. Victims are often unwilling to come forward to law enforcement or public protection agencies, not seeing themselves as victims, or fearing further reprisals from their abusers. In particular, there may be particular social and cultural barriers to men identifying themselves as victims. Victims may also not always be recognised as victims of modern slavery by those who come into contact with them.”

67.  Leaving slavery and modern slavery for the time being and returning to forced labour, implicit in the argument that article 4 should be construed as a provision contained in a living instrument is, in my view, the acceptance that as originally drafted and intended, the provision did not cover human trafficking for forced labour as such.

68.  This is borne out by the drafting history of article 4 (article 8 of the ICCPR).  As recorded in the Annotations on the text of the draft International Covenant on Human Rights, UN General Assembly Document A/2929, 1 July 1955, pp 91‑92, para 17, there was at the drafting stage of the ICCPR a suggestion to substitute “trade in human beings” for “slave trade” in article 8(1) “in order that paragraph 1 would cover traffic in women as well”.  The suggestion was not accepted, “for it was thought that the clause should deal only with slave trade as such”.  In other words, trafficking of human beings, particularly trafficking of women, whether generally or for forced labour, was not intended to be covered by article 8 of the ICCPR, save where the case amounted to slave trade, or trafficking of human beings for slavery (in whatever forms).

69.  What was originally intended, it seems to me, is also quite plain from the language used.  Article 4 reads:

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

(2) No one shall be held in servitude.

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

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

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

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

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

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

70.  As Lord Pannick submits, a plain reading of the language clearly suggests that article 4 is targeted at three substantive (albeit overlapping) wrongs, namely, slavery, servitude, and forced or compulsory labour.  It is concerned with the substantive wrongs, not the process.  The only exception is in relation to the most serious wrongdoing amongst the three, that is, slavery.  In relation to slavery, the process is also targeted.  That is to say, “the slave‑trade in all their forms” are prohibited.

71.  By way of contrast, in relation to servitude and forced or compulsory labour, there is no mention of trade, nor trafficking for such purposes.

72.  As for the original context and purpose of article 4 (or article 8 of the ICCPR), the applicant has not referred us to anything which would suggest that when the ICCPR was drafted or eventually adopted in 1976, the intention was to target human trafficking or human trafficking for forced labour.  Rather, as Mr Husain has repeatedly emphasised in submissions, what we have here is a modern development in the area of human trafficking, and thus “modern” slavery, which is a top urgent crisis facing humanity in the 21^st century.  In this regard, Mr Husain refers to a paper, Eradication of forced labour – General Survey concerning the Forced Labour Convention, 1930 (No 29), and the Abolition of Forced Labour Convention, 1957 (No 105) in Report III (Part 1B) presented to the International Labour Conference 96^th Session, 2007, para 201 which points out:

“The increasing trend of the trafficking in women and children, as well as men, for the purpose of forced labour stands out as the most urgent problem of the twenty‑first century in relation to Convention No. 29. It has reached the level of being one of the major activities of transnational organized crime. The nature of this scourge requires the cooperation of all States, as all the regions of the world are affected. …”

73.  I have no difficulty in accepting what the paper has suggested.  The general picture, as painted, is indeed highly alarming and upsetting.  I accept it is a highly relevant part of the context and contemporary situation that the court should bear in mind when construing article 4.

74.  In my view, we are definitely in the area of construing article 4 as a provision in a living instrument, with the contemporary situation and issues firmly in mind.  As I said, I am all for this approach to interpretation.  It accords well with the jurisprudence in Hong Kong as well as overseas jurisprudence, including that of the UK and Strasbourg.

75.  Constitutional and human rights protection must move with the times to stay relevant to contemporary problems and needs. Very often, other possible ways of dealing with the contemporary situation, such as amending the constitutional or human rights instrument concerned, or making a supplemental or even new instrument, may prove to be too slow, too difficult or even impossible.  In those circumstances, construing the instrument as a living one, giving its provisions meanings beyond what was originally intended, may be the only feasible solution.  Therefore, within reasonable bounds, this approach to the interpretation of constitutional and human rights instruments as a living instrument should be embraced.  I say “within reasonable bounds” because it must be firmly borne in mind that what is involved is interpretation, not “divination”: Matadeen v Pointu [1999] 1 AC 98, 108 F/G, per Lord Hoffmann, quoting from Kentridge AJ in State v Zuma [1995] (4) BCLR 401, 412.  A provision, even a provision in a living instrument, simply cannot be given a meaning that its language cannot bear.  When that is the case, nothing short of an amendment of the instrument may do (apart from making a supplemental instrument or even a new one).

G.2  A relevance‑driven exercise

76.  This brings me to this immediate point. Construing an instrument beyond its original intended meaning in the way described above is justified primarily by one consideration, that is, the contemporary situation, problem or issue.  If possible, an instrument should be construed so as to preserve its relevance to the present day world.  Giving a provision in a living instrument a generous interpretation in order to adequately meet the contemporary situation and needs of society provides both the justification for and limitation to the approach under discussion.  In other words, it is a relevance-driven exercise, subject to the boundaries set by the language used which I have just described.  Relevance, in this context, may be gauged primarily at two levels, that is, the contemporary need of society; and the relevant international developments.  For instance, if human trafficking is a serious problem in Hong Kong which is not adequately dealt with by simply construing article 4 as prohibiting slavery, slave trade, servitude and forced labour, that will be a good reason for giving it (if possible) an expansive interpretation to cover human trafficking.  Or, if the general international understanding of “slavery” is no longer restricted to the traditional type of case involving ownership of a human being by another as the latter’s property or chattel, but is extended to cover all forms of human exploitation including the transportation of human beings for the purpose of exploitation – as if they were simply commodities exported from one place to another, it will also be a very strong reason for saying (if possible) that the slave trade prohibition in article 4(1) should now be construed to cover human trafficking (and a fortiori, human trafficking for forced labour).

77.  Bearing all this in mind, I first turn to Mr Husain’s arguments for the expansive interpretation of article 4 based primarily on international developments.  I will then look at the contemporary need in Hong Kong, in terms of combating forced labour and human trafficking for that purpose, to see whether construing the Hong Kong Bill of Rights as a living instrument should lead us to the expansive interpretation of article 4.

G.3    Two bases

78.  I now turn to Mr Husain’s arguments based on article 4 of the Hong Kong Bill of Rights.

79.  Mr Husain submits as a preliminary point that there is a substantial overlap between human trafficking and the prohibitions under article 4 (or article 8 of the ICCPR).  In particular, there is a substantial overlap between human trafficking for forced labour and forced labour.  What is involved in the expansive interpretation is just a modest extension of what is already covered and prohibited.

80.  From this preliminary point, Mr Husain proceeds on two alternative bases. First, article 4(1) which prohibits slavery and slave trade in all their forms.  Mr Husain calls it the “M1 motorway”.  In short, counsel argues, by reference to international developments and in particular European jurisprudence, that slavery and slave trade in all their forms should now be construed to cover modern slavery or human trafficking, or at least human trafficking for forced labour.

81.  Secondly (and alternatively), Mr Husain contends that article 4(3)(a) covers not only forced or compulsory labour, but also the preparatory or preliminary acts to the performance of forced labour, such as the requirement to perform forced labour.  By the same token, it covers also human trafficking for forced labour, which is also a preparatory or preliminary step to forced labour.

82.  It is convenient to deal first with this specific argument based on article 4(3)(a), before returning to the more ambitious contention based on article 4(1) as regards modern slavery and human trafficking.

G.4    Article 4(3)(a)

83.  Mr Husain argues that what article 4(3)(a) prohibits is the requirement of forced labour, and not only forced labour itself.  The wrong is completed by the requirement, and not by the subsequent forced labour performed as a result.  Mr Husain therefore argues that article 4(3)(a) is concerned with the preparatory or preliminary acts to the performance of forced labour, and as human trafficking for forced labour is a preliminary step to the performance of forced labour, it is covered by article 4(3)(a) accordingly.  Realising that his argument ignores that there has to be a “requirement” to perform forced labour, and that very often during the “human trafficking leg” such a requirement is absent, Mr Husain submits that so long as the trafficker has in mind requiring the victim to perform forced labour in future (after the trafficking is done), there is a requirement to perform forced labour, thus satisfying the language of article 4(3)(a), even though the requirement is not communicated to the victim in the meantime.

84.  With respect, I am not able to accept these arguments.  First, it does not follow from the fact that a requirement to perform forced labour is a preliminary step to the performance itself that all other preliminary acts, including human trafficking for forced labour, are covered by article 4(3)(a).  The language of the provision simply cannot bear such an interpretation.

85.  Secondly, I do not agree that there can be an uncommunicated requirement to perform forced labour, or in other words, a future requirement.  As a matter of language, as understood against the purpose and context of article 4(3)(a), what is prohibited, in my view, is the present requirement to perform forced labour.  Article 4(3)(a) is breached when such a requirement is made, regardless of whether the forced labour is required to be performed immediately or in future.  However, where such a requirement is not made now but is only to be made in future (even though it is already in the mind of the trafficker), article 4(3)(a) is not yet engaged.

86.  Furthermore, to argue that article 4(3)(a) actually prohibits an uncommunicated requirement or a future requirement to perform forced labour is simply not supported by the language of article 4(3)(a), whether when read in English or Chinese (bearing in mind, in particular, that the Chinese language is one of the six official languages of the United Nations which birthed the ICCPR).  The court is constrained by the language used in the instrument.  An uncommunicated requirement is not a requirement, and a requirement in future is no requirement now.  Article 4(3)(a) only prohibits a requirement, not something not communicated or not yet in existence.

87.  I note that Mr Husain has not cited any case law, European or otherwise, to support this construction of article 4(3) of the Hong Kong Bill of Rights, or article 8(3) of the ICCPR, or the similarly worded article 4(2) of the European Convention on Human Rights.  Notably, the European court did not go down this path in construing article 4(2) of the European Convention when concluding that article 4 of the Convention now covers human trafficking – see below.  Nor is there anything from the UN Human Rights Committee to that effect regarding the proper interpretation of article 8(3) of the ICCPR – also see below.

G.5    Article 4(1): The M1 motorway

88.  I now return to Mr Husain’s main argument based on article 4(1).  Mr Husain argues that article 4(1) prohibiting slave trade in all their forms is the “M1 motorway”, covering human trafficking for all purposes.  He argues that “slavery” or “slave‑trade” in article 4(1) covers modern slavery, and modern slavery covers human trafficking, including human trafficking for forced labour.

89.  Mr Husain accepts that forced labour by itself is not the same as slavery.  In this regard, he does not go so far as to argue that the contemporary situation is such that it is no longer necessary or meaningful to maintain the three separate forms of treatments prohibited under article 4, that is, slavery, servitude and forced labour.  He maintains the distinction and accepts that forced labour is not slavery.  Therefore, trafficking of people for forced labour cannot be regarded on that basis as slave trade.

90.  However, by relying on “modern slavery” which includes human trafficking, that is, the trafficking of people for the purpose of exploitation (and forced labour is one form of exploitation), thereby treating human beings as if they were mere commodities for sale and for import and export, Mr Husain submits that article 4(1) is engaged in terms of “slavery” or “slave‑trade”.

91.  The correctness of Mr Husain’s argument hinges on whether under article 4(1), slavery and slave trade in all their forms may now be construed to mean “modern slavery” or human trafficking.  To that end, Mr Husain strongly relies on international developments and European jurisprudence in support of his contention.

G.6    European jurisprudence

92.  I first turn to the Strasbourg jurisprudence.  In terms of time, there are Siliadin v France (July 2005); the landmark case of Rantsev v Cyprus and Russia (2010) 51 EHRR 1 (January 2010); CN & V v France (October 2012); and CN v United Kingdom (November 2012).  Amongst them, Rantsev is of direct relevance to the issue under discussion, whereas the other three are more relevant to the third issue to be discussed below.  Nevertheless, to give a full and complete picture of the development of the relevant European case law, I will deal with all four cases here.

93.  In Siliadin, the applicant arrived in France from Togo in the company of a French national, with the view to working in the latter’s home until such time as she had earned enough to pay the latter back for her airfare, and in the meantime her immigration status would be regularised and she would be educated.  The applicant was under 16 years of age at the time.  After arrival, everything turned out contrary to what had been represented.  She was made to work for the French national unpaid, her passport with a tourist visa was confiscated by the latter.  She was then lent to another family where she was required to work non‑stop for approximately 15 hours a day without rest days, without being paid, without being educated, without any identity documents and without her immigration status being regularised. She slept in the baby’s bedroom.  At one stage, she managed to escape but then a few months later, she rejoined the family in obedience to her paternal uncle, on the understanding that they would regularise her immigration status.  Yet the situation remained unchanged.  Her case was subsequently reported to the authorities by the Committee against Modern Slavery and criminal proceedings were brought.  Originally, a conviction was secured, but that was overturned on appeal.  There was a further civil appeal, but the public prosecutor did not launch an appeal against the criminal acquittal.  The European court decided that it was not a case of slavery, prohibited under article 4 of the European Convention on Human Rights, but rather a case of servitude, protected under the same article.  It found that the French government was in breach of article 4 in that the criminal law legislation in force in France at the material time did not afford the applicant practical and effective protection against the actions of which she was a victim.  The court sounded a warning that “the increasingly high standard being required in the area of protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies” (para 148).

94.  Rantsev, decided on 7 January 2010, is the primary case relied on by Mr Husain on the issue under discussion.  In this case, a Russian woman went to Cyprus to work as an artiste in a cabaret.  Within weeks, the Russian woman left the apartment she was living in and left a note saying she wanted to return to Russia.  The manager of the cabaret informed the authorities but her name was not entered on the list of persons wanted by the police.  A few weeks later, the Russian woman was seen in a disco where she was apprehended and taken to the local police station.  She was then released and taken back to her apartment provided by the cabaret.  She was placed in a room by herself.  In the next morning, she was found dead on the street below the apartment.  A Cyprus inquest concluded that she died in an attempt to escape from the apartment and “in strange circumstances”, jumped into a void as a result of which she was fatally injured.  A subsequent Russian autopsy detected that the victim had sustained some injuries whilst she was still alive, but only a short time before her death.  Despite numerous requests to further investigate the death as various potential witnesses had not been approached, the Cyprus government took no further action.  The matter was eventually taken to the European court as a case under articles 2, 3, 4, 5 and 8 of the European Convention.  Amongst other things, the European court held that there had been a violation of article 4 of the European Convention by Cyprus because of the failure to afford the Russian woman practical and effective protection against trafficking and exploitation in general and specific measures of protection.  The court held, however, that there was no violation by Russia of its positive obligations under article 4 to take operational measures to protect the woman against trafficking.

95.  What is important for our present purpose is how the court dealt with human trafficking in light of the Palermo Protocol and the Anti-Trafficking Convention:

“277 The absence of an express reference to trafficking in the Convention is unsurprising. The Convention was inspired by the Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations in 1948, which itself made no express mention of trafficking. In its art.4, the Declaration prohibited ‘slavery and the slave trade in all their forms’. However, in assessing the scope of art.4 of the Convention, sight should not be lost of the Convention’s special features or of the fact that it is a living instrument which must be interpreted in the light of present-day conditions. The increasingly high standards required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably require greater firmness in assessing breaches of the fundamental values of democratic societies.

278 The Court notes that trafficking in human beings as a global phenomenon has increased significantly in recent years. In Europe, its growth has been facilitated in part by the collapse of former Communist blocs. The conclusion of the Palermo Protocol in 2000 and the Anti-Trafficking Convention in 2005 demonstrate the increasing recognition at international level of the prevalence of trafficking and the need for measures to combat it.

279 The Court is not regularly called upon to consider the application of art.4 and, in particular, has had only one occasion to date to consider the extent to which treatment associated with trafficking fell within the scope of that article. In that case, the Court concluded that the treatment suffered by the applicant amounted to servitude and forced and compulsory labour, although it fell short of slavery. In light of the proliferation of both trafficking itself and of measures taken to combat it, the Court considers it appropriate in the present case to examine the extent to which trafficking itself may be considered to run counter to the spirit and purpose of art.4 of the Convention such as to fall within the scope of the guarantees offered by that article without the need to assess which of the three types of proscribed conduct are engaged by the particular treatment in the case in question.

280 The Court observes that the International Criminal Tribunal for the Former Yugoslavia concluded that the traditional concept of ‘slavery’ has evolved to encompass various contemporary forms of slavery based on the exercise of any or all of the powers attaching to the right of ownership. In assessing whether a situation amounts to a contemporary form of slavery, the Tribunal held that relevant factors included whether there was control of a person’s movement or physical environment, whether there was an element of psychological control, whether measures were taken to prevent or deter escape and whether there was control of sexuality and forced labour.

281 The Court considers that trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership. It treats human beings as commodities to be bought and sold and put to forced labour, often for little or no payment, usually in the sex industry but also elsewhere. It implies close surveillance of the activities of victims, whose movements are often circumscribed. It involves the use of violence and threats against victims, who live and work under poor conditions. It is described by Interights and in the explanatory report accompanying the Ant-Trafficking Convention as the modern form of the old worldwide slave trade. The Cypriot Ombudsman referred to sexual exploitation and trafficking taking place, ‘under a regime of modern slavery’.

282 There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention.  In view of its obligation to interpret the Convention in light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes ‘slavery’, ‘servitude’ or ‘forced and compulsory labour’.  Instead, the Court concludes that trafficking itself, within the meaning of art.3(a) of the Palermo Protocol and art.4(a) of the Anti-Trafficking Convention, falls within the scope of art.4 of the Convention.  The Russian Government’s objection of incompatibility ratione materiae is accordingly dismissed.”

96.  The next case was CN & V v France. It was another case involving two orphan minors at the time, leaving their country of origin (Burundi) following a civil war there and arriving in France respectively where eventually they were placed in the same foster family.  Very sadly, they were made to do all the housework and domestic work necessary for the upkeep of the house of the foster family of nine.  They were used as housemaids.  They were not paid for the work or given any days off.  They had no access to the bathroom and only had an unhygienic mixed shift toilet at their disposal.  Life was bad.  The European court had no difficulty in concluding that the first applicant was kept in a state of servitude (whereas the case of the second applicant was rejected).  The court noted that the relevant domestic law situation in France was the same as in Siliadin. The court followed Siliadin and held that the French government was in breach of article 4 of the European Convention.

97.  In CN v United Kingdom, under the arrangement of a relative, the victim used false documents to enter the UK. She worked for various people, her wages were paid into a relative’s bank account but never passed onto her.  She was prevented from leaving the house where she was working in and warned not to speak with anyone.  She was diagnosed as HIV positive and as suffering from psychosis, including auditory hallucinations.  Her asylum claim was rejected.  Her case was then investigated by the Human Trafficking Team which concluded there was no evidence that she was trafficked into the UK.  The police carried out investigation but eventually decided that the evidence did not support exploitation of any kind. She took her case to the European court.  The court considered that the existing legislation in the UK was insufficient to combat the type of vice suffered by the victim.  It found that the investigation into the applicant’s complaints of domestic servitude was ineffective due to the absence of specific legislation criminalising such treatment, a matter which I will return to when I deal with the third issue raised in this appeal.

98.  I do not find the European jurisprudence to be of direct assistance on how we should interpret our article 4, despite similarities in wording between our article 4 and article 4 of the European Convention.  In this regard, Lord Pannick has very helpfully referred us to what Lord Hughes JSC has said recently in a Privy Council appeal from the Court of Appeal of Trinidad and Tobago in the case of Lendore v Attorney General of Trinidad and Tobago [2017] 1 WLR 3369 (a case on cruel and unusual punishment in the context of a presidential power of pardon commuting death sentences to imprisonment for life or 75 years):

“60 It is inherent in this concept of fundamental rights that different jurisdictions may develop the law in ways that reflect their own constitutional traditions, legal procedures and collective values. The [European] Court of Human Rights has been the most prolific single international source of judicial decisions on human rights which in one form or another are protected under many instruments in many countries. But in considering the persuasiveness of its decisions in Trinidad and Tobago, some significant features of its jurisprudence must be born in mind. First, the [European] Convention is a regional human rights instrument and, as the Strasbourg court’s observations in Tyrer show, the values which it seeks to apply are those of the member states of the Council of Europe so far as it is possible to generalise about them. Criminal law and procedure, and penal policy in general, are areas in which accepted practices are particularly liable to diverge as between different jurisdictions and different parts of the world, where patterns of criminality, social attitudes to crime and the practical implications of penal policy may not be the same. Secondly, the Strasbourg court has not been content to lay down general principles to be applied by national courts in accordance with divergent national practice. Its practice has been to define the incidents of human rights prescriptively and in considerable detail. This means that the scope for inconsistency between the decisions of the court as an international court and the values and practices of individual jurisdictions is necessarily increased. Thirdly, perhaps because of the enormous volume of its decisions and the differing composition of its chambers, as well as because it is evolutionary, the jurisprudence of the Strasbourg court may sometimes not be entirely consistent internally, which can require analysis by states which are parties to the Human Rights Convention. It is not the duty of the courts of independent non-party states to follow every turn in its case law as it occurs.

61 Compliance with the decisions of the Court of Human Rights is not an international obligation of Trinidad and Tobago as it is of the United Kingdom.  Instead, the international obligations of Trinidad and Tobago in relation to human rights arise under the instruments to which it is party, some of which have their own decision-making bodies and their own corpus of decisions.  The decisions of the Court of Human Rights are not a source of law which the courts of Trinidad and Tobago are bound to take into account, as the domestic courts of the United Kingdom are by virtue of section 2(1) of the Human Rights Act 1998, let alone are they a source of binding authority.  They may bear valuable persuasive authority on the general principles underlying the protection of particular rights.  But they are likely to be less valuable when prescribing the detailed content of those rights or the mode of giving effect to them procedurally.  As far as the Board is concerned, particular importance will generally be attached to the views of the courts below before recognising any development of the law which is not warranted by the express terms of the Constitution or necessarily implicit in them.”

99.  I am of course aware that in this jurisdiction, European jurisprudence on human rights is held in high regard, and if I may say so, rightly so.  But it does not diminish at all the validity and relevance of what Lord Hughes has said in the Privy Council appeal that I have just referred to.

100.  The present case, in my view, is a prime example where this court must approach the relevant jurisprudence from the European Court of Human Rights with great caution.  Whilst the European court in Rantsev emphasised that human trafficking is a global phenomenon calling for measures to combat it and that the European Convention has to be construed as a living instrument accordingly, understandably, it looked at matters from the European prospective (paras 277 to 279).  It took into account the view of the International Criminal Tribunal for the Former Yugoslavia on the concept of slavery (para 280).  It interpreted the obligations of the member states under article 4 in light of other applicable treaties, namely, the Palermo Protocol and the Anti‑Trafficking Convention (paras 278, 281 and 282).  It came very close to, but importantly for our present purpose, stopped short of, saying that human trafficking, or modern slavery, is “slavery” within the meaning of article 4(1) of the European Convention when construed as a living instrument (para 281). Instead, it was content to say that it is no longer necessary in Europe to differentiate slavery, servitude and forced labour, so far as human trafficking is concerned (para 282).  Human trafficking, or modern slavery, is by itself caught by article 4 of the European Convention on Human Rights (ibid). From more perspective than one, that is certainly a welcome development in Europe.

101.  In Hong Kong, however, the relevant domestic as well as international settings are quite different.  As mentioned, the Palermo Protocol does not apply to Hong Kong by a deliberate choice of the State.  The Anti‑Trafficking Convention is a regional, European convention, which has no application in this part of the world.  What we have is a provision based on the ICCPR, of which the UN Human Rights Committee is the body set up specifically to monitor implementation by its state members.  As will be elaborated on, thus far, there has not been any clear, let alone detailed, analysis of the position regarding the true scope of application of article 8 of the ICCPR, in terms of human trafficking (or modern slavery), or human trafficking for forced labour, from the UN Human Rights Committee. Nor have we been cited any cases from jurisdictions where the ICCPR is applicable, which give article 8 of the ICCPR an expansive interpretation.  Certainly there are no known cases on the ICCPR to the effect that when it comes to human trafficking, there is no need or no longer any need to differentiate slavery, servitude and forced labour – even Mr Husain does not seek to go that far.  Nor are there any cases on the ICCPR to the effect that human trafficking, as a form of modern slavery, is simply caught by article 8(1) in terms of slavery or slave trade.  By asking us to adopt the expansive interpretation, Mr Husain is in effect inviting us to make law not only in relation to article 4 of our Hong Kong Bill of Rights, but also article 8 of the ICCPR.

102.  This is particularly so when, as mentioned, even the European court in Rantsev was not prepared to say definitely that “slavery” in article 4(1) of the European Convention, when construed as a living instrument, now covers modern slavery or human trafficking, despite the serious affront to the human dignity and fundamental freedoms of the victims involved.  In fact, the court did not find it necessary to categorise human trafficking in terms of slavery, servitude or forced labour at all.  It simply decided that nowadays, human trafficking is covered by article 4 of the European Convention.  When read closely, therefore, Rantsev does not in fact support either of Mr Husain’s arguments, that is, his M1 motorway argument to the effect that slave trade now covers modern slavery or human trafficking, or his article 4(3)(a) argument in relation to human trafficking for forced labour.  The approach of the European court in Rantsev was a broad‑brush one which is not quite the same as the more analytical and disciplined approach adopted by Mr Husain.  Whilst the general relevance of Rantsev to Mr Husain’s contention is obvious, it does not provide direct support to Mr Husain’s more refined arguments.

103.  In particular, the European court’s refusal to categorise human trafficking as falling within the meaning of slavery under article 4(1) of the European Convention is in direct contrast to Mr Husain’s argument that via “modern slavery”, human trafficking for forced labour falls within the meaning of “slavery” or “slave‑trade” in article 4(1) of the Hong Kong Bill of Rights.  In this regard, as noted earlier, Mr Husain accepts the distinction between slavery and forced labour, and does not contend that nowadays, forced labour should be regarded as slavery.  This concession makes his argument that nonetheless, human trafficking for forced labour amounts to slavery or slave trade via “modern slavery” not a straight‑forward argument to run.  Rantsev,in this regard, offers no assistance to Mr Husain’s argument.  In Rantsev, given the European developments, the court felt it able to brush aside all these difficulties and simply say, by reference to “the spirit and purpose” of article 4 of the Convention (para 279), that so far as human trafficking is concerned, it is caught squarely by article 4, without needing to pigeon‑hole it within any of the three categories of prohibited treatments, that is, slavery, servitude and forced or compulsory labour.  As discussed, the legal landscape in Hong Kong faced by this court is rather different.

104.  On first principles, the difficulties facing Mr Husain’s more refined arguments are rather obvious.  Conceptually, human trafficking is almost by nature a means to an end.  When the end is slavery, it is of course quite proper to describe the human trafficking in question as slave trade or even “slavery” when given a generous interpretation. On the other hand, when the human trafficking is for the purpose of forced labour, it will be stretching language to its limits to say that nonetheless, it may still be described as slave trade, or even slavery, given Mr Husain’s concession that forced labour is not the same as slavery.

105.  I have repeatedly described human trafficking as fundamentally objectionable because regardless of the form of exploitation intended, it treats human beings as commodities to be imported and exported for exploitation.  It is an affront to the inherent human dignity of the victims involved.  However, it does not for that reason alone render them victims of slavery or slave trade.  Slavery, regardless of what modern forms it takes, still bears a defined meaning different from forced labour, as is conceded by Mr Husain; and slave trade, as the language requires, can only be taken to mean, relevantly, the trafficking of human beings for the purpose of slavery.  In my view, it is therefore not at all surprising that the European court did not say that human trafficking amounts to slavery, or find it fruitful to dwell on the question of whether slavery could be interpreted generously to cover slave trade – only “slavery”, rather than “slave trade” is covered in article 4(1) of the European Convention.  It is not surprising that the European court chose, instead, to adopt the broad‑brush approach already described in light of the Palermo Protocol and the Anti‑Trafficking Convention. By doing so, it avoided all the difficulties that I have just outlined facing Mr Husain’s more refined arguments.

106.  However, in light of the different legal landscapes, this broad‑brush approach of the European court in Rantsev is not an approach open to Mr Husain, nor is it one which Mr Husain asks this court to adopt.

107.  For these reasons, I find the European jurisprudence to be of limited assistance in our determination of the proper scope of application of article 4, particularly regarding the question of whether the relevant international developments are such that article 4 of the Hong Kong Bill of Rights should now be given the expansive interpretation in order to preserve its relevance in light of those developments.

G.7    UN Human Rights Committee’s views

108.  Mr Husain refers us to the UN Human Rights Committee General Comment No 28 on Article 3 (The Equality of Rights between Men and Women) of the ICCPR, 29 March 2000, para 12 where it says:

“ Having regard to their obligations under article 8, States parties should inform the Committee of measures taken to eliminate trafficking of women and children, within the country or across borders, and forced prostitution. They must also provide information on measures taken to protect women and children, including foreign women and children, from slavery, disguised, inter alia, as domestic or other kinds of personal service. States parties where women and children are recruited, and from which they are taken, and States parties where they are received should provide information on measures, national or international, which have been taken in order to prevent the violation of women’s and children’s rights.”

109.  Mr Husain argues that the reference to a state’s obligations under article 8 of the ICCPR (that is, our article 4) as a basis for requiring information on the state’s measures taken to “eliminate trafficking of women and children, within the country or across borders” provides the clearest indication that on the modern interpretation of article 8 of the ICCPR, human trafficking is included.

110.  I am far from persuaded that paragraph 12 has the suggested meaning or effect.  Paragraph 12 is contained in General Comment 28 on article 3 of the ICCPR concerning the equality of rights between men and women.  Given the general inequality and discrimination suffered by women as a gender, the focus of the general comment is on the protection of women against any impairment that may affect or deny their full and equal enjoyment of rights.  Trafficking of women (or for that purpose, children) is undoubtedly such an impairment.  And since trafficking of women and children is in many cases linked with vices such as forced labour, prostitution or other forms of sexual exploitation, it is simply natural for paragraph 12 to refer to article 8 of the ICCPR, which prohibits slavery, servitude and forced labour, when discussing the protection of women against human trafficking.  As Mr Husain submits, very often, human trafficking overlaps with slavery, servitude or forced labour.  It does not follow that in the view of the UN Human Rights Committee, article 8 now encompasses human trafficking for forced labour, or that the committee now regards human trafficking (or modern slavery) as slavery or a form of slave trade within the meaning of article 8(1) of the ICCPR.

111.  Indeed if that really were the modern position, I would be extremely surprised that despite counsel’s diligent research, all one has, in terms of guidance from the UN Human Rights Committee, is merely paragraph 12 in General Comment No 28 dealing not with article 8 as such, but with article 3.  Indeed, of the 35 General Comments issued by the UN Human Rights Committee (General Comment No 35, on article 9 – liberty and security of person – was issued on 15 December 2014), there is no general comment issued in relation to article 8.  And on this important question of human trafficking or modern slavery, which counsel argues is now covered by article 8(1) of the ICCPR given the contemporary global crisis, it would be extremely surprising to find no general comment on article 8 if the UN Human Rights Committee were really of the view that article 8 now bears an expansive meaning.  In this regard, one must remember that although the court is here construing a domestic bill of rights, it is based on an UN covenant applicable to most countries on earth.  If article 8 now had the suggested expansive meaning, covering human trafficking for forced labour, or even human trafficking per se (as a form of modern slavery under the super highway advocated by Mr Husain), one would expect to find more relevant material from the UN Human Rights Committee, whether by way of general comments, or by way of concluding observations on country reports.

112.  It is true that in the concluding observations on some individual countries, the position of trafficking of women for the purpose of prostitution was mentioned in the context of article 8. Yet reading those observations in context, it would be fair to say that whilst the UN Human Rights Committee would like all countries concerned to take actions to combat human trafficking for the prohibited purposes under article 8 of the ICCPR (that is, slavery, servitude and forced labour – vices such as prostitution are regarded as covered by those three), it had never commented that human trafficking for such purposes per se is now caught by article 8. See Joseph and Castan, The International Covenant on Civil and Political Rights (3^rd ed), 329 – 334.

113.  In this regard, it is also noteworthy that this expansive interpretation of article 8 of the ICCPR is not mentioned in leading textbooks on the ICCPR, such as Joseph and Castan;andNowak, UN Covenant on Civil and Political Rights CCPR Commentary (2^nd revised ed).

G.8    International developments

114.  Mr Husain urges the court to construe article 4 in light of international developments.  In this regard, he has in mind the Palermo Protocol which prohibits human trafficking (and requires the outlawing of human trafficking by criminal legislation).  There is no dispute regarding the underlying principle of statutory interpretation involved.  Of course, we should bear in mind the international landscape, particularly international obligations assumed by the People’s Republic of China in so far as they are applicable to Hong Kong.  This latter qualification is extremely important in the present case.  The Palermo Protocol, acceded to by the People’s Republic of China, does not apply to the Hong Kong SAR, not because of non‑ratification or the lack of domestication.  It does not apply to Hong Kong because of a specific declaration made upon accession by the People’s Republic of China that it does not apply to the Hong Kong SAR (as opposed to the Macau SAR).  It therefore represents a deliberate choice by the State at the international level that so far as Hong Kong is concerned, the obligations under the Palermo Protocol do not apply.  It is, in this sense, a stronger case against placing too much reliance on the Palermo Protocol as an aid to interpreting article 4 of the Hong Kong Bill of Rights, than the case where the international instrument signed by the executive government lacks parliamentary approval or is not implemented domestically by legislation.

115.  Mr Husain argues generally that whether the People’s Republic of China is a party to a relevant international instrument, whether there is a relevant reservation regarding Hong Kong, or whether the instrument remains an unratified one or has been incorporated into domestic law by legislation, proper regard must be had to relevant international developments.

116.  Stated so broadly, I have no reason to disagree.  No doubt, that represents the approach of the European Court of Human Rights: Demir v Turkey (2009) 48 EHRR 54, paras 85 and 86.  Regard must be had to developments at the international level on this global effort to combat human trafficking.  However, the court’s focus must still remain on whether to adopt the expansive interpretation would help our article 4 of the Hong Kong Bill of Rights to stay relevant in light of the relevant global scene.  Moreover, as regards the Palermo Protocol, I repeat my point that the State has by a deliberate choice decided not to apply it to Hong Kong.  Its relevance as a background development must by definition be very limited.

117.  One other significant development at the international level is the Anti-Trafficking Convention of 2005.  This is a regional convention covering Europe.  It does not cover this part of the world.  No doubt, it has an important bearing on the Strasbourg jurisprudence which I have just dealt with.  While it must be included in this court’s consideration of what is happening at the international scene, yet given its regional nature, I do not think much help can be derived from the convention as an aid to interpreting our article 4 in order to stay relevant in meeting contemporary problems.

G.9    The local scene and contemporary need in Hong Kong

118.  I now turn to look at the contemporary position in Hong Kong and the need here in terms of combating forced labour and human trafficking for that purpose.  As explained, an expansive interpretation of article 4 may be justified on the basis of the contemporary need of our society, apart from relevant international developments (or both).

119.  There is evidence in this case describing how serious the question of human trafficking for forced labour is, particularly amongst imported labour in Hong Kong (and there are tens of thousands of them here, unlike the situations in many European countries). International organisations, local as well as international NGOs and other concerned groups, and some foreign government, have all commented adversely on the situation in Hong Kong in terms of forced labour and human trafficking for forced labour, as well as modern slavery in general.  On the other hand, there is also evidence from the government strongly refuting these adverse comments and claims.

120.  The evidence before the court is such that the judge felt disturbed enough to observe (in the form of a “finding” – a matter which I will presently come back to) in paragraph 312 of his judgment:

“ I find on the evidence and material presented to me that the current regime does not address adequately or effectively the positive obligations under Article 4 of the BOR to tackle the practice of forced labour and the trafficking of persons for forced labour. The evidence of Alexandra Maria Barr, Lam Bik Che and Chan Lui Luna contradicts the respondents’ submissions. They each describe from their own work experience and case studies a deeply disturbing and upsetting account of the treatment of foreign domestic helpers in Hong Kong who have been allegedly abused by certain unscrupulous employers. These employers have taken advantage of their vulnerability and their unfamiliarity with the laws and structures of Hong Kong.”

121.  For my part, I am prepared to proceed on the basis that there is indeed a real, not fanciful or negligible, problem of forced labour and human trafficking for forced labour in Hong Kong, particularly amongst the imported labour sector.  The size and extent of the problem are yet to be fully explored and investigated.  I note the allegations, complaints and refutations.  It is quite impossible, nor necessary, for a court, in a case such as the present, to verify or reject these claims or denials.  I need not repeat what I have said by way of preliminary observations regarding the incremental common law approach that we follow in Hong Kong.

122.  But that does not prevent the court from examining whether, subject to the language restriction, article 4 should be given an expansive interpretation as a provision contained in a living instrument, to cover human trafficking for forced labour, in order to stay relevant to the contemporary need in Hong Kong.

G.10  Imported victims

123.  As explored with counsel at the hearing, there are essentially three broad types of situations to consider.  First, the case of an imported labourer to Hong Kong, such as the applicant, who was brought to Hong Kong through apparently lawful means, with a view to exploiting the worker in Hong Kong by requiring him or her to perform forced labour here. One asks, as we did with counsel during the hearing: what real advantage would it bring to the imported worker by giving article 4 the expansive interpretation?  On the facts of this example, the worker, after arriving Hong Kong, would be required to perform forced labour.  His or her case would be covered squarely by article 4(3) regardless of any expansive interpretation concerning the prior human trafficking of him or her from the foreign place into Hong Kong.  Counsel was initially at a loss as to what the expansive interpretation would add to the case of the worker in terms of protection under article 4, and that led us to think at one stage that this dispute over giving article 4 an expansive interpretation was in fact an academic issue not raised by this case (and this brings me back to what a common law court does or does not do in deciding a case).  It was only after some discussion amongst members of the court and exchanges with counsel at the hearing that we came to the view that maybe – and I put it no higher than that – a difference would be made in terms of the damages that could be awarded at the end of the day, although, on reflection, I doubt whether without this expansive interpretation, adequate compensation by way of damages could not be made to the worker.  Another possible difference is that if, somehow, the case could be detected by the government after the arrival of the worker and before he or she was actually required to perform forced labour, the worker could be saved, and the wrong of forced labour prevented from happening.

124.  I say “somehow”, and this goes to an important point about the need in question.  From the material presented before the court, my impression is that in a majority of these cases or suspected cases, not even the workers themselves were aware that they were victims of human trafficking for forced labour until after their arrival in Hong Kong, and indeed until after they had actually been required to perform forced labour.  The “transportation leg” (that is, the human trafficking concerned) was just a normal journey from the home country to Hong Kong.  At least, this was what happened in the present case.  This being the case, although in theory, giving article 4 the expansive interpretation may help combat human trafficking for forced labour more effectively or adequately, in reality, this is not going to address the problem or the suggested problem facing an unknown number of victims in these “undetected cases”.  For the sad fact is that in many if not most cases, the victim would only begin to realise the exploitation when or even after he or she was required to perform forced labour.  When the justification for adopting an expansive and generous interpretation is the necessity to meet a real, rather than a conceptual need facing our society, the argument for giving article 4 an expansive meaning in this first type of situation is, as presently advised, not particularly convincing.  Future cases, on different facts and on different evidence, may of course throw a different light on this question.

G.11  The converse case: overseas forced labour

125.  I move on to the second type of situation discussed with counsel, that is, the converse case of human trafficking of someone from Hong Kong to overseas for forced labour.

126.  Here, one must compare the extent of increased protection under this expansive interpretation with the protection originally intended, in order to give the assessment of a real need justifying the expansive interpretation a proper perspective.  In the type of situation under discussion, where the person will be required to perform forced labour overseas, it is a situation which article 4 as originally intended does not cover. For, as explained, unless what is sought to be done amounts to a slave trade within the meaning of article 4(1) (leaving aside any expansive interpretation), that is, human trafficking for slavery, article 4 does not bite.  Moreover, and on this point counsel did not give the court a clear answer, unless article 4(3) has extra‑territorial effect, what is planned to be done overseas, that is, the future requirement of the person to perform forced labour overseas, is not caught by article 4(3) for the reasons already given.  The victim may or may not be protected in the foreign jurisdiction under the same or similar human rights provision or general law, but that is not material to the present discussion.

127.  In other words, this expansive interpretation, when applied to the second type of situation under discussion, would mean covering something which is not covered at all at present.  Is there a real justification for this expansion of the law?

128.  This second type of situation is obviously not the main concern of the applicant and his team of lawyers and supporters in the present case, as can be seen from the nature of the evidence put before the court.  And that is perfectly understandable and indeed correct.  After all, the applicant has his own case to pursue and all evidence and material placed before the court should be focused on the facts of his case, and everything else must be peripheral or incidental.  The applicant’s case is not a test case, and certainly not a test case for the type of situation under discussion, that is, the trafficking of a person from Hong Kong to a foreign place for the purpose of forced labour.  Therefore, it is not surprising that so far as the contemporary need in Hong Kong is concerned (as opposed to, for instance, the situations in quite a few European countries since the early 1990s), the evidence does not suggest there is a real need in Hong Kong, in terms of the second type of situation under discussion, for adopting the expansive interpretation.

G.12  Victims on transit

129.  The third type of situation discussed with counsel during the hearing is the case of a victim of human trafficking for forced labour on transit in Hong Kong.  Again, the evidence in this regard is general and sketchy, and understandably so, as the applicant himself was not such a victim.  In theory, the expansive interpretation would help the victim under discussion because Hong Kong would then obviously have jurisdiction to stop the human trafficking and help prevent a case of forced labour from happening in some foreign land (where forced labour may or may not be effectively prohibited or at all).  However, again one must have one’s feet firmly on the ground.  Unless the victim realises, whilst on transit in Hong Kong, he or she is a victim of human trafficking for forced labour in another foreign place and asks for help accordingly, the likelihood of detection by the government – bearing in mind that travellers on transit in Hong Kong are not required to go through immigration – would be slim.  Put another way, in this last type of situation, the applicant has not, by evidence and material before the court, persuaded me that there is a real need or a real situation in Hong Kong at present, which would justify the adoption of the expansive interpretation.

G.13  The contemporary need

130.  Of course, future cases may throw new light on the scenarios just discussed or present the courts with new scenarios.  What I have examined may need to be revisited in light of these future cases.  Moreover, like many other things, needs are not static, and I am only focusing on the contemporary need as established by the admissible material before the court.  Needs are bound to change, and the common law courts in Hong Kong are well equipped to deal with these changes by their conventional, incremental approach to development of the law.

131.  For the above reasons, I see a real difficulty, grounded on the actual, contemporary need of our society, with adopting the expansive interpretation put forward by the applicant.

G.14  Conclusion

132.  For all these reasons, I am not able to accept the expansive interpretation contended for by the applicant to the effect that article 4, when given a generous interpretation, covers either human trafficking (as a form of modern slavery) by itself, or at least, human trafficking for forced labour.  I reject the argument.  In my view, article 4 of our Hong Kong Bill of Rights covers what it says, that is, slavery and the slave trade in all their forms, servitude, and forced or compulsory labour.  Human trafficking, or human trafficking for the purpose of forced labour, is neither a necessary nor sufficient element for a violation of our article 4.  As I just mentioned, this interpretation that I favour is arrived at by considering the contemporary situation in Hong Kong, as well as the relevant international developments.  Circumstances and needs are not static, and the relevant international scene may develop further.  The scope of application of article 4 may change accordingly.  But that is something for the future.

H.    WHETHER THE APPLICANT WAS A VICTIM OF FORCED LABOUR

133.  I now move on to the second issue raised in this appeal, that is, whether the applicant was a victim of forced labour. It should be remembered that the judge made various findings of primary fact which are, as a general rule, difficult to challenge on appeal and are indeed not challenged, and from which (findings of primary fact) the judge concluded that the applicant was a victim of both forced labour, and human trafficking for forced labour.  I need not deal with the second conclusion on human trafficking for forced labour for two reasons.  First, I have already come to the conclusion that article 4 does not cover human trafficking for forced labour.  Secondly, Lord Pannick, on the other hand, does not dispute that if his contention that the applicant was not a victim of forced labour should be rejected by this court, the further conclusion that he was a victim of human trafficking for forced labour could not be challenged.

H.1    Forced labour – the legal principles

134.  As mentioned, it is common ground – and I agree – that forced or compulsory labour, although not defined in the Hong Kong Bill of Rights or the ICCPR, bears the same meaning as used in article 2(1) of the Forced Labour Convention 1930: cf Nowak, at p 201 (para 15). In the Convention, forced or compulsory labour is considered to be “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”.

135.  Work or service is not in issue in the present case. The remaining two essential elements are the menace of a penalty and involuntariness.

136.  On top, in my view, there must be a causal connection between the menace of a penalty and the performance of forced labour.

137.  Pausing here, in most cases where there is the menace of a penalty, a concept which is interpreted broadly and generously in favour of victims, particularly vulnerable victims, involuntariness must almost necessarily follow.  Moreover, where there is the menace of a penalty, the question of causal link is easily satisfied.

138.  The menace of a penalty requirement has been interpreted generously.  So is the element of involuntariness.  In CN & V v France, the European court has adopted the following definition for the two limbs, based on the International Labour Conference 1999 of the ILO:

“52. The following extracts from ‘The cost of coercion: global report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work’, adopted by the International Labour Conference in 1999:

‘24. The ILO’s definition of forced labour comprises two basic elements: the work or service is exacted under the menace of a penalty and it is undertaken involuntarily. The work of the ILO supervisory bodies has served to clarify both of these elements. The penalty does not need to be in the form of penal sanctions, but may also take the form of a loss of rights and privileges. Moreover, the menace of a penalty can take many different forms. Arguably, its most extreme form involves physical violence or restraint, or even death threats addressed to the victim or relatives. There can also be subtler forms of menace, sometimes of a psychological nature. Situations examined by the ILO have included threats to denounce victims to the police or immigration authorities when their employment status is illegal, or denunciation to village elders in the case of girls forced to prostitute themselves in distant cities. Other penalties can be of a financial nature, including economic penalties linked to debts. Employers sometimes also require workers to hand over their identity papers, and may use the threat of confiscation of these documents in order to exact forced labour.

25. As regards ‘voluntary offer’, the ILO supervisory bodies have touched on a range of aspects including: the form and subject matter of consent; the role of external constraints or indirect coercion; and the possibility of revoking freely-given consent.  Here too, there can be many subtle forms of coercion. Many victims enter forced labour situations initially out of their own choice, albeit through fraud and deception, only to discover later that they are not free to withdraw their labour, owing to legal, physical or psychological coercion.  Initial consent may be considered irrelevant when deception or fraud has been used to obtain it.’”

139.  As regards the causal link required, Lord Pannick, in his reply submission, very fairly agreed with the contention of Mr Husain that what is required is not a subjective causal link.  That would be highly unsatisfactory when one is, almost by definition, dealing with vulnerable people who may be simple, uneducated or unsophisticated, precisely the type of person who requires protection of the law.  Many of them may, because of social tradition, cultural background, upbringing or religious belief, be ignorant of their rights as a human being, over‑submissive or tolerant, and be resigned to what they are made to suffer as simply realities of life.  Causal link cannot be dependent on what they subjectively feel or think.

140.  Moreover, causal link cannot be restrictively interpreted to mean a dominant purpose.  In other words, in order to establish the causal link between the menace of a penalty and the performance of forced labour, it is not necessary to prove that the threat of a penalty played a dominant causal part in the performance of forced labour.  Mr Husain persuasively argued, and Lord Pannick eventually accepted, that so long as the menace of a penalty was a material reason or an effective cause for the performance of forced labour, that would satisfy the test: cf HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596, para 82 (an asylum case based on the fear of persecution).

141.  As suggested in the ILO definition, so far as consent or voluntariness is concerned, fraud or deception practised on a victim, depending on the circumstances, may well vitiate any initial consent.  The important point to bear firmly in mind is that any consent to labour must be well informed and clearly given.  Such consent must continue throughout the time of performance of labour.  If the initial consent was either vitiated as mentioned or otherwise withdrawn subsequently, or would have been withdrawn but for coercion or false inducements practised on the victim, the requirement of involuntariness would be regarded as satisfied.

142.  The case of Van der Mussele v Belgium (1984) 6 EHRR 163 illustrates the breadth of the possible factual situations that may come within the scope of application of article 4 (and thus my observations on caution at the beginning of my discussion on the four issues involved).  It was a case involving a Belgium pupil advocate who was compelled by the relevant qualification regulations to conduct pro bono advocacy.  He sued the Belgium government in the European court on the basis of forced labour, but his case was rejected.  For our present purpose, what is of interest is the court’s discussion on the relationship between prior consent and voluntariness.  The context of the court’s discussion was that the applicant there of his own choice chose to perform the pro bono work in order to qualify as an advocate.  The question of the menace of a penalty did not present a problem in that case because without the pro bono work, the applicant there could not qualify as an advocate.  That was considered by the court as satisfying the menace of a penalty requirement.  As regards involuntariness, at first blush, one might say that the relevant regulations were there for the applicant to consider, and he entered into the pupillage arrangement with his eyes open.  However, the court observed at page 174 (para 36) that the applicant’s consent to undergoing pupillage well knowing what the requirements were in relation to pro bono work was a relevant but not decisive factor, because he was, in fact, faced with an all or nothing choice.  Rather, his prior consent had to be considered together with other factors.  On page 175 (para 37), the court observed:

“ Be that as it may, the Court prefers to adopt a different approach. Having held that there existed a risk comparable to ‘the menace of [a] penalty’ and then that relative weight is to be attached to the argument regarding the applicant’s ‘prior consent’, the Court will have regard to all the circumstances of the case in the light of the underlying objectives of Article 4 of the European Convention in order to determine whether the service required of Mr. Van der Mussele falls within the prohibition of compulsory labour. This could be so in the case of a service required in order to gain access to a given profession, if the service imposed a burden which was so excessive or disproportionate to the advantages attached to the future exercise of that profession that the service could not be treated as having been voluntarily accepted beforehand; this could apply, for example, in the case of a service unconnected with the profession in question.”

143.  Adopting that approach, the court decided on the facts that what was required of the applicant did not impose a burden which was so excessive or disproportionate to the advantages attached to the future exercise of the relevant profession that the service could not be treated as having been voluntarily accepted beforehand.

144.  The present case, on the facts, does not require the court to make any definite pronouncement on this question.  As I say, in a common law court like this court, we approach matters on an incremental, case by case, basis.

145.  Rather, caution must be exercised when reading cases on forced labour, as in many other fields of law.  So, for instance, in Chowdury v Greece, Application No 21884/15, 30 March 2017, the European court said:

“96. The Court further considers that where an employer abuses his power or takes advantage of the vulnerability of his workers in order to exploit them, they do not offer themselves for work voluntarily. The prior consent of the victim is not sufficient to exclude the characterisation of work as forced labour. The question whether an individual offers himself for work voluntarily is a factual question which must be examined in the light of all the relevant circumstances of a case.”

146.  When read alone, this is a very wide statement and depending on the facts, particularly where the parties’ bargaining powers are less than equal, it would render many cases which, at least in Hong Kong, are simply regarded as employment or labour disputes, cases of forced labour.  However, how unequal should the bargaining powers be before one reaches the point where the employer may be described as abusing his power or taking advantage of the vulnerability of his workers in order to exploit them (that is, requiring them to perform forced labour), must be worked out carefully, case by case.  This is particularly so if, as is contended by the applicant under the third issue to be discussed below, article 4 should be backed by specific criminal sanctions.  It is, therefore, prudent, even at this appellate level, to focus primarily on the issues and legal principles raised by the facts of the appeal, and leave the development of the law to subsequent cases.

H.2    Forced labour – the present case

147.  Turning to the facts of the present case, the thrust of Lord Pannick’s arguments, as already described, is that the applicant performed his work for his employer between 2007 and 2010 voluntarily.  He refers the court to various parts of the transcript of evidence when the applicant agreed with Lord Pannick during cross‑examination that so long as he would be paid, he was happy; and he was happy to continue working for the employer because he was promised to be paid wages ten times more than what he would have been able to earn back home.

148.  It is quite unnecessary for us to go into the applicant’s oral evidence in any great detail.  Nor is that the function of this court, sitting on appeal from the judgment below.  In the present case, amongst the various wrongs practised by the employer on the applicant as found by the judge, there were threats to kill the applicant or his family members back home during his period of employment in Hong Kong, if he were ever to consider leaving the employment or returning home.  In paragraph 345 of the judgment, the judge clearly found:

“ It is clear from the circumstances that emerged from the evidence that the applicant was threatened and abused on numerous occasions by the employer; his movement was restricted and he was confined to the office premises; he was not paid for the work that he performed; he was threatened that because he owed the employer a lot of money for bringing him to Hong Kong, if he ran away he would be killed; and his travel and identification documents were held by the employer.”

149.  In my view, there was, first, obviously, the menace of a penalty.  Secondly, the threat to kill the applicant if he were ever to run away, whether considered in isolation or in conjunction with the many other matters found by the judge regarding the ill treatments that he had received whilst working in Hong Kong, was more than sufficient to vitiate the initial consent of the applicant to coming to Hong Kong to work for the employer or his subsequent consent to stay in his employment.

150.  As regards causation, as mentioned, subjective causation is not required.  Passages, here and there, in the evidence of the applicant during cross-examination to the effect that he was happy to stay so long as he would be paid at the end of the day are neither here nor there.  They merely illustrate the point made earlier that typically, one is dealing with simple-minded, submissive, and vulnerable people whom the law must protect against unscrupulous exploitation.  On the facts as found by the judge, there can be no doubt that the menace of a penalty played a material part in the applicant’s remaining in his employment despite the ill treatments found by the judge.

H.3    Conclusion

151.  A case of forced labour in contravention of article 4(3) has clearly been established.  There is no reason to disturb the judge’s conclusion in this regard.

I.    WHETHER A SPECIFIC CRIMINAL OFFENCE IS REQUIRED?

152.  I now move on to the third issue, that is, whether the government has breached its positive duties under article 4 to combat forced labour by failing to penalise it by a specific criminal offence. In this regard, since I have come to the view that article 4 does not include human trafficking for forced labour, the similar argument relating to the absence of a specific criminal offence to penalise human trafficking for forced labour need not be addressed.  In any event, the arguments would essentially be the same.

I.1    Some observations

153.  Several observations at this stage are helpful.  First, Lord Pannick basically accepts that article 4 carries positive duties on the part of the government to combat forced labour. Lord Pannick’s argument is essentially that the government has done sufficient to comply with the positive duties.  A specific criminal offence may be desirable, but is not essential for the fulfilment of the positive duties.

154.  The judge was fully aware of the measures relied on by the government, described in great detail in the evidence and referred to repeatedly in the judgment below, but was obviously not impressed by them.  To him, the “critical flaw” of the government’s approach to combating forced labour lies in the absence of a specific criminal offence to penalise it.  He said so in terms:

“351. In my view, the critical flaw in the HKSARG’s obligations under Article 4 of the BOR is the lack of a criminal offence and penalty that addresses the prohibited concept of forced or compulsory labour.”

155.  He elaborated this in paragraph 355 of his judgment:

“ I find that the HKSARG has positive obligations under Article 4 of the BOR to enact measures to ensure the prohibition of forced or compulsory labour, and these include criminalising and penalising any offender of forced or compulsory labour or trafficking for that purpose, and having appropriate measures in place to investigate such cases. It seems to me that trafficking a person for forced or compulsory labour is within the ambit of criminal liability as formulated by the prohibition under Article 4 of the BOR. There is no offence against forced or compulsory labour and the reliance on other provisions of the criminal law does not adequately if at all address the need for the criminalisation of this prohibited conduct. The criminalisation of forced or compulsory labour satisfied two important objectives. First, it outlaws the prohibited conduct by a specific offence provision and penalty, and sets out the elements of the conduct that is prohibited. Secondly, it provides an important measure for law enforcement and the general public of the conduct that is prohibited. It seems to me that this case has illustrated the ineffectiveness of this important prohibition because of a lack of criminalisation.”

156.  He therefore found, in paragraph 356, that the government “has not adequately fulfilled its obligations under Article 4 of the BOR”.

157.  The government obviously does not agree with the judge’s finding, and thus this appeal.  However, it should be noted that there is no respondent’s notice seeking to uphold the judge’s finding of a breach of the positive duties under article 4 by an alternative/fall‑back argument. That is, in case the judge was wrong with the necessity for a specific criminal offence, the various measures that the government has put in place are nonetheless inadequate and ineffective to combat forced labour such that the government is in any event in breach of its positive obligations under article 4.

158.  This was pointed out specifically by the court to counsel at the hearing.  There was no attempt to put in a respondent’s notice to the above effect.  That is not surprising, for obviously what the applicant (and those assisting him) are seeking to establish, which they have successfully done before the judge below, is that nothing short of a specific criminal offence suffices so far as the government’s positive duties under article 4 are concerned.

159.  The battle line, on this front, is therefore sharply drawn.  Everything turns on whether the government’s positive duties under article 4 involve the enactment of a specific criminal offence to combat forced labour.  There is no fall‑back position to be considered.  In other words, the court is not asked to consider whether the measures already put in place by the government to combat forced labour are by themselves adequate and effective so as to fulfil its positive duties under article 4, in case it should come to the conclusion that a specific criminal offence is not required.

160.  Another preliminary observation that has to be made at this stage is this.  It is not the applicant’s case on appeal that on the facts as found by the judge, he cannot obtain adequate redress from the former employer under our legal system, or that the former employer cannot be effectively prosecuted or sufficiently punished under the existing criminal law.  The judge made no specific findings to that effect, and on appeal we have heard no arguments relating to the same.  This is not surprising because the challenge underlying this third issue that I am dealing with (as opposed to the fourth issue on the government’s breach of its investigative duty in the applicant’s case) is a general one, with little to do with the facts of the applicant’s own case in terms of prosecution and punishment of the former employer.  In other words, it is not suggested by the applicant on appeal, and certainly there was no finding to that effect by the judge, that the former employer cannot be effectively prosecuted or sufficiently punished without a specific criminal offence prohibiting forced labour.  Rather, the focus is on whether, at a general level, the government is in breach of its positive duties under article 4 in the absence of a specific criminal offence.  The challenge is essentially systemic in nature.

161.  With these preliminary observations made, I turn to the question of a specific criminal offence.

I.2    Mr Husain’s arguments at the hearing

162.  At the oral hearing, this was how Mr Husain presented his case for a specific criminal offence.  First, he argued that there is an absolute duty on the part of the government under article 4 to criminalise forced labour.  Secondly, where the government cannot demonstrate by evidence to the satisfaction of the court that a patchwork or adaptive approach to criminalisation is effective in combating forced labour, there is a duty to do so by a specific criminal offence.  Mr Husain called this latter duty a contingent duty.  Thirdly, he argued that on the evidence, the government has failed to demonstrate the effectiveness of its patchwork/adaptive approach.  He relied on the judge’s finding in paragraph 312 of his judgment (extracted above).  He supported the judge’s analysis of the situation on the ground in paragraphs 303 and 304 of the judgment.  In those two paragraphs, it may be recalled, the judge noted the patchwork approach adopted by the government, that is, “features or symptoms of the prohibitive act are addressed by existing criminal or regulatory offences”, but commented that “this misses the point … the real mischief is not being criminalised as required”.  In paragraph 305, the judge repeated his point:

“The point has already been made that features of facets of the alleged conduct may have capably been dealt with by criminal offences. However, the question is where the overall conduct of an employer can be dealt with if it is considered to be forced labour or trafficking in forced labour.”

163.  Riding on the judge’s observations, and taking up a suggestion from the bench during Lord Pannick’s submission, Mr Husain made as his fourth point that the reasons for a specific criminal offence are that it provides a reference point; it promotes victim identification; it facilitates the detection of crime; it eases prosecution; it guides proper punishment; it helps prevention; and it promotes general education.

I.3    An absolute position is untenable

164.  In my view, Mr Husain’s approach at the hearing represents a subtle retreat from the absolute position which the applicant apparently adopted both before the judge and in the written submissions on appeal.  It was also a position which, as described, appears to have been accepted by the judge, namely, that there is an absolute positive duty under article 4 to have specific criminal legislation against forced labour.

165.  For my part, I do not agree with such an absolute position.  Granted there are positive obligations and these are serious obligations under article 4 on the part of the government to combat forced labour, but it does not follow that the only possible way to discharge those duties is to have, amongst other things, a specific criminal offence to penalise forced labour.  Rather, when it comes to positive duties on the part of the government, a suitable degree of margin of appreciation must be accorded to the government.  To put it as an absolute duty to have a specific criminal offence, which the judge in some passages in his long judgment seems to have suggested, is, in effect, saying that having a specific criminal offence is the only way to effectively combat forced labour in discharge of the positive duties.  For my part, I have not seen evidence strong enough to support that very sweeping conclusion which must be at least partly fact-sensitive.  I am therefore glad to see that Mr Husain has modified his client’s position at the oral hearing by calling the duty to have a specific criminal offence a contingent duty.  By that, he means that the duty to have a specific criminal offence is contingent upon what he calls the patchwork/adaptive approach adopted by the government not being demonstrated to the satisfaction of the court to be effective in combating forced labour.

I.4    Ineffectiveness of the patchwork/adaptive approach and the causal link

166.  My problem with this reformulated approach and argument of the applicant is this.  The patchwork or adaptive approach may be ineffective – and when I come to the fourth and final issue in this case, it will be clear that the present case does tend to suggest that the government’s approach is ineffective at least in one aspect, the ineffectiveness may be due to a number of possible reasons or a combination of them.  It is a quantum leap to say that because the existing measures are ineffective, therefore there must be a specific criminal offence enacted to combat forced labour.  There has to be established a causal connection between the ineffectiveness and the lack of a specific criminal offence.

167.  In other words, the ineffectiveness of the existing measures may be due to a variety of reasons.  As is illustrated by the facts of the present case, the ineffectiveness may be due to a lack of awareness on the part of the various authorities and law enforcement agency concerned, coupled with the absence of a central authority to supervise, coordinate or carry out investigations into possible violations of article 4.  As the judge repeatedly said in the case of the applicant, he was shunted from one government authority to another – each thinking that his case fell outside its own purview but within that of another authority’s – and left floundering.  As Mr Husain puts it, when a patchwork approach is adopted, somebody needs to knit the patchwork together.  It would appear that at the material time, there was simply no central authority which performed that role of a knitter.  Moreover, at the ground level, it would appear that the officers concerned lacked training and basic concepts regarding article 4.  On the evidence, it would appear that they were almost as ignorant as the victim himself regarding the concept of forced labour, and the prohibition against forced labour (under article 4 of the Hong Kong Bill of Rights).

168.  Would the enactment of a specific offence to penalise forced labour help?  The answer is of course it would, to some extent.  But, that is not the crucial question we have to ask and answer.  For, unless the enactment of a specific criminal offence to penalise forced labour is the only effective solution to the problem I have just identified, one just cannot conclude from the fact that the existing measures are ineffective that, therefore, there must be enacted a specific criminal offence.  That would be a non sequitur.

169.  Put another way, if the officers, the authorities, and the people in authority have no idea what article 4 is all about and how it can be violated in a modern setting, the enactment of a specific criminal offence is not going to do much.  If, on the other hand, the government were to start educating and training its people in all relevant departments concerned about article 4, and were to set up a central authority to knit the patchwork together by supervising and co‑ordinating all efforts, the picture might perhaps be very much different.  No doubt, the addition of a specific criminal offence would help.  But the question is not whether it would help.  The question is whether without it, the government would be in breach of its positive duties under article 4.  In my view, by setting such a high threshold for himself, the applicant would have to persuade this court that no matter how much training and education the government would like to implement from now on, and no matter what a central authority could or would do, nothing short of a specific criminal offence would render all these efforts (plus the existing measures) practical and effective enough for the government to fulfil its obligations under article 4.  That is indeed a high threshold to pass.

I.5     Looking at the future

170.  On the facts of the present case, on the experience of the case of the applicant alone, I do not think we – the judge below included – are entitled to draw that conclusion.  I say nothing about possible future development, that is, when more and more cases should come before the courts demonstrating to us that whatever measures (short of a specific criminal offence) that the government may have put in place, they are not effective enough.  Then the time may well have come for us to say, with reasonable confidence, that there has to be enacted a specific criminal offence (amongst other things) before the government can fulfil its positive obligations under article 4.  To put it shortly, the sample represented by the applicant’s case is simply too small at this stage of the development of the law regarding article 4 in Hong Kong for us to jump to the conclusion that the judge has reached.  I have not of course forgotten the many “undetected cases” described in the evidence by the various concerned parties whose efforts in helping those who are weak and vulnerable must be fully acknowledged.  However, they cannot replace real cases, fully tested by admissible evidence and if necessary cross‑examination at trial, which are actually before the courts.

171.  On the other hand, regardless of whether the learning curve is steep, when one is concerned with combating article 4 violations, the government does not have indefinite time allowed to it to say that it is putting in place more and more measures and is learning something new every day.  It may not take too many cases to come before the courts before they would eventually come to the view that a specific criminal offence is required.

I.6     The Palermo Protocol

172.  As to Mr Husain’s reliance on the Palermo Protocol as setting out the modern international practice which the government has in its evidence said it embraces, there is a world of difference between a government policy which may change and a legal obligation on the part of the government such that it is obliged to enact a specific criminal offence to combat article 4 violations.  I have already explained that by a deliberate choice of the State, the Palermo Protocol is not applicable to Hong Kong.  It cannot therefore be used as a reason for requiring the government to enact a specific criminal offence, particularly when, as explained, it has not been established that the ineffectiveness of the current measures is due to the absence of a specific criminal offence, or can only be remedied by the enactment of a specific criminal offence.

I.7     Article 25 of the Forced Labour Convention

173.  In my view, with respect, the applicant’s (original) reliance on article 25 of the Forced Labour Convention backfires.  Putting aside the secondary arguments as to whether article 25 has direct domestic effect in Hong Kong or has indirect effect given the presumption of compatibility with international obligations as a general principle of statutory construction, the main point against the applicant’s argument is that the Forced Labour Convention, a specific instrument widely adopted internationally to combat forced labour which was enacted as long ago as 1930 and is still very much alive in the 21^st century, does not invariably require the enactment of a specific criminal offence to combat forced labour.  It would therefore be a strange result for Hong Kong to make law, so far as article 8 of the ICCPR is concerned, by so interpreting it to mean there is an absolute obligation to enact a specific criminal offence, a position which as explained Mr Husain has resiled from.  Report III (Part 1B) presented before the International Labour Conference in 2007 explained the position as follows:

“137. First, legislation has to establish ‘penalties’ in cases where forced labour is exacted. Cases in which there are no legislative provisions at all establishing penalties for the exaction of forced labour are relatively rare. As already indicated in paragraph 67, most countries have incorporated in their legislation provisions defining and prohibiting the use of forced labour, and the violation of those provisions generally carries penalties. However, the Committee has noted that the penalties established by the legislation do not always appear to be appropriate or adequate. The question of penalties is closely linked to that of the definition of forced labour and the nature of the legislation which makes it an offence. In view of the different forms that forced labour can take, a wide range of different provisions, pertaining to labour law, criminal law or specific enactments, may be used by courts to punish forced labour practices. The Committee thus has to examine a wide range of legislation, without always being able to identify the provisions in national law under which existing forced labour practices, or those which could arise, are a punishable offence. The Committee may therefore have to ask governments to specify what those provisions are. It is important that any sanctions are of a penal nature, as required by the Convention, and can be considered to be really adequate. On more than one occasion, the Committee has noted that the only penalty for violating the prohibition of forced labour is a fine. This is mostly the case where the use of forced labour is prohibited by a provision in the labour code. In such cases, the Committee draws the attention of the government to the need for sanctions of a penal nature in cases of the exaction of forced labour. On occasion, legislation provides for a fine and/or a short term of imprisonment. Such penalties cannot be considered effective, given the seriousness of the offence and the dissuasive effect that the penalties should have.

138. This follows from the fact that, according to Article 25 of the Convention, the penalties imposed by law must be ‘really adequate’.  For this to be the case, the practical elements and the applicable penalties must be appropriate to national circumstances.  It may in practice not be enough to adopt provisions making the use of forced labour an offence and establishing penalties for it in general terms.  Under certain circumstances, the excessively general nature of such provisions can mean that it is difficult for victims, and the authorities responsible for protecting their rights, to ensure that they are enforced.  It is then essential to take due account of the nature of the problems faced in practice and to ensure that legislation explicitly targets them.  Where it observes that, despite a general prohibition of forced labour, certain forms persist, the Committee encourages governments to supplement their legislation with provisions defining exactly those elements of the practice requiring abolition, making them an offence and establishing appropriate and adequate penalties.”

174.  Footnote 319 reads:

“Although desirable, general provisions making the use of forced labour a punishable offence with appropriate penalties are not always necessary to give effect to the provisions of Article 25 of the Convention. The Committee seeks assurance from governments, often by requesting supplementary information, that there are provisions allowing punishment of persons guilty of forced labour practices found to have occurred in their country. A wide range of provisions can thus be used in practice by the courts, especially where those provisions are interpreted together (with others such as those concerning coercion, the use of threats or violence, detention, exploitation of vulnerability, freedom of employment, and so on).”

175.  To be fair to Mr Husain, what the report says reflects to some extent his re-aligned argument at the oral hearing on the need for specific criminalisation, save that rather than putting it as a sort of burden of proof on the part of a national government to discharge that its patchwork approach is working effectively, the report simply recognises that when general criminal law does not work well in practice, a specific offence is called for.

I.8     European case law

176.  As for the European case law, I accept Lord Pannick’s submission that in each of the cases relied on, the facts were such that the failure to prosecute, or the failed prosecution, was demonstrated by evidence to the satisfaction of the court to be due to the lack of specific criminal legislation to combat the servitude, forced labour or human trafficking concerned.  In our case, by contrast, we have not even reached that stage.  As will be seen when I come to the fourth issue, the government has failed on the first hurdle by breaching its investigative duty under article 4.  From the evidence presented before the court, it is plain that the breach was due not to the absence of any specific criminal offence as such, but rather the lack of training of the officers of the various government authorities involved regarding article 4 violations, and the total lack of central supervision and coordination in terms of investigating and combating such violations.  Nor has the evidence in the present case established that having a specific criminal offence is an effective or the only way to remedy this ignorance and lack of coordination on the ground.

177.  In Siliadin,the applicant’s case was reported to the authority by the Committee against Modern Slavery and criminal proceedings were brought against the couple in the wrong.  The trial court found that the offence of obtaining performance of unpaid or inadequately remunerated services had been established.  But it concluded that the offence of subjecting a person to working or living in conditions incompatible with human dignity had not been established.  The court nonetheless concluded that the offences of which the couple had been found guilty were particularly grave and should be punished by severe penalties.  On appeal, the Court of Appeal acquitted the couple of all charges on the evidence.  The applicant appealed against that judgment to the Court of Cassation in relation to the civil claim, whilst the public prosecutor did not launch an appeal against the acquittal.  The Court of Cassation upheld the applicant’s appeal and referred the case to another Court of Appeal.  That latter court, in relation to the applicant’s civil claim, found that the elements of the criminal offence of obtaining performance of unpaid or inadequately remunerated services had been established, but also concluded that the offence of subjecting a person to working or living conditions incompatible with human dignity had not been established.  The court awarded her substantial damages accordingly.  An employment tribunal subsequently awarded the applicant her arrears in salary and compensation in lieu of notice.

178.  The European court, on those facts, came to the conclusion that the then existing legislation in France was insufficient and ineffective to combat servitude:

“141 The Court notes that slavery and servitude are not as such classified as offences under French criminal law.

142 The Government referred to Arts 225-13 and 225-14 of the Criminal Code.

The Court notes, however, that those provisions do not deal specifically with the rights guaranteed under Art.4 of the Convention, but concern, in a much more restrictive way, exploitation through labour and subjection to working and living conditions that are incompatible with human dignity.

It therefore needs to be determined whether, in the instant case, those articles provided effective penalties for the conduct to which the applicant had been subjected.

…

145 The Court observes that, in the instant case, the applicant, who was subjected to treatment contrary to Art.4 and held in servitude, was not able to see those responsible for the wrongdoing convinced under the criminal law.

146 In this connection, it notes that, as the Principle Public Prosecutor did not appeal on points of law against the Court of Appeal’s judgment of October 19, 2000, the appeal to the Court of Cassation concerned only the civil aspect of the case and Mr and Mrs B’s acquittal thus became final.

147 In addition, according to the report of December 12, 2001 by the French National Assembly’s joint taskforce on the various forms of modern slavery, Arts 225-13 and 225-14 of the Criminal Code, as worded at the material time, were open to very differing interpretations from one court to the next, as demonstrated by this case, which, indeed, was referred to by the taskforce as an example of a case in which a court of appeal had unexpectedly declined to apply Arts 225-13 and 225-14.

148 In those circumstances, the Court considers that the criminal law legislation in force at the material time did not afford the applicant, a minor, practical and effective protection against the actions of which she was a victim.  …”

179.  In CN & V v France, the same legislative framework was still in place when the material events took place. The complaints of the applicant were taken to the French courts, but were only partially successful in the Versailles Court of Appeal due to the then existing law.  Not surprisingly, the European court came to the same conclusion as in the earlier case of Siliadin concerning the same legislative framework in France, and observed:

“107. … Furthermore, as in the Siliadin case, the fact that the Principal Public Prosecutor did not appeal on points of law against the Court of Appeal’s judgment acquitting Mr and Mrs M. of the charge under Article 225‑14 of the Criminal Code meant that in the present case too the appeal to the Court of Cassation concerned only the civil aspect of the case.

108.  The Court sees no reason in the present case to depart from its finding in the Siliadin case.  It follows that there has been a violation of Article 4 of the Convention in respect of the first applicant as regards the State’s positive obligation to set in place a legislative and administrative framework to effectively combat servitude and forced labour.”

180.  In CN v United Kingdom, the situation was not dissimilar, save that there, after detailed investigations involving the Human Trafficking Team set up by the UK government as well as the police, both focusing on possible breach of human rights against the applicant, it was concluded, on the evidence and on the basis of the then existing law, that there was no case to pursue.  The matter was then taken to the European court. It was in that context that the court, following Siliadin, came to the conclusion that the frustration experienced by the applicant in pursuing justice was caused by the lack of a specific criminal law at the time to afford practical and effective protection against treatment falling within article 4 of the European Convention:

“74 It is not in dispute that at the time the applicant alleged that she was subjected to treatment falling within the scope of art.4 of the Convention, such conduct was not specifically criminalised under domestic law. There were, however, a number of criminal offences which criminalised certain aspects of slavery, servitude and forced or compulsory labour. In particular, the Government directed the Court’s attention to the offences of trafficking, false imprisonment, kidnapping, grievous bodily harm, assault, battery, blackmail and harassment.

75 In Siliadin, the Court found that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably required greater firmness in assessing breaches of the fundamental values of democratic societies. In that case, the Court found that arts 2250‑13 and 225‑14 of the French Criminal Code, which concerned exploitation through labour and subjection to working and living conditions incompatible with human dignity, were not sufficiently specific and were too restrictive to protect the applicant’s rights under art.4 of the Convention.

76 In view of the Court’s findings in Siliadin, it cannot but find that the legislative provisions in force in the United Kingdom at the relevant time were inadequate to afford practical and effective protection against treatment falling within the scope of art.4 of the Convention. Instead of enabling the authorities to investigate and penalise such treatment, the authorities were limited to investigating and penalising criminal offences which often – but do not necessarily – accompany the offences of slavery, servitude and forced or compulsory labour. Victims of such treatment who were not also victims of one of these related offences were left without any remedy.

77 Consequently, the Court considers that the criminal law in force at the material time did not afford practical and effective protection against treatment falling within the scope of art.4 of the Convention.

78 Nevertheless, the Government have submitted that the reason no action was taken following investigation of the applicant’s complaints was not the absence of appropriate legislation but rather the absence of evidence to support the facts alleged by her.  In short, the domestic authorities simply did not believe the applicant’s account.  The Court must therefore consider whether the lack of specific legislation criminalising domestic servitude prevented the domestic authorities from properly investigating the applicant’s complaints, or whether her complaints were properly investigated but no evidence was found to support them.  In carrying out this assessment, the Court reiterates that it is not its task to replace the domestic authorities in the assessment of the facts of the case.”

181.  In Rantsev where the young Russian artiste died in mysterious circumstances in Cyprus within a month of her arrival from Russia, the European court considered the legislative and administrative framework in Russia, which adopted an approach that Mr Husain would call a patchwork or adaptive one, and concluded that that notwithstanding, Russia was not in breach of its positive obligations under article 4 of the European Convention.  It so held essentially on the ground of a lack of causal connection between that framework and the death of the young woman in Cyprus.  Implicit in that finding is that at the general or systemic level, the European court did not consider that the lack of specific criminal legislation against article 4 violations under the European Convention would of itself amount to a breach of the positive duties under that article.  In Rantsev, the court said:

“(b) Russia

(i) Positive obligation to put in place an appropriate legislative and administrative framework

301 The Court recalls that the responsibility of Russia in the present case is limited to the acts which fell within its jurisdiction. Although the criminal law did not specifically provide for the offence of trafficking at the material time, the Russian Government argued that the conduct about which the applicant complained fell within the definitions of other offences.

302 The Court observes that the applicant does not point to any particular failing in the Russian criminal law provisions. Further, as regards the wider administrative and legal framework, the Court emphasises the efforts of the Russian authorities to publicise the risks of trafficking through an information campaign conducted through the media.

303 On the basis of the evidence before it, the Court does not consider that the legal and administrative framework in place in Russia at the material time failed to ensure Ms Rantseva’s practical and effective protection in the circumstances of the present case.”

182.  From these cases, it appears that although the European court was strongly (and understandably) influenced by the Palermo Protocol and the European Anti‑Trafficking Convention in its interpretation of the scope of application of article 4 of the European Convention, yet when it came to interpreting the positive duties imposed by the article 4 on the member states in terms of whether a specific criminal offence was required, it paid particularly careful attention to the facts involved.  With respect, that must be the correct approach to adopt.  After all, one is concerned with whether the existing measures afford “practical and effective protection” in a given case.  That is a highly fact‑sensitive issue.  The court, in its adjudicatory role, can only proceed on the evidence placed before it, which is, by definition, limited and shaped by the facts and issues involved in the case in question.  This leads me back to the earlier observations I made about the incremental common law approach, which I need not repeat.

183.  Returning to the present appeal, the failure of the government in the present case, even on the findings of the judge, was caused, as it is quite plain from the evidence, not because of any defects in our criminal justice system, whether as a matter of substantive law or procedure – we have not even reached that stage.  The failure was due to the prior step of inadequate investigation caused by a lack of training and coordination, so much so that the applicant was shunted from one government authority to another and left floundering, with practically nobody realising that his case was possibly a case of violation of article 4 in terms of forced labour.

I.9     UN Human Rights Committee’s Concluding Observations

184.  In the UN Human Rights Committee’s Concluding Observations on the Third Periodic Report of Hong Kong, China, adopted by the Committee at its 107^th session, 11 to 28 March 2013, it made these comments:

“20. The Committee is concerned about the persistence of the phenomenon of trafficking in persons in Hong Kong, China, and reports that Hong Kong, China, is a source, destination, and transit point for men, women, and teenage girls from Hong Kong, the mainland of China, and elsewhere in Southeast Asia, subjected to human trafficking and forced labour. The Committee is concerned about the reluctance of Hong Kong, China, to take steps which could lead to the extension of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol) to Hong Kong, China, (art. 8).

Hong Kong, China, should intensify its efforts to identify victims of trafficking and ensure the systematic collection of data on trafficking flows to and in transit through the region, review its sentencing policy for perpetrators of trafficking-related crimes, support private shelters offering protection to victims, strengthen victim assistance by ensuring interpretation, medical care, counselling, legal support for claiming unpaid wages and compensation, long-term support for rehabilitation and stability of legal status to all victims of trafficking.  The Committee recommends the inclusion of certain practices regarding foreign domestic workers in the definition of the crime of human trafficking. Hong Kong, China, should consider taking steps which could lead to the extension of the Palermo Protocol to Hong Kong, China, in order to strengthen its commitment to fight trafficking in persons in the region.”

185.  Mr Husain relies on these comments to say that in Hong Kong, the government has not provided practical and effective protection.  Although this is strongly disputed by the respondents, judging from the experience of the applicant in the present case as found by the judge, and the material presented before the court below regarding undetected cases, as well as the comments of the UN Human Rights Committee, Mr Husain may well have a point.  But the focus of the present discussion is whether the lack of practical and effective protection is due to the lack of a specific criminal offence, or more precisely, whether the enactment of a specific criminal offence (plus other measures) is the only way out.  If not, in my view, the government enjoys a margin of appreciation regarding the choice to be adopted to provide such practical and effective protection.  I note that despite its negative comments, the UN Human Rights Committee has not said that the enactment of a specific criminal offence is a must in order to provide practical and effective protection.

I.10   The “finding” in paragraph 312 of the judgment

186.  As regards the judge’s “finding” in paragraph 312 of his judgment (already extracted), on my own reading, the word “finding” has been used loosely and does not bear its strict legal meaning.  I cannot believe that by that single paragraph, the judge meant to say that he had found as findings of fact, that there were many undetected or unprosecuted cases in Hong Kong involving violations of article 4, that they were caused by the lack of a specific criminal offence punishing those wrongs, that without such an offence, there could not be any practical and effective protection against violations of article 4 in Hong Kong, and that therefore specific criminalisation is the only way out.  In particular, if the judge had meant to make findings of fact (as properly so called) in relation to the personal experiences and case studies referred to in that paragraph about alleged abused by “unscrupulous employers”, taking advantage of employees’ “vulnerability and their unfamiliarity with the laws and structures of Hong Kong”, I would expect to see in the judgment much more detailed examination and analysis of the allegations, evidence and issues involved in those cases, and the government’s arguments and responses to them.

I.11   Conclusion

187.  In conclusion, the case that the government has breached its positive duties under article 4 to provide practical and effective protection against forced labour by means of a specific criminal offence has not been made out.  As there is no fall‑back position in this regard supporting the judge’s conclusion that the government has breached its positive obligations (in the event the court does not agree that there has to be a specific criminal offence), despite this having been pointed out to counsel during the hearing, the judge’s finding that the government has breached its positive duties under article 4 must be disturbed.

188.  From the latest evidence filed by the government with leave from us, it would appear that further and more sophisticated efforts have been and are being made by the government to strengthen the protection afforded to potential victims of article 4 with the aim to providing them with practical and effective protection.  The effectiveness of those measures is doubted by the evidence filed on behalf of the applicant also with leave from us.  It remains to be seen whether these or other further efforts by the government (absent specific criminal legislation) are sufficient to provide the requisite practical and effective protection.  As I said, regardless of whether the learning curve is steep or not, the government should act fast. It may not take too many more cases to be brought to court before it will come to the ultimate conclusion that the enactment of specific criminal law is the only way out.

J.    WHETHER THE GOVERNMENT HAS BREACHED ITS INVESTIGATIVE DUTY

189.  I come to the final issue: whether the government has breached its investigative duty under article 4 in relation to the applicant’s complaints after his return to Hong Kong in 2012.  This issue can be disposed of relatively quickly.  By the reply stage of Lord Pannick’s submissions, learned counsel very fairly accepted the force of the arguments made against him on this issue by Mr Husain.

J.1     The investigative duty under article 4

190.  In short, the investigative duty under article 4 can be taken from what the European court has said in relation to a member state’s duty to investigate under article 4 of the European Convention in Rantsev, bearing in mind, however, that in that case, the European court interpreted the obligation under article 4 to include combating human trafficking per se.  With that caveat in mind, what the European court has said is still relevant to Hong Kong in relation to our article 4, mutatis mutandis:

“286 As with arts 2 and 3 of the Convention, art.4 may, in certain circumstances, require a state to take operational measures to protect victims, or potential victims, of trafficking. In order for a positive obligation to take operational measures to arise in the circumstances of a particular case, it must be demonstrated that the state authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited within the meaning of art.3(a) of the Palermo Protocol and art.4(a) of the Anti-Trafficking Convention. In the case of an answer in the affirmative, there will be a violation of art.4 of the Convention where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk.

287 Bearing in mind the difficulties involved in policing modern societies and the operational choices which must be made in terms of priorities and resources, the obligation to take operational measures must, however, be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. It is relevant to the consideration of the proportionality of any positive obligation arising in the present case that the Palermo Protocol, signed by both Cyprus and the Russian Federation in 2000, requires states to endeavour to provide for the physical safety of victims of trafficking while in their territories and to establish comprehensive policies and programmes to prevent and combat trafficking. States are also required to provide relevant training for law enforcement and immigration officials.

288 Like arts 2 and 3, art.4 also entails a procedural obligation to investigate situations of potential trafficking. The requirement to investigate does not depend on a complaint from the victim or next-of-kin: once the matter has come to the attention of the authorities they must act of their own motion.  For an investigation to be effective, it must be independent from those implicated in the events. It must also be capable of leading to the identification and punishment of individuals responsible, an obligation not of result but of means.  A requirement of promptness and reasonable expedition is implicit in all cases but where the possibility of removing the individual from the harmful situation is available, the investigation must be undertaken as a matter of urgency. The victim or the next-of-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests.”

191.  What is worth emphasising is that it is a positive duty on the part of the government to carry out investigation 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 article 4.  It does not depend on the victim realising or making a complaint that he or she is or has been a victim of a violation of article 4.  And this is for very good and obvious reasons, given that in typical cases, we are concerned with vulnerable and unsophisticated people. Victims may be ignorant, but the government cannot.

J.2     The present case

192.  This effectively answers the main thrust of Lord Pannick’s argument on this fourth and last issue, that is, when the applicant returned to Hong Kong, his primary if not only goal was to recover his arrears of wages.  Quite typically, the applicant did not realise that he had been a victim of article 4 violation in terms of forced labour.  Of course, he did not put forward his complaint as such.  However, on the facts as found by the judge, he did mention various matters to the different authorities involved by which he was shunted from one to another.  The judge referred to the ILO list of indicators of forced labour (para 344), and found that the applicant’s case fell squarely within the indicators.  The facts involved were related to the authorities during the long process which the applicant was made to undergo in order to seek redress.

193.  For instance, as the judge found, the matters reported to the authorities as found by the judge in paragraph 160(20)(a) and (b) should have alerted them that this was a potential case of forced labour.

194.  By the reply stage of the hearing, Lord Pannick very fairly did not make any further submissions on whether on the facts of the present case as found by the judge, those circumstances did give rise to a credible suspicion of violation of article 4, or whether the government was or ought to have been aware of those circumstances as a result of what the applicant had told the relevant authorities.

195.  Of course, the government cannot hide behind the fact that piecemeal information was supplied by the applicant to the different authorities involved, some information to one authority and some other information to another.  The government’s duty is, amongst other things, to have a central authority to supervise and coordinate the works of all relevant authorities.

J.3     Conclusion

196.  I have no difficulty therefore in concluding this issue against the government, and upholding the judge’s finding that the government has failed in its investigative duty under article 4 in relation to the complaints of the applicant in the present case, on the facts as found by him.

K.    DISPOSITION

197.  For all these reasons, I would allow this appeal to a limited extent.  The notice of appeal asks for the setting aside of the judge’s order.  Paragraph 1 of the sealed order dated 23 December 2016 reads:

“The application for judicial review be granted in so far as on the evidence presented, the evidence points to the Applicant having been a victim of human trafficking for forced labour, or forced labour, and that he, on various occasions from April 2012, approached officers of the relevant authorities and gave an account of his case that should have been sufficient to alert them, at least on some occasions, that this was a possible case of human trafficking for forced labour, or forced labour, and prompted them to take appropriate action; and that the Applicant was denied protection under Article 4 of the BOR, which in turn was due to the failure of the HKSARG to fulfil its obligations under Article 4 of the BOR;”

198.  I would, by way of allowing this appeal in part, order that paragraph 1 of the order be amended to read:

“The application for judicial review be granted on the basis that: (1) on the evidence presented, the evidence points to the applicant having been a victim of forced labour; (2) he, on various occasions from April 2012, approached officers of the relevant authorities and gave an account of his case that should have been sufficient to alert them, at least on some occasions, that this was a possible case of forced labour, and prompted them to take appropriate action which they failed to do; (3) the HKSARG was therefore in breach of its procedural obligation to investigate situations of potential forced labour under article 4 of the BOR; and (4) the applicant was denied protection under the same as a result;”.

199.  As for costs, I would not disturb the costs order below.  As regards the costs of this appeal, since both sides are partially successful in their own ways, I would, on a nisi basis, order that the parties shall bear their own costs respectively.  For what it may be worth, I would also grant a certificate for three counsel.  The applicant’s own costs shall be taxed in accordance with legal aid regulations.

200.  It only remains for me to thank counsel and their perspective teams of supporting lawyers for their assistance.

Hon Lam VP:

201.  I respectfully agree with the comprehensive and admirable judgment of the Chief Judge.  For the reasons given therein, I agree with the order proposed in paragraphs 198 and 199 above.

202.  Though it has not been canvassed at length before us, the specific reservation by which the Palermo Protocol is not applicable in Hong Kong is as significant as the immigration reservation in article 39(1) of the Basic Law and section 11 of the Hong Kong Bill of Rights Ordinance.  The significance of the latter reservation was recently discussed in our judgment in another context in Comilang Milagros Tecson v Director of Immigration [2018] 2 HKLRD 534. Like the immigration reservation, the reservation in the Palermo Protocol must carry great weight in ascertaining the scope of article 4 of the Hong Kong Bill of Rights.

203.  For that reason, the reasoning adopted by the European Court in Rantsev v Cyprus and Russia (2010) 51 EHRR 1 to incorporate the concept of human trafficking into the ambit of article 4 of the European Convention cannot be applied in the context of our article 4.  Based on the legal and regulatory regime in Europe against human trafficking discussed at [149] to [174] of that judgment, the European Court had ample justification to hold that trafficking itself runs counter to the spirit and purpose of article 4 without the need to assess which of the three types of proscribed conduct are engaged, see [279] to [282].  In other words, Mr Husain’s super highway founded on Rantsev was built upon the European regime which is lacking in Hong Kong at the moment.

204.  Instead, we have the reservation from the Palermo Protocol.  The rationale for the reservation was explained in paragraph 40 of Wendy Leung’s affirmation and it serves a purpose similar to the immigration reservation.  Adopting the Rantsev approach in Hong Kong would negate the effect of the Palermo reservation. Notwithstanding the eloquence of Mr Husain’s submissions, I am not persuaded that courts in Hong Kong can reach a conclusion similar to the one adopted by the European Court.

205.  With great respect, Zervos J did not adequately address the implications of the Palermo reservation in the Hong Kong context.  By reason of that, his construction of article 4 based on the Rantsev approach cannot be sustained.

206.  For the other reasons given by the Chief Judge, I agree that as a matter of construction human trafficking per se is not within the scope of article 4.

207.  Thus, in Hong Kong we have to approach the proscribed conducts in article 4 as four different concepts: slavery, slave-trade, servitude, forced or compulsory labour though there could be overlaps.

208.  I also agree with the Chief Judge that we should concentrate on forced labour and the facts of this case in the present appeal, that being the basis on which the applicant’s case was argued.  On the facts and evidence in this case, notwithstanding the able submissions of Lord Pannick QC, the applicant has made out a case of him being subject to forced labour.

209.  Regarding the concept of forced labour in article 4, counsel agreed that it should bear the same meaning as forced labour under article 2(1) of the Forced Labour Convention 1930 with three elements: (a) work or service performed; (b) under menace of a penalty; and (c) for which the person has not offered himself or herself voluntarily.  As the Chief Judge observed, there has to be some nexus between (a) and (b).  Otherwise the work or service would not be performed under menace of a penalty.

210.  Of the third element, it has been said that where deceit and fraud are involved in the original work offer, the worker’s acceptance cannot be considered knowing and voluntary, see Forced Labour and Human Trafficking Casebook published by International Labour Organization (2009) p.13 para 2.1.4. The explanation for this proposition was as follows:

“At all times, a worker’s right to free choice of employment is inalienable. A worker must always be free to choose to leave his or her work. Thus the question here consists of two parts: whether the consent to work was in fact freely given, and whether the worker retains the ability to revoke his or her consent.”

211.  The Chief Judge alluded at paragraphs 145 and 146 above to the caution one must have in mind when applying statements made in one context to a totally different context.  Though the above proposition in the Casebook appears to be a general statement, it was based on the Individual Observation Concerning Peru, 87^th Session, Geneva 1999 (cited at footnote 23 in the Casebook) which noted that certain forms of deceitful or violent recruitment of labour were forced labour.

212.  I agree that under certain circumstances deceitful or fraudulent misrepresentation could render the recruitment involuntary notwithstanding the apparent consent of the worker (and the present case is one of those instances).  However, I have reservation on the extraction of a general proposition from such instances.  The only issue which the court should determine is whether the person has offered to work or to serve voluntarily.

213.  As illustrated by the facts of Van der Mussele v Belgium (1984) 6 EHRR 163 (discussed by the Chief Judge at [142] above), for the purpose of Article 4 involuntariness as an element of forced labour may not be straightforward.  Article 4(3)(a) has to be read together with Article 4(3)(b), in particular (b)(iv). In my judgment, the better view is that it should involve a multi-factorial assessment with a balancing judgment based on proportionality (see [39] and [40] in Van der Mussele v Belgium, supra) instead of a linear consideration based on one or two factors.  Given the large varieties of factual contexts in which this question may arise (and forced labour may not be confined to employment situations), much depends on the facts of the case in question.

214.  In this connection, my view is reinforced by the ILO checklist of indicators mentioned by Zervos J at [239] of the judgment below.  The checklist serves as a useful reference tool in the assessment if there is indeed a case of forced labour.  But, with great respect, I cannot subscribe to the view that a situation qualifies as forced labour whenever two or more indicators are present. Such approach carries with it the danger of elevating indicators to sub-categories of forced labour.  It also carries the risk of other relevant factors being side-lined once two or more indicators are being shown to be present.  Ultimately, the question can only be answered by an overall assessment of all the relevant factors in the case.

215.  For the reasons explained by the Chief Judge, this is as far as we can go in this appeal in terms of general discussion on the concept of forced labour in article 4.  As discussed in the introduction section of the ILO Casebook at pp.5‑6, there are many questions which can arise in the practical application of article 4 and the present appeal is not a suitable occasion for us to attempt to provide answers to all the questions that may arise in the future.

216.  This last observation also underscores the need for more mature debate on many issues before one could conclude that all forms of forced labour should be criminalized.  Due to its inherent character and limitations, the judicial process cannot provide an adequate forum for such debate.  Without such debate, it is difficult to tell the precise limits of the new offence and how such new offence would differ from existing criminal offences and to gauge the extent to which the new criminal offence can provide a more effective remedy to combat the vice of forced labour.  The Court does not have a constitutional role to act in place of the legislature.

217.  Hence, it is a very strong measure for a court to hold that short of the enactment of statute providing for a specific offence for forced labour the Government is in breach of its obligation under article 4.  For this and the other reasons canvassed by the Chief Judge, I agree that Zervos J erred in holding at [351] and [355] of the judgment that the lack of a specific criminal offence that addresses forced and compulsory labour is a breach of the obligation under article 4.

218.  On the other issues, I have nothing to add to the judgment of the Chief Judge on which I fully and respectfully concur.

Hon Poon JA:

219.  I agree with the judgment of the Chief Judge and the judgment of the Vice‑President.  In my respectful view, my Lords have already dealt with all the issues comprehensively.  There is nothing that I can usefully add to their very careful and admirable analysis and in-depth discussions.  I just wish to echo one observation made by my Lords, which is this.

220.  Human trafficking is the most violent form of exploitation of the victims as human being and the most serious violation of human rights.  It is reprehensible and deserves full and unreserved condemnation.  But as explained by my Lords, article 4 of the Hong Kong Bill of Rights, on a proper construction against the prevailing local circumstances, does not cover either human trafficking or human trafficking for forced labour.  Nor does article 4 impose a positive duty on the HKSAR Government to enact a specific criminal offence for forced labour.  There are other ways to effectively discharge their duties under article 4.  On the evidence before the court, the HKSAR Government has undoubtedly made tremendous efforts to combat forced labour in fulfilling its obligations under article 4 and will continue to do so in the future.  But however earnest those efforts might be, on the facts found by the judge, they are not enough for the present case.  The failure to carry out the investigative duty under article 4 is a loophole that needs to be plugged as soon as possible.  The Government simply cannot afford to be complacent but must act swiftly.

Hon Cheung CJHC:

221.  Accordingly, we allow this appeal in part and make the costs order nisi as indicated in paragraphs 198 and 199 respectively.