“Human trafficking is one of the most tragic human rights issues of our time. It splinters families, distorts global markets, undermines the rule of law, and spurs other transnational criminal activity. It threatens public safety and national security. But worst of all, the crime robs human beings of their freedom and their dignity. That’s why we must pursue an end to the scourge of human trafficking.”
US State Department Trafficking in Persons Report, June 20171
Human trafficking is one of the most severe violations of human rights that confronts the world today. While around the world men, women and children are exploited in countless ways, in Hong Kong, victims are mostly exploited for the purposes of labour and sex.
Slavery seems to be a thing of the past, but modern forms of slavery have developed exponentially over the last few decades. For over 20 years, world leaders and human rights activists have sounded the alarm acknowledging the transnational nature of this crime, and calling for coordinated action to combat this heinous trade worldwide.
What is Human Trafficking?
The internationally accepted definition of human trafficking is contained in Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, which supplements the United Nations Convention on Transnational Organised Crime (the “Palermo Protocol”)2:
“Trafficking in persons” [“TIP”] shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs[.]3
For ease of use, the definition is commonly dissected into three constituent elements:
(1) the Act (what is done)
(2) the Means (how it is done)
(3) the Purpose (why it is done).
Except for cases involving children, the above three elements must be cumulatively present for a case to be identified as a case of human trafficking.
Although, Hong Kong is not a signatory to the Palermo Protocol, the HKSAR Government has clearly indicated4 that it accepts the above definition of human trafficking.
Difference between Human Trafficking and Human Smuggling
It must be noted that in the immigration context there is a tendency to conflate the definitions of human smuggling and human trafficking. Therefore, it must be first understood that human smuggling is based on transportation, involving the facilitation, transportation, attempted transportation or illegal entry of a person with deliberate evasion of immigration laws.
On the other hand human trafficking is based on the element of exploitation. It is not necessary to show cross-border transportation for human trafficking. It does not even require the transportation of victims from one locale to another. Therefore, it is possible to find a victim of human trafficking who has never left Hong Kong (eg, a person coerced to “compensated dating”).
What is Forced Labour?
One of the most common purposes of human trafficking is for the purpose of forced labour, slavery or servitude.
Article 2(1) of the International Labour Organisation’s Forced Labour Convention of 1930, to which Hong Kong is a signatory, states that “all work or service which is exacted from any person under the menace of any penalty and for which the person has not offered himself voluntarily.”
The United Nations Committee on the International Covenant on Economic Social and Cultural Rights (“UNCESCR”) further endorsed the above definition of forced labour in its 18th General comment. In the same manner the Committee reaffirmed the positive obligation on states to “abolish, forbid and counter all forms of forced labour”5.
Moreover in the recent case of ZN v Secretary for Justice & Ors, HCAL 15/2015 (the “ZN case”)6, the Hon. Mr. Justice Zervos defined forced labour as follows:
“There are thus two elements that characterise forced or compulsory labour. The first is that there must be the presence of menace or threat of penalty. The penalty may consist in a penal sanction, such as arrest or jail, or in the suppression of rights or privileges, such as refusing to pay wages or forbidding a worker from travelling freely. The second is that the work or service is undertaken involuntarily. Deciding whether work is performed voluntarily often involves looking at external and indirect pressures, such as the withholding of part of a worker’s salary as part repayment of a loan, or the absence of wages or remuneration, or the seizure of the worker’s identity documents.”7
Current statutory or administrative provisions to combat human trafficking
Hong Kong Bill of Rights and Basic Law
While there is no specific legislation criminalising human trafficking as defined by the Palermo Protocol, Article 4 of the Hong Kong Bill of Rights stipulates :-
- No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
- No one shall be held in servitude.
- No one shall be required to perform forced or compulsory labour.
This article gives domestic force to Article 8 of the International Covenant on Civil and Political Rights (“ICCPR”).
Crimes Ordinance (Cap. 200)
Although limited in scope to ‘trafficking in persons for the purpose of prostitution’, Section 129 of the Crimes Ordinance (Cap. 200) provides that “A person who takes part in bringing another person into, or taking another person out of, Hong Kong for the purpose of prostitution shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 10 years”.
This provision is a key statutory provision on this subject. However, it must be noted that it does not deal with trafficking for forced labour or other forms of exploitation, and it does not include the concept of exploitation even in the context of prostitution.
Prosecution Code 2013
With the Department of Justice’s release of the ‘Prosecution Code 2013’ on 7 September 2013, new sections addressing human exploitation were included. Article 18, ‘Human Exploitation Cases’, provides guidelines to prosecutors in the identification of human exploitation cases and sets out broad principles regarding the handling of such cases having regard to internationally accepted principles. As a starting point, human trafficking/exploitation is defined consistently with the definition under the Palermo Protocol.
Critically, Article 18.2 provides for the importation of the non-prosecution principle set out in various international human rights treaties. For example, the United Nations High Commissioner for Human Rights Recommended Principles and Guidelines on Human Rights and Human Trafficking published in 2002 states that, “[t]rafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.” Similar provisions are present in European directives.
Other Statutory Provisions
While no single ordinance comprehensively deals with the offence of human trafficking, there are numerous laws and administrative procedures that allow for the prosecution of elements of crime which may be committed in the course of trafficking. These include inter alia physical abuse8, false imprisonment9, criminal intimidation10, unlawful custody of personal valuables11, child abduction12, illegal employment, withholding of wages13, rest days14, statutory holidays15, etc.
A Legal Practitioner’s Role in Combating Human Trafficking in Hong Kong
Although the above statutory or administrative provisions do not allow for the identification and prosecution of the offence of ‘human trafficking’ specifically, they provide prosecutors with the tools to target elements of the crime, and they allow for the representative of victims to put up a defence and perhaps seek civil damages.
In conducting cases, legal practitioners are the first and most well equipped professionals to identify perpetrators and/or victims of human trafficking. While government officials such as police or immigration officers are limited in their ability to identify potential cases of human trafficking by numerous factors such as the frequency of reporting cases of human trafficking, a skilled legal practitioner would be able to identify a potential case or victim of human trafficking even in cases of seemingly unrelated matters e.g. criminal cases concerning breaches of conditions of stay, presenting false information to immigration officers, fraud, trafficking in dangerous drugs, trafficking in persons, or civil cases involving labour or employment disputes.
ILO Operational Indicators of Trafficking in Human Beings
The meaning of terms in the Palermo Protocol definition of human trafficking such as “coercion”, “deception”, “fraud”, “abuse of power or of a position of vulnerability”, “control over another person” and “exploitation,” if not further clarified would result in widely diverging interpretations from country to country. Therefore in March 2009, the International Labour Organization (“ILO”) in association with the European Commission identified the various indicators to be used to characterise the constituent elements of the Palermo Protocol definition of human trafficking. The four sets of operational indicators developed for the identification of adult and child victims of human trafficking for the purposes of labour and sexual exploitation is a structured list of indicators categorized into six broad groups: deceptive recruitment (or recruitment, transfer and transportation), recruitment by abuse of vulnerability, exploitative conditions of work, coercion at destination and abuse of vulnerability at destination. While each of the six identified categories is assessed independently from the others, each category of indicators are further qualified as either strong, medium or weak.
Although these indicators are merely guidelines for the identification potential cases of human trafficking, it provides a well-recognized resource to law enforcement agencies and front-line staff of organizations working with potential victims and/or elements of crime. Likewise legal practitioners seeking to identify potential cases of human trafficking may be able to utilise these indicators to better identify and deal with victims of human trafficking who themselves maybe unaware of their rights or that they may be victims of human trafficking.
Never has the rule of law and the protection of the basic rights and freedoms of persons as enshrined in the Basic Law and the Hong Kong Bill of Rights been more invaluable than in the fight against human trafficking and forced labour. The protection of victims and the prosecution of those who seek to enslave and exploit the vulnerable is at its foundation an integral part of the ‘rule of law’ in Hong Kong.
With the help of the legal profession, Hong Kong can win the battle against human trafficking.
In conclusion, a legal profession cognizant of the grave impact of human trafficking on the lives of individuals and communities, will be able to hold the state accountable to their duties and obligations to protect the rights of the people while also using present systems may be used to protect victims and punish perpetrators.
1 Letter from Rex W. Tillerson, Secretary of State, United States of America
3ibid, Article 3
4 Security Bureau Website, Special Topics, Trafficking in Persons available at < http://www.sb.gov.hk/eng/special/bound/iimm.htm>
5 E/C.12/GC/18, at para 9
6  1 HKLRD 559
7 ibid, at para 244 - 246
8 Offences against the Person Ordinance (Cap 212) , Section 17 (Shooting or attempting to shoot, or wounding or striking with intent to do grievous bodily harm), Section 19 (Wounding or inflicting grievous bodily harm), Section 39 (Assault occasioning actual bodily harm), Section 40 (Common assault)
9 Offences Against the Person Ordinance (Cap 212), Section 42 (Forcible taking or detention of person, with intent to sell him)
10 Crimes Ordinance (Cap 200), Section 24 (Certain acts of intimidation prohibited)
11 Theft Ordinance (Cap 210), Section 9 (Theft)
12 Protection of Children and Juveniles Ordinance (Cap 213), Section 26 (Abduction of child or juvenile), Offences Against the Person Ordinance (Cap 212), Section 43 (Stealing child under 14 years)
13 Employment Ordinance (Cap 57), Section 63 (1) (Withholding of wages)
14ibid Section 63 (2) (Withholding of rest days)
15ibid Section 63 (4) (Withholding of statutory holidays)