LETTER OF THE LAW
Column
by

Time for action not words on agony of human trafficking in Hong Kong

Strong laws are necessary to deter traffickers and protect victims, but city’s efforts have been found wanting

PUBLISHED : Monday, 05 September, 2016, 7:22pm
UPDATED : Monday, 05 September, 2016, 8:46pm

Human trafficking is rife, and no country is immune. The UN calls it second only to drug trafficking as the largest source for organised crime, while Unicef estimates that 1.2 million children are trafficked annually. Strong laws are necessary to deter traffickers and protect victims, but they must also be dedicated and comprehensive. Hong Kong’s efforts, however, have been found wanting.

In its Trafficking in Persons Report (TIP) 2016, the US Department of State downgraded Hong Kong from Tier 2 to the Tier 2 Watch List. It concluded that Hong Kong does not fully meet the minimum standards for the elimination of trafficking, and that, despite some significant efforts, “the government did not demonstrate overall increasing anti-trafficking efforts compared to the previous reporting period”.

To rub salt in the wound, Taiwan was graded as Tier 1, meaning it fully complied with minimum standards for the elimination of trafficking, while Macau was given Tier 2 status.

In 2009, Hong Kong was downgraded from Tier 1 to Tier 2, and alarm bells should have rung loudly. The downgrade indicated that minimum standards required to eliminate trafficking were no longer being fully met. The government, however, went into denial mode, and has remained there ever since. At the very least, the Security Bureau must now carefully review the TIP report’s recommendations.

In 2013, following an earlier critical Tier 2 rating, the Department of Justice added two short paragraphs, entitled “Human exploitation cases”, to its prosecution policy guidelines. These simply summarised the nature of exploitation, and said victims should be handled with appropriate sensitivity.

Faced, however, with international calls for decisive action, some government figures, in desperation, sought to portray this fig leaf as evidence of a new willingness by enforcers to take human trafficking seriously, when it was only a cosmetic ploy.

Although our criminal law defines human trafficking as the transborder movement of people for prostitution, an offence punishable with 10 years’ imprisonment, it must embrace all forms of trafficking, as stipulated by the 2000 UN Trafficking in Persons Protocol. There is also a pressing need for the authorities to proactively identify sex and labour trafficking victims among vulnerable populations, such as mainland Chinese, migrants and domestic workers. Moreover, there is a real danger, if realistic criminal sanctions are not in place, that unscrupulous employment agencies will charge job placement fees in excess of legal limits, leading to the debt bondage of migrant workers.

In Britain, the Modern Slavery Act 2015 makes it an offence to hold someone in slavery or servitude or to require a person to perform forced labour. The maximum sentence for human trafficking is raised from 14 years’ imprisonment to life. Also, crucially, the act consolidates all the laws used to prosecute people who enslave others, which is what is needed in Hong Kong, where a piecemeal approach is no longer justifiable.

If the TIP report is not taken seriously this time, the possibility of a third downgrade, to Tier 3, meaning the government does not fully meet the minimum standards and is not making significant efforts to do so, is real.

Tier 3 would be a humiliation and would leave Hong Kong in the company of, for example, Afghanistan, Gabon and Tonga. International justice standards have advanced enormously since 2000, and the government must wake up to its responsibilities before it is too late.

Grenville Cross SC is a criminal justice analyst