CIVIL REMEDIES: FOR VICTIMS OF TRAFFICKING IN HONG KONG - 2 -

INTRODUCTION

The crime of trafficking and the ensuing proceedings if any can be extremely disempowering to victims as they both take away the victim’s autonomy. In many cases criminal proceedings fail for a number of reasons and there is a real risk that the victim will not be granted justice in any shape or form. Civil remedies provide an alternative and/or supplement to criminal proceedings and are attractive as a means of holding perpetrators accountable but also providing victims with some compensation for harm they have endured and losses incurred. Although the use of civil remedies is gaining popularity in many across the world it still remains largely under-utilised.

This Report provides a comprehensive overview of various civil remedies available under Hong Kong and comments on their applicability to trafficking victims. Remedies in , and pursuant to the Basic Law together with the eligibility criteria and judicial procedure(s) for each remedy are examined. We hope that despite the difficulties presented by the ability to remain in-country to pursue justice and the fact that compensation for victims remains a low priority, this Report will provide a creative means of informing front-line responders of different approaches that can help secure justice for victims. and NGOs engaged in legal service provision will find this Report very useful in their daily work.

Whilst the challenges abound in victims’ quest for justice, there is hope. Service providers equipped with better knowledge and information can help victims achieve justice through various means. This Report is about sharing knowledge with practitioners and offering hope to victims. Sincere thanks and gratitude to Hogan Lovells’ team of pro-bono lawyers who have dedicated much time, thought and effort in getting this Report together. We are very grateful for your hard work and thankful for your partnership.

Archana Sinha Kotecha Head of Legal Liberty Asia - 3 -

The tables below set out an overview of Hong Kong provisions and remedies that may be helpful to victims of trafficking in Hong Kong. The document does not set out to provide a comprehensive analysis of civil remedies, but rather identifies statutory provisions and that are likely to be most helpful in the continuing fight for justice for victims. This document is provided for information only: the merits of a particular individual's claim and the applicability of each provision to their case will depend on the relevant facts and a detailed analysis of the applicable and case law. This document is not a substitute for any case specific legal analysis.

September 2014 - 4 -

EXECUTIVE SUMMARY

• Victims of trafficking do not have a civil right of action against their traffickers for for the act of trafficking itself. However, there are a number of other potential civil claims that may be relevant in the circumstances of trafficking, depending on the facts of each individual's case. These include tortious claims such as trespass to the person, sexual harassment claims and employment law claims.

• Overarching and the Basic Law of Hong Kong seek to protect basic civil rights, but these and charters do not of themselves provide an avenue for a civil claim.

• Tortious claims are likely to apply to many trafficking situations. Even if the person against whom damages are claimed may not have sufficient resources to be in a position to pay a significant award of damages, the publicity and deterrent effect of bringing test cases in the Hong Kong are likely to have value.

• Employment are unlikely to offer an effective remedy for victims who are not legally employed.

• There are other possible avenues of compensation for victims of crime including the Criminal and Injuries Compensation Scheme, although there are a number of eligibility criteria to fulfil before access to this scheme can be gained. - 5 -

CONTENTS

A. Overarching charters and Basic Law

1. Basic Law of the Hong Kong Special Administrative Region 2. Hong Kong Bill of Rights Ordinance (Cap 383) 3. The Victims of Crime

B. Tortious claims

1. Trespass to the person 2. Tort of deceit 3. General tort of negligence 4. Tort of negligence as relating to employment

C. Employment law

1. Employment Ordinance (Cap 57) 2. Other employment law legislation and case law 3. Employees' Compensation Ordinance (Cap 282)

D. Sex Discrimination Ordinance (Cap 480)

E. Contractual remedies

F. Other avenues of compensation

1. Ordinance (Cap 221) 2. Ordinance 3. The Criminal and Law Enforcement Injuries Compensation Scheme - 6 -

A. OVERARCHING CHARTERS AND BASIC LAW

1. BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION

Legislative What does this provision Eligibility criteria Remedies procedure Applicability to trafficking provision provide? and appeal

Article 4 The HKSAR shall safeguard Applies to both Hong The can grant • Applications to be made Article 4 applies to victims of the rights and freedoms of Kong residents and non- appropriate remedies in accordance with Order trafficking equally whether Hong Kong residents and residents. where legislation or 53 RHC and Practice they are Hong Kong residents other persons in Hong Kong action Direction SL3 or non-residents. It is arguable in accordance with law. Hong Kong residents contravenes the Basic that Article 4 also covers include both permanent Law. • Commence JR individuals who are in Hong and non-permanent proceedings promptly Kong illegally. residents (Article 24). If rights and freedoms and in any case within are not safeguarded in three months of the date The court has power to (i) Article 11 The systems and policies N/A. accordance with the when grounds for the declare legislation invalid if it practised in Hong Kong, law, a person may application arose contravenes the Basic Law, including those safeguarding seek leave to bring • Two-stage procedure: (ii) provide a remedial the fundamental rights and Judicial Review construction of legislation to freedoms of its residents, proceedings. 1. application to Court of ensure validity, and (iii) shall be based on the First Instance for leave provide remedies in a judicial provisions of the Basic Law. to bring JR application review of executive action (Form 86 and supporting where the action is in breach No law enacted by Hong affidavit) of the Basic Law. Kong's can 2. JR application by contravene the Basic Law. filing Originating These provisions do not Summons (Form 86A) provide victims with a right of within 14 days after civil action, but they may form leave granted part of an argument that the executive should take further • If leave is refused, the steps to ensure civil remedies applicant can appeal to are sufficient to safeguard the Court of Appeal rights and freedoms of victims within 14 days of trafficking. • If JR application is - 7 -

Legislative What does this provision Eligibility criteria Remedies Judicial Review procedure Applicability to trafficking provision provide? and appeal

refused, applicant can appeal to the Court of Appeal within 28 days • If Court of Appeal refuses the JR application, the applicant may apply within 28 days to the Court of Appeal or the Court of Final Appeal for leave to appeal to the Court of Final Appeal

Chapter III The freedom of the person Persons in Hong Kong Seek leave to bring As above These provisions apply to the Article 28 of Hong Kong residents shall other than Hong Kong Judicial Review relationship between the state be inviolable. residents shall, in proceedings before the and individuals rather than accordance with law, Court of First Instance. between private individuals. No Hong Kong resident shall enjoy the rights and They do not therefore provide be subjected to arbitrary or freedoms of Hong Kong a civil remedy for victims, but unlawful arrest, detention or residents prescribed in may provide some protection imprisonment. Arbitrary or Chapter III (Article 41). in circumstances where arms unlawful search of the body of the state act in of any resident or Hong Kong residents contravention of these basic deprivation or restriction of include both permanent laws. the freedom of the person and non-permanent shall be prohibited. Torture residents (Article 24). The provisions apply to of any resident or arbitrary or "persons in Hong Kong other unlawful deprivation of the than Hong Kong residents". It life of any resident shall be is arguable that this includes prohibited. victims of trafficking who are in Hong Kong illegally. Chapter III The homes and other Article 29 premises of Hong Kong Kong Yunming v Director of residents shall be inviolable. Social Welfare (2013) 16 - 8 -

Legislative What does this provision Eligibility criteria Remedies Judicial Review procedure Applicability to trafficking provision provide? and appeal

Arbitrary or unlawful search HKCFAR 950: The Court of of, or intrusion into, a Final Appeal held that not resident’s home or other every right and freedom premises shall be prohibited. prescribed in Chapter III of the Basic Law is a fundamental Chapter III Provides Hong Kong right, in this case the right to Article 31 residents with freedom of social welfare under Article movement in Hong Kong. 36, which is a right which intrinsically involves the Chapter III Hong Kong residents have Government setting rules Article 35 the right to confidential legal determining eligibility. advice, access to the courts, choice of lawyers for timely The applicability of the protection of their lawful provisions will be subject to rights and interests or for Hong Kong's immigration laws representation in the courts, (Ghulam Rbani v Secretary for and to judicial remedies. Justice [2012] HKEC 1659). In Comilang Milagros Tecson Hong Kong residents have v Commissioner of the right to institute legal Registration, unrep. HCAL proceedings in the courts 28/2011, an applicant who against the acts of the had overstayed could not rely executive authorities and on Article 37 (right to family their personnel. life) to override immigration control imposed by the Chapter III The provisions of the Immigration Ordinance. Article 39 International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in - 9 -

Legislative What does this provision Eligibility criteria Remedies Judicial Review procedure Applicability to trafficking provision provide? and appeal

force and shall be implemented through the laws of Hong Kong.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. - 10 -

2. HONG KONG BILL OF RIGHTS ORDINANCE (CAP 383) ("BORO")

Legislative What does this provision provide? Eligibility criteria Procedure Judicial Review Applicability to provision procedure and appeal trafficking

Section 8, The right of persons: The BORO binds Court proceedings can • Applications to be made The BORO binds only the Articles 3- only the be instituted for breach in accordance with government and public 5,8,11,14 • not to be subjected to torture or to government, of the BORO. In such Order 53 RHC and authorities and persons and 20 cruel, inhuman or degrading public authorities proceedings, the court Practice Direction SL3 acting on their behalf. It treatment or punishment (Article 3); and persons may grant such does not create civil acting on behalf of remedies or relief as it • Commence JR remedies or provide an • to be free from slavery, forced or the government or has power to grant and proceedings promptly avenue to hold traffickers compulsory labour and not to be a public authority as it considers and in any case within accountable. held in servitude (Article 4); (section 7). appropriate and just in three months of the the circumstances date when grounds for The Hong Kong • to liberty and security of person, It cannot be (section 6). the application arose government bears the and not to be subjected to arbitrary engaged as • Two-stage procedure: responsibility of taking arrest or detention otherwise than between private For example, steps to give effect to the in accordance with law (Article 5); individuals. legislation that is 1. application to Court rights in the BORO. inconsistent with the of First Instance for • to liberty of movement and freedom BORO will be held to leave to bring JR to choose residence (if lawfully be unconstitutional and application (Form 86 within Hong Kong) (Article 8); invalid. and supporting affidavit) • to the minimum guarantees under In respect of action by 2. JR application by the criminal justice system (Article the government or filing Originating 11); public authorities which Summons (Form 86A) is contrary to the • not to be subjected to arbitrary or within 14 days after BORO, judicial review leave granted unlawful interference with privacy, proceedings can be family, home or correspondence, brought. • If leave is refused, the nor to unlawful attacks on honour applicant can appeal to and reputation (Article 14); the Court of Appeal within 14 days • if a child, to such measures of protection as are required by his • If JR application is status as a minor, on the part of his refused, applicant can - 11 -

Legislative What does this provision provide? Eligibility criteria Procedure Judicial Review Applicability to provision procedure and appeal trafficking

family, society and the state (Article appeal to the Court of 20). Appeal within 28 days

Section 11 • If Court of Appeal refuses the JR Note section 11, which provides that for application, the persons not having the right to enter applicant may apply and remain in Hong Kong, the BORO within 28 days to the does not affect any immigration Court of Appeal or the legislation governing entry into, stay in Court of Final Appeal for and departure from Hong Kong, or the leave to appeal to the application of any such legislation. Court of Final Appeal - 12 -

3. THE VICTIMS OF CRIME CHARTER

Legislative What does this provide? Eligibility criteria Procedure Appeal Applicability to trafficking provision procedure

N/A Victims have the right to: The victim must have The Victims of Crime Department These guidelines can apply to suffered physical or Charter is not specific victims of human trafficking where • be treated with courtesy and respect; emotional harm, or loss or intended to be legally procedures they are the victim of a crime. damage to property, as a binding; it merely on the • have a proper response by law direct result of a criminal contains guidelines handling of Currently, the only crime specific enforcement agencies to complaints offence. for agencies involved complaints to trafficking is that of “trafficking of crime; in the criminal justice may apply. in persons to or from Hong Kong Applicability is not limited to system. for sexual purposes” (Section 129 • information such as the name of the a person against whom an of the Crimes Ordinance). officer in charge of the case, services offence is committed; it If victims have a However, trafficked persons may and remedies available to a victim, applies to anyone who complaint about how be subject to other crimes eg. criminal injuries compensation suffered directly as a result they have been including battery and rape. and legal aid; of the offence. treated, the information they have • be kept informed of the investigation received or decisions progress, steps in the prosecution that have been made, process, progress of the case, the they may contact the role of victims as witnesses in the complaints division of prosecution, the date and place of the relevant the hearing, the final disposal of the department. case, the outcome of any appeal, the offender's pending release or escape from custody;

• proper facilities in court;

• be heard as to their circumstances and views on prosecution;

• to seek protection;

• privacy and confidentiality, including - 13 -

Legislative What does this provide? Eligibility criteria Procedure Appeal Applicability to trafficking provision procedure

to make an application to the hearing the case to allow the victim to testify by way of a video-link;

• prompt return of property belonging to the victim that had been held for ;

• support and after-care, including where helpful to be put in touch with the appropriate support agency;

• compensation by: (i) civil proceedings where appropriate, (ii) the Criminal and Law Enforcement Injuries Compensation Scheme, or (iii) by court order that the offender compensate the victim. - 14 -

B. TORTIOUS CLAIMS

The limitation period for tortious claims is generally 6 years from the date that the cause of action arises (s4(1) Limitation Ordinance), although the limitation period is 3 years for actions for damages for negligence, nuisance or breach of duty where the damages claimed include damages for personal injury. Tortious damages are awarded on the principle of compensating the harm the plaintiff suffered as a result of the tort, ie. the plaintiff is entitled to be restored to the position that they would have been in had the tort not been committed.

Tortious acts against trafficked individuals may be committed by persons who do not have substantial personal wealth, therefore any damages recovered may not be significant. It may be worth considering, on a case-by-case basis, whether any other person or company may be held vicariously liable, for example a principal for the tortious acts of his agent, or an employer for the tortious acts of his employee. Key considerations in establishing vicarious liability are:

(a) vicarious liability is a form of secondary liability; it is first necessary to identify a claim against the primary wrongdoer; (b) the nature of the relationship between the wrongdoer and the person alleged to be vicariously liable must be such that it is just and reasonable for the courts to impose vicarious liability. The courts will look to the reality of the situation rather than to how the parties label the relationship between them; and (c) if vicarious liability can be established, a claim may be brought against both the primary wrongdoer and the person/entity that is vicariously liable.

In the instance of a principal/agent relationship, a principal may be held liable for the tort of their agent where:

(a) the principal expressly authorises their agent to do a particular act which is itself a tort, or which necessarily results in a tort; (b) the principal ratifies a tort committed by their agent without their authority; or (c) the agent was acting within the scope of their implied authority.

In the instance of an employer/employee relationship, an employer may be held liable for the tort of their employee where:

(a) the employer expressly authorises an employee to do a particular act which is itself a tort, or which necessarily results in a tort (Lam Fong & Ho Kok Keong v So Hoo Yuen [1990] HKLY 1209); (b) the employer ratifies a tort committed by an employee without their authority; or (c) the employee commits a tort in the course of their employment.

If the relevant act has not been authorised by the employer, it must be established that employee's unauthorised tortious act was so closely connected with the employment that it would be fair and just to hold such employer vicariously liable (the "close connection" criteria). This applies whether the tort involved intentional wrongdoing or mere inadvertence (Ming An Insurance Co (HK) Limited v Ritz-Carlton Limited (2002) 5 HKCFAR 569). - 15 -

1. TRESPASS TO THE PERSON

Common law Nature of the tort Elements of the tort Possible defences Available remedies Applicability to principle trafficking

Assault The victim must apprehend a) The menace must be a) Words can negate an The courts will seek to (i) If a victim of immediate and unlawful accompanied by an assault, eg. a raised fist compensate pecuniary trafficking physical contact. It is not intention to inflict together with the words damage, including loss of apprehends necessary for contact to take immediate physical force "If we weren't in public actual and prospective immediate and place, eg. a raised fist may and that intention must be I'd hit you" earnings and out-of-pocket unlawful physical be sufficient. comprehended by the expenses, and (ii) award contact from victim (although a victim's b) The act was that compensation that is fair, just someone involved Assault carries both civil and claim will be unsuccessful acceptable in everyday and reasonable for non- in the trafficking criminal liability. Section 38 if they unreasonably life pecuniary damage, such as or their of the Offences Against the feared violence) pain, suffering and loss of exploitation, they Person Ordinance (Cap 212) c) Consent of the victim amenity. may be able to provides that, if the victim b) The attack must be (eg. contact sports and seek damages brings a private criminal possible (a person on foot medical procedures) In respect of (ii) above, from that person. prosecution against the chasing someone who is damages may be awarded wrongdoer, any conviction or driving away in a car does d) self-defence / defence of for: court order to pay a fine, or not constitute an assault) another dismissal of the case, will (a) pain and suffering, release the wrongdoer from c) In some circumstances e) the assault was whether actual, past or any further civil or criminal words alone may necessary (eg. the prospective, and whether action. constitute an assault (R v gesture was made to physical pain or mental Ireland [1997] QB 114, stop the person walking anguish, that it attributable to Chang Ming Fang into incoming traffic) the injury and its Jacqueline v Zhang Zi consequences (Birkett v Qiang [2009] HKEC f) Damage is too remote Hayes [1982] 1 WLR 816, 1411), but they are more 820). This includes nervous likely to do so if shock (Wilkinson v Downton accompanied by [1897] 2 QB 57 applied by threatening behaviour Wong Kwai Fun v Li Fung [1994] 1 HKC 549)

(b) loss of amenities, ie. loss of opportunity to lead a full - 16 -

Common law Nature of the tort Elements of the tort Possible defences Available remedies Applicability to principle trafficking

and normal life, including personality change (AG v Chun Yat Nam [1995] 1 HKC 218)

Aggravated damages may be awarded where, in the circumstances, the plaintiff would not receive sufficient compensation under a basic award (A v Director of Immigration [2009] 3 HKLRD 44)

Exemplary damages are awarded to deter the defendant and others from committing similar acts in the future. However, this type of award has to date been restricted in its application, for example in cases where the defendant's conduct was calculated to make a profit for him which might well exceed the compensation payable to the plaintiff (Rookes v Barnard [1964] AC 1129, William Allan v Ng & Co [2010] HKEC 2020).

NB. The level of damages awarded may be reduced - 17 -

Common law Nature of the tort Elements of the tort Possible defences Available remedies Applicability to principle trafficking

where sums are recovered under statutory schemes, eg. see s25-26 Employees Compensation Ordinance.

Battery There must be intentional a) The act of application of a) The physical contact As for assault If a trafficked and direct application of force must be intended was that acceptable in person is force to the victim. everyday life subjected to b) It is not necessary for the unlawful physical Battery carries both civil physical contact to cause b) consent of the victim contact, they may and criminal liability. any injury or permanent (eg. contact sports and be able to seek Section 38 of the Offences damage to the victim, or medical procedures) damages from the Against the Person be intended to do so wrongdoer. Ordinance (Cap 212) c) self-defence / defence of provides that, if the victim c) It is not necessary for the another Unlawful physical brings a private criminal wrongdoer to actually contact would prosecution against the touch the victim; for d) the battery was include being wrongdoer, any conviction example battery may be necessary (eg. if force pushed and or court order to pay a fine, committed by throwing was applied to remove shoved, being hit or dismissal of the case, stones at someone, the person from danger) with a fist or an will release the wrongdoer spitting on them, or object, being from any further civil or throwing acid on them (Ng e) damage is too remote subjected to criminal action. Chung Ying v Lee Siu burns, and rape. Yeung [2002] 1 HKC 154)

False There must be unlawful a) It is a tort of strict liability, a) Consent of the victim As for assault. Some victims of imprisonment restraint of a person that no intention of malice is trafficking are restricts their freedom of required, but the restraint b) self-defence or defence A person who is falsely forced to stay in a movement. must be by a deliberate of another (eg. if the imprisoned and unaware of particular location, victim was restrained the imprisonment and who act eg. a brothel or a False imprisonment carries due to their own suffers no harm would be domestic home. both civil and criminal threatening behaviour entitled to nominal damages b) The victim need not be liability. Section 38 of the while the restrainer only (Roberts v Chief Other trafficked physically restrained from - 18 -

Common law Nature of the tort Elements of the tort Possible defences Available remedies Applicability to principle trafficking

Offences Against the moving; being intimidated awaited the arrival of Constable [1999] 2 All ER victims may feel Person Ordinance (Cap or ordered to stay ) 326) that they cannot 212) provides that, if the somewhere may be go where they c) the restraint was victim brings a private sufficient. It is also please and that necessary criminal prosecution sufficient if the victim is their movements against the wrongdoer, any are restricted. prevented from choosing conviction or court order to d) Damage too remote pay a fine, or dismissal of to go where they please, See for example the case, will release the even if for a short time R v Chan Wing wrongdoer from any further Kuen [1995] 1 civil or criminal action. c) A threat of force is not HKC 470 – a loan necessary (R v Chan shark Wing Kuen [1995] 1 HKC accompanied the 470) victim against his will and guarded d) False imprisonment can him while he be committed if the victim made telephone is unaware they are being calls to try to restrained (Meering v obtain money. Graham-White Aviation Co Ltd (1919) 122 LT 44)

Intentional The victim suffered physical Mere shock, fear or mental Damage too remote As for assault. A person seeking infliction of harm as a result of an act or suffering is insufficient; it to exercise control emotional statement of the wrongdoer must be followed by physical over a victim of distress (including threats and harm or a recognised trafficking may intimidation) which was psychiatric illness. use acts or words calculated to cause physical in an attempt to harm to the victim. The damage must amount to weaken their a medically recognised mental or physical This can apply even though condition, not merely strength. no threat of force is made distress. However, if distress and no force is actually is an incident of the physical - 19 -

Common law Nature of the tort Elements of the tort Possible defences Available remedies Applicability to principle trafficking

inflicted. harm or recognised psychiatric illness, (Wilkinson v Downton compensation can be [1897] 2 QB 57, applied by awarded for it. (Wainright v Wong Kwai Fun v Li Fung Home Office [2003] UKHL [1994] 1 HKC 549) 53)

Sexual A person sexually harasses The act can include direct (a) The act was solicited or As for assault. Trafficking harassment another if that person and indirect acts, physical or incited by the victim. victims, whether makes an unwelcome verbal acts, and acts by a Damages may be awarded they be trafficked sexual advance or man or a woman. (b) Damage too remote for injury to feelings, such as for the purposes unwelcome request for shock and dismay, of sexual sexual favours, or engages humiliation and betrayal (ie. exploitation or in other unwelcome conduct akin to damages in other exploitation, of a sexual nature which a defamation proceedings) may be reasonable person would (Yuen Sha Sha v Tse Chi vulnerable to have considered offensive, Pan [1999] 2 HKLRD 28). sexual humiliating or intimidating. harassment. Exemplary damages may be awarded (Yuen Sha Sha v Tse Chi Pan [1999] 2 HKLRD 28).

Intimidation The tort of intimidation a) The defendant delivers a Damage too remote As for assault. Victims of covers both threats of threat to the victim that trafficking may be criminal / tortious acts and they would use unlawful See for example Godwin v subjected to threats of breaches of means, which coerces the Uzoigwe [1993] Fam. Law 65 intimidation by contract. victim to act in a way that those seeking to causes damage to exploit them. Rookes v Barnard [1964] themselves A.C. 1129, applied by Chang Ming Fang b) The threat must be Jacqueline v Zhang Zi coercive and be more than mere abuse - 20 -

Common law Nature of the tort Elements of the tort Possible defences Available remedies Applicability to principle trafficking

Qiang [2009] HKEC 1411 c) It must also be more than a warning

d) The threat must be to do something unlawful, including violence, or tortious or criminal acts - 21 -

2. TORT OF DECEIT

Common law Nature of the tort Elements of the tort Possible defences Available remedies Applicability to principle trafficking

Deceit The tort of deceit occurs • There must be some active • Lack of intention or Damages are normally May be applicable in when: misstatement of fact, which dishonesty on awarded for pecuniary instances of debt includes partial non- behalf of the losses, although can bondage and/or forced 1. the defendant makes a disclosure which is defendant. take other forms (such labour. The elements of false representation to the calculated to deceive as personal injury). deceit are likely to be plaintiff; (William Peek v J H Gurney • The plaintiff did not present when victims (1873) LR 6 HL 377, 403). rely on the The purpose of enter into such 2. the defendant knows the Mere silence however, will misrepresentation damages should be to agreements (i.e. the representation is untrue, not suffice (Bradford v put the plaintiff back to trafficker makes false has no belief in its truth, or Borders [1941] 2 All ER • There was no the position as if the representations, which is reckless as to its truth; 204, 211). causal link between representation had not the victim acts upon and misrepresentation been made to them. suffers harm). 3. the defendant intends to • Deceit requires dishonesty and the damage. The plaintiff will also be induce the plaintiff to act – a person cannot commit allowed to claim It may be difficult to in reliance on the deceit when a statement is consequential losses, prosecute such an representation; honestly believed to be true unless the plaintiff had action in Hong Kong (Derry v Peek (1889) LR 14 acted totally without since the deceit may 4. the plaintiff does in fact App Cas 337). reason and common have taken place act on the representation sense. outside of Hong Kong. to their detriment, ie. • The statement made must suffers loss. be intended by the maker Although it remains to be acted upon by the inconclusive, the plaintiff (Swift v preferred view is that Winterbotham (1872-73) exemplary damages are LR 8 QB 244, 253). not recoverable in an action for deceit (see • The plaintiff must have Tort Law & Practice in nd been influenced by the Hong Kong, 2 Edition, representation. paragraph 22.031). However, aggravated • It must be shown that the damages may be misrepresentation actually recoverable for injury to - 22 -

Common law Nature of the tort Elements of the tort Possible defences Available remedies Applicability to principle trafficking

caused damage, though it feelings (Mafo v Adams need not be the sole cause [1970] 1 QB 548). of the damage (Generali SpA v Arab Insurance Group (BSC) [2003] CLC 242). - 23 -

3. GENERAL TORT OF NEGLIGENCE

Common law Nature of the Elements of the tort Possible defences Available remedies Applicability to principle tort trafficking

Tort of The tort of The plaintiff must establish that the (a) the plaintiff voluntarily The Court will award Victims of negligence negligence defendant had a duty of care towards the consented to the defendant's damages to trafficking may applies where a plaintiff. breach of duty, or the plaintiff compensate for losses, suffer harm as a person owed a knew of the breach but pecuniary and non- result of the duty of care to The Court will consider: voluntarily incurred the risk pecuniary, sustained negligence of another person entailed by the breach (Wong by the plaintiff (Chan others. and breached (a) whether there was a reasonable Wai-Chun, Administratrix Of The Pui Ki v Leung On that duty of foreseeability of damage to the plaintiff; Of Cheung Chung Wai [1996] 2 HKLR 401) care, thus Deceased V The China causing the (b) the existence of a relationship of close Navigation Co. Ltd [1969] HKLR Exemplary damages plaintiff proximity between the parties; and 471). can be awarded in damage. cases where the (c) whether it would be fair, just and (b) there was an agreement to defendant's conduct A claim in reasonable to impose a duty of care. restrict or exclude the was calculated by him negligence defendant's liability for any to make a profit which See Luen Hing Fat Coating & Finishing often turns on breach. However, this defence is might well exceed the Factory Ltd v Waan Chuen Ming (2011) 14 whether a duty qualified by the Control of compensation payable HKCFAR 14. of care can be Exemption Clauses Ordinance to the plaintiff. (Rookes established, The requisite standard of care is that which (eg. a defendant cannot restrict v Barnard [1964] A.C. which will is expected from a person, of reasonable liability for death or personal 1129 applied by A v depend on the care and skill, engaging in the same activity. injury caused by his negligence). Director of Immigration particular facts [2009] 3 HKLRD 44) of the case. The plaintiff must establish that the (c) Contributory negligence, defendant breached its duty of care. which is a partial defence (section 21, Law Amendment The plaintiff must prove on the balance of and Reform (Consolidation) probabilities that the defendant's breach of Ordinance (Cap.23)) (Chan Wing duty caused or materially contributed to the v Chan Wai Hung [2014] HKEC plaintiff's injuries. (Tsang Chung Wan V Li 1063) Ming & Others [1998] 2 HKLRD 354) (d) Ex turpi causa: the courts will not assist the plaintiff in reaping - 24 -

Common law Nature of the Elements of the tort Possible defences Available remedies Applicability to principle tort trafficking

benefits from their own illegal activity

(e) If the damage claimed includes damage for personal injury, limitation is generally three years from the date the cause of action accrued - 25 -

4. TORT OF NEGLIGENCE AS RELATING TO EMPLOYMENT

Common law Nature of the tort Elements of the tort Possible defences Available remedies Applicability to principle trafficking

There is an Liability for physical injury and The employer's liability is • Inevitable The Court will Some victims of trafficking, implied duty on an psychiatric injury and stress caused similar to that owed to a accident award damages to such as domestic workers employer to take at work stranger for negligent compensate for and construction workers, care of their conduct, but the employee • Plaintiff at fault losses, pecuniary may be employees, and employees. The The employer must provide a safe must show that the and non-pecuniary, may suffer harm as a result employer is liable place and system of work. This is a damage was caused, as a • Contributory sustained by the of their employer's in negligence if non-delegable duty. matter of fact and law, by negligence plaintiff (Chan Pui Ki negligence (eg. personal they breach this the employer's breach of v Leung On [1996] 2 injury on a construction duty by failing to Lam King Tong v Kam Hung duty. • Duty was HKLR 401) site) exercise the care Construction (Holdings) Ltd contracted out the circumstances unreported, 16 November 2004 An employer remains Exemplary There doesn't necessarily demand. liable even if they employ • If the damage damages can be need to be an express The employer must take the an independent contractor claimed includes awarded in cases contract of employment for What amounts to precautions that a prudent to discharge non- damage for where the an employment negligence employer would take. The duty is delegable duties. personal injury, defendant's conduct relationship to be found to depends on the also to ensure that common limitation is was calculated by exist. Matters that may be facts of each practices followed are safe. generally three him to make a profit taken into account include case, and can be years from the which might well the degree of control an act or an Where safer systems of work are date the cause exceed the exercised by the employer, omission. available, failure to use them may of action compensation whether the employee be evidence of negligence. accrued payable to the provided their own plaintiff. (Rookes v equipment; the degree of Barnard [1964] A.C. responsibility for The employer must provide 1129 applied by A v investment / management adequate plant and equipment. Director of attributed to the employee An employer is presumed to be Immigration [2009] etc. (Poon Chau Nam v aware of the general method 3 HKLRD 44) Yim Siu Cheung [2007] 10 HKCFAR 156) adopted in carrying on his business and must guard against insufficiency. - 26 -

C. EMPLOYMENT LAW

The Employment Ordinance (Cap 57) applies to an employee, defined under section 4 as an individual engaged under a contract of employment, whether in writing or oral, express or implied. The Court will examine all the features of the relationship between the alleged employee and employer with a view to deciding whether, as a matter of overall impression, the relationship was one of employment (Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156).

As a general rule, if a person is employed illegally, they will have no rights or remedies arising under the Employment Ordinance. The 2013 Court of Final Appeal decision in Fi v Director of Immigration held that a person without a specific right to work granted by the Director of Immigration has no right to work in Hong Kong.

NB. The Labour only hears cases where the amount of claim exceeds HK$8,000 for at least one of the claimants in a claim or where the number of claimants in the claim exceeds 10. Claims lodged by not more than 10 claimants for a sum of money not exceeding HK$8,000 per claimant are dealt with by the Minor Employment Claims Board.

1. EMPLOYMENT ORDINANCE (CAP 57)

Legislative What does this provision provide? Eligibility criteria Procedure Appeal procedure Applicability to provision trafficking

Section 8A If employer terminates a contract of Must be employed Bring claim in the Labour Seek leave from the Court If the victim is legally Employment employment improperly (i.e. without legally. Tribunal. of First Instance to appeal employed and is fired Ordinance sufficient notice or payment in lieu of to Court of First Instance without notice or without notice), the employee can recover The forms for bringing a concerning a point of law or payment in lieu of damages for wrongful termination in claim are contained in of the Tribunal notice, they can claim a sum equal to the amount of wages the Schedule to the within 7 days from for damages in respect that would have been payable. Labour Tribunal (forms) Tribunal's determination, of wages due had the Rules (Cap. 25C). using Form 14 in the contract been properly Labour Tribunal (Forms) terminated. Rules (Cap. 25C). See s32 Labour Tribunal Ordinance (Cap. 25).

Section 10 Employee may terminate contract of Must be employed If the victim is legally Employment employment without notice or employed and this - 27 -

Legislative What does this provision provide? Eligibility criteria Procedure Appeal procedure Applicability to provision trafficking

Ordinance payment in lieu if: legally. provision applies, they can legally leave their (a) they reasonably fear physical employment danger by violence, such as was not immediately. contemplated by the contract;

(b) they are subjected to ill-treatment by their employer;

(c) any other ground where they are entitled to terminate without notice under common law.

Section 10A Employee is permitted to terminate Must be employed If employer fails to make Seek leave to appeal to If the victim is legally Employment contract of employment without legally. payment in lieu of notice, Court of First Instance employed and is not Ordinance notice or payment in lieu of notice if the employee can concerning a point of law, paid for one month, they any wages are not paid within one commence legal action as above. can legally leave their calendar month from due day. to recover outstanding employment wages and payment in immediately. Contract will be regarded as having lieu of notice as a claim been terminated by the employer in the Labour Tribunal. agreeing to make payment in lieu of (See HK Employment notice. Law Manual (para O.39)) Employee will be entitled to all statutory payments, eg. pro rata entitlement to annual bonus etc.

Section 17 Employees employed by the same Must be employed If breach, bring claim in Seek leave to appeal to If the victim is legally Employment employer under a continuous legally and by the Labour Tribunal. Court of First Instance employed and does not Ordinance contract will be given 1 rest day in same employer concerning a point of law, receive rest days, the every 7 days (in addition to statutory under a as above. employer will usually be holidays). continuous in breach of contract. It contract. would be open to the NB. The Ordinance is silent as to employee to - 28 -

Legislative What does this provision provide? Eligibility criteria Procedure Appeal procedure Applicability to provision trafficking

whether a rest day must be a paid If the employee constructively dismiss day. works for less than themselves and claim 18 hours per for damages. week, they will not be eligible for a rest day.

Sections 22 The wage period in respect of which Must be employed If wages remain unpaid Seek leave to appeal to If there are wages and 23 wages are payable is 1 month, legally. for one month from the Court of First Instance outstanding, the court Employment unless the contrary is proved. day on which they concerning a point of law, has statutory power Ordinance became due, an as above. under s.65 EO to order Wages become due on the last day employee is entitled to payment of wages. of the wage period and should be terminate without notice paid no later than 7 days after that or payment in lieu of day. notice (see s.10A EO above), and claim common law damages.

Section 24 Wages become due upon the Must be employed If breach, bring claim in Seek leave to appeal to If there are wages Employment completion of a contract and should legally. Labour Tribunal. Court of First Instance outstanding, the court Ordinance be paid no later than 7 days after concerning a point of law, has statutory power that day. as above. under s.65 EO to order payment of wages.

Section 25 Any sum due to an employee on Must be employed If breach, bring claim in Seek leave to appeal to If there are wages Employment termination of a contract should be legally. Labour Tribunal. Court of First Instance outstanding, the court Ordinance paid no later than 7 days after date concerning a point of law, has statutory power of termination. as above. under s.65 EO to order payment of wages. Interest will accrue on unpaid sums following termination (s.25A EO)

Section 32 An employer will not make any Must be employed If breach, bring claim in Seek leave to appeal to A victim who is legally Employment deductions from the wages of an Court of First Instance employed whose wages - 29 -

Legislative What does this provision provide? Eligibility criteria Procedure Appeal procedure Applicability to provision trafficking

Ordinance employee or from any other sum due legally. Labour Tribunal. concerning a point of law, are withheld on spurious to an employee, other than if in as above. grounds can bring a relation to: claim.

• Absence from work • Damage to or loss of property • Deductions for meals and accommodation • Deductions for advances or loans made by employer

Sections 39 An employee is entitled to: Must be employed If breach, bring claim in Seek leave to appeal to A victim who is legally and 41AA legally. Labour Tribunal. Court of First Instance employed who is not Employment (1) statutory holiday/rest days and concerning a point of law, given rest days and Ordinance (Under sections 63(4)(c)- as above. annual leave can bring a (2) annual leave provided they (e), any employer who claim. have completed 12 months' contravenes these continuous service (number of sections by failing to give days' leave is dependent on to an employee the length of service). requisite holiday/rest days, annual leave or If an employer continues to employ payment in lieu thereof an employee after the expiration of without reasonable leave period and the total statutory excuse is guilty of an leave was not granted, the employer offence and will be liable shall pay the employee an amount in to a fine at level 5.) lieu equal to the annual leave pay he would have received.

Section 65 In addition to any fine imposed on an Must be employed If an employee has Employment employer for late payment of wages, legally. wages or other sums Ordinance the court can order the employer to unpaid by their employer pay such wages or other outstanding they can apply to the court for an order - 30 -

Legislative What does this provision provide? Eligibility criteria Procedure Appeal procedure Applicability to provision trafficking

sums to the employee. against the employer to pay said sums. Even if the employer is acquitted of an offence of wilful non-payment / non-payment without reasonable excuse, the court can still order payment of the outstanding sums to the employee.

Section 70 Any term of an employment contract Must be employed Employment which purports to extinguish or legally. Ordinance remove any right, benefit or protection provided to an employee by the Employment Ordinance is void. - 31 -

2. OTHER EMPLOYMENT LAW LEGISLATION AND CASE LAW

Legislative provision / case law What does this provision / case law provide? Applicability to trafficking

Gregory v Ford [1951] 1 All ER 121 Implied term in the contract that employer shall not give An employer may be in breach of contract employee orders that are illegal. if they give the employee orders that are (considered by 何建民 v 香港警務處處長 [2012] illegal. HKEC 985 as reasonably arguable)

Ottoman Bank v Chakarian [1930] AC 277, PC Orders from an employer which represent a real risk of An employee who is dismissed for not personal danger to the employee may result in the order being complying with an order to do something unlawful. dangerous may be able to bring a claim.

Leung Yun v Incorporated Owners of Sun On Employee cannot lawfully be ordered to work beyond terms of This may apply, for example, to a person Building [1989] 1 HKC 524 employment nor can such terms be varied against employee's employed as a domestic worker but forced consent to cover new duties. Insistence on such an order to work for another household against their could found a claim of constructive dismissal (e.g. Hong Kong wishes. and China Gas Co Ltd v Wong Yuen Kwong [1987] 3 HKC 508, HC).

Hepworth Manufacturing Co Ltd v Ryott [1920] 1 Employment contract will likely be declared invalid if it imposes Applies to a person who appears to have Ch 1, CA (Eng) re one-sided conditions so harsh or one-sided, in the employer's favour, or an employment contract but it in fact so restrictive of personal freedom of action, as to amount to amounts to servile incidents. Horwood v Millar's Timber and Trading Co Ltd 'servile incidents'. [1917] 1 KB 305, CA (Eng)

Section 38AA Immigration Ordinance A person who, having landed in Hong Kong unlawfully, The Employment Ordinance does not remains in Hong Kong without the authority of the Director of apply to persons in Hong Kong illegally. Immigration, must not take any employment, whether paid or unpaid.

Poplett v Stockdale [1825] Ry & M 337 No employee who assists in a transaction based on an This case indicates that a victim forced to immoral consideration can recover any remuneration in respect do "immoral" work, such as prostitution, of it. cannot recover payment for that work.

Section 8 Minimum Wage Ordinance An employee is entitled to be paid at least the minimum wage. Any employer must pay its employee(s) at - 32 -

Legislative provision / case law What does this provision / case law provide? Applicability to trafficking

The minimum hourly wage rate is detailed in s.9 of the least minimum wage. Minimum Wage Ordinance. If they do not, bring a claim in the Labour Workers who hold a valid Registration Card for People with Tribunal and consider reporting to the Disabilities engaged on a period must also be paid Labour Department. minimum wage: Sch 2 para. 2(2)

NB. The Minimum Wage Ordinance does not apply to a domestic worker who lives in the household free of charge. A foreign domestic helper is entitled to a salary that is no less than the Minimum Allowable Wage announced by the government and prevailing at the date of signing the employment contract. - 33 -

3. EMPLOYEES' COMPENSATION ORDINANCE (CAP 282) ("ECO")

The Employees' Compensation Ordinance establishes a compensation system for employees for injuries sustained at work. Under the Ordinance, an employer is liable to pay compensation for injuries sustained by his employees as a result of an accident arising out of and in the course of employment; or in respect of occupational diseases specified in the Ordinance. The Ordinance generally applies to persons employed under a contract of service or apprenticeship. Employees who are injured while working outside Hong Kong are also covered if they are employed in Hong Kong by local employers.

Legislative What does this provision provide? Procedure Appeal procedure Applicability to provision trafficking

Section 2(2) If, in proceedings for the recovery of compensation, The employee must give the For cases involving temporary The victim (or, in the it appears to the tribunal that the service contract employer notice of the incapacity for not more than 3 event of the victim's under which the injured person was working when accident as soon as possible, days where compensation is death, their family the injury occurred was illegal, the tribunal may, either orally or in writing. unpaid, employee may bring a members as defined having regard to all the circumstances, deal with the claim in the Small Claims in the ECO) may matter as if the injured person had been working If the employee is Tribunal. bring a claim for under a valid contract of service. incapacitated for not more compensation in the than 3 days, the employer Other compensation claims event of an injury. The overriding consideration is whether the work should pay for sick leave on which cannot be settled or which the individual was engaged to perform was the wages that would have agreed shall be determined by If the work done is lawful (Lee Mui Fong v Wong Kit Man, DC No lawful, the court may been payable to the the District Court. An application 455/2002). treat an illegal worker employee. Employer should to Court must be made within 24 the same as a legal also pay medical expenses. Chiu Wing Sze v Chan Ying Wai [2001] 2 HKLRD months from the date of the worker for the 92, CFI: even if the activity is illegal, if it is not accident causing the injury or purpose of For injury involving morally or criminally culpable (ie. it would not be an the date of death (Section 14(1) employees' temporary incapacity of 3 to affront to public conscience if compensation were ECO). compensation. awarded), the court may award damages. 7 days, employer may directly agree with Section 5 If the employee suffers personal injury by accident employee the compensation arising out of and in the course of employment, the payable. Employer should employer will be liable to pay compensation. also pay the medical expenses. Section 6 If the employee suffers fatal injury in the course of employment, the employer will be liable to pay For other cases, the For cases determined by the compensation to the employee's family, including Commissioner for Labour Commissioner, any objection by reasonable expenses of funeral / medical either party must be made in - 34 -

Legislative What does this provision provide? Procedure Appeal procedure Applicability to provision trafficking

attendance. will assess the writing to the Commissioner compensation and issue to within 14 days after the issue of Sections 7, These provisions set out compensation amounts the parties a Certificate of Form 5, with a copy of the 9 and 10 (depending on age and earnings) for permanent Compensation Assessment objection notice sent to the other total incapacity, permanent partial incapacity and (Form 5). Employer should party. The Commissioner will temporary incapacity. pay the employee within 21 review its assessment and issue days from the date of the a Certificate of Review of Section 10A If the employee suffers personal injury by accident certificate. Employer should Compensation Assessment arising out of and in the course of employment, employer will be liable to pay for medical treatment. also pay the medical (Form 6) to both parties. This applies to injuries caused by an accident expenses. occurring outside Hong Kong if in the course of employment subject to certain exceptions (s.10AA). If in the opinion of the Commissioner the injury Section 32 If total or partial incapacity / death of employee would likely result in results from occupational disease and is due to permanent total/partial nature of employment at any time within the incapacity, the employee prescribed period immediately prior to such will be referred to the incapacity or death, their family can claim Employees’ Compensation compensation as under s.5 subject to certain Assessment Board for modifications. assessment and Form 5 will be issued after the Certificate of Assessment (Form 7 or 8) is issued by the Assessment Board. - 35 -

D. Sex Discrimination Ordinance (Cap 480) (the "SDO")

Legislative Nature of the unlawful act Elements of the unlawful act Possible defences Available remedies Applicability to provisions trafficking

• Section 2(5)(a) Person A sexually harasses • "Unwelcome" has both • The victim "solicited S76 SDO provides a The applicability of the Person B if: subjective and objective or invited" the number of remedies sexual harassment • Section 23 elements (Chen v Tamara conduct. available to plaintiffs, ordinance is limited in (a) Person A: Rus [2001] 3 HKLRD 541). the most relevant being: scope because it only • Section 24 The subjective element • Conduct was not of applies under certain (i) makes an unwelcome requires the victim to prove a "sexual nature". • a declaration that circumstances, for • Section 39 sexual advance or an the behaviour was actually the respondent example an unwelcome request for unwelcome; the objective • The conduct was engaged in conduct employment • Section 40 sexual favours to Person element is applied when accidental / or committed an relationship. B; or considering whether or not unintentional unlawful act and • Section 76 the victims' own behaviour (Ratcliffe v order that it shall If such a relationship (ii) engages in other can be said to have Secretary for Civil not be repeated or can be established, unwelcome conduct of a "solicited or invited" the Service [1999] HKCA continued; sexual harassment is sexual nature in relation conduct. 618). highly applicable to to Person B, • an order enforcing victims forced into the • Conduct must be sexual in • A reasonable any reasonable act prostitution/sex trade. in circumstances in nature, though there need person would not or course of which a reasonable not be any sexual motive have anticipated conduct to redress person, having regard to or intention behind the act such conduct would any loss / damage; all the circumstances, (Yuen Sha Sha v Tse Chi offend, humiliate or would have anticipated Pun [1999] 2 HKLRD 28). intimidate. • an order for that Person B would be It is not necessary to prove payment of offended, humiliated or the conduct was sexually damages to intimidated; or motivated. compensate for loss or damage suffered; (b) Person A, alone or together with other • The "reasonable person" test in limb (a) is objective • an order for people, engages in and is to be determined payment of punitive conduct of a sexual or exemplary nature which creates a once it is established that an event had taken place damages; and hostile or intimidating environment for Person which was unwelcome to the recipient (Chen v • a declaration that - 36 -

Legislative Nature of the unlawful act Elements of the unlawful act Possible defences Available remedies Applicability to provisions trafficking

B. Tamara Rus [2001] 3 the whole or part of HKLRD 541). A reasonable any contract or These provisions apply person will take into agreement made in equally to men and women account the sensibilities of contravention of the and also apply to same sex the victim. SDO is void. harassment. However, the offence of sexual harassment • In relation to limb (b), Damages for sexual applies only in the context of hurtful comments, sexist/ harassment may certain situations, including: demeaning jokes, display include compensation of pornographic material for injury to feelings • employment situations and derogatory sexual whether or not they (including pre-employment remarks have constituted include compensation and employment sexual harassment. under any other head. agencies) (s.23 and s.24 SDO); • A single action is sufficient, although a course of • education establishments conduct will be looked at in (s.39 SDO); its totality.

• in the course of providing goods, facilities or services (s.40 SDO); and

• by a seller disposing of a property/property manager harassing a victim occupying the premises (s.40 SDO). - 37 -

E. Contractual remedies

Common law Nature of the Elements to be proved Defences Available remedies Applicability to principle / principle trafficking legislative provision

Breach of contract A breach of contract a) The existence of a contract The nature of the term breached Victims of human occurs when a person (can be oral or written); will determine the remedies trafficking may fails to perform the available: enter into contract as agreed, or b) The relevant express and with shows an intention of implied terms of the a) breach of a condition – right to persons exploiting repudiating their contract; terminate the contract and them, for example obligations under the damages; with purported contract. c) The breach that occurred b) breach of warranty – agency with respect to the specific damages only; companies. terms; and c) breach of innominate term – depending on the facts, either They may have d) The loss and damage the right to terminate and remedies suffered caused by the damages, or damages only. available to them breach. for breach of Other remedies: contract.

a) a declaration that the innocent party is no longer bound by the contract; b) order for specific performance where damages are an inadequate remedy; c) injunction to restrain breach of contract.

The purpose of an award of damages for breach of contract is to compensate the injured party so as to place him in the same position as if the contract had - 38 -

Common law Nature of the Elements to be proved Defences Available remedies Applicability to principle / principle trafficking legislative provision

been performed without the breach.

Damages for breach of contract are subject to the principles of remoteness, causation and mitigation.

Misrepresentation Where a party to a Generally, the elements of a Section 3(1) of the Available remedies depend on the Exploiters may (see also the contract makes a false misrepresentation are: MO: Party A has a nature of the misrepresentation: make Misrepresentation representation of fact defence to having to representations to Ordinance (Cap which induces the a) Party A made a pay damages for a) fraudulent misrepresentation: victims of human 284) ("MO")) other party to enter into representation of fact negligent rescission and damages; trafficking to the contract in reliance which was untrue, misrepresentation if induce them to on the representation, rendering the situation or they had reasonable b) negligent misrepresentation: enter into there may be remedies subject matter substantially grounds to believe rescission and damages (or contracts. available. different; and did believe up to damages in lieu of rescission the time the contract under section 3(2) of the MO); Contracts entered A representation can b) the representation was was made that the into on the basis be by words, conduct, intended to induce Party B facts represented c) innocent misrepresentation: of a fraudulent, half-truths or, where to enter into a contract; were true. rescission (or damages in lieu negligent or there is an obligation of of rescission under section innocent disclosure, silence. c) the representation was Contractual terms 3(2) of the MO). misrepresentation believed by Party B; and seeking to exclude can be rescinded. /restrict liability or As to rescission and damages: Damages may d) the misrepresentation in remedies for also be available fact induced a contract. misrepresentation are a) rescission terminates the as a remedy. void unless the party contract and seeks to put the The specific elements for the relying on them can parties in the position as if the three types of show they satisfy the contract had not been made; misrepresentation are: test of reasonableness b) the basis for awarding - 39 -

Common law Nature of the Elements to be proved Defences Available remedies Applicability to principle / principle trafficking legislative provision

a) fraudulent under section 3(1) of damages under the MO for misrepresentation: the the Control of negligent misrepresentation is false representation is Exemption Clauses to put the parties in the made knowingly, without Ordinance (Cap 71) position as if the contract had belief in its truth or (section 4 of the MO). not been made; recklessly without knowing whether it is true or false; It is no defence that c) under s2 of the MO, Party B had the rescission is available for b) negligent means of discovering, negligent or innocent misrepresentation: and might, with misrepresentation even if the reasonable diligence, misrepresentation had i) there is honest belief in have discovered, that become a term of the the truth of the it was untrue contract, or the contract had representation but the (Redgrave v Hurd been performed, or both person had no reasonable (1881) 20 ChD 1, (these were previously bars to grounds to believe in its applied in Hong Kong rescission under the common truth; Shui Fung (Holdings) law); v Top Talent ii) usually results from want Development [2004] d) s3(2) of the MO makes the of care, skill or HKEC 1296). remedy of rescission for competence or lapse of negligent and innocent memory; and Possible contributory misrepresentation negligence to a claim discretionary. Damages in c) innocent for damages for lieu of rescission may be misrepresentation: there is negligent awarded where it would be honest belief in the truth of misrepresentation equitable to do so, having the representation and the (Gran Gelato Ltd v regard to the nature of the person has reasonable Richcliff (Group) Ltd misrepresentation and the grounds for such belief [1992] Ch 560). loss that would be caused if (eg. a reasonable source the contract was upheld, as that turns out to be wrong). It is no defence that well as to the loss rescission the misrepresentation would cause to Party A. - 40 -

Common law Nature of the Elements to be proved Defences Available remedies Applicability to principle / principle trafficking legislative provision

was only one of several reasons as to why Party B entered into the contract (Edgington v Fitzmaurice (1885) 29 ChD 459, applied in Hong Kong Shui Fung (Holdings) Ltd v Top Talent Development Ltd [2004] HKEC 1296).

Unconscionability Equity Equity Exploiters may strike oppressive (see also the Unconscionability a) One party, by some Apply to the court by invoking its bargains with Unconscionable refers to a situation condition or equitable jurisdiction to set aside trafficking victims, Contracts where Party A circumstances, is at a the contract. such as high rates Ordinance (Cap wrongfully takes special disadvantage vis-a- of interest on 458) ("UCO") and advantage of Party B in vis another; loans for agency the Money Lenders a disadvantaged fees. Such a Ordinance (Cap position. The court has b) Unfair advantage is taken bargain can be 163) ("MLO")) equitable jurisdiction to of the opportunity created; set aside by the set aside a contract and courts in equity, that is unconscionable. or if the UCO c) The bargain entered into is applies, under the oppressive to the UCO. disadvantaged party in overall terms. Victims of human trafficking may be A "special disadvantage" was heavily indebted defined in Commercial Bank of to their exploiters, - 41 -

Common law Nature of the Elements to be proved Defences Available remedies Applicability to principle / principle trafficking legislative provision

Australia Ltd v Amadio (1983) but these debts 151 CLR 447 (applied in may not be Esquire Electronics Ltd v enforceable. HSBC Ltd [2007] 3 HKLRD 439) as "illness, ignorance, inexperience, impaired facilities, financial need or other circumstances which affect his ability to conserve his own interests."

It must be shown that Party A engaged in unconscionable conduct or an unconscientious use of power (Alec Lobb (Garages) Ltd v Total Oil (Great Britain) Ltd [1985] 1 WLR 173, applied in Tong Kwok Cheong v Tong Wai Lin [2014] 1 HKLRD 339).

UCO UCO UCO

Under the UCO, the The burden of proving a Under s5(1) UCO, if a court finds court can refuse to contract is unconscionable lies a contract or any part of a enforce part or all of a on the victim (section 5(2)). contract unconscionable, it has contract found to be the power to refuse to enforce the unconscionable. Section 6(1) lists non- contract, enforce only part of it or However, the court's exhaustive factors that a court limit the application of, revise or jurisdiction to do so may consider in determining alter any unconscionable part of under the UCO is only whether the contract was the contract. applicable where: (i) unconscionable in the - 42 -

Common law Nature of the Elements to be proved Defences Available remedies Applicability to principle / principle trafficking legislative provision

the contract is for the circumstances at the time the sale of goods or supply contract was made: of services; and (ii) one of the parties deals as a) relative strengths of the a consumer (section bargaining positions of the 5). parties;

b) whether the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the other party;

c) whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services;

d) whether undue influence or pressure was exerted on, or unfair tactics were used against, the consumer; and

e) the circumstances under which, the consumer could have acquired identical or equivalent goods or services from another person. - 43 -

Common law Nature of the Elements to be proved Defences Available remedies Applicability to principle / principle trafficking legislative provision

The court shall not take into account any unconscionability arising from circumstances that were not reasonably foreseeable at the time the contract was made (section 6(2)).

In considering the grant of relief, the court may have regard to the conduct of the parties in relation to the performance of the contract since it was made (section 6(3)).

MLO MLO MLO

Under the MLO, certain S24 MLO provides that where If a transaction is extortionate, a agreements are the interest rate exceeds 60% debtor may apply to the court presumed to be per year, the agreement to under s25 to have the court extortionate (and repay principal or interest on reopen the transaction so as to do therefore the loan as well as any justice between the parties having unenforceable). security given in respect of the regard to all the circumstances, agreement or loan is and make orders / give directions unenforceable. This is also a as the court thinks fit. criminal offence.

S25(3) MLO provides that any agreement for the repayment of a loan, or payment of - 44 -

Common law Nature of the Elements to be proved Defences Available remedies Applicability to principle / principle trafficking legislative provision

interest on a loan is presumed to be extortionate (and therefore unenforceable) if the interest rate exceeds 48% per year. However, the court may declare the agreement is not extortionate if it is fair in all the circumstances.

Section 25(4), (5) and (6) lists various factors which are relevant in determining whether a transaction is extortionate.

Duress Duress is an act of The specific elements are: a) The person has a) Application to the court to Exploiters may pressure or undue expressly or rescind the contract (NB the employ the persuasion by one a) duress to the person: impliedly affirmed victim must seek rescission as different forms of person on another for contract was entered into the contract after soon as possible after the duress in that person to do while subjected to the the illegitimate original pressure has ceased pressuring victims something or refrain other party's actual or pressure ceased to operate); to enter into from doing something. threatened violence to operate on his contracts. If the The effect of duress is (whether to the person mind; b) to the victim by the elements required to make a contract himself or his family); other party where they are for duress are voidable. b) The person's unjustly enriched; and satisfied, the b) duress to goods: contract consent was not contract may be The three main types was entered into under the vitiated by the c) Damages may lie in tort under set aside and of duress are: actual or threatened pressure; the tort of intimidation. restitution made pressure of unlawful to the victim. The a) duress to the seizure, detention or c) The person had a victim may also person; destruction of goods reasonable be able to obtain belonging to him; and alternative (for damages in tort. - 45 -

Common law Nature of the Elements to be proved Defences Available remedies Applicability to principle / principle trafficking legislative provision

b) duress to goods; economic and c) economic duress: duress); and i) there was pressure c) economic duress. amounting to compulsion d) The person of the will of the victim or acceded only to absence of choice; legitimate ii) the pressure exerted commercial was illegitimate (i.e. pressure. amounted to unlawful threats or unconscionable conduct); and iii) the pressure constituted a significant cause inducing the victim to so act.

The pressure can be in the form of threats to a person's economic well- being, business or trade but it need not be in the manner of an express threat or coercion – it could be established where the victim is left with no practical choice but to submit because of the course of action of the other party (Estinah v Golden Hand Indonesian Employment Agency [2001] 4 HKC 607 (an - 46 -

Common law Nature of the Elements to be proved Defences Available remedies Applicability to principle / principle trafficking legislative provision

Indonesian domestic helper claimed against her agency for overcharging her in agency fees on the grounds of economic duress).

Undue influence Undue influence is the a) The party who induced the When undue a) Application to the court to set Undue influence unconscientious use by contract had the capacity influence is presumed aside the contract; and may arise as a one person of power or to influence the other from the more subtle form influence over another party; circumstances of the b) Restitution where the other of duress. to induce the other to relationship, the other party was unjustly enriched. enter into a contract. b) That influence was party seeking to exercised; justify the contract A contract can be set can show that the aside if consent was c) The exercise of influence person entered into obtained by undue was undue; the contract by his influence. own free will or had d) The exercise of influence obtained independent The two classes of induced the contract; and advice. undue influence are actual undue influence e) The contract was and presumed undue manifestly influence. disadvantageous to the victim.

A relationship of special trust and confidence is presumed for relationships falling under the class of presumed undue influence, for example, a parent-child, doctor-patient - 47 -

Common law Nature of the Elements to be proved Defences Available remedies Applicability to principle / principle trafficking legislative provision

and -client relationship. In such relationships, the person claiming undue influence need not prove any special trust and confidence; there is an irrebuttable presumption that such trust and confidence existed. - 48 -

F. OTHER AVENUES OF COMPENSATION

1. CRIMINAL PROCEDURE ORDINANCE (CAP 221) ("CPO")

The CPO essentially provides rules for conducting criminal , covering matters including sentencing options available to the Court, compensation and/or restitution orders. The CPO does not provide a basis on which to bring a civil claim, but it is included for completeness because it may provide an avenue of compensation for the victim.

Legislative What does this provision Eligibility criteria Procedure Appeal Applicability to trafficking provision provide? procedure

Section 73: A criminal court has the The recipient of the This is part of the The victim is Section 129 of the Crimes power to order a convicted compensation must be sentencing procedure not party to the Ordinance creates an offence of Compensation defendant to pay an aggrieved person in at the end of a criminal criminal “trafficking in persons to or from orders compensation to the victim. relation to the offence trial. proceedings Hong Kong for sexual purposes”. for which the defendant and does not This may form the basis of a This power provides a means has been convicted. Whether a have standing compensation order if a defendant is whereby compensation may compensation order is to appeal. convicted and the eligibility criteria be awarded summarily The compensation must appropriate and at what are met. A compensation order may without the necessity of civil be for: level would be also be made where a victim has proceedings (Attorney determined by the been the subject of another crime in General v. Lau Chiu-tak and (a) personal injury; Court depending on the the course of their being trafficked, Another [1984] HKLR 23). facts. such as battery or false (b) loss of or damage imprisonment. This provision does not form to property; or the basis for a civil claim by a No case law has been located trafficking victim. It is part (c) both personal injury where a compensation order has and parcel of the criminal and loss of or been made relating to the trafficking trial. damage to offence. property. The compensation sum is Compensation orders have been deemed a debt due imposed for assault occasioning to the victim. actual bodily harm (HKSAR v. Nur Hamidah HCMA 772/2009). - 49 -

Legislative What does this provision Eligibility criteria Procedure Appeal Applicability to trafficking provision provide? procedure

Section 84: If a Defendant is convicted of The beneficiary of the This is part of the The victim is There is no case law or commentary an indictable offence, the restitution order must be sentencing procedure not party to the as to how the Court may interpret Restitution orders Court has the power to order a person who appears at the end of a criminal criminal the eligibility criteria in the context of the Defendant to deliver any to the Court to be trial. proceedings the offence of “trafficking in persons property found in his entitled to the property. and does not to or from Hong Kong for sexual possession to the person who Whether a restitution have standing purposes” under section 129 of the appears to be entitled to the order is appropriate to appeal. Crimes Ordinance. It could in property. would be determined theory form the basis of a restitution by the Court depending order if the Defendant held property This provision does not form on the facts. belonging to the victim (eg identity a basis of a civil claim by documents, money). trafficking victim. It is part and parcel of the criminal No case law has been located trial. where a restitution order has been imposed relating to the trafficking (Note: Similar provision in offence. section 30 of the Theft Ordinance - the Court may order any person in possession of stolen goods to deliver those goods to the person who is entitled to them.) - 50 -

2. MAGISTRATES ORDINANCE (CAP 227) ("MO")

Legislative What does this Eligibility criteria Procedure Appeal procedure Applicability to provision provision provide? trafficking

Section 98 Where a The MO governs the This is part of the sentencing at The victim is not The applicability of s.98 sentences an offender, he procedure for criminal the end of a criminal trial. party to the criminal of the MO is dependent Compensation may (in addition to the proceedings falling within proceedings and on a successful criminal order order or sentence) order the jurisdiction of the Whether a compensation order does not have conviction. the offender to pay any Magistrates Court. is appropriate and at what level standing to appeal. aggrieved person would be determined by the The trafficking offence compensation for: There is no particular Magistrates Court depending If a compensation under Section 129 of eligibility criterion for receipt on the facts. order is made in the Crimes Ordinance is (i) personal injury; and/or of compensation but the summary triable only on defendant must be If a custodial sentence is proceedings and the indictment and therefore (ii) loss of or damage to convicted of an offence by imposed, an order for defendant refuses to will not be tried in a property, the Magistrates Court. compensation is less likely. comply with its Magistrates Court. Compensation voluntarily terms, the victim for an amount he The Magistrates Court has made by defendants can be a can apply to the However, compensation considers reasonable up exclusive jurisdiction over mitigating factor towards their magistrate for a may be available where to a maximum of cases triable summarily. sentence. warrant of distress lesser charges are HK$100,000. When dealing with cases under s.51 MO, pursued, such as triable either way, the Information about the amount which gives the common assault. magistrate's sentencing of loss suffered by the victim, bailiff power to seize powers are limited to a for instance medical fees, property up to the maximum of imprisonment would be obtained to ensure value of the order. for two years and a fine of compensation is a realistic If no goods can be up to HK$100,000. sum. found or the magistrate thinks it Where the sentence upon inexpedient to issue conviction is unlikely to a distress warrant, exceed the sentencing then a commital powers of a magistrate, warrant can be offences triable either way issued. will normally be heard in the Magistrates Court. - 51 -

3. THE CRIMINAL AND LAW ENFORCEMENT INJURIES COMPENSATION SCHEME ("CLEIC SCHEME")

If a trafficking victim suffers injury as a result of a crime of violence (or by a law enforcement officer using a weapon in the execution of his duties), subject to their fulfilment of eligibility requirements, they may be able to apply for compensation under the CLEIC Scheme. The table below sets out the key provisions.

CLEIC Scheme What does the Eligibility criteria Procedure Appeal procedure Applicability to trafficking documents scheme provide?

The Administrative A victim who sustains Para 6 Admin Doc: Page.6 of the Leaflet: Appendix B of the Most crimes relevant to Document dated personal injury directly Admin Doc and page CLEIC Scheme are: March 2009 ("Admin attributable to and 1) the victim has the 1) Obtain an application 12 of the CLEIC Doc") arising out of a crime of right to remain in form from the website Scheme 40th AR: • assault / wounding violence can apply to Hong Kong and is of the Social Welfare • robbery / theft / Criminal and Law the Criminal Injuries not in contravention Department ("SWD"), 1) An appeal may be burglary Enforcement Injuries Compensation Board of a limit of stay at police stations, District made to the Appeal • murder/manslaughter; Compensation Boards ("CICB") for a the time of the Offices, Medical Social Board of CICB. • rape / sexual assault Fortieth Annual Report compensation payment incident. Services Units, Social dated June 2013 for (up to a maximum of Security Field Units. 2) The appellant must Section 129 of Crimes the year ending 31 HK$105,180 for rape or 2) the personal injury file a Notice of Ordinance, creating the March 2013 (the HK52,590 for other must be directly 2) Submit the form to the Appeal in writing th offence of "trafficking in "CLEIC Scheme 40 injuries). attributable to and CLEIC Section of within 1 month after persons to or from Hong AR") arising out of a SWD by post, fax or the date on which Kong for sexual purposes", Compensation is not crime of violence email. the notice of is unlikely in and of itself to CLEIC Scheme Leaflet payable: recognised by the decision was given be considered a crime of CLEIC Section of SWD issued by the Social CICB. (or within any violence by the CICB. aims to complete the Welfare Department • for maintenance for extended period However, if a trafficking 3) the injury was investigation of an (the "Leaflet") a child born as a allowed by the victim suffers personal sufficiently grave to application within 14 result of a sexual Appeal Board). injury as a result of a (Note: there is some give rise to at least working days upon receipt offence (para 9 violent crime and they meet inconsistency between 3 days' loss of of all relevant supporting 3) The CICB Admin Doc). the eligibility criteria the the CLEIC Scheme earnings or earning documents. Chairman will victim may obtain policy documents; capacity (deemed appoint 3 members • if the offender and compensation from the there is no definitive to meet this criteria A payment schedule who were not victim lived CLEIC Scheme. document. The together at the time if on sick leave shows maximum involved in the information stated on of the injury as certified by a compensation payable for original decision to the most updated members of the registered medical specified types of grant. form an Appeal policy document is same family practitioner or - 52 -

CLEIC Scheme What does the Eligibility criteria Procedure Appeal procedure Applicability to trafficking documents scheme provide? adopted for the (includes a man registered Chinese The CICB may increase Board. purposes of this and woman living medicine the compensation by up to document.) together as man practitioner, or in 100% if the applicant is a 4) At the hearing of and wife), unless hospital for 3 days). victim of rape. the appeal the the offender was appellant will, in the prosecuted for the 4) the circumstances The CICB has discretion usual course, have offence (or CICB of the injury have to reduce the to put forward their considers there are been the subject of compensation (or reject an case in person. good reasons for criminal application) if the conduct, lack of prosecution) proceedings or character and way of life The Appeal Board and the Board is were reported to of the victim were may approve the satisfied that police without considered contributory appellant bringing a compensation is in unreasonable delay factors to the incident friend/relative to the victim's ("unreasonable (paragraph 19(c), page 7 assist in the interests (para 7 delay" determined CLEIC Scheme 40th AR). presentation, or in Admin Doc). on a case-by-case This discretion would be exceptional cases, basis). exercised on a case-by- legal representation case basis. at the expense of 5) the compensation the appellant claim must be If the victim receives made within 3 damages or other 5) The decision of the years of the date of compensation (including Appeal Board is the incident. Employees' final. Compensation) in respect 6) the Applicant must of the same incident, The Appeal Board shall give CICB all compensation payable hear and determine related information under the CLEIC Scheme appeals against any and reasonable will be reduced by the decision of the CICB in assistance. corresponding amount. If respect of the following: the victim receives damages or other (a) the amount of compensation after CLEIC award; Scheme compensation is (b) the coverage or awarded, they will be - 53 -

CLEIC Scheme What does the Eligibility criteria Procedure Appeal procedure Applicability to trafficking documents scheme provide?

required to refund the types of award; corresponding amount to the CLEIC Scheme (c) the mode of (paragraph 29, page 11 payment of award; CLEIC Scheme 40th AR). (d) any special Between 1 April 2012 to arrangement for the 31 March 2013, 10 CLEIC administration of any Scheme awards were amount awarded; and reduced by reason of Employees' (e) making no award. Compensation, and 11 CLEIC Scheme awards were reduced by reason of damages/ compensation other than the Employees' Compensation (paragraph 30-32, page 11 Admin Doc).