AM v. DIRECTOR OF IMMIGRATION AND OTHERS

AM v. DIRECTOR OF IMMIGRATION AND OTHERS

On the facts the court found AM's judicial review application time‑barred and dismissed leave for delay and insufficient merits. In CB's case the court found police screening and investigative decisions were procedurally defective and prematurely curtailed the inquiry under BOR4; those decisions were quashed and the issues remitted to the Commissioner of Police for renewed investigation including consideration of other possible victims and offences. The court declared that, on these facts, the investigative failures were causally connected to the absence of specific legislation criminalising forced labour and left open that bespoke legislation may be necessary in future cases to provide...

Citation
[2022] HKCFI 1046
Parties
Applicant (hcal 466/2021): AM; 1st Putative Respondent (hcal 466/2021): Director of Immigration; 2nd Putative Respondent (hcal 466/2021): Commissioner of Police; 3rd Putative Respondent (hcal 466/2021): Secretary for Justice; Applicant (hcal 617/2021): CB; 1st Putative Respondent (hcal 617/2021): Commissioner of Police; 2nd Putative Respondent (hcal 617/2021): Secretary for Justice; Putative Interested Party (hcal 617/2021): Secretary for Security
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 April 2022
Case Number
HCAL466/2021
Procedural Posture
Judicial Review (constitutional and Administrative Law) / Decision (judgment on Leave and Substantive Judicial Review Issues)
Outcome
AM (HCAL 466/2021): application for leave to apply for judicial review dismissed for delay and lack of sufficient merits; CB (HCAL 617/2021): leave granted; 2nd TIP Decision and Forced Labour Decision quashed; matter remitted to Commissioner of Police for renewed consideration; declaration made that investigative...
Legal Topics
Forced Labour, Trafficking in Persons (tip), Victim Identification, Police Investigation Duties, Positive State Investigative Obligations Under BOR4, Need for Bespoke Criminal Offences
Source Language
EN
Constitutional Law Administrative Law Criminal Law Immigration Law Human Rights Law Labour Law Forced Labour Trafficking in Persons (tip) +4 more

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Parties

AM

Applicant (hcal 466/2021)

Director of Immigration

1st Putative Respondent (hcal 466/2021)

Commissioner of Police

2nd Putative Respondent (hcal 466/2021)

Secretary for Justice

3rd Putative Respondent (hcal 466/2021)

CB

Applicant (hcal 617/2021)

Commissioner of Police

1st Putative Respondent (hcal 617/2021)

Secretary for Justice

2nd Putative Respondent (hcal 617/2021)

Secretary for Security

Putative Interested Party (hcal 617/2021)

Procedural Posture

Judicial Review (constitutional and Administrative Law) / Decision (judgment on Leave and Substantive Judicial Review Issues)

Legal Issues

  1. 1 Whether police and executive breached procedural investigative obligations under Article 4 of the Hong Kong Bill of Rights (BOR4) in relation to forced labour and/or trafficking in persons
  2. 2 Whether the classification decisions that CB was not a TIP or forced labour victim were unlawful (irrational/Wednesbury/unreasoned/reached prematurely)
  3. 3 Whether absence of a bespoke criminal offence for forced labour causally contributed to investigative failings

Ratio Decidendi

On the facts the court found AM's judicial review application time‑barred and dismissed leave for delay and insufficient merits. In CB's case the court found police screening and investigative decisions were procedurally defective and prematurely curtailed the inquiry under BOR4; those decisions were quashed and the issues remitted to the Commissioner of Police for renewed investigation including consideration of other possible victims and offences. The court declared that, on these facts, the investigative failures were causally connected to the absence of specific legislation criminalising forced labour and left open that bespoke legislation may be necessary in future cases to provide...

Court Disposition

AM (HCAL 466/2021): application for leave to apply for judicial review dismissed for delay and lack of sufficient merits; CB (HCAL 617/2021): leave granted; 2nd TIP Decision and Forced Labour Decision quashed; matter remitted to Commissioner of Police for renewed consideration; declaration made that investigative...

Orders

  • AM: leave to apply for judicial review refused; no order as to costs save legal aid taxation arrangement (nisi order subject to 14 days)
  • CB: leave to apply for judicial review granted