Despite Government protestations to the contrary, our city has a major issue with human trafficking and lacks effective legislation to tackle it, writes Boase Cohen & Collins Consultant Melville Boase.
Hong Kong, 17 August 2017: In recent days we have read the distressing story of Lorain Asuncion, a 28-year-old Filipino domestic helper who fell to her death from the seventh floor of an apartment building in Shenzhen last month. It was reported she had been sent across the border by her Hong Kong employers to work which, if true, would be a breach of her employment contract. Police are investigating and the Immigration Department has classified it as a “suspected case of human trafficking”.
Sadly, it is not an isolated case. Rights groups including the Mission for Migrant Workers, for whom I have acted as Treasurer since 1981, and HELP for Domestic Workers, plus the Philippine Consulate General in Hong Kong have, between them, received numerous complaints and enquiries from helpers who have been sent to work in China.
It is safe to say, also, that for every helper who does make a complaint, there are many who keep quiet and comply with their employer’s demands. Why? Not only do they fear having their contract terminated, the Immigration Department has a formidable track record in prosecuting workers, rather than employers, for breaching the terms of their contract.
However, Hong Kong’s draconian laws regarding the hiring of domestic helpers, and the terms and conditions under which they must work, are only part of a much deeper problem of human trafficking which our Government has done little to tackle. A petition co-ordinated by the Hong Kong Anti-Trafficking Concern Group, delivered to Chief Executive Carrie Lam and her Government last month, spelt out the situation:
“Our home has become a source, destination and transit point for the sex trafficking, forced labour and forced marriage of men, women and children. Both local and migrant, adult and child victims are deceived, forced or coerced into prostitution in brothels in Tsim Sha Tsui, Mongkok, Wanchai and Yuen Long. Others are trapped in homes where they were told they were to perform domestic work, but end up sleeping less than four hours a day, never having days off, having to eat scraps from bins, and are verbally, physically or even sexually abused by both their employers or their ‘agents’. Still more are trapped to work in back kitchens of restaurants, hostels and construction sites. Many of them are paid below the legal minimum wage or not at all.”
The petition – signed by a cross-section of NGOs, concern groups, individual legal professionals and law firms, including Boase Cohen & Collins – pointed to Hong Kong’s lack of effective legislation and called on the Government to take immediate steps to criminalise human trafficking in all forms.
On the world stage, Hong Kong has an unhealthy reputation. Last year, our city was downgraded to the Tier 2-Watch List on the US State Department’s annual Trafficking in Persons Report – leaving us banded with the likes of Uzbekistan, Niger and Afghanistan, and just one rank above the world’s worst human trafficking offenders. Hong Kong remains on the watch list in the recently-released 2017 report, with Washington saying the Government has failed to provide evidence that it has increased efforts to prosecute traffickers or identify victims.
And it is not just the US State Department that is taking aim at Hong Kong. The 2016 Global Slavery Index, which provides a country by country estimate of the number of people living in modern slavery, reports that 29,500 people in Hong Kong are enslaved. Further, in its 10-tier ranking system that measures a Government’s efforts to combat modern slavery, it gives Hong Kong a “C” – the ninth tier – describing regulations here as “inadequate”.
Our Government, of course, rejects such criticism. Two months ago, the Under Secretary for Security John Lee – who subsequently became Secretary for Security on 1 July – told the Legislative Council that human-trafficking was not prevalent or widespread in Hong Kong, although the Government still attached great importance to the problem.
Permanent Secretary for Security Marion Lai reiterated that stance last month when opening a Government anti-trafficking workshop. “Our work is multifaceted, covering inter-departmental collaboration, victim identification, enforcement and prosecution, victim protection and assistance as well as partnership,” she said.
This is all very laudable, but I am reminded of the comment in passing of a former Attorney-General of Hong Kong before the Handover, who said: “There are two types of law in Hong Kong, that on the books and that which applies.” He had a point. When it comes to overseas workers, there are laws on the statute but they are not enforced.
When an overseas worker comes to Hong Kong, he or she must sign an undertaking they will not work for less than the stipulated wages or perform duties outside those specified in the contract. To the uninitiated, this sounds good. But, if a worker complains that he or she is underpaid or required to do different work, the Immigration Department sees it as evidence of breach of the worker’s undertakings, so they are prosecuted for making a false statement to an Immigration Officer. The usual sentence is a term of imprisonment.
We have too many cases where workers from overseas are duped into signing contracts but find there is no job for them when they arrive in Hong Kong. There was a case brought to court in 2014 when a woman describing herself as an agency induced 19 victims to pay her fees for contracts for jobs in Hong Kong. When they arrived, no jobs existed. They were penniless here, with no money to go home. To those of us in the normal world, this would seem an obvious fraud. The Immigration Department, however, took a different view. It alleged, and the court agreed, that these were bogus contracts and the victims had entered Hong Kong illegally. The usual sentence of 15 months imprisonment was imposed on the victims.
It was reported that the recruiter made over HK$1 million from the operation. In this case, the Immigration Department did also prosecute the recruiter – but the victims never got their money back.
I have dealt with two cases of large scale importation of workers for cheap wages. In one, 24 workers were brought here and put to work in a garment sweat shop. They were housed in a small flat with beds for half of them – half resting whilst the other half worked. One escaped and went to his consulate, who referred him to the Immigration Department, which raided the flat and workshop. Initially the workers were charged with breach of condition of stay. We applied for legal aid, which was refused at first on the grounds that the workers had consented to come to Hong Kong for low pay. On appeal, the High Court Master reversed that decision, and the Immigration Department was then persuaded to prosecute the employer.
In the second case, over 40 workers were brought into Hong Kong. They were paid half the amount in the contract approved by the Immigration Department. When one complained, the Immigration Department carried out a raid and the position was revealed, although only 24 of the workers were still in Hong Kong. However, to protect the employer, 12 of the workers were prosecuted for conspiring with the employer’s manager to make a false statement to obtain the visas to come here. The manager was convicted. On a simple calculation, the employer had profited by over HK$3 million from the cheap labour. Of course, he got away scot free.
The United Nations’ Migration for Employment Convention, revised in 1949, stipulates a worker must be given the terms and conditions of employment before they leave their home country and that the host Government has a duty to ensure those conditions are enforced.
Hong Kong is a signatory to this convention yet our Government’s approach to it is illustrated by a landmark case which came before the Court of Appeal in 2010. This involved eight Filipino engineers who had brought a civil action against a Hong Kong technology company and one of its employees who had recruited them to work here. It emerged that each worker had signed two contracts – one for the Immigration Department, stipulating a higher salary to increase the likelihood of a visa being granted, and one for a lower salary which is what, in fact, they were paid.
In dismissing the workers’ claim for damages, the judges ruled that the first contracts were bogus and the Immigration Department had been duped. In fact, I would strongly submit that the Immigration Department – responsible, according to the convention, for setting the wages and conditions for employment and ensuring these are enforced – had simply not done its job. There was no mention of this in the judgment.
As for domestic helpers, there remain fundamental issues regarding their rights which the Government has failed to address despite years of criticism. These include: the requirement for helpers to live with their employer, which invariably leads to friction and overwork; the Immigration Department’s practice of prosecuting helpers for breach of condition of stay if they report they are required to work beyond the terms of their contract; and the “two weeks rule” which requires helpers to leave Hong Kong within a fortnight of termination of their employment for whatever reason, leaving them in an almost impossible situation should they wish to pursue a claim against their employer.
Amid all these rather depressing facts, there is hope. Legislative Councillor Dennis Kwok, who represents the legal sector, is stepping up pressure to enact new laws against human trafficking and forced labour and says he will introduce a bill himself if the Government fails to act. He believes, with some justification, this should be supported by LegCo members of all political persuasions.
Let us hope so, because action from LegCo is long overdue and, if fruitful, would provide migrant workers here with much-needed guarantees and safeguards. Of course, this would be too late for Lorain Asuncion, whose grieving family are entitled to ask pertinent questions about a system which, it would appear, failed to protect her.