LCQ21: Combating and preventing trafficking in persons
Following is a question by the Hon Kenneth Leung and a written reply by the Acting Secretary for Security, Mr John Lee, in the Legislative Council today (June 21):
The High Court pointed out in a judgment on a judicial review case (ZN v. Secretary for Justice and others, HCAL 15/2015) handed down last year that the Government had failed to fulfil its obligation to protect the right, under Article 4 in Part II (Hong Kong Bill of Rights) of the Hong Kong Bill of Rights Ordinance (Cap. 383), of the applicant in that case of not being subjected to forced labour or human trafficking. The judgment also pointed out that there was currently no specific criminal legislation against forced labour and human trafficking for forced labour in Hong Kong; the applicant’s suffering was due to his cultural and ethnic differences, his difficulty in communicating with law enforcement officers, and the lack of an effective framework and measures in Hong Kong to address the problem of forced labour or human trafficking. In this connection, will the Government inform this Council:
(1) whether it has collated, from the Hong Kong Police Force, the Immigration Department, the Customs and Excise Department, the Labour Department or other relevant government departments, statistics on persons claiming to be victims of forced labour or human trafficking; if so, of the number of such persons in each of the past five years, together with a breakdown by their age, gender, nationality and nature of the abuse they suffered; if not, whether it will collate and make public such statistics;
(2) whether the authorities have taken follow up actions in relation to the aforesaid judgment; if so, of the details; if not, the reasons for that;
(3) whether the meaning of “forced labour” and “human trafficking” are defined under the existing legislation; if so, of the details; if not, the reasons for that;
(4) how the authorities prohibit acts of forced labour or human trafficking through the existing legislation; whether the authorities will examine the introduction of dedicated criminal legislation and penalties to prohibit such acts; and
(5) whether the authorities provide legal protection and relief for victims of forced labour or human trafficking at present; if so, of the details; if not, whether the authorities will consider granting legal protection, relief and the right to exemption from criminal liability (subject to examination) to such victims; if so, of the details; if not, the reasons for that?
Our consolidated reply to the question raised by the Hon Kenneth Leung is as follows:
Although trafficking in persons (TIP) is not prevalent or widespread in Hong Kong, the Hong Kong Special Administrative Region (HKSAR) Government still attaches great importance to combating TIP. We have put in place a package of effective and comprehensive legislative and administrative measures to combat TIP.
According to Article 3(a) of the “Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime” (Palermo Protocol), TIP is defined as:
“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, which 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.”
Although the Palermo Protocol is not applicable to Hong Kong, the conduct of TIP as defined in the Palermo Protocol is effectively prohibited by various pieces of existing legislation in Hong Kong, encompassing (but not limited to) the following offences:
– Trafficking in persons to or from Hong Kong (section 129 of Crimes Ordinance, Cap. 200)
– Control over persons for purpose of unlawful sexual intercourse or prostitution (section 130 of Crimes Ordinance, Cap. 200)
– Causing prostitution (section 131 of Crimes Ordinance, Cap. 200)
– Living on earnings of prostitution of others (section 137 of Crimes Ordinance, Cap. 200)
– Abduction of child or juvenile (section 26 of Protection of Children and Juveniles Ordinance, Cap. 213)
– Offences relating to child pornography (section 3 of Prevention of Child Pornography Ordinance, Cap. 579)
– Failure to grant any rest days to employees (section 63 of Employment Ordinance, Cap.57)
– Non-payment/under-payment of wages or delay in payment of wages (section 63C of Employment Ordinance, Cap. 57)
– Prohibition of commercial dealings in human organs (section 4 of Human Organ Transplant Ordinance, Cap. 465)
The “multiple-legislation” approach currently adopted is effective in combating TIP. It also provides law enforcement agencies (LEAs) and prosecutors with more flexibility in investigating and prosecuting TIP cases.
To enhance prosecutors’ awareness of TIP and forced labour, the Prosecution Code published in 2013 by the Department of Justice (DoJ) introduced a new paragraph on “Human Exploitation Cases”, with the aim of providing guidance to prosecutors as to what may amount to TIP and exploitation as well as the proper approach to be adopted in such cases.
The Hong Kong Police Force (Police), Immigration Department (ImmD) and Customs and Excise Department (C&ED) have put in place enhanced mechanisms for TIP victim screening and identification. Under the mechanism, Police, ImmD or C&ED officers, as a standard procedure, conduct initial screening on vulnerable persons, including sex workers, illegal immigrants and foreign domestic helpers (FDHs), etc, who are arrested or who put themselves forward to the authorities with a view to ascertaining whether they are TIP victims. When any TIP indicator is revealed in the initial screening, the officers will conduct a full debriefing and identification by using a standardised checklist to ascertain the presence of TIP elements as stated in the Palermo Protocol, such as threat and coercion in the recruitment phase and nature of exploitation. During 2015 and 2016, LEAs respectively identified 16 and 20 TIP victims or FDHs subject to abuse or exploitation. The concerned departments do not maintain other statistical breakdown as mentioned in the question.
Identified TIP victims will be provided with holistic and humane protection, including:
– when circumstances warrant, the Police will activate witness protection programme to protect the victims from further exploitation; they would also seek assistance from overseas LEAs for providing assistance and assurance to victims and families in their home country;
– victims will be provided with the necessary support and assistance in a timely manner, including the provision of shelter, medical services, psychological support, counselling and financial assistance, etc. Where necessary, Social Welfare Department will assist to assess the welfare needs for the victims and provide them with the appropriate services;
– departments concerned may consider providing financial assistance to victims residing overseas to enable them to return to Hong Kong to testify as witnesses. The assistance covers expenses incurred during their stay in Hong Kong, including accommodation, passage, daily subsistence and visa processing fees, etc;
– departments concerned will bring the cases to the attention of the Prosecutions Division of the DoJ promptly with all relevant materials and information, so that a timely and proper assessment of the issue, including the question of immunity, can be made by the DoJ;
– the ImmD will grant visa extension and waive the visa fees for victims who need to stay in Hong Kong to act as prosecution witnesses in legal proceedings instituted by the Police, ImmD or Labour Department; and
– the ImmD may also consider granting exceptional approval for FDHs to change employers when there is evidence suggesting they are being exploited or abused by their employers.
Regarding the judicial review case ZN v. Secretary for Justice and others (HCAL 15/2015), the Government had already lodged an appeal against the judgement after seeking legal advice. The HKSAR Government will closely monitor the trend of the crimes of TIP and forced labour. We will continue to put in place various measures and enhance the training to frontline law enforcement officers to combat and prevent TIP and protect victims.