Hong Kong judge told to step down from human trafficking case over possible bias
Justice Department cites possible bias in making 'highly unusual' request
In a “highly unusual” move, the Department of Justice has asked a High Court judge to voluntarily step down from a judicial review into human trafficking laws due to his possible bias.
If the judge, Mr Justice Kevin Zervos, recuses himself from the case, it may have far-reaching ramifications for the rule of law and set a precedent on how judges are assigned, legal experts said.
“It’s highly unusual and rare,” said lawyer Patricia Ho of Daly and Associates, which is representing a Pakistani man behind the judicial review.
“As far as we know, the government has never made an application for a judge to be recused from hearing a case,” Ho said. “This has serious implications for the rule of law because parties should definitely not be seen to be selecting judges. Does it mean that any judge that has been responsible for reform in an area shouldn’t hear a case in that area?”
Zervos, a High Court judge since mid-September 2013, was the director of public prosecutions from March 2011 to early September 2013.
During his time as a public prosecutor, he supported initiatives to combat human trafficking such as amendments to the prosecution code and a database to track cases of sex trafficking, enforced labour and abuse of domestic helpers. He also spoke to the media, worked with NGOs and met with diplomats to discuss what he described as “human exploitation”.
It was these actions, among others, that the Department of Justice listed as reasons why Zervos may not be suitable to hear the case, set to begin in January.
“We take this application very seriously ... and it was not made lightly at all,” the department’s lawyer, Stewart Wong SC, said in court yesterday. He argued that if a judge’s views on an issue were “firm, committed or even entrenched”, then they may hear a case “without a complete open mind”.
Wong, representing the secretary for justice, director of immigration and the commissioners of police and labour, sent the request to Zervos on Monday.
“It’s unusual for the state to make an application of this type,” Zervos said in court. “You’re not alleging actual bias, you’re going further and saying there is no question at all of actual bias.”
Zervos, who granted the judicial review in June, also criticised the department for not raising the concerns earlier. “When did the light go on or was it dim for some time?” he asked Wong.
“It’s derailed the whole proceedings ... so this sort of last-minute application does concern me,” he said, adding it was “not good for the administration of justice”.
Barrister Philip Dykes SC, for the applicant, said he found the request to be “opaque” and in a letter to the court, his side argued that Zervos “has relevant expertise that makes him more suitable for this case”. The case was adjourned to Monday to allow a full hearing.
Associate City University law professor Surya Deva said if Zervos did leave the case, “it will not undermine his reputation but it may set a bad precedent for future cases related to human rights” as judges often give lectures and publish papers on human rights issues with a particular viewpoint.
The judicial review centres over the man’s claims that the city does not sufficiently protect victims of human trafficking.
