In the recent Hong Kong Court of Final Appeal decision, ZN v Secretary for Justice & Others, the Court held that Art.4 of the Hong Kong Bill of Rights (‘BOR4’) does not prohibit human trafficking generally for exploitation, servitude and forced or compulsory labour. The Court held that BOR4 might at best prohibit human trafficking for slavery. In effect, this ruling means that there is no statutory protection for human trafficking. Victims have to rely on government policy or prove other related offences.
In this case, an employer deceived the complainant, a labourer from Pakistan, about the working conditions and wages. During his employment, the complainant was treated in a degrading and abusive manner. For example, he was subject to beatings and restricted movement, given only two meals a day, and slept on the floor. Furthermore, he worked without pay for four years. He commenced judicial review against the Government. In his application, he argued that the failure to investigate his case on human trafficking for forced labour breached his BOR4 rights. BOR4, which is modelled on Art.8 of the ICCPR, provides 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.
(3) (a) No one shall be required to perform forced or compulsory labour.
The Court reasoned that since BOR4 specifically contains separate and distinct concepts of ‘slavery’, ‘servitude’ and ‘forced labour’, it could not be interpreted to prohibit human trafficking for exploitation. Furthermore, the Court held that BOR4(2) and (3) forbid the substantive conduct of servitude or forced labour, not the processes of trafficking (even if the trafficking is for these purposes).
The Court further held that there is no duty on the Government to enact a criminal offence against forced labour. The Government would be found to comply with BOR4(3) if it provided any other ‘practical and effective protection’. As the Court suggested, it is sufficient that an employer could be charged with other employment-related criminal offences and false imprisonment, this, according to the court, was ‘practical and effective protection’. However, reliance on these circuitous offences does not adequately reflect the gravity of human trafficking.
The Court’s finding reinforces the poor protection of trafficked persons in Hong Kong. The existing criminal regime does not adequately deal with human trafficking. Section 129 of the Crimes Ordinance (Cap. 200) prohibits human trafficking ‘for the purpose of prostitution’. Human trafficking for forced labour is not an offence. It was hoped that BOR4 would be interpreted in a manner that provides broader protection against human trafficking. Unfortunately, the Court failed to do so.
It is noteworthy that the Court rejected approaches taken in other jurisdictions faced with similar questions. For example, the ECtHR in Rantsev v Cyprus and Russia held that trafficking is included within the meaning of the words ‘slavery’, ‘servitude’ or ‘forced and compulsory labour’ under the similarly-worded Art.4 of the ECHR. Although it is regrettable that Hong Kong’s approach is narrower than the EU’s, the Court justified this with the fact that Hong Kong is not a party to the Palermo Protocol, which deals specifically with human trafficking.
Nevertheless, the Court’s restrictive interpretation of BOR4 is not persuasive. While BOR4(2) and (3) focus on the final conduct (slavery, servitude and forced labour) and not the intermediate process of trafficking, the latter should still be included as an offence. It should logically follow that to prevent the prohibited conduct in BOR4(2) and (3), trafficking for those purposes should too be prohibited. Moreover, BOR4 is framed in a prohibitive manner (‘No one shall…’); it is by nature preventive. This should justify the inclusion of trafficking as it will often be an immediate cause of slavery, servitude and forced labour.
Further, the internationally-condemned nature of trafficking should justify a more liberal interpretation of BOR4. First, it has been suggested that trafficking involving conduct stipulated in Art.7 of the Rome Statute (even without enslavement) could amount to a crime against humanity (which is a jus cogen). Second, despite being inapplicable to Hong Kong, the Palermo Protocol is a widely adopted protocol, including by China. This demonstrates that human trafficking is against settled norms in international law.
There is a need for a customised modern slavery statute in Hong Kong, perhaps one similar to the UK’s. Enacting such statute would be the most effective and practical protection of people from human trafficking.
Is it really conscionable for the courts to so narrowly and literally interpret human rights laws that even human trafficking and exploitation go unpunished? Can we hope for the better?