PHILCONGEN-HK

HK Domestics Win First Round on Levy/Wage Cut Case vs HK Government

The HKSAR High Court, through the Hon. Mr. Justice Hartmann, issued today an Order granting the "Leave to Apply for Judicial Review" filed by foreign domestic helpers (FDHs) questioning the legality of the levy/wage cut imposed by the HKSAR Government on FDHs.

Philippine President Gloria Macapagal Arroyo was delighted to receive the news that the petitioners (applicants) have hurdled the initial process of convincing the Hong Kong High Court of the existence of a prima facie case which would enable Court to approve the case to go to full trial.

The case was filed on 1 April 2003 by seven FDHs (5 Filipinos and 2 Indonesians),
two migrant organizations and a Filipino lawyer residing in Hong Kong who is an employer of a domestic helper . The case is seeking a court order to set aside and declare as illegal and unconstitutional the decision by the Chief Executive in Council on 25 February 2003 to reduce the minimum allowable wage (MAW) of FDHs by HK$400 per month and the levy of HK$400 imposed on employers of FDHs.

Barely two days after it was filed, the Hong Kong High Court favorably considered the application for leave to apply for judicial review on the strength solely of the brief filed without ordering an oral hearing to determine the application.

The approval by the Court of the "Leave to Apply for Judicial Review" is a preliminary determination that the issues raised in the pleadings deserve the attention of the court and paves the way for the full hearing of the court case. The Leave Stage is a screening process and only meritorious cases are allowed to go forward to full trial.

Under the Court Order, the petitioners (applicants) or their solicitors are directed within 14 days from the granting of said Order to file the original Notice of Motion in court and serve on all persons directly affected a copy of this Motion, copies of the Notice of Application in Form 86A, the supporting affidavits and exhibits.

The case is being handled pro bono by Massie & Clement Solicitors and barristers
Gerard McCoy SC (Queens Counsel), Phillip Ross and Neil Thomson.

Lawyers for the plaintiff are arguing that the decision of the HKSAR Chief Executive in Council imposing a wage cut on FDHs is ultra vires (exceeded its authority) on technical grounds and on having been based on "irrelevant consideration". They will also establish that the levy on employers of FDHs is actually a tax imposed on FDHs which is illegal and unconstitutional.

It was noted that the HKSAR Government made the decision imposing the levy and
wage cut without the passage of a substantive law and therefore they are without any legal effect. As it is argued that the levy is a form of taxation on FDHs, the Legislative Council should have approved the imposition of this tax as required by Article 73 (3) of the Hong Kong Basic Law.

The case brief also stated that the levy imposed on employers is in breach of the equality of laws guaranteed in Article 26 of the International covenant on Civil and Political Rights as applied by Article 39 of the Hong Kong Basic Law and in breach of the equal treatment rights guarantee under Article 6 (1) of the Intenational Labour
Convention No.97 -Migration for Employment Convention(Revised) 1949 as applied by Article 39 of the Hong Kong Basic law.