Archana Kotecha, Head of legal with Liberty Asia, sees a gap in Hong Kong’s legal system that fails to protect the vulnerable from the evil of modern slavery. Change, however, may be forced on the government.
Photo credit: Chris Lusher
Trafficking for forced labour is not a criminal offence in Hong Kong, which means there is no law to prosecute criminals who put unwilling victims to work under threat or other illegal means.
While the “other illegal means” of exploitation, such as withholding the victim’s passport, can be prosecuted under the law, the piecemeal effort falls short of bringing those guilty to justice.
“This carves out the whole population of foreign migrant workers who might fall under the category of people who’ve been trafficked for forced labour, or who might be trafficked for labour exploitation,” says Ms Kotecha.
Hong Kong’s current anti-trafficking law (section 129 of the Crimes Ordinance, Cap 200) only recognizes cross-border trafficking for sexual exploitation in commercial prostitution. The definition is fairly limited, and in Hong Kong, that’s a problem.
As a result of this limited recognition of human trafficking cases, victims are not able to receive the help they require, and could even find themselves on the wrong side of the law.
The definition is fairly limited, and in Hong Kong, that’s a problem.
“For a lot of people who are involved in trafficking type situations, find that they’ve fallen foul of immigration law or criminal laws, and many of them are prosecuted for those offenses,” explains Ms Kotecha. “We need to think about victim protection in the sense of having non-criminalisation policies, when individuals have committed offenses as a dire result of having been trafficked.”
As a result of their prosecutions, trafficking victims are then left without the right to work while their case is being processed before going to the court, which could be especially gruelling given their dreadful experiences. “We need to consider expediting human trafficking cases, because individuals involved in these situations are often traumatised, and things need to move a little faster than generally,” says Ms Kotecha.
Second rate efforts
Just last Thursday, World Day against Trafficking in Persons, the US State Department announced its Trafficking in Persons Report 2015. The report criticised Hong Kong for its lack of efforts to expand the legal definition of human trafficking and stated that it is a “destination, transit, and source territory for men, women, and children subjected to sex trafficking and forced labor”.
The report from Washington placed Hong Kong in Tier 2, which includes countries whose governments do not fully comply with the minimum standards under the US anti-trafficking laws, but are making significant efforts to bring themselves into compliance with those standards. Singapore also found itself in Tier 2, while Taiwan and South Korea sat in Tier 1.
The report criticised Hong Kong for its lack of efforts to expand the legal definition of human trafficking and stated that it is a “destination, transit, and source territory for men, women, and children subjected to sex trafficking and forced labor”.
The Hong Kong Government defended its efforts from the criticism in the report, stating, “we disagree that Hong Kong is a destination, transit and source territory for men, women, and children subjected to sex trafficking and forced labour.”
The spokesperson added, “Although there is no sign or evidence showing that Hong Kong is becoming a source, a destination or a place of transit for human trafficking activities, we shall continue to collaborate closely with our counterparts locally and overseas to combat such crimes.”
Chicken or egg?
When asked why there hasn’t been any reports of human trafficking outside of sex trafficking (the report counts 26 potential victims in 2014), Mr Kotecha suggests it’s a chicken and egg situation.
“We know roughly that there are this many prosecutions each year, because it goes through the courts. When it comes to trafficking for forced labour, because it’s not an offense, it’s not investigated and there are no prosecutions. So there is no data in that area,” explains Ms Kotecha. She believes the Government should commission deeper research to cover this sort of area to understand the prevalence of the issue so that they can put in place appropriate measures.
How and who?
What more can the administration do if they want to make good on their promise to improve the situation and decrease the number of people being trafficked through Hong Kong?
“I think the first base is to expand the definition of human trafficking. Secondly would be to mainstream victim identification training, through law enforcement,the Department of Justice and front line responders, so that people are much better equipped to make identification of cases, and that will inevitably lead to a better result in terms of prosecutions,” says Ms Kotecha
“Prevention, protection and prosecution.”
As much as Ms Kotecha and Liberty Asia want change soon, what they’re looking for is long term commitment against human trafficking from the Government. “Law reform, we understand will take time. However, everything else, can be done relatively quickly,” says Ms Kotecha. “But from our perspective, one of the key ways of moving forward would be for the government to have a ‘national’ plan of action, which is basically a roadmap for the next three to five years, spelling out small changes that can take place over this period of time. This will cover the three pillars — prevention, protection and prosecution.”
The only things currently stopping the Government from making sure they sit in Tier 1 next year, is political will, and the challenge that comes with bureaucracy. “It’s a multidiscipline issue,” explains Ms Kotecha. “This is one of the things where human trafficking becomes really difficult to deal with. It requires a lot of departmental coordination between immigration, labour, the department of justice, the Organised crime and triad bureau, law enforcement, etc. Its nothing that sits with one department, its something that really requires people to pull together and respond as an ensemble. and that in itself is really big challenge.”
“This is set to change things,” says Ms Kotecha.
The silver lining in the cloud of modern slavery in Hong Kong comes in the form of a pending judicial review. Law reform in human trafficking will potentially be expedited, because Hong Kong will be hearing for the first time a judicial review that is challenging the lack of existence of laws protecting victims of labour trafficking. If this judicial review succeeds, it will change the way the law is set in this particular area. The judicial review has been granted and will be going into a full hearing in January.
“This is set to change things,” says Ms Kotecha.
[styled_box title=”Liberty Asia” class=”sb_red”]Liberty Asia is an anti-human trafficking NGO based in Hong Kong. Liberty Asia’s goal is to provide new solutions to change the way slavery and trafficking is addressed. Their programmes are focused in East and Southeast Asia. They work with existing organizations to avoid duplication and to ensure resources are used efficiently. Their programmes are made possible by grants, institutional and family foundations, and generous individuals.
Find out more at http://www.libertyasia.org/