揭露現行制度下家庭被迫承擔不對稱風險的典型案件

1. Overview of the Case

/A failed domestic helper placement highlighting systemic reliance on agency representations./

This case arises from a failed domestic helper placement arranged through a licensed employment agency in Hong Kong in 2023.

At the time of engagement, the family had recently returned from overseas to settle in Hong Kong with two young children (aged 2 and 5) and sought ordinary household and childcare support. Due to immediate needs, the family relied on the agency’s representations in selecting a helper.

Despite the employer’s request for a helper with completed overseas contract experience, the agency recommended a first-time overseas worker described as the niece of a long-standing associate of the agency, and represented as trustworthy and well-trained. The agency owner made multiple assurances regarding the helper’s suitability, background, and reliability, claiming personal knowledge of the helper’s family based on relationships spanning over 30 years. The owner further presented her company as having an impeccable track record of over three decades and as possessing the professional authority and experience to assess suitability for placement. These representations formed a material basis for the employer’s decision to proceed with the placement and to pay the agency’s service fee.

Following the helper’s arrival in Hong Kong, serious problems emerged within days. The helper refused to perform basic duties and disclosed information that contradicted key assurances previously given by the agency. Additional conduct issues arose, including unapproved absences and behaviour that raised safety concerns within a household with young children. Around the time of the helper’s arrival, the employer also became pregnant.

Given the cumulative issues and associated risks, the employer terminated the contract within 11 days on grounds of serious misconduct and bore the cost of arranging the helper’s return to her home country.

2. Post-Termination Developments

/Continued disputes, complaints, and prolonged stress during pregnancy./

Following the termination, the agency did not initiate any further contact with the employer. The employer later approached the agency to discuss a reasonable refund of the agency fee, on the basis that the placement had failed due to issues directly related to the agency’s representations. The agency declined to engage in any meaningful discussion and maintained its existing position.

Thereafter, the agency assisted the helper in remaining in Hong Kong and accompanied her in lodging multiple complaints against the employer with various government departments. None of these complaints were ultimately substantiated. The agency also assisted the helper in pursuing further compensation claims, including proceedings before the Labour Tribunal, despite the fact that the reasons for termination and the arrangements for departure had been clearly explained at the time, and no objection was raised by the helper at that stage.

During this period, the employer was required to respond personally to repeated complaint processes and related communications. These events occurred while the employer was pregnant and extended over a prolonged period. During this time, the employer was advised by her doctor to undertake approximately one month of bed rest during pregnancy.

3. Attempts to Resolve the Matter Outside Litigation

/No effective administrative remedy available for employers to seek financial recovery./

The employer sought assistance from multiple relevant bodies, including the Labour Department and the Consumer Council. During these enquiries, the employer was informed that the complaint procedures were complex and time-consuming, and that even if pursued, they would not result in any financial redress.

Given that the employer was pregnant at the time, and that the household lacked support following the failed placement, the employer, after consideration of the practical circumstances, was unable to devote the time and resources required to pursue complaint channels that offered no substantive remedy.

The employer was further advised that if any financial recovery was sought, the only available avenue was to commence proceedings before the Small Claims Tribunal. Accordingly, litigation was not pursued as a matter of choice, but as the only practical means under the existing framework to seek recovery of fees already paid.

4. Tribunal Proceedings and Ruling

/Claim dismissed; no refund ordered; costs awarded against the employer./

The claim was brought before the Small Claims Tribunal (Case No. SCTC 47544/2023)and proceeded over a period of approximately two years, involving multiple hearings.

In its decision dated 4 December 2025, the Tribunal dismissed the employer’s claim. The Tribunal held, among other things, that:

·       the agency’s pre-contractual statements were made in good faith and did not give rise to legal liability;

·       the Code of Practice for Employment Agencies，the agency’s licensing compliance, and issues relating to its integrity of operation were all treated as irrelevant to the private contractual relationship between the parties.; and

·       the agency had fulfilled its contractual obligation by arranging the helper’s arrival in Hong Kong, and that the agency’s post-contract conduct was irrelevant to the claim.

On this basis, the Tribunal declined to order any refund of the agency fees and awarded costs against the employer. As a result, the employer not only received no compensation, but was required to pay approximately HK$4,000 in hearing-related costs to the agency.

5. Grounds for Appeal and Broader Significance

On 12 December 2025, the employer submitted Form 9 to the Court of First Instance, seeking leave to appeal the Small Claims Tribunal’s decision.

This case does not concern the ordinary scope of responsibility for agencies that merely arrange placements.

Rather, it raises the question of whether, where an agency chooses to actively influence an employer’s decision and to establish a relationship of reliance, the law should nevertheless continue to treat the agency as performing a purely administrative role.

Against this background, this case raises questions of broader legal and public importance, including:

• Whether employment agencies bear any meaningful legal responsibility for the representations they make to employers, particularly where agencies are the sole source of information regarding a helper’s background and suitability, and consumers have no independent means of verification.

• Whether the Code of Practice for Employment Agencies can inform civil standards of conduct in consumer disputes, or whether it is to be treated as entirely irrelevant to private contractual relationships, even in highly asymmetrical agency–consumer contexts.

• Whether the current legal framework allocates all financial and practical risk to employers by default, leaving families to absorb the consequences of failed placements without proportionate accountability on the part of licensed intermediaries.

The appeal therefore seeks clarity on whether consumer protection has substantive meaning in this context, or whether the existing framework leaves families exposed to systemic risk.