By Tony Read
There are always battles to be fought in life and positions to be taken. At certain junctures it is necessary to stop and take stock of the situation , assess the strategic position, and decide a course of action. During this process it is necessary to step back and take a wider look from a different perspective. As the saying goes it is sometime easy to get caught up in the immediate context of the next battle to be fought but in the process lose the war.
In the context of human trafficking in Hong Kong there has been a long running discussion for many years about the extent of human trafficking and Hong Kong’s strategic preparedness to deal with it. Because human trafficking (or slavery, as its more recent description terms it) is often by nature covert activity it has been difficult to muster the evidence and provide hard statistics which government can act upon. However in the last two or three years there have arisen more and more instances where slavery-like activities have been identified. This has been particularly true in the context of labour trafficking and the employment of Hong Kong’s army of foreign domestic workers who keep our homes running and as result, our businesses healthy.
The Hong Kong government’s strategic response has been to downplay the potential threat, by one; assuming that the lack of significant statistical evidence means that the extent is minimal, and two; claiming that the plethora of current domestic laws dealing with forced labour, illegal immigration, assault, physical abuse, false imprisonment, and many other activities often present in human trafficking are more than adequate to deal with the situation at hand.
Late last year on 23 December a landmark judgement was handed down in the High Court by the Honourable Judge Zervos which examined in detail these claims in respect of a case involving a Pakistani national, (for safety reasons referred to as ZN) who came to Hong Kong in 2007 under a domestic worker visa and was (as established in the judgement) subjected to forced labour, intimidation and abuse for a period of 3 years before returning to Pakistan. He returned to Hong Kong in 2012 entering illegally to reclaim his unpaid wages. What then transpired was an unsuccessful series of attempts to make his situation known to the Immigration Department, a number of police stations and the Labour Department, none of whom successfully identified him as a potential victim of human trafficking. The court case took the form of a judicial review (HCAL 15/2015) of the government’s alleged failure to protect ZN as a victim of human trafficking for forced labour.
The judgement was a damning indictment of the government’s failure to put into place a comprehensive system of legislation and training covering slavery in all its forms with appropriate measure for criminalisation.
At para 349 of his judgement Judge Zervos says: “It seems that the officers concerned did not appreciate sufficiently or at all that the applicant was possibly a victim of forced labour.” And at para 351 “In my view the critical flaw in the HKSARG’s obligation under Article 4 of BORO is the lack of criminal offence and penalty that addresses the prohibited concept of forced labour”
At para 355 of his findings, Judge Zervos summarises what he considers needs to be done to bring redress to these inadequacies “I find that the HKSARG (Hong Kong Special Administrative Region Government) has positive obligations under Article 4 of the BORO (Bill of Rights Ordinance) to enact measures to ensure that prohibition of forced or compulsory labour, and these include criminalising and penalising any offender of forced labour or compulsory labour or trafficking for the purpose, and having appropriate measures in place to investigate such cases”
If such measures had been in plac,e they would have initiated the necessary training for front line officers thus enabling them to identify and respond to situations like ZN when they arise. In summing up at para 357 Judge Zervos again emphasises: “From my point of view, what has happened in this case is not satisfactory”, and, “…this case illustrates a number of fundamental failings and difficulties with the regime in place to tackle the prohibited practices under Article 4 of BORO and especially when persons are being trafficked for these purposes”. His final comment on Hong Kong’s measures to tackle human trafficking is brutal: para 298 “The general claims of the HKSARG about what it has achieved in this area, is for others to consider and comment on, but if this case is an example of the effectiveness of the Hong Kong’s regime in tackling human trafficking and forced labour, then it has failed to achieve even the most basic objectives”
What happens next in this issue is largely up to the Government. It has the option of filing an appeal (and risking even further disapprobation) or of accepting the judgement and addressing what needs to be done. It is always tempting to brood over the injustices of the loss and look for the weaknesses of the judgement, but what is needed at this juncture is to make a strategic assessment and take a long term view.
It is firstly necessary to ask a fundamental question, What is the real issue and where is the enemy? The government will surely understand that the real fight is against slavery. They have conducted enough research and visited enough jurisdictions to know that modern slavery is out there in some form or other in every country in the world. It is not reasonable to maintain that Hong Kong is the only jurisdiction exempt from this scourge. Surely the most effective use of time and effort is to join the growing international commitment to fighting the real enemy, slavery, and not try to bolster a futile effort to justify minimal response. Even if an appeal is made and is successful there will be more and more cases of human trafficking brought to light and more importantly brought before the courts. The government will have to take action sometime. In the long term, time is against spending more effort and resources fighting this judgement. They can be used for much more effective purposes right now putting the required measures in place.
From a strategic point of view it is also clear that taking action now and starting to execute a plan of action will bring very positive benefits to the government’s position. There has been increasing criticism from outside of Hong Kong at the lack of action, and its international reputation as an advanced civilised jurisdiction has come into question. Last year, the US Trafficking in Persons report downgraded Hong Kong from Tier 2 to Tier 2 Watch List putting it in the company of such jurisdictions as Afghanistan, Bolivia and the Democratic Republic of Congo; and the United Nations CESCR Human Rights Committee in its 2013 report said it was “….concerned about the persistence of the phenomenon of trafficking in persons in Hong Kong, China and reports that Hong Kong, China is a destination and transit point for men, women and teenage girls from Hong Kong, the mainland China, and elsewhere in Southeast Asia”. Taking action now will most certainly go a long way to addressing these concerns and in bringing Hong Kong into line with international practice in the area of human slavery.
Secondly, it will provide a positive signal to the various NGOs and civil society groups in Hong Kong who are working to end slavery, that the government is prepared to take the lead in providing a strong legal framework. This will enable them to assist with providing an effective system of training, identification, action and support to facilitate effective prosecutions.
It is time for action, not in the law courts, but in the hard graft of working through a strategic plan to draft legislation, conduct comprehensive training of front line officers, review interdepartmental government practices, coordinate and encourage civil society participation. Hong Kong has more than enough expertise to do this provided it is welcomed openly and coordinated well. It only needs an invitation to come together around a table in order to get the job done. Now is the time for us to work together to end slavery in Hong Kong.
Tony Read works with STOP (Stop Trafficking of People) a local front line NGO in Hong Kong helping survivors of trafficking.