HK government should accept court judgment and send anti-human trafficking bill to LegCo, human rights lawyer says
Fresh from a victory in Hong Kong’s first human trafficking case, lawyer Patricia Ho spoke out against the government’s policy failures and urged for cross-sector action in a lecture Monday.
Ho, a human rights lawyer, represented the plaintiff in ZN v Secretary for Justice, who suffered forced labour and then successfully sued the government for failing to protect victims of human trafficking. In her lecture, Ho reviewed the judgment by the Court of First Instance and highlighted HK’s lack of specific legislation that targets human trafficking. She also criticized the government’s plan to appeal ZN.
“What’s most confusing to me is why on earth they are resisting this case. It is simply a case that says, here’s a victim of trafficking… Why would the government put so much effort to resist the argument that they should criminalize human trafficking? It seems to be just so contrary to their most basic obligations,” said Ho.
Comparing HK to other jurisdictions, Ho made recommendations for the government, NGOs, and the legal profession, noting that HK is lagging behind in terms of awareness and training.
In ZN, a Pakistani man came to HK for work as a domestic helper in 2007, but was confined in an office space by his employer and forced to work long hours without pay. He was regularly abused and beaten, and when he later sought redress, the employer threatened him and his family.
In 2012 the victim approached the Immigration Department, Labour Department, and the police for help, but to no avail. He then filed for judicial review on the grounds that he suffered because of the failure and neglect of relevant authorities.
Ho said that the central issue of ZN—also the point on which the government plans to appeal—is whether Article 4 of HK’s Bill of Rights, which bans slavery and forced labour, imposes a positive duty on the government to protect against human trafficking.
“We are arguing, and the decision is, that Article 4 means that the government has positive obligations to protect victims. … Justice Zervos found that the Article [imposed an obligation] to enact measures to ensure that forced labour is prohibited, that the conduct is criminalized, and that offenders are penalized,” Ho said.
The judgment also included a strongly worded criticism of the government’s response to ZN’s pleas for help, saying he was “left floundering in a system in which concern for victims... is mainly a rhetorical manoeuvre,” and that the situation was “clearly the fault of the system.”
Before ZN filed suit, he was separately accused of a crime, and Justice Zervos wrote there was a distinct possibility that he was wrongly accused. Ho went further and said there was “a distinct possibility that this wouldn’t have happened if the Departments took him seriously.”
Ho also praised the judgment for moving the law forward. To identify whether the applicant qualified as a victim of human trafficking, the court made use of the International Labour Organization’s “Operational Indicators of Trafficking in Human Beings.” Ho commented that the ILO indicators are instructive and easy to apply.
“Justice Zervos actually refers to this as an authoritative instrument… I would say that, in Hong Kong courts, there is now clear indication that they find the ILO indicators authoritative and useful,” said Ho.
Speaking more generally, Ho said ZN was a “golden opportunity” and it was “exciting” for these arguments to have succeeded at the CFI level. This was despite the government appointing top barrister Lord Pannick QC to defend its case—or, as Ho put it, pressing the Pannick button.
Ho maintained that the government ought not appeal, and should instead draft a dedicated anti-human trafficking bill to send to LegCo, given the flaws of the current patchwork legal regime.
Nevertheless, she conceded that the government has made some improvements since the case was filed two years ago. This may be partly spurred by the 2016 US Trafficking in Persons Report, which downgraded HK to the Tier 2 watchlist. The government has set up an inter-departmental investigation team, though Ho said she “hasn’t seen anything come out of it.”
Ho concluded with a focus on awareness and training. Even lawyers and NGOs sometimes have trouble identifying whether their clients are victims of human trafficking, she said. As for the general public, she bemoaned the lack of public awareness campaigns by the government.
“If you ask around, the percentage of employers who actually keep their domestic helpers’ passports—I would think, from my own social research during yum cha, should be over 50%?" Ho said. "If people knew it was an indicator of forced labour, I’m quite confident they will stop doing that.”
This event was also covered live on Twitter @holmeschan_