The Need for the Crimes (Amendment) (Modern Slavery) Bill 2019

In 2018, Hong Kong remained on the Tier 2 Watch List of the Trafficking in Persons (“TIP”) report for the third consecutive year, putting Hong Kong at risk of U.S. trade sanctions that would come automatically if the city was downgraded to Tier 3. In Asia, this places Hong Kong’s ranking on par with only Bangladesh, Macau, the Maldives and Mongolia. The detailed recommendations of the report include enacting comprehensive anti-trafficking laws; increasing efforts to proactively identify sex and labour trafficking victims among vulnerable populations; vigorously prosecuting traffickers and recruiters; and protecting victims. The conclusions of the TIP report were echoed by the comments of NGOs, and the international community including the United Nations Human Rights Committee. It became clear that without real change and improvements to our anti-TIP system, that ranking is likely to remain or be further downgraded in 2019.

In response to the cacophony of criticism, the HKSAR Government set up a Steering Committee to Tackle Trafficking in Persons and to Enhance Protection of Foreign Domestic Helpers (“FDH”) under the chairmanship of the Honourable Mr. Matthew Cheung, Chief Secretary for Administration. This was the first indication by the Government of a high-level inter-departmental effort to combat modern slavery in Hong Kong. The Steering Committee was set up alongside the unveiling of an “Action Plan” which aims to guide efforts in regard to victim identification, investigation, enforcement, prosecution, victim protection and prevention.

What was notably absent from the Government’s list was any proposal for new comprehensive anti-trafficking legislation, despite the critical comments of the former Director of Public Prosecutions and High Court Judge, Kevin Zervos JA, in the ZN case ([2017] 1 HKLRD 559 at [304], currently being heard by the Court of Appeal on leave to appeal to the Court of Final Appeal). The Government’s only explanation for this omission was its own claim that there are “over 50 legal provisions against various TIP conducts that form a comprehensive package of safeguards” against TIP-related crimes (See: “Response to US Trafficking in Persons Report 2018” https://www.info.gov.hk/gia/general/201806/29/P2018062801032.htm).

However, in the year since the launch of the Action Plan, hard questions have been raised by NGOs about the effectiveness of the Plan given the lack of both legislative safeguards and results. A group of 27 civil society groups announced in July 2018 that it found 63 cases of human trafficking out of 1037 that it examined, while the Government announced that it found 9 cases out of 4710 during a roughly similar time period. There are numerous reports from these groups about the police refusing to register victims’ complaints about being subjected to forced labour or TIP on the basis that those are not criminal offences in Hong Kong. Indeed, the current offence of trafficking in persons to or from Hong Kong in s. 129 of the Crimes Ordinance (Cap. 200) is limited to trafficking for prostitution. It does not cover trafficking within Hong Kong, slavery, forced labour, forced marriage, removal of organs, domestic servitude, or any other kinds of TIP.

Banks in Hong Kong are equally concerned about the issue. Latest estimates detail that TIP generates US$150 billion a year globally, with over half of all victims found in the Asia Pacific Region. Financial intelligence units around the world are increasingly receiving and analysing reports of suspicious financial activity that may be indicative of TIP. Even the Financial Action Task Force (FATF) have launched tools to enable financial entities to identify such activities. Yet, currently, these activities are not regulated by Hong Kong’s anti-money laundering regime and no action is yet being taken to improve our regulations to match international standards – an international concern given the money that is obviously flowing through our banks, situated in a key hub in the Asia Pacific Region.

It is against the background of this urgent need for targeted legislation that the Legislative Council has rushed to fill the gap left by Government through the introduction by the Honourable Dennis Kwok Wing-Hang of a private member’s bill, the Crimes (Amendment) (Modern Slavery) Bill 2019.

The Bill

Mr. Kwok’s Bill is modelled on international best practice, in large part based upon the Modern Slavery Act 2015 (UK). A similar scheme was successfully introduced in Australia as the Modern Slavery Act 2018, also derived from the UK version. By adopting it, Hong Kong would be following in the footsteps of other common law countries, and benefit from their more established case law in the area.

Part 2 of the Bill introduces a comprehensive scheme dealing with human trafficking and exploitation, including: -

1. New Offences:

Substantial amendments to the Crimes Ordinance, creating new offences of slavery, human trafficking (expanding the existing prohibition to cover non-sexual forms of exploitation, and including removal of organs), forced marriage, sex tourism and other related offences. Offenders of human trafficking and slavery would be liable, on indictment, to life imprisonment or, on summary conviction, to a maximum 12 months’ imprisonment and a HK$100,000 fine.

2. Defence for Slavery and Trafficking Victims:

Victims of slavery and trafficking may raise defence for conduct connected to their slavery or trafficking situations. The defence will not apply in the case of certain serious offences.

3. Civil Action by Trafficking Victims:

A new statutory tort, enabling victims of trafficking to bring claims against a perpetrator or a person who has knowingly benefited from participation in a venture of human trafficking.

4. Civil Preventative Orders:

The courts are empowered to issue “Slavery and Human Trafficking Prevention Orders” and “Slavery and Trafficking Risk Orders” to prohibit any person from committing any of the described conduct for the purpose of preventing slavery and trafficking.

5. New Maritime Enforcement Powers:

Enabling the law enforcement to interdict, board and search vessels where they suspect trafficking and slavery offences.

6. Supply Chain Reporting Requirements:

Bodies corporate and partnerships conducting business in Hong Kong are required to publish a slavery and human trafficking statement each year to disclose whether measures are put in place to ensure that there is no slavery or trafficking in its supply chains or its own business.

7. The Establishment of an Independent Anti-slavery Commission:

The Commission is mandated to encourage good practice in the prevention, detection, investigation and prosecution of human trafficking and forced labour, and providing assistance and support to victims.

Part 3 of the Bill invokes Hong Kong’s world-class anti-organised crime and money laundering regime through amendments to the Organized and Serious Crimes Ordinance (Cap. 455), providing that the new offences related to slavery and human trafficking are forms of organised and serious crimes. In particular, authorities will be empowered to seize and freeze illicit criminal proceeds generated from all offences created by the Bill, as those offences will be regarded as predicate offences for a “money laundering” charge.

The Bill received a certificate from the Law Draftsman Theresa Johnson on 20 March 2019 and has now been referred by the President of the Legislative Council to the Chief Executive Carrie Lam for comments. The Chief Executive will now have the opportunity to identify which aspects of the Bill she opposes (and for what reasons), and which she supports.

Jurisdictions around the world have in the last 15 years have similar reforms to their laws, adopting comprehensive and targeted legislation. Apart from UK and Australia, many African countries have long ago enacted comprehensive anti-TIP laws, including Nigeria, Ethiopia, Mozambique, South Africa, Uganda and a dozen others. Even those African countries lagging behind them have minimally enacted anti-TIP laws pertaining children. Hong Kong’s efforts lag behind almost all comparable jurisdictions, including Mainland China.

There is increasing pressure on Hong Kong to justify its position not to enact comprehensive anti-slavery and TIP laws. In order for Hong Kong to maintain its role at the centre of the international economy, it is essential that it is shown that we are committed to combatting international crimes, whether financial or otherwise. If we do not do so, we run the risk of sanctions in the short term and ostracization in the long term. Therefore, it is imperative for the Bill, or new legislation containing much of the similar provisions, be passed into law on an urgent basis.

Editorial Note: The Bill is originally drafted by Mr. Azan Marwah, Mrs. Patricia Ho, and Legislative Councillor Hon. Dennis Kwok.

Jurisdictions: 

Barrister-at-Law, Gilt Chambers

Azan Marwah is a barrister in civil practice, specialising in matters that include a cross-border, public or administrative law element. His experience extends to work raising issues from international sale of goods, cross-border fraud, taxation, employment, to land use planning. Azan is also a qualified mediator and published expert in family and child law, advising a number of charitable organisations and representing parties before the family courts. Azan is the co-author of Protection of Children (General Amendments) Bill 2019 and Crimes (Amendment) (Modern Slavery) Bill 2019.

Partner, Patricia Ho & Associates

Patricia Ho is a solicitor specializing in public interest law. Much of her work involves defending the rights of minority groups in Hong Kong, including by way of challenging government policies and law in judicial reviews. Her cases include a number of landmark judicial review test cases concerning refugees, transgender persons, victims of forced labour and human trafficking, sex workers, and champions of disability rights. Patricia also provides legal and strategic advice to local and international NGOs, and is a co-author of the Crimes (Amendment) (Modern Slavery) Bill 2019.