HK has no duty to pass a law on human trafficking…yet

By Daisy CL Mandap

CFA says HK may still be forced to enact a law against human trafficking in future 

Hong Kong’s highest court has ruled that the government has no duty to pass a law criminalizing forced or compulsory labour as a form of human trafficking.

However, in a decision handed down today, Jan. 10, the Court of Final Appeal led by Chief Justice Geoffrey Ma, said a different judgment may be reached in future if the government fails to adhere to art 4 of the Bill of Rights that guards against such offences.

“The determination that a bespoke offence is not required does not preclude a different conclusion being reached in a future case, in the event that the HKSARG is shown...not to afford practical and effective protection of the rights under BOR4 by reason of the absence of such an offence,” said the CFA judgment penned by Justice Joseph Fok.

The decision was met with disappointment by Patricia Ho, solicitor for appellant ZN, a Pakistani victim of forced labour in Hong Kong.

“It is past time for Hong Kong to criminalize human trafficking and forced labour,” said Ho.  

“While most developed countries dedicate resources to ensure effective administrative and legislative measures to combat human trafficking, Hong Kong languishes behind, alongside nations such as North Korea, Maldives and Bhutan.”

Ho lamented that the government has identified only one human trafficking victim for last year, “while the number of people prosecuted for trafficking related offences remains almost non-existent.”

But while putting aside the question of whether Hong Kong needs to pass a law now specifically outlawing human trafficking, the CFA noted at length the seriousness of the problem which it said “can rightly be called an evil scourge.”

In particular, the court noted the vulnerability of foreign domestic workers in Hong Kong to falling prey to this menace.

“With a total of approximately 370,000 foreign domestic helpers working in Hong Kong, there is potentially a sizeable number of persons at risk of exploitative practices that might constitute either forced or compulsory labour or human trafficking.”

 

The court noted that migrant workers are at high risk of being exploited

The case was raised to the CFA by ZN, who was brought to Hong Kong to work as a foreign domestic helper between 2007-2010, and was so badly mistreated by his Pakistani employer that his case was deemed to constitute forced and compulsory labour under Art 4 of the BOR.

The said provision states, among other things, that “(1) no one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited; (2) no one shall be held in servitude; and (3) no one shall be required to perform forced or compulsory labour.”

ZN filed an application for a judicial review in 2015, after failing to get the Secretary for Justice, the Director of Immigration, the Commissioner of Police and Commissioner for Labour, to act on his complaints.

He told the court that he was made to work without pay for four years. He worked long hours every day in the office of  his Pakistani employer, who regularly assaulted him, and made him sleep on the floor. The employer and his associates also warned ZN that his family back in Pakistan would be harmed if he complained about his maltreatment.

ZN was tricked into returning to Pakistan ostensibly for a vacation, to prevent him complaining to authorities. But he returned to Hong Kong in 2012 and complained to Immigration and Labour Departments and the police, to no avail.

ZN then asked the court to declare that he was a victim of human trafficking, and that the officers of the various government departments failed or neglected to take appropriate action in dealing with his case in violation of BOR4.

Judge Kevin Zervos allowed the application in January 2016 and said that the government had positive obligations under the BOR to enact measures to stop human trafficking for compulsory labor.

He also ordered a further hearing on the reliefs due ZN, including costs and damages.

The government appealed against his judgment and raised four main issues before the Court of Appeal: (1) whether BOR Art 4 covers human trafficking for forced labour; (2) whether ZN was a victim of forced labour; (3) whether the government failed to fulfill its duty to enact a law prohibiting human trafficking for forced labour; and (4) whether the government failed in its duty to investigate ZN’s case.

The CA affirmed Judge Zervos’s ruling in issues no 2 and 4, but overruled him in points 1 and 3.

The court, though Judge Peter Cheung, ruled that a clear case of forced labour was shown in ZN’s case, and that the government had failed in its duty to investigate the appellant’s complaints, in line with BOR4.

However, the court said BOR4 does not cover human trafficking and that there was no clear case made out to show that the government had failed to comply with an obligation to pass a law that prohibits forced labour.

“From the evidence presented before the court, it is plain that the breach was due not to the absence of any specific criminal offence as such, but rather the lack of training of the officers of the various government authorities involved regarding article 4 violations, and the total lack of central supervision and coordination in terms of investigating and combating such violations,” said the CA.

ZN appealed against the CA decision, but narrowed down the issue to whether Hong Kong is obliged to pass laws specifically criminalising human trafficking and forced or compulsory labour.

The Court of Final Appeal upheld the CA ruling, and said that while BOR4 prohibits trafficking for the purposes of slavery, it does not prohibit human trafficking generally for the purpose of exploitation.

Thus, the government has no obligation under this law to enact a “bespoke” or tailor-made law criminalizing forced labour.

Still, the CFA said the government must take steps to ensure a practical and effective protection of the rights guaranteed under BOR4, and that the question of whether it has complied with this duty “will depend on the facts of any given case.”

“It would be wrong for the respondents to rest on the laurels of their success on the appeal in this Court by relaxing the vigilance with which the measures to combat breaches of the rights protected by BOR4 are administered and enforced,” said the CFA.

“Moreover, the respondents’ treatment of the appellant when he complained to the authorities of his mistreatment does not cast the respondents in a favourable light and was rightly described by Lord Pannick (counsel for respondents) as disgraceful.  Practical and effective protection of BOR4 rights should ensure that a case like the present is a rare and isolated event.”

CJ Ma and Judges Robert Ribeiro, Patrick Chan and Beverley McLaghlin concurred in the judgment.