GA & ORS v DIRECTOR OF IMMIGRATION, FACV No. 7, 8, 9 & 10 of 2013

This case concerns mandated refugees and screened-in torture claimants’ right to work in Hong Kong pending resettlement. All the appellants had been in Hong Kong for a prolonged period of time. They applied for judicial review of the decisions of the Director of Immigration (Director) who refused their application to work. They claimed they had the right to work in Hong Kong under Article 3 and Article 14 of the Hong Kong Bill of Rights (BoR), Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 33 of the Basic Law and also under the common law.

The Court of First Instance held against all the appellants in relation to their submissions based upon the above articles in BoR, ICESCR, Basic Law and common law. However, the court reiterated that the discretion vested in the Director, though wide in immigration matters, was not without limit and the conventional principles of judicial review continued to apply. In the cases of 2 of the appellants, the court took the view that their personal circumstances had not been properly considered by the Director. Hence the decisions to refuse these two appellants permission to work were quashed. The Director was required to consider their request afresh. On the other hand, applications of the other appellants for judicial review were dismissed.

All the appellants including those 2 who had succeeded in having the Director’s decisions relating to them quashed appealed to the Court of Appeal. They all wished to contend that they had a constitutional right to work. The Court of Appeal dismissed all the appeals, agreeing with the Court of First Instance that they could not rely on the above articles in BoR, ICESCR etc. to assert a constitutional right or common law right to work.

As important issues were raised and should be dealt with in the public interest, the appeals proceeded to the Court of Final Appeal (CFA). After hearing the submission from the parties, the CFA unanimously dismissed the appeals and held that the appellants do not have any right to work in Hong Kong while remaining in Hong Kong. A thorough analysis and discussion was made by the highest court about the grounds relied upon by the appellants.

It was held by CFA that the right under Article 3 of the BoR of not to be subject to torture or cruel, inhuman, or degrading treatment or punishment was an absolute one. Treatment was inhuman or degrading if, to a seriously detrimental effect, it denied the most basic needs of any human being. Where, as a consequence of the prohibition against working, inhuman or degrading treatment could be shown to exist or where the individuals concerned could be shown to be facing a substantial and imminent risk of inhuman or degrading treatment, the discretion on the part of the Director must be exercised in favour of the appellants or persons like them by giving permission to work if such evidence existed. The case of Ubamaka v Secretary for Security (above) and R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 was applied.

The appellants sought to rely on Article 14 of the BoR which protects a person against arbitrary or unlawful interference with, inter alia, his privacy right. In connection with this argument, discussion was made about Section 11 of the Hong Kong Bill of Rights Ordinance (HKBoRO) which provides that this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation, as regards persons not having the right to enter and remain in Hong Kong. The appellants contended that this Section 11 only relates to legislation governing the entry into, right to remain in and departure from Hong Kong, but not legislation that is concerned with the appellants’ activities while staying in Hong Kong including legislation that confers a right on the Director to allow the appellants to work in Hong Kong while remaining here. Hence they argued they were entitled to rely on this Article 14 and Section 11 did not apply in their cases. The CFA rejected such argument and ruled that Section 11 must also, from an immigration control point of view, generally cover the activities which a person in Hong Kong may be permitted to carry out and must include whether a person should be permitted to work. It was held that the Director’s discretion to determine whether or not persons in the position of the appellants should be permitted to work came within the scope of immigration control.

In respect of the appellants’ reliance on Article 6 of the ICESCR on a person’s right to gain their living by work, the CFA held that an individual could not rely on the content of that international obligation if the covenant had not been incorporated into the domestic legislation of Hong Kong. In so far as it concerned a general, unrestricted right to work for persons like the appellants, the most that could be said was that there was some allowance made for persons like the appellants to be permitted to work but that was far from the general, unrestricted right which was said to exist.

On the interpretation of Article 33 of the Basic Law which concerns freedom of choice of employment of Hong Kong residents, the CFA decided it does not refer to the right to work in general. It is much narrower than that, dealing only with the freedom of choice of occupation. It does not imply a right to take up available employment in the first place. Nor does it confer an unqualified right to obtain employment.

The final argument advanced by the Appellants was that there was a right to work at common law. The CFA noted that no authority had been cited to support this argument. Furthermore, in light of the Court’s analysis relating to the HKBoRO, the ICESCR and the Basic Law, it was decided that a right of the appellants to work under the common law does not exist.

The CFA at the end remarked that despite their ruling that there is no constitutional right to work, the Director still has to exercise her discretion within limits whether to permit persons like the appellants to work. The precise limits will have to be worked out in future cases but as discussed in relation to Article 3 of the BoR, one very important factor affecting the exercise of the discretion is whether there would be inhuman and degrading treatment to the applicants if they were refused permission to work.

HKSAR v Chan Yau Hei

The offence of “Outraging Public Decency” is an old common law offence. It is often resorted to by a prosecutor where no statutory offence exists to restrict or penalise specific conduct or behaviour which, by ordinary standards of common decency, members of the public would consider “lewd, obscene or disgusting”.

The nature of the act includes anything which an ordinary decent person would find to be shocking, disgusting and revolting and is not restricted to sexual indecency. In the nineteenth century, it was used to prosecute cases of indecent exposure; performing sexual activities in public; and even digging up from graveyards lawfully buried corpses in various states of decomposition to sell for dissection to medical schools. More recently, and in Hong Kong, it has been used to prosecute persons who secretly film up women’s skirts on escalators and filming them while they used the lavatory.

The second element i.e. the public element, of the offence came under the scrutiny of the Court of Final Appeal of Hong Kong (CFA) in HKSAR v Chan Yau Hei in FACC 3/2013 (judgment delivered on 7 March 2014).

In June 2010, the appellant, a 26 year-old proponent of political reform in Hong Kong, posted in Chinese on an online discussion forum the following message: