Hong Kong human-trafficking law could be a regional leader – if it protects victims
Matthew Friedman says the proposed bill on preventing human trafficking in Hong Kong is a good start. However, the legislation would benefit from including provisions offering help to affected victims and preventing them from being targeted by other laws
Some people argue that Hong Kong doesn’t require a human-trafficking law. They say there are already enough laws that adequately address forced labour, forced prostitution, modern slavery and exploitation of foreign domestic helpers. However, although Hong Kong does have a vast array of laws that address criminal behaviour related to these crimes, there are other ways that legislation can be used.
It is claimed that Hong Kong’s effective border control and strong law enforcement prevents any incidences of trafficking. Yet, as experience from countries such as New Zealand shows, these factors do not guarantee an absence of human trafficking. In reality, several landmark studies related to foreign domestic helpers, frequent articles published in local papers and feedback from people who have encountered victims suggest that such crimes do exist in significant numbers.
In 2016, the Global Slavery Index estimated that Hong Kong had 29,500 victims of human trafficking. When rating government action related to addressing this problem among Asian countries/territories, the index ranked Hong Kong 23 out of 24 because it had not taken any concrete steps to acknowledge and address the problem. Only North Korea fared worse.
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In recent months, new legislation related to human trafficking has been proposed for Hong Kong. If enacted, this new law would focus on two approaches. First, every company conducting business in Hong Kong whose turnover exceeds a given threshold would be required to publish a statement that details the steps taken to ensure that human trafficking is not occurring in any part of its business or supply chains.
This statement would be approved by the board of directors and signed by a director annually. It would then be published on the company’s website, with a link to it appearing in a prominent place on the homepage. This component is similar to the California Transparency in Supply Chain Act and the UK Modern Slavery Act, as well as legislation being developed in Australia. It recognises that many of the goods produced by trafficked people find their way into global supply chains.
The second part of the draft bill outlines criminal offences for slavery, human trafficking, forced marriage and sex tourism offences. If enacted, this new legislation would amend the Crimes Ordinance by augmenting the existing offence of trafficking for the purpose of prostitution (section 129) with these broader offences.
This proposed legislation would be a major step forward for the government of Hong Kong in acknowledging the range of possible types of trafficking and increasing the ability of law enforcement both to investigate trafficking cases within Hong Kong and cooperate effectively with other countries in targeting international crime syndicates.
It is good to note that the draft bill includes provisions to prevent trafficked people from being prosecuted, detained or punished for the illegality of their entry or residence, or for the activities they are involved in as a direct consequence of their situation as trafficked persons. Without this language, a rescued victim could be placed in a remand centre or prison for laws broken associated with his/her victimisation.
There is, however, one significant component that is missing from this draft law: a statement that offers protection to victims through assistance as well as full respect of their human rights. Without this component, a person can be identified as a victim of trafficking but left without any support or services. According to international law, failure to protect trafficked individuals violates numerous individual human rights: the right to life, liberty and security of person; the right to be free from slavery and slavery-like practices; the right to be free from torture; the right to equal protection under the law; and the right to an effective remedy.
The provision of appropriate services to victims also facilitates effective action against traffickers. Victims are much more likely to come forward if fears of deportation, detention and public exposure are replaced by a guarantee of care, protection and access to justice.
In turn, victims provided with effective services – including time to reflect on their experience – provide much more effective evidence and testimony against their abusers. Victims also provide invaluable information about specific trafficking patterns and how to address them. In my previous work, learning from victim experience allowed us to refocus our prevention messages and activities to make them much more effective. The draft bill proposes to appoint an independent anti-slavery commissioner, but there is only one sentence which states “the matters to which the Commissioner may have regard ... include the provision of assistance and support to victims of slavery and human trafficking offences”. Therefore, it would be beneficial to all aspects of Hong Kong’s response to human trafficking if the proposed legislation were to include a provision of services available to victims.
These services, which should take into consideration the unique needs of the victim, might include housing, counselling, medical and psychological help, information on legal rights, employment, educational training and access to compensation, as appropriate.
Taken together, these three strands – supply chain legislation, comprehensive criminalisation of trafficking and support for victims – will allow Hong Kong to hamper traffickers by targeting the goods and services produced by their victims, more effectively target and punish traffickers within and outside its borders, and empower victims to come forward and re-establish their lives while helping to ensure others are not trafficked in their place. Effective implementation of such a law would transform Hong Kong’s response to human trafficking from implicit denial to regional leadership.
Matthew Friedman is CEO of the Mekong Club