Hong Kong does not need specific offences to criminalise human trafficking and forced labour, according to lawyers defending the government against a landmark appeal.
The Court of Final Appeal case was brought by a Pakistani victim of forced labour in the city, named Zn, who blames the government for failing to protect him from being trafficked for that purpose because it had no dedicated legislation.
Lord David Pannick QC, for the government, on Wednesday accepted that Article 4 of the Hong Kong Bill of Rights Ordinance – prohibiting slavery, servitude and forced labour – had imposed a positive obligation on the authorities to take steps to protect victims and punish offenders.
But the counsel argued that it did not mean the government had a legal obligation to create a specific criminal offence, as the International Covenant on Civil and Political Rights’ expert committee recognised that a state or jurisdiction may act by legislation or “other measures” in accordance with its constitutional processes.
“It is very much an issue of policy for the government to determine, subject to the supervisory control of the court,” Pannick said in reply to the judicial review. “This is a court of law – its function is not to make policy.”
Pannick also noted that human trafficking was a complex, resource-intensive crime that was difficult to prove so it might be a better course to target individual elements, such as rape, assault, debt bondage, forced labour, money laundering and corruption.
“It may be sufficient to have a range of criminal offences,” he continued. “The offending conduct contravenes many laws in Hong Kong.”
Pannick further pointed out that Zn’s case was not the result of inadequate laws, but the flawed training of immigration and police officers, who had failed to act when he went from department to department in his unsuccessful attempt to claim more than HK$200,000 (US$25,480) in unpaid wages.
“This was a case where he simply wasn’t listened to,” Pannick said.
The counsel stressed that the government had since introduced “detailed and specific steps to remedy the serious defect and to ensure the future Zn is listened to”, by improving victim identification, protection and prevention and enhancing inter-department collaboration and cooperation with international bodies.
“It cannot be said at the moment we are in breach of our positive obligation given all the steps we’ve taken,” he said. “We would like the court to dismiss this appeal.”
Raza Husain QC, representing Zn, countered that these government measures were not substitutes to the obligation to criminalise and reiterated that specific offences were needed as a deterrent against crimes that were “the most urgent problem of the 21st century”.
The five-judge panel, led by Chief Justice Geoffrey Ma Tao-li, have reserved judgment to a later date.
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