Hong Kong Courts: The Last Bastion of Rights Protection?
In 2019, Hong Kong’s Court of Final Appeals passed on an opportunity to secure trafficking protections for victims in Hong Kong. After the enactment of the National Security Law, some have argued that Hong Kong’s courts are the last bastion of rights protection. But a new case calls this expectation into question.
Foreign domestic helpers in Hong Kong are required to live with their employers, increasing their risk of being trafficked for forced labor.
By: Elaine Huang, Staff member
Before the passage of the National Security Law (NSL) last summer, Hong Kong, at least at first glance, seemed to be a beacon of progress and justice, a legacy that continued from its time as a British colony. Now, some argue that Hong Kong’s courts are the last bastion of rights protection in a city where the legislative and executive branches have aligned themselves with the Chinese Communist Party. However, even before the NSL, Hong Kong’s idealized image concealed the more conservative nature of its courts, specifically in their reluctance to extend international human rights norms domestically, and the city’s general attitude towards its foreign domestic helpers (FDHs), who are at high risk of being trafficked for forced labor.
To understand this issue more deeply, we must look at the international laws regarding human trafficking. In 1976, when Hong Kong was still a British colony and dependent territory, the United Kingdom ratified the International Covenant of Civil and Political Rights (ICCPR) with reservations and extended this to Hong Kong. During the handover of power in 1997, the Chinese government agreed that the provisions previously extended to Hong Kong would still apply, and Article 39 of Hong Kong’s Constitution applied Article 8 of the ICCPR, which concerns trafficking of persons, to Article 4 of Hong Kong’s Bill of Rights (BOR4) — copying it almost word for word. By contrast, the Palermo Protocol, which protects against trafficking, was ratified by the People’s Republic of China and extended to the Macao Special Administrative Region but not to Hong Kong. This is due to Hong Kong’s insistence that trafficking is not a widespread issue in the city, and that victims are otherwise sufficiently protected by existing legislation. This could not be further from the truth.
While the government claims that existing law adequately protects against trafficking, only Section 129 of the Crimes Ordinance specifically addresses trafficking, and even then, it only applies to trafficking for prostitution. Other statutes that the government points to address only the symptoms of trafficking. For example, the Employment Ordinance allows employees to recover unpaid wages which may result from trafficking but does not address trafficking itself.
In addition, out of 136 potential sex trafficking cases in 2019, the Hong Kong government investigated only fourteen. Despite the resources designated for hiring and training government employees in trafficking issues, the government did not convict, prosecute, or even investigate any potential labor trafficking claims; it pursued only claims of sex trafficking. Consequently, in its 2020 Trafficking in Persons Report, the State Department downgraded Hong Kong to the Tier 2 Watch List, the second-lowest tier. It found that Hong Kong had overlooked many cases with clear indicators of trafficking and failed to adopt an appropriate approach to interviewing the victims. Hong Kong rejected these findings as biased, relying heavily on the fact that it had created two initiatives to address the issue: the Steering Committee to Tackle Trafficking in Persons to Enhance Protection of Foreign Domestic Helpers and the Action Plan to Tackle Trafficking Persons and to Enhance Protection of Foreign Domestic Helpers in Hong Kong of 2018. These initiatives had upgraded Hong Kong to Tier 2 in 2019 (a tier above the Tier 2 Watch List), but as Justice Centre Hong Kong points out, they lack any definition or offense of human trafficking and forced labor and do not specify appropriate prosecution of traffickers or make proposals for anti-trafficking legislation, and thus are little more than attempts to appease the international community without taking any real action. Indeed, Hong Kong’s continued reluctance to pass the Modern Slavery Bill of 2017 demonstrates its relatively conservative stance on basic human rights.
This problem is typified in the case ZN v. Secretary of Justice & Others. In 2019, Hong Kong had the opportunity to take a strong stance against trafficking when the Court of Final Appeals (CFA) heard the case. ZN had been recruited from his home country of Pakistan to work as an FDH. FDHs are required to live and work only in the employer’s residence. Once in Hong Kong, however, he was forced to work and sleep in the employer’s office, work seven days a week, and hand over his passport to his employer. He was also subjected to physical and verbal abuse. During these years, the employer continuously withheld his wages. Under Hong Kong law BOR4, forced labor, as well as slavery and involuntary servitude, is prohibited. When ZN eventually sought redress, he was shuttled back and forth among the Police, Labour, and Immigration Departments, as none of these departments knew how to deal with his situation.
Because of the clear indicators of forced labor — i.e., withheld wages, abuse, and a withheld passport — it was never questioned during the appeal that ZN had been subjected to forced labor. Instead, the CFA addressed: (1) the scope of BOR4; and (2) whether BOR4 creates a positive duty upon the Hong Kong government to enact legislation specifically criminalizing trafficking. Reversing the lower court’s ruling, the CFA held that BOR4 does not prohibit human trafficking, nor does it require the government to create legislation that criminalizes trafficking, as ZN was sufficiently protected by the legislation already in place.
To address the first holding, the CFA acknowledges that BOR4’s wording may be construed to include trafficking for slavery and cites to the travaux préparatoires for Article 8 of the ICCPR to show the original intent to separate slavery as a distinct concept from servitude. However, the same travaux préparatoires also notes various suggestions to alter the word “servitude” were rejected on the basis that they were too limited and that “servitude in any form ... should be prohibited” (emphasis added), and therefore the prohibitions are not limited to just substantive conduct but also to processes — i.e., trafficking for that purpose. Therefore, relying upon the same document, the intent of the ICCPR and BOR4 belies the understanding that BOR4 does not include trafficking.
Regarding the second, it is clear from the facts of the case that ZN was not sufficiently protected by the existing legislation, and as previously noted, the current legal framework surrounding trafficking in Hong Kong is sparse. Despite the unfortunate ruling, Hong Kong still has the ability to take positive steps against human trafficking, such as implementing the Palermo Protocol. Currently, the government claims two reasons for not doing so: (1) Hong Kong would be “particularly vulnerable to the ill-effects of illegal immigrants or economic migrants who purport to come and stay here for a better life”; and (2) Hong Kong is neither a destination nor an origin for human trafficking.
Above, I explained why the second claim is false. The first argument is also faulty because while ratifying the Palermo Protocol would be a step in the right direction, the Protocol will not even require the government to provide the services mentioned in the document — e.g., medical care, housing, employment training, and physical safety — or temporary or permanent residence in Hong Kong, which the government fears. Article 6 of the Protocol merely recommends that the government “consider implementing” such services, and Article 7 requires the government only to consider supplying these residences for victims. In addition, Hong Kong considers its population density, long coastline, “liberal visa regime,” and extensive transportation network as factors that make it uniquely vulnerable to this increase in illegal economic migrants. Based on just these qualities, Singapore is quite comparable: (1) Singapore boasts miles of coastline as an island city-state; (2) since 2007, Singapore’s population density has exceeded that of Hong Kong’s; (3) until recently, Singapore has had a strong reputation for liberal immigration laws; and (4) Singapore also features a developed transportation network, with over 170 rail stations across its Mass Rapid Transport and Light Rail Transit lines. Singapore, however, acceded to the Palermo Protocol in 2015, and despite the aforementioned characteristics, did not see a large spike of economic migrants in the following years, as Hong Kong fears.
Regardless of whether Hong Kong is able to ratify the Protocol, a comprehensive anti-trafficking statute would be beneficial to Hong Kong, as it would better protect FDHs, who are essential to Hong Kong’s economy, contributing $12.6 billion to the GDP in 2018. Such a statute would give FDHs a clearer understanding of their rights and would give their employers a better sense of the required standards of treatment, as well as a direct path to reparations and the necessary assistance for recovery for the victims. This may also allow more potential victims to step forward; currently, Hong Kong penalizes victims for actions they were forced to commit by their trafficker. This is due to poor victim identification and lack of cross-departmental cooperation, as seen in ZN’s case. Justice Centre explains this issue, “[B]y failing to address human trafficking holistically and instead diffusing the issue across immigration, crime, and labour legislation, this has the effect of putting the multifaceted causes and consequences of trafficking for forced labour into separate silos.” This lengthens the amount of time and effort victims must expend seeking justice. Specific and holistic trafficking legislation would alleviate these issues.
The CFA did, however, concede that its judgment in ZN would not preclude a different finding in a future case. While this is a welcome opening, there may be many more victims of trafficking for forced labor before another case reaches the court again, especially because the government remains reluctant to acknowledge the problem, and because the CFA continues to show deference to the Legislature. However, even if another case arises, we must view the expectations that Hong Kong’s courts are the last bastions of rights protections in the city with a critical lens, given China’s tightened grip on Hong Kong through the NSL. Pre-NSL cases like ZN demonstrate that the courts were already more conservative than some had hoped, even for seemingly noncontroversial issues like human trafficking.
Elaine Huang is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from New York University in 2019.