About 50 million people around the world are trapped in the plight of "modern slavery", and Hong Kong is accused of being a gap in human trafficking because it cannot implement the United Nations' Palermo Protocol to prevent and punish human trafficking, and there is no special law to deal with it. These issues can only be investigated and prosecuted through various related crimes, but they often face various difficulties in law enforcement and prosecution, leaving a "grey area" for criminal groups in disguise.
From the ZN case to the CB case, all of them have fully highlighted the lack of laws specifically dealing with human trafficking in Hong Kong, making the current "identification mechanism" useless.
Pakistani Han ZN was hired as a "pig-seller" in Hong Kong, and suffered servitude and abuse by the employer from 2007 to 2010.
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ZN case: The government did not do due diligence, it should plug the loophole as soon as possible
He Peizhi, chief lecturer of the Faculty of Law of the University of Hong Kong, is also a human rights lawyer. He also founded the "Hong Kong Centre for Safeguarding Dignity", which aims to provide interdisciplinary assistance and strategic advice to disadvantaged groups and victims of human trafficking and modern slavery.
Talking about the legal gap in Hong Kong's prevention and control of human trafficking and modern slavery, He Peizhi brought up the helpless "ZN case".
ZN, a Pakistani man who was hired by a "pig-seller" to come to Hong Kong, was subjected to labor and abuse by his employer from 2007 to 2010, and was not paid a salary. When ZN could not bear to leave, the employer tricked him into returning to his hometown. The safety of his family threatened him not to return to Hong Kong to pursue his salary.
ZN smuggled to Hong Kong in 2012. From 2015 to 2015, he reported to various government departments including the Immigration Department, the Police Department and the Labour Department for help, but they were all ignored. In the end, he could only file a judicial review and sue the Secretary for Justice , the Commissioner of Police, the Director of Immigration and the Commissioner of Labour, etc. have violated Article 4(3) of the Hong Kong Bill of Rights Ordinance "No one shall be subjected to forced or compulsory servitude" in order to claim compensation.
The Court of First Instance of the High Court ruled in favor of ZN in 2016, arguing that he was a victim of human trafficking for the purpose of forced labor and was not protected by Article 4 of the Hong Kong Bill of Rights Ordinance. The SAR government once appealed against the judgment. .
In 2018, the Court of Appeal ruled that the government lost the case, but some of the appeals were upheld, because one of the reasons why the Court of First Instance ruled that ZN won the case was that the government did not legislate to criminalize forced labor. Article does not cover human trafficking (as a form of modern slavery) or human trafficking for the purpose of forced servitude, and also states that the government is not currently responsible for criminalizing relevant acts, so the government is sentenced to justice in this regard; however, the Court of Appeal also pointed out that The incident shows that government officials, like the victims, are ignorant of the concept of "forced labor". They criticize the authorities for failing to conduct due diligence in the face of suspicious cases. They also believe that there are loopholes in the current investigation on forced labor, and urge the government to plug the loopholes as soon as possible.
ZN then appealed to the Court of Final Appeal against the government's success, including whether the Human Rights Bill prohibits human trafficking and its prohibition scope, and whether the government needs to take the initiative to formulate criminal laws to prohibit related acts.
The Court of Final Appeal ruled against him in January 2020, finding that the government has great discretion in prohibiting slavery and forced servitude and has no absolute responsibility to make criminal laws to deal with forced servitude cases.
He Peizhi participated in the whole process because she was the lawyer representing ZN.
He Peizhi, the chief lecturer of the Faculty of Law of the University of Hong Kong, is also a human rights lawyer and has applied for judicial review on behalf of ZN.
(Photo by Chen Weici)
Recalling the judgment of the Court of Final Appeal, He Peizhi was very unwilling. Because Hong Kong lacks a special law to deal with human trafficking, it is really difficult to improve the perpetrators. He can only make a second choice and apply to the High Court for judicial review, hoping to confirm that ZN is the victim. Victims protected by Article 4(3) of the Bill of Rights "no one shall be subject to forced or compulsory servitude", but unfortunately it was unsuccessful: "The court at that time held that the '" "Slaves" can only be slaves in the ancient sense, or slaves and slave trade under slavery. It does not apply to "human trafficking", that is, "modern forms of slaves, or for the purpose of forced labor", which cannot be guaranteed at all. victim."
Based on the CFA's judgment, the judge held that the Bill of Rights did not prohibit trafficking in persons, in general or for any specific purpose, in part because Article 4 of the Bill of Rights covered "slavery", "slavery" and "coercion or coercion" The three different concepts, such as servitude, cannot be confused and understood as "slavery system for human trafficking for the purpose of exploitation".
However, although the "final appeal" of the ZN case ended in failure, the judgment of the Court of Final Appeal also indirectly refuted the statement that "there are sufficient laws to deal with the problem of human trafficking" that the SAR government often talks about, clearly stating that "the Hong Kong SAR government The combination of the various crimes that can be cited cannot be said to be insufficient, but even if the court decides so, if there is a case in the future that can prove that the Hong Kong SAR government has not effectively protected the rights under Article 4 of the Bill of Rights, it can still draw a different conclusion. conclusion; and this ruling should not be construed to mean that a composite crime is necessarily sufficient”, and stressed that “the protection of rights under Article 4 of the Bill of Rights must not be theoretical and non-existent.” That is to say, the government’s current treatment prohibits Crimes related to slavery and the slave trade are not "necessarily sufficient" and there is a need for certain rights to be guaranteed.
It is a pity that the government has not learned lessons from the ZN case, nor has it committed itself to plugging the loopholes in the prevention and control of human trafficking.
The "CB case", which was decided earlier, even exposed the government's laws against human trafficking crimes and the existence of many problems in the identification mechanism of victims.
From November 2018 to April 2019, the foreign maid CB was molested by an 83-year-old British employer, Z, and forced to assist her in masturbation.
Z was convicted of two counts of indecent assault in July 2021 and sentenced to 30 months in prison.
CB was dissatisfied with the police's intention to rule out human trafficking and forced labor in the investigation process, and applied to the High Court for judicial review.
The court ruled in favor of CB on April 22, 2022.
Looking through the verdict, it can be seen that the judge questioned that the police had a lot of unreasonable things in the investigation process.
The Court of Final Appeal ruled that ZN's appeal failed in January 2020, finding that the government has great discretion in prohibiting slavery and forced servitude, and has no absolute responsibility to make criminal laws to deal with forced servitude cases.
(Getty Images)
CB case: lack of human trafficking law, identification mechanism is useless
First, there are different understandings of human trafficking crimes within the police, and there are no clear procedures and standards for identifying victims.
The SAR Government has always emphasized that it has established a comprehensive mechanism to combat human trafficking. One of the major measures is to launch the "Human Trafficking Victim Identification Mechanism" (the "Identification Mechanism") since 2015, which will review and review suspected human trafficking cases in two stages. The inquiry, guided by 7 indicators and 12 questions, hopes to accurately identify whether there are victims of human trafficking cases.
In the above CB case, the CB was initially reviewed by the "identification mechanism" and was confirmed by the police as a victim of human trafficking because the case met the three elements of the crime of human trafficking: the behavior was "recruitment" and the method was "deception" and "abuse of power" for "other forms of sexual exploitation".
However, when the case was transferred to the Regional Crime Unit and the Human Trafficking Investigation Team (TIPIT), the police supervisor responsible for the second review did not have a direct interview with the CB and re-filling the screening/debriefing form. , directly overturning the preliminary review results, excluding the CB as a victim of human trafficking, and investigating the case along the indecent assault case.
The police chief said in an internal document that the three elements of the crime had to occur "simultaneously" to be identified as a human trafficking victim, a decision endorsed by the District Crime Squad's Chief Inspector.
The judge pointed out that the review process by the police supervisor in charge of the secondary review did not analyze which elements were not present, or when and why they were not present, but the reason for the decision was only further explained in the court indictment process: (a) CB, like any other FDHs were recruited to work as FDHs in the same way; (b) CBs were required to perform and did perform duties normally performed by FDHs; (c) there was “no concrete evidence” that Z was guilty of maliciously sexually exploiting CBs when recruiting CBs; (d) in general, the recruitment cannot be said to be carried out "for the purpose of sexual exploitation", which usually involves larger, more organised recruitment and/or for monetary or commercial gain; (e) the evidence collected , including in the letter from Janice, another maid originally hired by the host Z, did not suggest that the sexual activity between Z and the maid he hired was non-consensual.
The judge rejected these arguments.
According to the facts of the case, the client Z had sex with former domestic helpers, including Janice, and then recruited CB to replace Janice, and CB was sexually assaulted by Z immediately after the recruitment, but Z pretended that the behavior was part of the recruitment process , after Janice left and CB officially joined, Z also continued to violate CB; the court held that, from the video provided by CB, Z’s sexual behavior towards CB and Janice was similar in nature; and in terms of “benefit”, Z obtained Janice and CB The provision of free sex services, even in the absence of larger or more organized activities, is already suspected of human trafficking.
The judge further questioned that the police did not consider the above factors and did not recognize the vulnerability of the identity of the "foreign domestic helper", but unilaterally accepted part of the evidence provided by Z to the police, namely the letter from the former maid Janice - she disagreed CB's accusation against Z also believed that Z never forced CB to do anything, and said that there was no sign that Z used violence or threatened CB, and further questioned that the purpose of CB's accusation of sexual harassment was to obtain financial rewards.
The judge pointed out that the police "didn't even make a single phone call to Janice and attempted to make any other form of inquiry to verify anything in Janice's letter" on the grounds that CB was excluded as a human trafficking victim.
What's more outrageous is that the police are not satisfied with Janice's letter, because they had arrested Z on suspicion of "indecent assault". The judge criticized the police for failing to investigate the suspicious points of the letter and rashly drawing unreasonable conclusions.
Since 2015, the government has launched the "Human Trafficking Victim Identification Mechanism" to review and investigate suspected human trafficking cases in two stages. Through 7 indicators and 12 questions as guidelines, it is hoped that it can accurately identify whether there is a human trafficking case. victim.
(Hong Kong 01 cartography)
Second, due to the lack of specific laws on human trafficking, the current "identification mechanism" and legal framework are useless.
The judge reviewed the police's internal documents and found that the investigators had a view that whether or not CB was identified as a victim of human trafficking or forced labor would not affect subsequent investigations and charges, because Z's preferred charge was still indecent assault. , so CB will still receive the support and protection she deserves; that is, the police believe that "essentially, a positive identification of her as a victim of human trafficking (TIP) or forced labor would not make a meaningful difference between the real and the specific. "
The judge continued that without an applicable legislative framework to guide and regulate the investigation of possible specific forced labor crimes, the police will inevitably focus only on the existing crimes involved in the case, "in other words, the police investigation did not find a single forced labor crime," the judge continued. case, but an indecency case, because that is the only charge that can be brought against Z," and the decision has undoubtedly affected the police's investigative procedures and the direction of evidence collection.
The judge went on to conclude that the CB case reflected a "systematic failure" in the fight against human trafficking because of the constitutional duty to investigate under Article 4 of the Bill of Rights and the lack of a current criminal justice system to criminalize forced labor. , do not match.
"Hong Kong does have laws to deal with Z's related crimes, so he is not completely out of the way. He has been arrested by the police and accused of indecent assault." He continued, "But the judge's verdict has already pointed out that the government is not involved in combating human trafficking crimes. There are clearly mechanisms, laws and joint investigation teams across departments, but in fact the support and protection for victims is far from sufficient."
Just 4 months after the CB case was judged, Hong Kong was involved in a large-scale human trafficking turmoil in Southeast Asia. Dozens of citizens were "sold piglets" to Myanmar and Cambodia, but the local human trafficking laws and victim identification mechanisms were vacant. still...
Prohibit human trafficking.
1｜Global human trafficking is as prevalent as prostitution. Hong Kong is no exception to prohibit human trafficking.
2｜None of the more than 50 scattered crimes focus on "modern slavery" and prohibit human trafficking.
3｜ What did ZN do to CB "piggy" to sell and defraud Hong Kong