Victim loses legal fight for forced labour offence

The Court of Final Appeal ruled on Friday that the government is not obliged to specifically criminalise forced labour. Image: Shutterstock

Richard Pyne reports

A man who was trafficked to Hong Kong, beaten and treated as a slave has lost his Court of Final Appeal (CFA) bid to compel the SAR government to make forced labour a specific criminal offence.



The Pakistani national, referred to as “ZN” in court, was brought to Hong Kong to work as a foreign domestic helper between 2007 and 2010.



The court heard that during that time, he was badly mistreated by his employer – beaten, held in a small office, and made to work long hours without pay. The employer also threatened him with serious harm if he tried to leave.



ZN was tricked into returning to Pakistan in 2010, but returned to Hong Kong two years later where he made multiple reports about his plight to the Immigration Department, the police, and the Labour Department.



While a claim for unpaid wages was registered, there was no investigation into his complaints about being a victim of human trafficking for forced labour.



ZN applied for a judicial review into the government's failure to protect his rights under Article 4 of the Bill of Rights – which says “no one shall be held in slavery; slavery and the slave trade in all their forms shall be prohibited.” The article also says no one shall be held in servitude, and no one shall be required to perform forced or compulsory labour.



He won his case at the Court of First Instance, which ruled that the government does have an obligation to outlaw forced labour, including human trafficking for that purpose.



However, the Court of Appeal later ruled that the government doesn't have an obligation to specifically criminalise forced labour.



On Friday, the city's top court also came to the same conclusion, ruling that Article 4 of the Bill of Rights does not prohibit human trafficking generally for the purposes of exploitation, or for the purposes of servitude and forced or compulsory labour. It said to expand the meaning of the article would be to ignore its language and alter its underlying concepts.



The CFA added that the government has wide discretion as to how it complies with its obligations under the Bill of Rights and there is no absolute duty on the government to maintain a specific offence criminalising forced or compulsory labour.



Responding to the ruling, "ZN" said that no one should be treated like he was. He said that although he was deeply thankful that the courts acknowledged his suffering, victims will continue to suffer in the shadows if the government delays bringing in effective protections.



His solicitor, Patricia Ho, said the court had affirmed that the government has a duty to ensure effective protection for those at risk, and leaves open the need for specific legislation in the future. She said the court recognised the government's treatment of her client was a disgrace and the government must ensure that nothing like that can happen again.



Ho said it was past time for Hong Kong to criminalise human trafficking and forced labour, adding that without a specific criminal offence, law enforcement won't have the tools they need to fix the problem.



She called on the government to "step up against the iniquity that is human trafficking", saying it is time to take urgent and meaningful action to protect victims of human trafficking and forced labour, and to ensure that criminals are brought to justice.