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Putting a stop to slavery: Hong Kong reforms on the horizon?

This post was written by Urszula McCormack and Nikita Ajwani

With an estimated 40.3 million slavery victims globally[1], and an estimated 29,500 victims of trafficking in Hong Kong alone[2], the development of regulations surrounding modern slavery has a substantial impact on the welfare of millions of people.  We are now at a critical pivot point for Hong Kong, with an opportunity to introduce legal protections that will assist in recognising slavery for what it is, and build better systems to prevent it.

This post outlines:

  • the fundamentals of modern slavery;
  • the current limited protections in Hong Kong;
  • a proposed statutory framework and targeted action plan; and
  • the role of private sector initiatives and advocacy.

What is modern slavery?

The term ‘modern slavery’ is often used to describe human trafficking, forced labour, debt bondage, sex trafficking, forced marriage and other forms of exploitation.[3]

Whilst definitions are often hotly debated, modern slavery is generally understood to covers a spectrum of abuse (often underestimated or misunderstood) that results in effective enslavement, whereby a person has no choice but to remain in bonded servitude.

The current Hong Kong framework

Currently, there is no one single ordinance that comprehensively deals with the offences of modern slavery in Hong Kong.  However, various existing laws enable prosecution for certain elements of crime which may be committed in the course of modern slavery.  The table below details Hong Kong’s current framework surrounding modern slavery.

What steps has Hong Kong taken to combat modern slavery so far?

Hong Kong has taken the following key steps to combat modern slavery, in particular, human trafficking:

This article goes into detail on the two most recent steps that the Hong Kong Government has taken to combat modern slavery – the 2017 Bill and the 2018 Action Plan.

The proposed draft Modern Slavery Bill 2017

Since the implementation of the United Kingdom’s Modern Slavery Act 2015, members of the Hong Kong Legislative Council have put forward a draft Bill to Hong Kong’s Chief Executive.

If approved, the Bill will impose new criminal offences and a civil cause of action against individuals or entities who commit or profit from such offences.

Proposed offences under the Bill

The proposed Bill aims to amend the Crimes Ordinance (Cap. 200) to cover a wider range of offences.

1. Slavery offence – It would be an offence to knowingly hold a person in slavery or servitude, or knowingly require a person to perform forced or compulsory labour.

2. Human trafficking offence – It would be an offence to facilitate the travel of a person with the knowledge that that person being exploited.  ‘Travel’ means entering or leaving any country or travelling within any country.  ‘Exploitation’ is defined to include:

  • slavery, servitude and forced or compulsory labour;
  • sexual exploitation;
  • removal of organs;
  • providing services or benefits by force, threats or deception; and
  • using, or attempting to use, a person to provide services or benefits because that person is a child, is mentally or physically ill or disabled, or has a particular family relationship.

3. Secondary offence – It would be an offence to commit any offence with the purpose of committing human trafficking.


4. Forced marriage offences – This includes two separate offences.

  • It would be an offence to cause another person to enter a forced marriage.
  • It would be an offence to be a party to a forced marriage (other than the victim).

5. Sex tourism offences – It would be an offence for any person entering or leaving Hong Kong to engage in or facilitate listed illicit sexual conduct, including rape or child pornography. The Bill also indicates the prohibition of Hong Kong residents from engaging in this behaviour in any foreign country.

Requirement to submit a Slavery and Human Trafficking Statement under the Bill

Corporations conducting business in Hong Kong meeting a certain revenue per fiscal year (yet to be specified by regulation) would be required to publicise a Slavery and Human Trafficking Statement.  The purpose is to ensure that human trafficking is not taking place in the corporation, and to promote the importance of taking steps to prevent modern slavery.

Dealing with the proceeds of modern slavery under the Bill

Criminal offence

The new offences are proposed tobe categorised as “indictable offences” under the existing Organised and Serious Crimes Ordinance (Cap. 455) (“OSCO”) with the result that those offences could be regarded as grounds for a money laundering charge, whether the proceeds are dealt with inside or outside of Hong Kong.

Civil offence

The Bill also proposes to establish a civil cause of action, like any other claim in tort, allowing a claim to be brought against a person who has committed a new offence or who has benefited (by receiving value in any manner) through participating in a scheme they knew or ought to have known would violate one of the new offences.  This particular provision does not appear in the UK Act and is based on US legislation.[5]

What’s next?

A formal response to the Bill from the Chief Executive has not yet been issued but we anticipate that the proposed Bill will be developed and implemented.

The Action Plan to tackle trafficking in persons and enhance protection of foreign domestic helpers

Hong Kong’s Action Plan to tackle trafficking in persons and enhance protection of foreign domestic helpers in Hong Kong was released in March 2018, underlining the Hong Kong Government’s determination to battle human trafficking, enhance protection for victims, raise awareness of modern slavery and prevent such cases.

To provide high level policy steer on actions against trafficking in persons and monitor the implementation of the Action Plan, the Steering Committee was established. Implementation of the Action Plan will be reviewed by the Committee from time to time to identify new or strengthened measures as and when necessary.[6]  In addition, the government also aims to implement strategic measures with sufficient resources allocated to ensure effective implementation of the Action Plan.

Overall strategy

The Hong Kong Government has released the particulars of the plan.  The Action Plan presents a package of multi-faceted measures that are comprehensive, strategic and targeted, covering victim identification, investigation, enforcement, prosecution, victim protection and support, prevention and partnership with different stakeholders.

Specified objectives under the Action Plan

The Hong Kong Government has the proposed key objectives which compose the Action Plan.  The following four charts broadly describe the initiatives and key objectives of the Action plan.

By implementing these initiatives set out in the Action Plan, the Hong Kong Government will continue its strenuous efforts to combat modern slavery in Hong Kong.  Evidently relevant authorities are taking significant and progressive steps to emphasise that modern slavery will not be tolerated in Hong Kong.

The way forward

This is by no means a passive “wait and see” space.  There remains ample opportunity to contribute to significant change.

We are pleased to see burgeoning private sector initiatives, organisations and technologies increasing their footprint.  Any company that wishes to identify and remove this blight from its supply chain, or merely its position and capabilities to proactively become part of the solution, has numerous ways to get involved.

We’d be delighted to help.


[1]     See International Labour Organisation and Walk Free Foundation’s publication, “Global estimates of modern slavery: forced labour and forced marriage” (2017), available at: http://www.ilo.org/wcmsp5/groups/public/—dgreports/—dcomm/documents/publication/wcms_575479.pdf

[2]     See Global Slavery Index 2016, available at: https://www.globalslaveryindex.org/country/hong-kong-sar-china/

[3]     See anti-slavery website publication, “What is modern slavery?”, available at: https://www.antislavery.org/slavery-today/modern-slavery/

[4]     See section 129 of the Crimes Ordinance (Cap. 200)

[5]     See §1595 of 18 U.S. Code Chapter 77 (Peonage, Slavery, and Trafficking in Persons)

[6]     See Hong Kong Government’s publication, “Action Plan to Tackle Trafficking in Persons and to Enhance Protection of Foreign Domestic Helpers in Hong Kong” (2018), available at:  http://www.sb.gov.hk/eng/special/pdfs/Action%20Plan%20to%20Tackle%20TRAFFICKING IN PERSONS%20and%20to%20Protection%20Foreign domestic helpers.pdf

 

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