The United Nations' International Labour Organization (ILO) released a report estimating that as of last year as many as 50 million people around the world were trapped in "modern slavery", including forced labor or marriage, a situation that has been clearly exacerbated by the coronavirus outbreak.
Human trafficking is one of the modern slave systems. Earlier, a number of Hong Kong citizens were involved in human trafficking scams in Southeast Asia, which aroused outside attention to whether Hong Kong, which is famous for its rule of law, has become a "transit station" for modern slaves. The SAR government has formulated special laws to close the loopholes, but the authorities emphasize that there are more than 50 related crimes that can effectively punish and prevent violations.
To verify whether the SAR government has sufficient laws to deal with human trafficking, it can be analyzed mainly from two aspects: first, whether the relevant regulations can focus on the crime; second, whether the law enforcement agencies have sufficient powers to investigate the case and collect evidence.
Experts and the government have different opinions, which is right and wrong?
Secretary for Security Tang Ping-keung stressed that Hong Kong has never been the origin, transit or destination of human trafficking cases.
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Is the current legislation sufficient to deal with the problem?
According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol), "trafficking in persons" means the threat or use of violence for the purpose of exploitation Recruiting, transporting, transferring, harboring or receiving persons; and "exploitation" shall include at least the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or removal of organs; The transfer, harbouring or reception of a child, even if it does not involve such means, is human trafficking.
In terms of whether the law can focus, just from the perspective of the crimes involved in the definition of the Palermo Protocol, various laws in Hong Kong do correspond. Article 4 of the Bill of Rights Ordinance states that "slaves or slave labor shall not be made"; Article 42 of the Offences against the Person Ordinance, which is similar in nature to human trafficking, also states that if the case is serious, Offenders could be sentenced to life imprisonment.
As for the powers of law enforcement agencies, with the exception of trafficking in organs, child pornography, employee rights, common assault and child abduction, most of the human trafficking offences mentioned in the Palermo Protocol are covered by the Organised and Serious Crimes Ordinance (OSCO) (see table below).
One of the main points of OSCO is that when law enforcement agencies are investigating organized crimes and serious crimes listed in the Schedule to the Ordinance, they can apply to the court for information or materials orders, search orders, etc., to obtain greater powers to investigate the case, Violators of the order can be fined up to $500,000 and imprisoned for three years after being convicted through indictment procedures; the Secretary for Justice or his representative has the right to require convicted persons or suspects who have absconded to hand over the proceeds of crime, which is strictly prohibited from being realized. property.
With the exception of trafficking in organs, child pornography, employee rights, common assault and child abduction, most of the human trafficking offences covered by the Palermo Protocol are covered by the Organised and Serious Crimes Ordinance.
(Hong Kong 01)
Coping does not equal precise focus
The SAR Government generally believes that the Organised and Serious Crimes Ordinance has already acquired sufficient law enforcement powers to deal with human trafficking cases.
For example, in this Southeast Asian fraud case, the Hong Kong police prosecuted three of the 77 arrested for "conspiracy to defraud" listed in Schedule 1 of OSCO. They are suspected to be the backbone members of the fraud syndicate in Hong Kong, but the police have not made any further announcements. Information on the remaining four.
On the other hand, the Government also emphasizes that a comprehensive anti-trafficking mechanism has already been established. For example, in 2018, the "Steering Committee on Combating Human Trafficking and Strengthening the Protection of Foreign Domestic Helpers" was established, and an inter-departmental cooperation mechanism "Inter-departmental Anti-Human Trafficking Working Group" was established ”, and the “Inter-departmental Joint Investigation Team” at the operational level.
In addition, since 2015, the government has launched the "Identification Mechanism for Victims of Human Trafficking" ("Identification Mechanism") to review and investigate suspected human trafficking cases in two stages. Guidelines, hoping to more accurately identify whether there are victims of human trafficking cases; by 2019, the police have set up human trafficking investigation teams (TIPIT) in various districts. The victim will be referred to TIPIT in the relevant police district for further investigation, prosecution, and protection and various support services will be provided to the victim, including legal, accommodation and emotional support.
However, He Peizhi, the chief lecturer of the Faculty of Law of the University of Hong Kong, who has been concerned about human trafficking for many years, bluntly stated that the existing laws in Hong Kong only correspond to related crimes of human trafficking, but cannot accurately focus on the current situation of human trafficking crimes.
He Peizhi bluntly stated that the current laws in Hong Kong only correspond to crimes related to human trafficking, but cannot precisely focus on the crime situation of human trafficking.
(Photo by Chen Weici)
Full of 'grey areas' to complain about difficulties
He Peizhi recalled hearing a case of human trafficking from Thailand to Macau and then brought to Hong Kong for forced prostitution at the court in the early years: "Around 2006, when I heard the numbers of prostitution, I thought it was scary. It was free at first, but it reached more than 100 people. At the time, there are tens of dollars, and then gradually add up, and most of the money falls into the pocket of the employer (prostitution ring).”
After the police uncovered the case, they could reasonably prosecute the person concerned under Section 129 of the Crimes Ordinance (Cap. 200) "prohibiting trafficking of persons into or out of Hong Kong for the purpose of prostitution"; The "snake head" who entered Hong Kong and the "horse pirate" who forced the other party to prostitution in Hong Kong are not the same person, that is, the defendant cannot satisfy the two criminal elements of "participation in bringing in" and "the purpose of prostitution" at the same time, so it is very difficult to prosecute .
Since there is no specific legislation in Hong Kong to focus on human trafficking crimes, there is a "grey area" in the law in disguise, allowing criminal groups to use different means to evade punishment.
Ho Peizhi further explained the legal loophole with the use of Section 37D(1) of the Immigration Ordinance (Cap. 115) "Prohibition of Arranging Unauthorized Entry to Hong Kong" and Section 38AA "Prohibition of Employment of Illegal Workers": "(For the former) , the human trafficking group does not necessarily arrange the victims to enter the country by illegal means, but can arrange for them to enter the country with the Philippine VISA, which can no longer meet the criminal elements of the regulations. The target of the latter is not the employer, but the employees of "black workers" , which caused the victim to dare not report it, for fear of turning back and becoming a defendant.”
"Human Trafficking" focuses on the purpose of exploitation and the means of trafficking, such as threats, fraud, deception, and the receipt of benefits, but the definition of "fraud" is narrower and more focused on gain.
(Hong Kong 01)
If criminalizing human trafficking
The “crime of fraud” cited by the police in this Cambodian human trafficking case, He Peizhi also thinks that it fails to focus on the criminal model of human trafficking (see the table above), because according to Section 16A of the Theft Ordinance (Cap. The crime needs to prove that the defendant fraudulently induced another person to act or did any omission, so that the third party obtains benefits, that is, any benefits such as economic or ownership. But if we are not clear about the specific actions of the victim and the object of the benefit, Or if the beneficiary is not in Hong Kong, can it satisfy the relevant criminal elements? There are big doubts.”
Quoting the Palermo Protocol, she pointed out, "The crime of 'trafficking in persons' focuses on the purpose of exploitation and the means of trafficking, such as threats, fraud, deception and the receipt of benefits, etc., but the definition of 'fraud' is narrower and more focused on benefit."
"The problem is that there is no criminal law for human trafficking." He Peizhi lamented that it was precisely because of the relevant omissions that the helpless "ZN case" - the first judicial review of human trafficking occurred...
Prohibit human trafficking.
1|Global human trafficking is as prevalent as prostitution. Hong Kong is no exception to prohibit human trafficking.
2|More than 50 kinds of sporadic crimes do not focus on "modern slavery"