By Patricia Ho & Manisha Wijesinghe (Daly, Ho & Associates)
On 21 March 2018, the Hong Kong SAR Government launched the “Action plan to tackle trafficking in persons and enhance protection of foreign domestic helpers.” This comes as a response to the repeated requests by both international and local communities calling for the implementation of comprehensive state protections for victims of human trafficking and other associated offences.
The government made clear in the plan that greater resources would be dedicated to the training of personnel in most front-line government departments, including the Immigration and Labour Departments. Furthermore, the apportionment of dedicated, specially-trained officers to handle cases of human trafficking and the allocation of funds for the protection of victims and witnesses in cases of human trafficking are definitely a step in the right direction of addressing the issue in Hong Kong.
However, while any efforts on the part of the Hong Kong government to address matters related to human trafficking in Hong Kong is a welcome change, the sentiments expressed by the Chief Secretary for Administration, Mr Matthew Cheung Kin-chung, raise significant doubts as to the sincerity of the government’s efforts. In responding to questions raised during today’s Legislative Council session, Cheung stated that “the Government does not agree that the existing legislation of Hong Kong cannot effectively combat and prevent trafficking in persons (TIP). At present, our legislation has provided an adequate and solid legal framework to effectively combat TIP crimes.”
Upon consideration of the action plan, it is evident that the proposed measures are limited to mere administrative and policy levels with little change in the way of legal recognition of the offence of human trafficking or legislation. In light of the noticeable absence of any legal protections for victims of human trafficking or any legal penalties for perpetrators of these heinous crimes, the action plan is a document with little if any impact in preventing human trafficking or those intending to commit such offences.
The action plan proposed by the Hong Kong SAR government has placed great emphasis on the training of front-line officers who come into regular contact with potential victims of human trafficking and in the effective screening of such potential victims. However, without suitable legislation supporting these measures, it will be difficult for the efforts made by front-line staff in identifying victims of human trafficking to result in satisfactory prosecutions of the perpetrators.
The Government’s action plan shows a clear misunderstanding of the nature of human trafficking. If this heinous act of violence against an individual could have been addressed with conventional legislative and penal provisions, the majority of the global community would not have needed to consider comprehensive legislation in order to combat the crime. However, due to the complexity and multi-faceted nature of the offence, it requires specific and comprehensive legislation.
Therefore, in blatantly refusing to criminalise this offence, the Hong Kong Government sets themselves apart from the states of the world who have accepted the need not only for administrative measures but also legislative change in order to truly address this act of modern slavery. This puts Hong Kong in league with states such as North Korea, the Maldives and Bhutan, which are infamous for their human rights abuses.
Hon. Zervos J. in his judgment in the landmark case of ZN v. The Secretary for Justice (HCAL 15 of 2015) stated that “…he [the Applicant] was left floundering in a system in which concern for victims of human trafficking for forced labour is mainly a rhetorical manoeuvre.”
While on the face of it, the newly proposed action plan to tackle trafficking in persons is a welcome change to the malaise plaguing state institutions in dealing with victims of human trafficking and in particular foreign domestic helpers, without the power of the legal and judicial framework backing these new measures, these efforts too are mere rhetorical manoeuvres.
As proudly highlighted by the government, the Immigration Department had in fact commenced screening of victims of human trafficking for a number years. Personal experience in assisting identified victims of human trafficking show that there is clear lack of comprehension concerning the meaning of “human trafficking.”
Due to the lack of legislation supporting investigation into and prosecutions in relation to human trafficking offences, front-line officers are compelled to limit their investigations to the scope of the existing legislative framework, which is woefully ill-equipped to handle cases of human trafficking. Among a list of issues, elements such as the cross-jurisdictional nature of human trafficking or issues such as the perpetrators of human trafficking being persons other than the employer and/or employment agency representatives are not considered in identifying victims of human trafficking.
Given the timing of the endorsement of the Action Plan on the eve of the release of the US State Department Trafficking in Persons Report, one must be cautious about whether such measures are meant to combat the crime of Human Trafficking or whether it is merely to get a higher ranking on the 2018 report. But whether that is the case or not, any step taken towards the protection of this group of vulnerable persons, if indeed effective, is cause for rejoicing.