Hong Kong’s top court on Tuesday began hearing a landmark appeal on whether forced labour and human trafficking for that purpose should be criminalised in the city under a new offence.
Lawyers for a Pakistani victim of forced labour in Hong Kong, bringing the first such case to the city’s Court of Final Appeal, are calling for a bespoke offence in line with international standards to target the “evil” that has become “a colossal problem everywhere”.
But the government disagreed with the scale of the problem in the city and expressed concerns that extending criminal liability would create economic, social welfare and immigration consequences in light of Hong Kong’s unique position.
At issue was whether Article 4 of the Hong Kong Bill of Rights Ordinance, which prohibits slavery, servitude and forced labour, also bars human trafficking for such purposes and imposes an absolute duty on the government to maintain a specific offence.
The two-day appeal was brought before Chief Justice Geoffrey Ma Tao-li and justices Roberto Ribeiro, Joseph Fok, Patrick Chan Siu-oi and Beverley McLauchlin, with the government represented by a four-strong team comprising a Queen’s Counsel leading two local silks and a junior.
Hong Kong has been the target of international criticism, which city officials have said was “not founded in facts”. The government does not compile figures on human trafficking other than relating to the exploitation of foreign domestic workers.
But in a 2018 report the Global Slavery Index estimated there were 10,000 people living in modern slavery.
The Pakistani appellant, identified only as Zn in court, came to Hong Kong in 2007 after a fellow villager arranged work for him in the city, with the promise of good working conditions and a salary.
But Zn ended up working 15 hours a day without pay for four years, up to 2010, during which he was also subjected to constant threats and beatings before his employer tricked him into returning to his home country.
Zn later returned to the city illegally in 2012 to claim more than HK$200,000 (US$25,480) in unpaid wages, but found himself shunted from one government department to another as each claimed his grievances were not in its remit.
His lawyers argued in the judicial review application that the government’s failure to protect him from human trafficking for forced labour amounted to a breach of Article 4 and was a result of the lack of specific legislation against human trafficking for forced labour.
Mr Justice Kevin Zervos of the Court of First Instance in 2016 ruled in Zn’s favour, concluding he was a victim of forced labour and human trafficking. The judge also found the government had failed to fulfil its obligations under Article 4 to investigate the case and criminalise forced labour or human trafficking.
His ruling, however, was partly overturned last year by the Court of Appeal, which found that Zn was a victim of forced labour and that the government had breached its duty under the article to investigate a potential case but that it was not required to enact a specific offence.
On Tuesday, Raza Husain QC, for Zn, said the lower appellate court made a mistake by adopting “an overly narrow approach” towards a living instrument such as the Bill of Rights, which he said ought to be given a generous interpretation to protect the guaranteed rights.
In this case, the specialist in immigration law contended, the article included protection against actions leading up to forced labour, as seen in a section that reads “no one shall be required to perform forced or compulsory labour”.
Husain also argued that human trafficking was a modern-day slave trade, and called for a specific offence on top of the existing legislative framework on human trafficking, despite conceding it was of “adequate coverage”.
“You’ve got to have a bespoke offence,” Husain told the court. “The criminal law will act as a deterrent, [and] aid in prosecuting and punish an individual.”
But Lord Pannick QC, for the government, countered that harsh, exploited conditions of labour – as seen in this case – did not amount to slavery, and said the appellant’s interpretation of the article was not backed by any legal authority.
“Article 4 is concerned only with slavery, servitude and forced labour,” Pannick replied. “It is not concerned with the process, means in which the victim is brought to the position.”
His reply continues on Wednesday.
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