By Daisy CL Mandap
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| CFA says HK may still be forced to enact a law against human trafficking in future |
Hong Kong’s highest court
has ruled that the government has no duty to pass a law
criminalizing forced or compulsory labour as a form of human trafficking.
However, in a decision handed down today, Jan. 10, the Court
of Final Appeal led by Chief Justice Geoffrey Ma, said a different judgment may
be reached in future if the government fails to adhere to art 4 of the Bill of
Rights that guards against such offences.
“The determination that a bespoke offence is not required
does not preclude a different conclusion being reached in a future case, in the
event that the HKSARG is shown...not to afford practical and effective
protection of the rights under BOR4 by reason of the absence of such an offence,”
said the CFA judgment penned by Justice Joseph Fok.
The decision was met with disappointment by Patricia Ho,
solicitor for appellant ZN, a Pakistani victim of forced labour in Hong Kong.
“It is past time for Hong Kong
to criminalize human trafficking and forced labour,” said Ho.
“While most developed countries dedicate resources to ensure
effective administrative and legislative measures to combat human trafficking,
Hong Kong languishes behind, alongside nations such as North Korea, Maldives
and Bhutan.”
Ho lamented that the government has identified only one human
trafficking victim for last year, “while the number of people prosecuted for
trafficking related offences remains almost non-existent.”
But while putting aside the question of whether Hong Kong needs to pass a law now specifically outlawing
human trafficking, the CFA noted at length the seriousness of the problem which
it said “can rightly be called an evil scourge.”
In particular, the court noted the vulnerability of foreign
domestic workers in Hong Kong to falling prey
to this menace.
“With a total of approximately 370,000 foreign domestic
helpers working in Hong Kong, there is
potentially a sizeable number of persons at risk of exploitative practices that
might constitute either forced or compulsory labour or human trafficking.”
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| The court noted that migrant workers are at high risk of being exploited |
The case was raised to the CFA by ZN, who was brought to Hong Kong to work as a foreign domestic helper between
2007-2010, and was so badly mistreated by his Pakistani employer that his case
was deemed to constitute forced and compulsory labour under Art 4 of the BOR.
The said provision states, among other things, that “(1) no
one shall be held in slavery; slavery and the slave-trade in all their forms
shall be prohibited; (2) no one shall be held in servitude; and (3) no one
shall be required to perform forced or compulsory labour.”
ZN filed an application for a judicial review in 2015, after failing to get the Secretary for Justice, the Director of Immigration, the
Commissioner of Police and Commissioner for Labour, to act on his complaints.
He told the court that he was made to work without pay for four years. He worked long hours every day in the office of his Pakistani employer, who regularly assaulted him, and made him sleep on the floor. The employer and his associates also warned ZN that his family back in Pakistan would be harmed if he complained about his maltreatment.
ZN was tricked into returning to Pakistan ostensibly for a vacation, to prevent him complaining to authorities. But he returned to Hong Kong in 2012 and complained to Immigration and Labour Departments and the police, to no avail.
ZN then asked the court to declare that he was a victim of human
trafficking, and that the officers of the various government
departments failed or neglected to take appropriate action in dealing with his
case in violation of BOR4.
Judge Kevin Zervos allowed the application in January 2016 and said that the government had positive obligations under the BOR to enact measures to stop human trafficking for compulsory labor.
He also ordered a further hearing on the reliefs due ZN, including
costs and damages.
The government appealed against his judgment and raised
four main issues before the Court of Appeal: (1) whether BOR Art 4 covers human
trafficking for forced labour; (2) whether ZN was a victim of forced labour;
(3) whether the government failed to fulfill its duty to enact a law
prohibiting human trafficking for forced labour; and (4)
whether the government failed in its duty to investigate ZN’s case.
The CA affirmed Judge Zervos’s ruling in issues no 2
and 4, but overruled him in points 1 and 3.
The court, though Judge Peter Cheung, ruled that a
clear case of forced labour was shown in ZN’s case, and that the government had failed in its duty to investigate the appellant’s complaints, in line with BOR4.
However, the court said BOR4 does not cover human
trafficking and that there was no clear case made out to show that the
government had failed to comply with an obligation to pass a law that prohibits forced labour.
“From the evidence presented
before the court, it is plain that the breach was due not to the absence of any
specific criminal offence as such, but rather the lack of training of the
officers of the various government authorities involved regarding article 4
violations, and the total lack of central supervision and coordination in terms
of investigating and combating such violations,” said the CA.
ZN appealed against the CA decision, but narrowed down the
issue to whether Hong Kong is obliged to pass laws specifically criminalising human
trafficking and forced or compulsory labour.
The Court of Final Appeal upheld the CA ruling, and
said that while BOR4 prohibits trafficking for the purposes of slavery, it does
not prohibit human trafficking generally for the purpose of exploitation.
Thus, the government has no obligation under this law
to enact a “bespoke” or tailor-made law criminalizing forced labour.
Still, the CFA said the government must take steps to ensure
a practical and effective protection of the rights guaranteed under BOR4, and
that the question of whether it has complied with this duty “will depend on the
facts of any given case.”
“It would be wrong for the respondents to rest on the
laurels of their success on the appeal in this Court by relaxing the vigilance
with which the measures to combat breaches of the rights protected by BOR4 are
administered and enforced,” said the CFA.
“Moreover, the respondents’ treatment of the appellant when
he complained to the authorities of his mistreatment does not cast the
respondents in a favourable light and was rightly described by Lord Pannick (counsel
for respondents) as disgraceful. Practical and effective protection of
BOR4 rights should ensure that a case like the present is a rare and isolated
event.”
CJ Ma and Judges Robert Ribeiro, Patrick Chan and Beverley
McLaghlin concurred in the judgment.
