Criticisms of HK’s anti-human trafficking efforts are unfair and not substantiated

According to Joseph Nye, the soft power of a country rests primarily on three resources: its culture, its political values, and its foreign policies (Joseph Nye, Is the American Century Over? (Cambridge: Polity Press, 2015), p 59). 

Portraying itself as a defender of global human rights and pretending to promote human rights at home and abroad, the US has succeeded in making hypocritical efforts to compile a deceptive and self-serving annual Trafficking in Persons Report (TIPR) to make its culture and values attractive. 

Washington politicians understand that there is no better revelation of a country’s soul than the way in which it treats its marginalized migrant employees and vulnerable illegal workers. To enhance its soft power and command international respect, the US has unsurprisingly maintained its Tier-1 status in the TIPR 2022.

In spite of the tremendous efforts made by the Hong Kong Special Administrative Region government to combat modern slavery and human trafficking, Hong Kong was severely criticized by the US State Department in its TIPR 2022, released in July. 

In response, a spokesman for the HKSAR government said the inclusion of Hong Kong in the TIPR 2022’s Tier-2 Watch List was unfair and not substantiated by facts. Ironically, the Taiwan region, which has a troublesome TIP record, has been placed on Tier-1 in the TIPR 2022.

Portraying itself as a defender of global human rights and pretending to promote human rights at home and abroad, the US has succeeded in making hypocritical efforts to compile a deceptive and self-serving annual Trafficking in Persons Report (TIPR) to make its culture and values attractive

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Facts tell us that Hong Kong is neither a destination nor a transit point for human trafficking. Neither is it a place of origin for exporting illegal migrants. Unlike Hong Kong, Taiwan and some Southeast Asian countries have been implicated in numerous human trafficking cases. 

Some unscrupulous recruitment agencies in Taiwan have cheated thousands of job seekers into participating in the rampant telecom scam operations in Southeast Asia, wherein a human trafficking crisis has allegedly developed since 2020. 

As a self-proclaimed judge of human trafficking offenses, the US has an obligation to do justice. To arbitrarily apply its anti-human trafficking principles at discretion is to leave the international community without guiding principles.

Hong Kong addresses human trafficking through a “multiple legislation” approach, encompassing offenses such as physical abuse, false imprisonment, criminal intimidation, unlawful custody of personal valuables, forced prostitution, child abduction, child pornography, and exploitation of children and illegal employment. Some of the offenses attract penalties of up to life imprisonment. 

The city does not have specific anti-trafficking laws, but uses its Immigration Ordinance, Crimes Ordinance and other relevant laws to prohibit trafficking offenses. But this approach has violated the expectations of the US State Department.

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One of the TIPR’s recommendations is the enactment of legislation by the HKSAR government to criminalize all forms of trafficking in accordance with the definitions set forth in the 2000 UN TIP Protocol. We disagree. 

Hong Kong does not need to enact legislation similar to the UK’s Modern Slavery Act of 2015 because a piece of legislation on modern slavery in Hong Kong would be a mere consolidation of certain existing laws. The proposal by then-lawmakers Dennis Kwok Wing-hang and Kenneth Leung Kai-cheong to introduce a modern slavery bill in 2018 has raised a storm of controversy in the city.

The TIPR 2022 also criticized the screening mechanism of TIPs in Hong Kong. Although thousands of vulnerable people were screened, Hong Kong law enforcement agencies were criticized for identifying only one victim. In response, a spokesman for the HKSAR government said the very small number of victims identified thus far has once again reinforced the observation that trafficking in people is never a prevalent problem in Hong Kong.

To ensure the effective implementation of anti-TIP work, the HKSAR government established in March 2018 a high-level steering committee, chaired by the chief secretary for administration, with the secretary for security and secretary for labor and welfare as the vice-chairmen and relevant department heads as members. However, occupying its mind with the small number of identified TIP victims in Hong Kong, the US State Department has missed the forest for the trees. The TIPR has turned a blind eye to the efforts made by the steering committee to steer policy on actions against TIPs and protect foreign domestic helpers (FDHs).

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Besides, coverage of the initial screening of TIP victims has been fully extended since the end of 2019 to cover all cases involving people vulnerable to TIP risks. In 2021, the number of initial screenings was around 7,700, a threefold increase when compared with the number conducted in 2016, with only one victim identified. Training programs are provided for law enforcement agencies to improve their screening skills.

Another controversial issue is the rights of FDHs in Hong Kong. The “two-week rule” and the live-in requirement were unfairly targeted by the TIPR. The TIPR claimed the “two-week rule” and live-in requirement have increased workers’ vulnerability to exploitation by abusive employers and employment agencies.

The “two-week rule” was introduced in 1987. The rule stipulates that FDHs must leave Hong Kong within two weeks after the date of termination of employment. The rationale given by the secretary for security for imposing this rule was to prevent FDHs from job hopping. 

Some critics claim that this policy has given employers control over the immigration status of their helpers, which contributes to their unequal bargaining power. It also makes FDHs vulnerable to abuse because a helper would be reluctant to complain for fear of being dismissed from their employment.

Contrary to the above allegations, the “two-week rule” has not unfairly strengthened the bargaining power of employers at the expense of FDHs. What matters most is the rule of demand and supply in the job market. 

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In fact, job hopping has re-emerged as a serious problem in the past two years, probably because of the temporary suspension of the “two-week rule” as a result of the outbreak of the COVID-19 pandemic. 

The Labour Department has published guidebooks in several languages that explain the rights of FDHs, the role of employment agencies, and services provided by the government. The Action Plan to Tackle Trafficking in Persons and to Enhance Protection of Foreign Domestic Helpers in Hong Kong underlines the HKSAR government’s determination to enhance protection of FDHs working in Hong Kong.

Concerning the controversy over the live-in requirement, the Court of Final Appeal in Vallejos vs Commissioner of Registration (FACV 19 & 20/2012) makes it clear that the restrictions on FDHs’ residence means that they do not fall within the definition of “ordinarily resident” for immigration purpose. FDHs do not come within the meaning of “ordinarily resident” as used in Article 24(2)(4) of the Basic Law. There is also no evidence to support the allegation that employers have forced their FDHs to prolong their working hours because of the live-in requirement. We are confident that the law enforcement agencies will try their best to protect the rights of FDHs.

Junius Ho Kwan-yiu is a Legislative Council member and a solicitor.

Kacee Ting Wong is a barrister, a part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center, and co-founder of the Together We Can and Hong Kong Coalition.