CB v. COMMISSIONER OF POLICE AND ANOTHER

HCAL 617/2021

[2021] HKCFI 3142

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 617 OF 2021

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DECISION

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1.  This is originally the rolled‑up hearing of the Applicant’s application for leave to apply for judicial review, set down pursuant to the direction of A Chow J (as he then was) on 5 May 2021.

2.  As things turned out, the Putative Respondents and Putative Interested Party (the “Government”) filed their evidence in opposition, after 2 extensions, only on 16 August 2021.

3.  Upon sight of the affirmations filed by the Government, the Applicant decided to amend her Form 86.  She also required the Government to make further discoveries.  Her position is that the evidence filed by the Government has revealed materials she was not previously aware of, which necessitate the amendment and justify the request for discovery.

4.  The parts of the Form 86 proposed to be amended are extensive and fundamental, including the very decisions under challenge.

5.  The issues which the intended judicial review raises relate to Article 4 of the Hong Kong Bill of Rights Ordinance (Cap 583) (“BOR 4”), trafficking in persons and forced or compulsory labour.  They are of general importance.

6.  The Applicant and the Government could not reach agreement on the questions of amendment and discovery.  The Applicant ultimately on 16 September 2021 took out a summons for the same (the “16/9 Summons”).  17 September 2021 was the deadline for the Applicant to file submissions for the rolled‑up hearing.

7.  On 17 September 2021, the matter was urgently placed before this Court for directions.  Having considered the matters, I acceded to the Applicant’s request and directed that the hearing of the rolled‑up hearing be adjourned, and the scheduled dates be converted into a direction hearing to consider the summons for amendment and discovery.

8.  This morning, the Applicant is represented by Mr Abraham Chan SC leading Mr Albert Wong.  The Government is represented by Mr Jin Pao SC leading Mr Martin Ho.

The factual basis of the applicant’s intended application for judicial review

9.  The Applicant is a Philippine national.  She started working in Hong Kong as a foreign domestic helper in 2014.

10.  Between early September 2018 and late July 2019, the Applicant was under the employ of his ex‑employer (“Z”) as a foreign domestic helper.

11.  It is the Applicant’s case that whilst so employed, she was subject to sexual exploitation by Z against her will.  It is further her case on that factual basis that she has been a victim of trafficking in persons and forced or compulsory labour.

12.  The Applicant subsequently reported the matter to the police.  Evidence filed by the Government shows that the police have, following the then Police Headquarter Order No 12/2019 “Trafficking in Persons and Exploitation of Foreign Domestic Helpers” (“PHO 12/2019”), screened the Applicant to ascertain whether she should be identified as a victim as defined.  The ultimate decisions were that she was neither a victim of trafficking in persons or forced labour.  The Applicant now seeks to challenge those decisions.  The challenge entails wider challenge of the victim identification scheme under the PHO 12/2019, and the absence of any bespoke legislation to combat forced labour.   

13.  Z has subsequently been charged with 2 counts of indecent assault against the Applicant.  After a trial before a Magistrate, he was on 5 July 2021 convicted as charged, and was sentenced on 15 July 2021 to a total term of imprisonment of 30 months.

Application to amend the Form 86

14.  The Government does not oppose the application to amend the Form 86 as per the draft attached to the 16/9 Summons.  I grant the Applicant leave to do so.

Whether leave to apply for judicial review should now be granted

15.  By his submissions filed in support, Mr Chan submits that in the light of the amendments, despite the order of A Chow J ordering a rolled‑up hearing, leave to apply for judicial review should now be granted to the Applicant.  He submits that the granting of leave will trigger the full duty of candour on the part of the Government, so that there will be no risk of the application being dismissed on a rolled‑up hearing with inadequate disclosure.

16.  In his submissions filed in opposition, Mr Pao objects.  Amongst others, he submits that it would be wrong in principle for the Applicant to firstly apply to convert the present hearing into a directions hearing, only to then ask the Court to revisit the substantive merits of the proposed grounds of review and to grant leave.

17.  Seeing the Government’s stance, the Applicant then on 27 September 2021 (and only then) took out a summons for leave to apply for judicial review in the form of the draft amended Form 86 (the “27/9 Summons”).

18.  This morning, Mr Pao has fairly and clearly informed the court, without prejudice to the Government’s position in the future, that this case has been prepared, and will continue to be prepared as if the full duty of candour applies. 

19.  On this issue, I accept Mr Pao’s submissions.  Whilst I agree with Mr Chan that this Court does have the power to do so, the direction of A Chow J of 5 May 2021 ordering a rolled‑up hearing being a case management decision, I do not, given the way the matters have been developed to the present state, find it fair to the Government to revisit at this stage the order of A Chow J.  Mr Chan’s main concern of the substantive application being dismissed with inadequate disclosure has been addressed by the stance which the Government has adopted and will continue to adopt in this case on advice.

20.  I adjourn the 27/9 Summons to be heard during the resumed rolled‑up hearing, and that the costs shall be in the cause.

Application for discovery

21.  I next deal with the Applicant’s application for discovery.

22.  Parties differ as to whether the Government’s duty of candour arises in the context of a rolled‑up hearing.  I agree with Mr Pao that this is not the appropriate occasion to determine that issue.  The main reason is that the issue is not engaged, as I will make clear below.  I am also encouraged by what Mr Pao has told me in respect of the Government’s stance in the present case.

23.  The Applicant seeks 3 categories of discovery.  I deal with them in turn.

Category 1

24.  The Applicant seeks:

“ The Commissioner and/or the Security Bureau’s policy/protocol for assessment of force labour under BOR4 and Reasons for the Decision made under that policy/protocol order in relation to the Applicant, if any.”

25.  In opposition, Senior Inspector Tsang Hin Chiu has filed an affirmation stating (at §6) as follows:

“ …the relevant information has already been provided in the Affirmations in opposition filed by the Commissioner, specifically at paragraph 25 of the Affirmation of Lau Chun Piu Bill and paragraph 11 of the Affirmation of Wan Chun Lok … I confirm that there are no further relevant documents in existence in relation to this category sought by the Applicant.”

26.  I accept Mr Pao’s submissions, on the authority of Jade’s Realm Ltd v Director of Lands (unrep,HCA 1509/2012, 10 June 2014) that Senior Inspector Tsang’s confirmation will be conclusive at this stage. 

27.  Mr Chan now also accepts that he cannot take the matter further.

28.  I refuse the Applicant’s application in respect of this category.  Given Senior Inspector Tsang’s confirmation, my decision would be the same even on the assumption that the Government’s duty of candour is engaged at this stage, irrespective of what the Government’s actual stance is.

Categories 2 and 3

29.  These 2 categories may be taken together.  The Applicant seeks:

“ 2. Written statements and/or Video Recorded Interview (VRI) by [Z].

3. All unused materials in the Police/Prosecution’s possession in [Z’s trial] including materials in photo/video form if any.”

30.  Mr Pao objects, primarily on the basis that the requests are fishing expeditions, as explained in Hong Kong Telecommunication (HKT) Ltd v Secretary for Commerce and Economic Development [2019] 1 HKLRD 833.  Specifically in respect of the category 2 materials, Mr Pao submits that Senior Inspector Wan Chun Lok has set out in his affirmation the specific factors he took into account, and that even on the basis of the Applicant’s version of events, he did not think that the Applicant could possibly be classified as a trafficking in persons victim.  Specifically in respect of category 3, Mr Pao submits that they are irrelevant, and have not been relied upon by either the prosecution or Z during Z’s trial.

31.  I do not agree.  It might have been the case that the screening officers had not considered the category 2 materials.  It does not necessarily make them irrelevant.  Depending upon the contents of those materials, any failure to consider them can be of relevance.  In respect of the category 3 materials, the fact that they were not relied on by the parties in Z’s trial is not conclusive as to their relevance to the present proceedings.  The issues involved there were different, and relevance is always issue‑specific.  They are in my view relevant as to whether the Government has fulfilled its duties under BOR 4.

32.  Mr Pao has otherwise raised no objection of their discovery on other bases of, for example, privacy.  In any event, concerns of personal privacy can always be addressed by appropriate redactions.

33.  I order discovery in relation to categories 2 and 3.  I would order their discovery, given my view on their relevance, even upon the assumption that the Government’s duty of disclosure is more limited in the context of a rolled‑up hearing as compared with the duty of candour, irrespective of what the Government’s actual stance is.

34.  I will hear parties on the directions to be given on the further conduct of the matter.