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Hong Kong courts

Court of Appeal calls on Hong Kong government to do more to investigate forced labour

Case is first appeal of landmark judicial review application over forced labour and human trafficking for that purpose

PUBLISHED : Friday, 03 August, 2018, 6:33am
UPDATED : Friday, 03 August, 2018, 1:50pm

A Hong Kong appellate court on Thursday urged the government to act quickly to plug a loophole over its failure to investigate potential forced labour as seen in the case of a Pakistani man who launched the city’s first judicial review on the subject.

But the three Court of Appeal judges also ruled in favour of the government, concluding that Article 4 of the Hong Kong Bill of Rights, which prohibits slavery, does not cover human trafficking, nor does it entail an obligation to enact a specific offence to combat such human rights violations.

The case was the first appeal of the landmark judicial review application over forced labour and human trafficking for that purpose.

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At issue was whether a Pakistani man, identified in court as Zn, was a victim of forced labour, and whether human trafficking for forced labour is covered by Article 4. The appeal also raised the question of whether the government breached its duty under the article by not enacting a specific criminal offence and by not investigating Zn’s case.

Thursday’s 106-page judgment, largely penned by Chief Judge of the High Court Mr Justice Andrew Cheung Kui-nung, was a partial win for both sides.

While Zn said he was thankful for the court’s appeal for the government to do more, his lawyer Patricia Ho said the decision had brought “disheartening news” to victims of human trafficking.

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“The judgment is clearly disappointing in that it does not require the government to specifically criminalise human trafficking and forced labour,” the leading human rights lawyer said as she urged authorities to establish a legal framework accessible to victims of human trafficking.

A Security Bureau spokesman said the government respected the judgment and would seek legal advice on its implications.

“We attach great importance to combating trafficking in persons, as well as all forms of conduct prohibited under Article 4 of the Bill of Rights,” the spokesman said.

Hong Kong has been the target of international criticism, which city officials have said was “not founded in facts”.

The court had heard Zn worked in Hong Kong as a domestic helper for a fellow Pakistani employer, who made him work 15 hours a day without pay, from 2007 to 2010, during which he was also subjected to constant threats and beatings.

Zn testified that when he returned to the city illegally in 2012 to claim more than HK$200,000 (US$25,480) in unpaid wages, he found himself shunted from one government department to another as each claimed his grievances were not under its purview.

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In 2016, Mr Justice Kevin Zervos ruled in Zn’s favour, concluding that he was a victim of forced labour and human trafficking. The judge also found the government had failed to fulfil its obligations under Article 4 to investigate the case and criminalise forced labour or human trafficking.

But the government maintained that Zn was not a victim, and argued in appeal that a specific law was not essential as it had other measures to combat related crimes.

On Thursday, Cheung observed that it was “a quantum leap” to say a specific offence was needed because the existing measures were ineffective – given that ineffectiveness may be caused by a variety of reasons, such as the lack of awareness shown in the present case.

“On the evidence, it would appear that [the government officers] were almost as ignorant as the victim himself regarding the concept of forced labour,” Cheung wrote.

He said the government breached its investigative duty under Article 4 because of a lack of training and the total lack of central supervision and coordination in terms of investigating and combating such violations, to the point that practically nobody realised Zn was a possible victim of forced labour.

“Victims may be ignorant, but the government cannot,” Cheung continued.

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Mr Justice Jeremy Poon Shiu-chor said this loophole needed to be plugged as soon as possible. “The government simply cannot afford to be complacent but must act swiftly,” he added.

In a statement, Zn thanked the court for acknowledging his suffering and called for the government to do more.

“I don’t want to see anyone go through what I did,” the Pakistani said. “Victims don’t have time to wait.”