By Melville Boase
Hong Kong, 13 May 2022: Migrant worker activists have long argued Hong Kong needs an effective, bespoke law to combat human trafficking and forced labour. Now, a landmark High Court judgment has given renewed hope this may finally happen.
In a comprehensive defeat for the government, Mr Justice Russell Coleman ruled this city’s lack of specific legislation to combat such crimes played a part in police prematurely ending their investigation into a case where a domestic helper was routinely sexually abused by her employer. While the employer was jailed for indecent assault, officers’ failure to look further into the helper’s claims of trafficking and forced labour were the result of “public law failures”, said the judge.
“Without an applicable legislative framework directing and regulating the conduct of investigations into possible specific forced labour offences, officers are left to revert to focusing on an available existing offence, here indecent assault,” said Mr Justice Coleman. He directed the Commissioner of Police to reopen the case. In response, the Department of Justice said it would study the judgment and “consider the way forward”.
In the absence of bespoke legislation, the authorities rely on a “patchwork” of existing offences to deal with cases of human trafficking and forced labour. These are chiefly covered by: the Crimes Ordinance (Cap. 200) which, among many provisions, prohibits trafficking in persons (TIP) for the purpose of prostitution; the Immigration Ordinance (Cap. 115), which deals with unauthorised entry into Hong Kong and hiring illegal workers; and the Employment Ordinance (Cap. 57), which protects workers’ rights in respect of wages, rest days and holidays. Various other ordinances cover such crimes as forced detention of persons, child abduction, child pornography, blackmail, deception and commercial dealings in human organs.
The government strenuously defends its strategy. In 2018, it set up the Steering Committee to Tackle Trafficking in Persons and to Enhance Protection of Foreign Domestic Helpers (FDHs), chaired by the Chief Secretary for Administration and with the Secretary for Security and Secretary for Labour and Welfare as vice-chairmen, to provide high-level policy guidance. Below this is the TIP Working Group, led by the Security Bureau and including senior customs, immigration, labour and social welfare officials, plus police representatives, established in 2010. At operational level, the Inter-departmental Joint Investigation Team, set up in 1998, enables intelligence exchange and joint investigation.
The authorities’ Action Plan to Tackle TIP and to Enhance Protection of FDHs in Hong Kong, unveiled four years ago, presents a package of anti-trafficking measures. Further, the administration points to some outwardly impressive statistics: between 2018-20, around 4,500 government officials received local or overseas anti-TIP training; the government provided HK$62 million recurrent funding in the 2019-2020 budget to create 98 new posts in various departments; anti-trafficking operations saw some 6,900 individuals screened for TIP in 2020.
While highlighting these measures, the Security Bureau’s website insists “there is no sign that Hong Kong is being actively used by syndicates as a destination or transit point for TIP, or that TIP is a prevalent or widespread problem in Hong Kong”.
Various NGOs and pressure groups beg to differ. A report published in 2016 by Justice Centre Hong Kong found one in six domestic helpers in this city was a victim of forced labour according to criteria laid down by the International Labour Organization. It stated that their average working week exceeded 70 hours, that more than one-third of survey respondents were denied their weekly full 24-hour rest period and that 35% had an “excessive” debt burden. “Migrant domestic workers are uniquely vulnerable to forced labour because the nature of their occupation can blur work-life boundaries and isolate them behind closed doors. They are often overworked and undervalued,” stated the report.
The latest Global Slavery Index, published in 2018 by the Walk Free international human rights group, estimated 10,000 people in Hong Kong were living in modern slavery. In its 10-tier ranking system measuring government response, this city was given a “CC” – the eighth tier – which states: “The government has a limited response to modern slavery, with largely basic victim support services, a
limited criminal justice framework, limited coordination or collaboration mechanism, and few protections for those vulnerable to modern slavery. There may be evidence that some government policies and practices facilitate slavery.”
On this latter point, critics routinely highlight the requirement for domestic helpers to live with their employer, which invariably leads to friction and overwork, and the “two weeks rule”, which requires helpers to leave Hong Kong within a fortnight of termination of their employment for whatever reason, as prime examples.
In its Trafficking in Persons Report 2020, the US State Department downgraded Hong Kong from tier 2 status to tier 2 “watch list” – one above tier 3, the lowest grade possible – citing the city’s failure to pass specific laws targeting the crime and the sluggishness of its investigative efforts. Hong Kong remained on the watch list in the 2021 edition, with the report stating the city had prosecuted fewer trafficking cases than the previous year while remaining slow to identify possible victims due to ineffective screening.
In 2020, the Court of Final Appeal issued a significant ruling in the case of a worker from Pakistan who had been subjected to forced labour. It declared that a bespoke law was not necessary in safeguarding the right against slavery as enshrined in the Hong Kong Bill of Rights. But it “left the door ajar” by stating future legislation could be necessary should a case arise which demonstrated the government had failed to provide enough protection.
This has now happened. Mr Justice Coleman found that the failures in the police investigation into whether the helper was a victim of human trafficking and/or forced labour were “causally connected” to the absence of specific legislation. It is to be hoped the government does not seek to have this decision overturned in a higher court, but recognises that an effective ordinance is the only way forward.
Melville Boase is a long-time campaigner for the rights of overseas workers and has remained actively involved in this field since his retirement from BC&C in 2019. He has served as Treasurer of the Mission For Migrant Workers since 1981. He can be contacted at firstname.lastname@example.org.