Law Faculty, Chinese University of Hong Kong
April 13, 2016
(As Prepared For Delivery)
Thank you, Professor Gane, distinguished members of the faculty, staff, and students. It’s a pleasure to be with such a talented group of legal scholars and soon-to-be lawyers from the Chinese University of Hong Kong.
Hong Kong is special for many reasons, perhaps none more so than its longstanding common law legal tradition. Each of you has chosen to join an honorable and vital profession and will help to carry on the rule of law traditions that have made Hong Kong what it is today. The law has been a prerequisite for Hong Kong’s success and over the years has improved the lives of Hong Kongers and those who visit and work here.
But of course we can always do more, and today I would like to offer my thoughts on how we can do more on one very important issue. During my three years here in Hong Kong, I have frequently spoken on the need to combat the use of force, fraud, deception and coercion to exploit people’s labor. The experts often call this human trafficking.
I prefer to call it by a simpler term: modern slavery. When a man, desperate for work, finds himself in a factory or on a fishing boat or in a field, working, toiling, for little or no pay, and beaten if he tries to escape — that is slavery. When a woman is locked in a sweatshop or trapped in a home as a domestic servant without access to her passport, alone and in never-ending debt to her employer or employment agency — that’s slavery. When a little girl is sold by her impoverished family, runs away from home, or is lured by the false promises of a better life, and then imprisoned in a brothel and tortured if she resists, raped multiple times a day — that is slavery.
Globalization has broken down barriers to trade and fueled a rising tide of prosperity across Asia and around the world. Here at one of the world’s great trading centers, we know that perhaps better than anywhere else. No place symbolizes the growth, integration, and promise of Asia like Hong Kong. But that same openness and interconnectedness has a dark side that we must also acknowledge. The ease of transportation and the promise of prosperity elsewhere is increasingly being exploited by criminals to take advantage of people seeking a better life — often migrants traveling between countries, but not necessarily. While moving between countries is often a part of these crimes, this kind of exploitation can and does occur without a victim ever crossing borders. These crimes are a growing reality that society must face, just as we confront drug smuggling, violence, and organized crime.
The United States is no exception. We see these problems in our own country. The organized exploitation, frequently of migrant workers and of minors, is a vexing problem that our law enforcement professionals are increasingly confronting. We are not perfect, and we are trying to improve.
Our Congress in 2000 passed the Trafficking Victims Protection Act, spurring intensified action by our federal government. Since then, we have bolstered protections for victims of exploitation, improved coordination among our law enforcement agencies, and sought to enlist the help of other governments around the world in these efforts.
Sadly, these problems also occur here in Hong Kong. Many of you are likely familiar with the story of Erwiana, a young Indonesian domestic worker who faced shocking abuses at the hands of her employer. Hers may be an extreme case, but the exploitative practices involved are not unique, and there is data to prove it.
A recent research study by the Justice Centre, an independent Hong Kong-based NGO, found troubling evidence of exploitative labor practices here in Hong Kong among the workers who come to this city seeking a better life. There are nearly 340,000 domestic workers in Hong Kong, most hailing from Indonesia and the Philippines. Of those, the study estimates that some 7,000 are victims of human trafficking. Many more face other forms of exploitation, perhaps less severe and yet still alarming. Amnesty International and dozens of organizations working with victims attest to the reality of the problem. Yes, it is real. Yes, it happens, even here in Hong Kong.
Our response to this problem will need to involve reforms to Hong Kong’s law. The good news is that the Special Administrative Region already has a strong start. The Hong Kong Bill of Rights Ordinance incorporates the International Covenant on Civil and Political Rights. That document calls for all signatories—including Hong Kong—to outlaw slavery in all its forms. That is a worthy goal that Hong Kong has committed to. But if you look to Hong Kong’s Criminal Code, you will find something curious. The closest thing that Hong Kong has to a criminal law outlawing slavery is section 129 of the criminal code. Section 129 defines the crime of human trafficking as “bringing another person into, or taking another person out of, Hong Kong for the purpose of prostitution.” This outlaws one form of the crime, certainly.
But it leaves out many others. It means that a person brought from abroad to be exploited for any other purpose besides prostitution is not recognized as a victim of trafficking. It means that a criminal organization bringing workers to Hong Kong for the purpose of labor exploitation is not guilty of the crime of trafficking. And this definition requires that the victim cross a border before it can be defined as human trafficking. In fact, the United Nations and the most current national laws from around the world define trafficking as follows: the act of recruitment, transportation, transfer, harboring, or receipt of persons by improper means (such as force, abduction, fraud, or coercion) for an improper purpose including forced labor or sexual exploitation.
It is vital to note that crossing a border is not a precondition of trafficking by these contemporary views. These are crimes of exploitation, not movement; someone can be deceived and trafficked into slavery without ever leaving the SAR.
Hong Kong’s law on human trafficking dates from 1997. Since that time, international understanding and standards on fighting these crimes have been continuously evolving. The United Nations adopted the Palermo Protocol back in 2000, reflecting consensus about best practices for combating these crimes. The Palermo Protocol states that common definition for these crimes that I just described. The United States reformed its policies that same year. Since then, the vast majority of advanced economies have adapted their laws and policies to tackle this problem. There has been lively debate, lessons learned, and partnerships forged.
It is time that Hong Kong assumed its rightful place as a regional leader on this issue. Hong Kong’s 1997 law on human trafficking is outdated. It is time for new legislation to update the criminal code and bring Hong Kong’s standards on human trafficking in line with international best practices. Hong Kong needs a comprehensive anti-trafficking law that prohibits all forms of trafficking in accordance with the definitions set forth in the UN’s Palermo Protocol. The revised law should recognize labor trafficking for any purpose as a crime and make clear that victims do not necessarily need to cross borders to be exploited. Passing legislation is often arduous. It is even more difficult in today’s polarized political climate in Hong Kong. But it is the right thing to do.
It is also time for a coordinated plan of action on the part of the Hong Kong Government to combat trafficking. Hong Kong has some of the world’s most capable and incorruptible civil servants, social workers, and law enforcement professionals. Their efforts should be marshalled under a coordinated and publicly enunciated strategy to prevent these crimes, protect victims, and prosecute criminals.
And it is time to redouble the Government’s implementation of its existing laws and to place identification of and care for victims at the heart of the approach. The Hong Kong Government should take the initiative in identifying sex and labor trafficking victims and refer them to available services.
Hong Kong should also vigorously prosecute suspected labor traffickers.
Already, there have been positive steps in this direction by the Department of Justice. But there is more to be done. Hong Kong can do these things.
I spoke quite a bit today about law, but as we know, it is the lawyers of Hong Kong and the implementation of this law which will matter most. Hong Kong barristers and solicitors are spearheading this effort by working for the public interest, by engaging their firms, by volunteering their time. It is not always the easiest path, or the one that yields the biggest paychecks. But that work is among the most promising today in delivering results, on this and other issues. And it is work that at the end of your careers, you will be able to look back on with pride for having made a difference in reducing misery in the world.
The strength of Hong Kong’s legal tradition is one of the things that sets this place apart. The law matters here. And that is why it is so important that we get it right.