In CB v Commissioner of Police & Ors [2025] HKCFA 10, the appellant, a foreign domestic helper (“FDH”), alleged that she and other FDHs were subjected to various forms of indecent assault and sexual abuse by their employer Z. Police investigations initially resulted in Z being convicted with two counts of indecent assault and sentenced. Z was subsequently acquitted upon retrial.

The courts below held that there were errors in the investigation as to whether CB was a victim of forced labour.

On appeal to the Court of Final Appeal, the constitutional question was whether it could be shown that these investigative failures were causally connected to the absence of bespoke legislation criminalising forced labour, such as to require the Government of the Hong Kong Special Administrative Region (“HKSARG”) to enact a bespoke offence criminalising forced labour. At issue was the proper causal approach in determining whether a specific offence had to be enacted in order to give practical and effective protection of the appellant’s rights under Article 4 of the Hong Kong Bill of Rights (“BOR4”).

The CFA held that the proper approach to causation in cases concerning HKSARG’s compliance with its positive obligation under BOR4 involved a “fact-specific remedy-based approach”. The Court affirmed the “only effective solution” test where bespoke legislation was said to be necessary in the light of investigative failures, following the approach of Cheung CJHC (as he then was) in ZN v Secretary for Justice [2018] 3 HKLRD 778. The CFA noted that the remedy to be adopted in order to comply with the HKSARG’s positive obligation under BOR4 must be a matter that falls within HKSARG’s wide margin of discretion in deciding how to address the failure found. The CFA found that the specific investigative failures in the case related to whether Z’s other FDHs were also subject to forced labour, which were irrelevant to CB’s BOR4 rights and would not have promoted a finding of forced labour against CB. It was therefore not shown that a bespoke forced labour offence was the “only effective solution” to address the investigative failures.

The full judgment can be viewed here.

Monica Carss-Frisk KC,

Lord Pannick KC,