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Why Hong Kong needs new legislation to curb human trafficking

Written by
Dhruv Tikekar
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Does Hong Kong have a problem with human trafficking? Is the government going to create some legislation to combat the practice? Dhruv Tikekar goes in search of a few answers

It’s been almost 13 years since the Palermo protocols were set in motion by the United Nations, establishing a series of measures to combat transnational human trafficking, smuggling and the manufacturing of illegal arms. The protocol overseeing human trafficking, in particular, set its sights on protecting and assisting the victims of these human rights violations. It also sought to clearly define the act itself by addressing a broad range of means employed for the ‘recruitment, transportation, transfer, harbouring or receipt of persons’ for the purposes of asserting control over those persons or exploiting them in some way.

Great for the UN, then. But Hong Kong didn’t write any such definition into its legislative framework. And it still hasn’t done. In fact, there’s no broad legislative framework in our SAR that addresses the issue at all and, with this, comes uncertain consequences. In the annual Trafficking in Persons report released by the US State Department earlier this month, Hong Kong was recognised as having laws that ‘do not prohibit all forms of trafficking’ as well as having ‘no specific criminal offence related to the crime’ of human trafficking.

“[The Hong Kong government] is consistently in denial about Hong Kong being a destination, transit and origin for human trafficking,” says Jade Anderson, the anti-human trafficking co-ordinator at the Justice Centre Hong Kong. The centre recently concluded a year-long report on forced labour and trafficking for the purposes of forced labour. The findings illustrate that there are strong indications of human trafficking occurring among migrant domestic workers.

Sex workers are often victims of human trafficking
Photo by Calvin Sit

Human trafficking is a problem in some places in Asia, for sure. And some argue that it’s a problem in Hong Kong too, citing that it’s tied to the issue of forced labour. Anderson claims it’s compounded by the fact that our government is hardly transparent on the subject. She claims ‘the government says that its officers have training in human trafficking’ but they are not being clear on the exact numbers. She adds: “We don’t know what the content of their training has been and we don’t know what happens to the victims they say they’ve identified. We don’t know if there are referral mechanisms in place when people are identified or come forward. We just don’t know what’s happening.”

The problem, it could be argued, is largely rooted in the absence of any anti-trafficking legislation that our government has in place – something that’s been identified by several frontline NGOs, as well as the US State Department, as being an impediment to resolving the problem, the consequences of which are systemic. One such front-line organisation, STOP (Stop Trafficking of People), which tackles human trafficking in the region, has experienced first-hand the nature of a system that it claims lacks both definition and legislation on the issue in the many cases that require the assistance of the police force. “When the police came up to me,” says Tina Chan, STOP project manager, “and asked me [in Cantonese] what type of case I thought it was, I would tell them that this was human trafficking. And they’d look at me like I was crazy. They didn’t understand the words ‘human trafficking’ at all and I kept repeating myself, and it seemed like it didn’t work, so I told them it was forced labour or it was [a case of] foreign domestic workers who had been abused by their employer – using very simple terms to break down the issue. But, actually, that’s not the whole picture. And that’s very concerning.”

It’s claimed that cases of forced labour have become increasingly apparent in Hong Kong – a city that was recently ranked a dismal 157 out of 161 on the Global Slavery Index in regards to the government’s response to cases of ‘modern-day slavery’ within the territory. Now, with the emergence of the findings from the TIP Report, the responsibility seems to also increasingly fall on the shoulders of employment agencies – which have been repeatedly called out for their financial exploitation of foreign domestic workers, as well as their perpetuation of ‘labour trafficking via debt bondage’, according to the report. “Employment agencies are a part of the problem,” says Cynthia Abdon-Tellez, the head of Mission for Migrant Workers in Hong Kong. “They are given too many privileges. And any violations that they make are ignored.”

Abdon-Tellez illustrates the problem by referring to the nature of wage collection in Indonesia, a source country for many migrant domestic workers. “In Indonesia,” she says, “many employment agencies are allowed to collect seven months’ wages [from the worker]. Employment agencies in Hong Kong cannot recruit workers from Indonesia without connections with Indonesian agencies. Now, an Indonesian worker who comes to Hong Kong, she has no way of not agreeing to pay the seven months’ wages, but that is illegal in Hong Kong and collection is happening here. Hong Kong policy dictates only 10 percent of the first month’s salary [can be collected].” Violations along these lines, it is claimed, are perpetuating both the trafficking of workers and this whole concept of ‘modern day slavery’.

Furthermore, these concerns of professional misconduct on the part of employment agencies are also echoed by members of the Legislative Council, such as Emily Lau, who is legislating for better measures in both the source country and Hong Kong for the treatment of migrant workers. “I think we need to get the employment agencies to act properly,” she says, “because some of them overcharge the workers. And now they have a code of practice – that is not law and that’s not very good. But at least they’re moving and they’re having more dialogue with the consulates and with the sending states.” The code of practice in question, however, some claim, poorly illustrates the issue and the ensuing consequences of overcharging workers by reiterating the importance of abiding by regulations mandating the 10 percent rule – violations of which would render the employment agency liable to a ‘maximum fine of $50,000’.

Debt bondage – a practice that employment agencies and employers are sometimes accused of actively participating in – is, however, one of the many problems that’s inherent, it’s argued, to conditions of both modern slavery and human trafficking in Hong Kong. Working hours, off-days and housing are some of the others that largely precipitate slavery. “Not being able to get a day off, that’s slavery,” explains Abdon-Tellez. “When nobody knows what’s going on inside the household. When the women, they’re kept in a training camp for three months and not allowed to contact their families – that’s slavery.” 

This is further exacerbated by restrictive policies in place in regard to victims gaining access to justice, according to the head of Helpers for Domestic Helpers, Holly Allan. “The two-week rule prevents them from working,” she says, “if they’re engaged in litigation. So why would a domestic worker complain against her abuser if she knows she’s going to lose her job and be required to leave Hong Kong within 14 days? Or if she wants to pursue a case, she would not be able to work and she’d be in limbo, spending money on visa extension fees or food or accommodation and not be able to earn a living or support her family back at home.”

The problem at hand is not only the ability of employment agencies to capitalise on the loopholes in legislation delineating the criminalisation of debt bondage and slave-like conditions but also the ability of the traffickers in both the source country and in Hong Kong to capitalise on the criminalisation of transporting persons for the purposes of prostitution alone – a definition that certainly blatantly disregards the importance of other grounds for the same. 

Read the TIP Report online at state.gov/j/tip/rls/tiprpt/2016/index.htm.

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