The ZN Case: one man takes on the system

AUTHOR: ELISE MILROY, WALK FREE INTERN FROM THE UNIVERSITY OF WESTERN AUSTRALIA

Hong Kong is one of the few countries where human trafficking is still not criminalised. One man known as “Zn”, is courageously taking on the Hong Kong authorities, attempting to change these laws.

Hong Kong is well known as a destination and transit hub for traffickers throughout the Asia-Pacific region, where many victims are exploited for labour.  The Global Slavery Index 2018 estimates approximately 10,000 victims in modern slavery on any given day in 2016, although these figures are considered conservative due to data gaps in the East Asia region. Research by the Justice Centre indicates that 1 in 6 migrant domestic workers are in forced labour in Hong Kong, and 14% were trafficked into it.  Hong Kong was placed on Tier 2 of the US State Department’s Watchlist for in the 2018 Trafficking of the Person Report for the third time this year, indicating the governments do not comply with minimum standards.

Zn, originally from Pakistan, was trafficked to work in Hong Kong under the false guise of being a validly employed foreign domestic helper in 2007. Instead, he was forced to live and work in his employer’s shop. He worked tirelessly for several years without pay. He was threatened, beaten, his freedom was restricted and his passport was taken. After four years, Zn’s employer deceptively convinced him to return to Pakistan and ended his sponsorship so that Zn could not return to Hong Kong to claim his unpaid wages.

Zn ad his family were exposed to force and threats of violence if he pursued the matter. Zn told reporters “these are very powerful people” referring to his employer’s family.  Later, when he did eventually return to Hong Kong, he was subjected to threats and violence again. He went to three different authorities and was turned away each time. No one pursued it as a human trafficking case.

Human trafficking is defined in Article 3 of the Palermo Protocol to mean “the recruitment, transfer, harbouring or receipt of persons, by the means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.”  Three key elements must be present for a human trafficking case to be identified – being the “act” (what is done), “means” (how it is done) and “purpose” (why it is done). Hong Kong is not a signatory to the Palermo Protocol, but the Government has indicated that it accepts this definition.

Article 4 of the Hong Kong Bill of Rights does provide that no one shall be held in slavery, servitude or required to perform forced or compulsory labour.  Human trafficking for the purpose of sexual exploitation into Hong Kong is criminalised (but missing the “means” requirement) but trafficking more broadly is not criminalised.  The Hong Kong government argues that conduct known as human trafficking is covered by a number of existing local laws, including physical abuse, false imprisonment and criminal intimidation. In a statement provided to CNN, the government states that “notwithstanding the rare occurrence of trafficking in persons (TIP) in Hong Kong, Hong Kong attaches great importance to combating human trafficking. We have a package of well-established legislative and administrative measures to combat TIP.”

The ZN case brought against the Hong Kong Government was that it hadn’t carried out its obligations under the Bill of Rights, by not having procedures in place to prevent and address cases involving human trafficking. Zn’s counsel argued that there should be a new law put in place that specifically criminalises human trafficking. A High Court judge ruled in Zn’s favour in 2016.

The government appealed. In August 2018 the High Court ruled in the government’s favour. The court urged the government to address the lack of investigation into potential forced labour cases. However, it also ruled that the Bill of Rights does not cover human trafficking or place a duty to on the government to create a specific offence for the crime. Instead, better training and education of officers was encouraged.

Meanwhile, legislative council member Dennis Kwok has submitted a Modern Slavery Bill for Hong Kong for consideration. The draft bill follows closely the UK Modern Slavery Act model, and proposes (amongst other things) new criminal offences and civil causes of action for human trafficking and slavery. The draft bill was discussed on 5 June 2018, and the Government indicated it does not support the draft bill.  It is understood Dennis Kwok will continue to table the bill for debate in the Legislative Council, but it seems unlikely it will be passed into law in the immediate future.

The Zn Case, the draft Modern Slavery Bill, the downgraded government response ranking of “CC” in the latest GSI 2018 and continued TIP Tier 2 Watchlist status are just a few examples of growing pressure upon the Hong Kong Government, but it remains resistant to change.

National action plans are also under scrutiny, with growing concerns about its implementation.  Hong Kong has also failed to ratify the ILO Domestic Workers Convention 2011, despite the significant number of domestic helpers in Hong Kong and reports of exploitation.

While this issue is definitely on the radar of the Hong Kong Government, continued strategic and well consulted efforts are needed to strive to protect individuals such as Zn, and the thousands of others victims, currently hidden out of sight.