6 January, 1015 (Date Pending)

 

The “Not Here” Attitude

 
Across the different echelons of society and the different branches of the Hong Kong Government there is a real belief that trafficking is not an issue that affects or concerns Hong Kong. There are a number of factors that contribute to the “Not here” attitude and these include the very low number of identified victims and prosecuted cases, the lack of statistics and the lack of awareness amongst front line responders and the general public of the crime of human trafficking. From a government perspective, such a culture of disbelief is grounded in denial that there is an issue and hence no remedying actions are required. There is a stark contrast between the Hong Kong Government’s perception of trafficking in Hong Kong and that of the US Department of State Trafficking In Persons Report which brands Hong Kong a “destination and transit territory” for human trafficking victims hailing from countries such as mainland China, Colombia, the Philippines, Indonesia, Thailand, Vietnam, Nepal, Cambodia and other South East Asian countries.1 On the other hand, the Government’s view is that “Hong Kong is neither a destination for human trafficking nor a place of origin for exporting illegal migrants. Over the years the cases of human trafficking were rare.”2

 
The cases are perhaps rare because by its nature trafficking is a hidden crime and its victims are silent and not likely to self-identify. As a result, it remains concealed unless efforts are made to uncover trafficking operations and rescue victims. It is a common perception of NGOs in Hong Kong that the police and other front line responders require better training in order to respond to the needs of victims of trafficking and to conduct anti-trafficking operations effectively.3 In the absence of statistics and media coverage of the issue, the general public is also not sensitized to the issue and the perception that human trafficking is an issue of concern in less affluent South Asian neighbouring societies remains strong.

 
A significant part of the trafficking landscape in Hong Kong relates to foreign domestic helpers (“FDH”), often trapped in situations of forced labour, debt bondage and servitude. FDH have been an integral part of the social fabric of Hong Kong for many years. There appears to be a real reluctance on the part of the Government to intervene in matters relating to FDH as these are perceived to be part of the private domain. In 2013 there were no convictions for forced labour and a number of employment agencies that charge exorbitant placement fees and confiscate passports and other essential documentation from FDH continue to operate freely in Hong Kong.4 Often victims of trafficking for sexual exploitation enter Hong Kong as FDH.5

 
Recent reports6 indicate that a very high number of Indonesian helpers are trafficked to Hong Kong. Leaving their countries under the burden of a hefty placement fee paid to an agency to secure a position in Hong Kong these women are already trapped. On arrival in Hong Kong, their wages sometimes almost for one year are paid directly to the placement agency by the employer. There is also anecdotal evidence of employers and placement agencies colluding and terminating helpers’ contracts to extract a further placement fee from them. Helpers confined to such situations often fear losing their jobs and become extremely vulnerable to highly exploitative practices within the employers’ homes. The Government needs to take a greater interest in this issue and really enforce the laws by stepping up inspections of such agencies and collaborating with source countries to effectively contain the issue at both ends. A review of certain policies e.g. the live-in policy and the two-week stay following termination of a contract should also be revisited given that they facilitate exploitation of helpers.

 
A paradigm shift is required so that Hong Kong can make the transition from its state of denial to an acknowledgement that human trafficking is an issue in Hong Kong and like every violation of human rights, it needs to be prevented, investigated and prosecuted alongside the provision of a supportive and protective space for its victims.

 
Weak Legislative Framework And The Lack Of Adherence To International Standards Including The Palermo Protocol

 
Hong Kong has not adopted the Palermo Protocol and as such its definition of trafficking and the existing anti-trafficking provisions are seriously lacking in depth and “bite”. Trafficking in Hong Kong is simply defined as the movement to and from Hong Kong for the purpose of prostitution (§. 129 Crimes Ordinance). This limited piece of legislation is supplemented by a battery of ancillary provisions such as living off the earnings of prostitution. This limitation is archaic and simply not representative of the view of international law on this matter. The current definition and the existing ancillary provisions make prostitution the key issue detracting from the actual crime of trafficking. Moreover, the focus of the legislation is very much on the movement rather than the exploitation and this represents a gross misunderstanding of the crime of human trafficking. Framing the crime in terms of movement is placing it squarely within the realm of immigration law and policy whereas it should be treated as a gross abuse of human rights. If the problem is wrongly defined then the solution can only be wrong too.

 
There is no criminal prohibition on forced labour nor does the law recognize any forms of trafficking other than trafficking for sexual exploitation for the purposes of prostitution. The anti-trafficking offence is set out in the Crimes Ordinance and the ancillary offences are scattered through the Crimes Ordinance, the Immigration Ordinance and the Employment Ordinance.

 
In Hong Kong there have been few prosecutions for human trafficking between 2006 and 2013.7 However, this issue is recurrent in many other jurisdictions e.g. UK and Australia. There are a variety of reasons for this: poor identification leads to few cases being prosecuted, criminalization of victims, fear of reprisals and inadequate criminal justice support for victims often leads cases to crumble due to lack of evidence. Even though the offence of trafficking in persons in Hong Kong is punishable by 10 years imprisonment, the highest sentence given for this offence to-date is 5 years and 9 months.8 In some cases a fine and suspended sentence are also deemed appropriate. There is a need for prosecutors, the judiciary and the defence lawyers to be trained on running trafficking cases effectively. Better training of the legal community and front line law enforcement officials in addition to improvement of victim protection provisions in the Criminal Justice System will greatly enhance the quality and quantity of prosecutions in Hong Kong. Moreover, the culture of disbelief that permeates the different elements of the system needs to change to give victims a chance to have their day in court.

 
What Hong Kong needs is comprehensive legislation that:

 

  • truly reflects the Palermo Protocol definition of human trafficking;
  • elevates trafficking for forced labour and practices similar to slavery to the same ranks as trafficking for sexual exploitation. In particular, the definition ought to recognize examples of forced labour practices relating to FDH. For example, debt bondage situations that arise from placement agencies charging extortionate fees;
  • provides for asset forfeiture given that trafficking is a huge money making business and these measures are required to disrupt traffickers’ activities;
  • makes provision for a victims’ compensation fund that victims can have access to should they wish to seek compensation for wrongs endured whilst in Hong Kong;
  • provides for civil penalties and licensing forfeitures to be applied to employers who employ trafficked people;
  • grants victims immunity from prosecution for certain crimes committed as a direct result of being trafficked. For example, breaching conditions of stay or being involved in illegal prostitution activities;
  • really spells out victim protection measures without which victims are unlikely to feel safe and therefore unlikely to collaborate with authorities. The law should be drafted from a law enforcement and victim protection perspective to succeed in its aims;
  • addresses money laundering, corruption and racketeering activities as these are all closely linked with human trafficking; and
  • provides for targeted sentencing of offenders with enhancements available in some circumstances e.g., repeat offenders, public officials complicit in trafficking, child trafficking, trafficking of the physically and/or mentally impaired, individuals who use a position of trust to take advantage of their victims, etc.

 
Lack Of Training Of First Responders

 
First responders are generally those likely to encounter victims in their daily line of work. They can be police officers, border officials, airport staff, health professionals, educators, interpreters, social workers, lawyers, judges… The Hong Kong Government maintains that police officers are given regular training on latest trends in human trafficking, victim identification and access to support services for victims. In addition, frontline officers carry “Action Cards” for “Debriefing of Human Trafficking Victims.”9 Furthermore, official anti-trafficking efforts in Hong Kong are headed up by the Organized Crime and Triad Bureau (“OCTB”). The OCTB has stated that anti-trafficking training is a part of the Standard Criminal Investigation Course and Special Duty Squad course provided by the Police Detective Training Section. Moreover, enforcement officers regularly participate in conferences, workshops and seminars on anti-trafficking related subjects.10

 

 
However, it is astonishing that following approximately 5,000 anti-vice raids and the arrest of 3,000 to 6,000 prostitutes that the human trafficking figures remain so low.11 The same applies for the forced labour cases, where between January and July 2013 alone 2,172 FDH were granted visa extensions to resolve legal disputes with employers/agencies12 and yet not one case of trafficking for forced labour has been identified so far. Similarly high numbers of visa extensions from previous years have yielded not a single forced labour case. It is our view that a lack of education on identification compounded by weak laws results in many trafficking for forced labour cases slipping through the net.

 
This leads us to the conclusion that the training officers are receiving is not adequate or that training received is not being implemented in practice. This inadequacy is further compounded by weak laws and the fact that trafficking is not core police business. Together these factors account for the very low recognition rate of trafficking victims in Hong Kong.

 
Counter-Trafficking Is Not Core Police Business

 
For effective policing to make a difference in counter-trafficking, it is essential that it is well-funded and supported by the central government. Human trafficking is organized crime and should be tackled as such and not simply as an immigration crime.13 Being the specialist anti-trafficking unit, the OCTB should aspire to lead by example and share best practice with units dotted around Hong Kong. The OCTB should build its expertise in combatting human trafficking as a gross abuse of human rights rather than as a matter that is close to immigration crime owing to parallels drawn between smuggling and trafficking and because those trafficked often have irregular immigration status or forged documents. Viewing trafficking as an immigration crime simply leads to the criminalization of victims who find themselves trapped in an irregular immigration situation.

 
Given how little is known about trafficking for forced labour in Hong Kong, the OCTB should take firm and decisive action to learn more about the issue by initiating rigorous training and education on the subject and perhaps by running a pilot project for a specified period of time that would allow valuable learning on the subject. Hong Kong Police Forces should be educated about the indicators for forced labour and the need to investigate document retention, excessive placement fees and other such indicators that are all markers for debt bondage situations.

 
With the OCTB leading the charge, counter-trafficking should be made part of the core business of all police officers with the OCTB coordinating operational matters and taking the lead in ensuring that training pertaining to all forms of trafficking is rolled out to all police forces in Hong Kong. Costs for running counter-trafficking activities should be mainstreamed into operational budgets for core police work.

 

 

The Lack Of A Central Referral Mechanism

 
A National Referral Mechanism (“NRM”) is a structure that formalizes the cooperation between a state and NGOs with the primary purpose of protecting the rights of victims of trafficking by ensuring fair and equal identification and referral of victims to support services.14 The cornerstones of an effective NRM are collaboration between NGOs and the Government and victim protection. NRMs have been successfully trialed and set up in a number of jurisdictions such as the United Kingdom15 and Vietnam.

 
The benefit of a central referral system is the formalizing of victim identification and onward support service referral mechanisms. These structures are crucial in ensuring early identification of victims and fair assessment of each suspected case of trafficking. The mechanism is operated by a central body (preferably constituted by key stakeholders e.g. law enforcement and NGOs) which processes all cases within a fixed time frame and the outcomes can vary from a finding of no trafficking and therefore no onward referral to support services to a finding of trafficking and onward referral to support services. There will also be borderline cases where the evidence hints at trafficking but the victim may not be cooperative enough to confirm this is the case. It is for such reasons that it is essential for NRMs to be flexible enough to accommodate such cases.

 
NRMs are best suited when tailored to a country’s needs. However, there are 4 core components16 that each NRM must be made up of:

 
1. Identification protocols and clear guidance on onward referral to support services. It is essential that this process is in accordance with the wishes of the victim and they should have a say over the process they are being made to be a part of.
2. The support services should include specialized shelters, access to medical services, psychological assistance, legal advice, repatriation services (if requested) and other such assistance as may be appropriate in the given circumstances.
3. Protocols on collaboration between victims and law enforcement. These should be made very clear to the victim and the latter should have the final say in the course of action they wish to pursue.
4. Cross-participation of a range of actors with the view to participating in the provision of a multi-functional solution to this intricate issue.

 
Hong Kong would benefit greatly by the implementation of a national referral mechanism that should be set up following a consultation between Government, NGO stakeholders and beneficiary victims. The harmonization of victim identification and support services will go a long way in supporting victims and making it more conducive to assist police with their investigations.

 

End Notes:

 

1 US Department of State, Trafficking In Persons Report 2013.
2 Third Report of the Hong Kong Special Administrative Region of the People’s Republic of China under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women, Paragraph 6.5.

3 Thai Tourist Recalls her Sex Slavery Ordeal in Hong Kong, South China Morning Post, March 10, 2013.
4 TIP Report 2013, supra note 1.
5 Caritas Hong Kong and the fights against human trafficking, South China Morning Post, March 10, 2013.
6 Amnesty International, Exploited for Profit, Failed by Governments, Indonesian Migrant Domestic Workers Trafficked to Hong Kong, November 2013; Hong Kong Federation of Asian Domestic Workers Unions, Position Paper on Illegal Agency Fee Overcharges of Migrant Domestic Workers; and Indonesian Domestic Workers Union Survey 2012.

7 Legislative Council Panel on Constitutional Affairs, Hearing of the United Nations Committee on the Third Report of the Hong Kong Special Administrative Region in the light of the International Covenant on Civil and Political Rights, Appendix III.

8. See Id.
9 Id. at paragraphs 14.3 and 14.5.

10 Hong Kong Security Bureau, Response to TVB Pearl report, August 2013.
11 See Third Report, supra note 7, at paragraph 13.4.
12 Response to TVB Pearl report, supra note 10.
13 UK Government, The Government Reply To The Sixth Report From The Home Affairs Committee, SESSION 2008-09 HC 23, pp.7 and 8.

14 OSCE, National Referral Mechanism-A Practical Handbook, p.14.
15 Please see National Crime Agency, National Referral Mechanism, at

http://www.nationalcrimeagency.gov.uk/about-us/what-we-do/specialist-capabilities/uk-human-trafficking-centre/national-referral-mechanism.
16 OSCE, supra note 14, at 16.

 

Sources:

  • Amnesty International, Exploited for Profit, Failed by Governments, Indonesian Migrant Domestic Workers Trafficked to Hong Kong, November 2013.
  • CEDAW, Third Report of the Hong Kong Special Administrative Region of the People’s Republic of China under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women, 2012.
  • Hong Kong Federation of Asian Domestic Workers Unions, Position Paper on Illegal Agency Fee Overcharges of Migrant Domestic Workers, 2013.
  • Hong Kong Security Bureau, Response to TVB Pearl Report, August 2013.
  • Indonesian Domestic Workers Union Survey 2012.
  • Legislative Council Panel on Constitutional Affairs, Hearing of the United Nations Committee on the Third Report of the Hong Kong Special Administrative Region in the light of the International Covenant on Civil and Political Rights, 2013.
  • Organization for Security and Co-operation in Europe (OSCE), National Referral Mechanism-A Practical Handbook, 2004.
  • South China Morning Post, Thai Tourist Recalls her Sex Slavery Ordeal in Hong Kong, 10 March 2013.
  • South China Morning Post, Caritas Hong Kong and the fights against human trafficking, 10 March 2013.
  • UK Government, The Government Reply To The Sixth Report From The Home Affairs Committee, 2008-09.

 

Table of Contents:

 

1. Definitions And Characteristics

2. Issues Surrounding Identification Of Victims Of Trafficking

3. Government Response To Human Trafficking

4. Actors Involved In The Identification Process And Their Likely Encounters With Victims

5. Identification Protocols And Questionnaires

6. Child Trafficking

7. Support Services, Victim’s Charter Of Rights

8. Recommendations

9. Annex 1: Generic Exploitation Profiles

10. Annex 2: Training Kit

 

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For further information, please contact:


Archana Sinha Kotecha, Liberty Asia

archanakotecha@libertyasia.org

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