Forced Labor Isn’t a Crime in Hong Kong. But That May Soon Change.

Hong Kong’s High Court held its first-ever judicial review on human trafficking this week, where lawyers argued that the city must move to criminalize forced labor.

Barrister Raza Husain QC told the court that Hong Kong has punished thousands of victims of human trafficking — mostly for immigration offenses — instead of offering them protection. “There are many people who remain invisible and not protected, and the perpetrators remain free,” he said.

The case at the center of the debate involves a Pakistani man, referred to as Zn, who worked in Hong Kong from 2007-2010. Yet he was never paid for any of his work and was beaten and threatened — and the government did not help him.

Zn subsequently sued the Immigration Department, Hong Kong Police Force, and the Labor Department, saying they ignored his claims that he was a victim of human trafficking.

High Court judge Kevin Zervos ruled in Zn’s favor in 2016, saying that the Hong Kong authorities failed to help him as a victim of forced labor and pointed out that the city lacked legislation on forced labor. The government appealed.

The South China Morning Post reports:

In the absence of anti-human-trafficking laws penalising labour trafficking and forced labour, advocates have criticised authorities for taking a piecemeal approach by using related charges.

Mr Justice Andrew Cheung Kui-nung noted that this was the first case of human trafficking brought to the High Court and that more cases could bring different perspectives and considerations. Cheung said that things could be done “step by step”.

“Instead of having a specific law, I would think that it was first needed [to have] training and better coordination … How can we jump from not having an effective regime to ‘therefore the answer is to enact a specific offence’?” the judge asked.

In response, Husain argued that human trafficking cases cannot merely be dealt with through administrative measures, noting that Hong Kong is currently on the Tier 2 Watchlist of the US Trafficking in Persons Report for not complying with international standards to combat the crime.

Moreover, Husain said that Hong Kong needs a comprehensive human trafficking law that also enshrines victim identification and protection, proper punishment, prevention, and public education.

David Pannick QC, who represented the Hong Kong government, said that the city was under no obligation to criminalize forced labor. “In the international experiences there are pros and cons of having or using a specific criminal offence in these cases,” he said.

Archana Kotecha, head of the legal department at Liberty Asia, says currently Hong Kong has “a lack of clarity and lack of conceptual clarity around these offences.”

“The advantage of having one offence is that it focuses the effort and it’s easier to understand and to act upon. If you look to the jurisdictions around us, they have all gone towards consolidating into a single offence as opposed to prosecuting under a patchwork of offences,” Kotecha said.