2017 Trafficking in Persons Report - Hong Kong

HONG KONG: TIER 2 WATCH LIST

The Government of Hong Kong does not fully meet the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. The government demonstrated significant efforts during the reporting period by implementing new victim identification guidelines and increasing screenings of vulnerable individuals to identify more potential trafficking victims. The government penalized some unscrupulous employment agencies and adopted legislation that will add the possibility of prison sentences for operators of such agencies. The government established guidelines on whole-of-government anti-trafficking procedures, investigated more trafficking cases, granted some victims visa fee waivers to encourage their assistance in legal proceedings, and took steps to increase awareness of the rights of foreign domestic workers and responsibilities of their employers. However, the government did not demonstrate increasing efforts compared to the previous reporting period. The government prosecuted only five cases of labor exploitation with indicators of trafficking, and Hong Kong's laws do not criminalize all forms of trafficking, resulting in cases of forced labor being prosecuted under lesser crimes with sentences insufficiently stringent to deter trafficking crimes; only three offenders convicted for trafficking-related crimes received prison sentences over a year. The government identified a relatively low number of victims compared to the known scale of the problem and charged unidentified victims with crimes committed as a direct result of being subjected to human trafficking. The government did not adequately address its policies creating vulnerabilities for foreign domestic workers or conduct public awareness campaigns targeted at preventing sex trafficking. Therefore, Hong Kong remained on Tier 2 Watch List for the second consecutive year.

RECOMMENDATIONS FOR HONG KONG

Enact a comprehensive anti-trafficking law that criminalizes all forms of trafficking, including sex trafficking and forced labor without trans-border movement, in accordance with the definitions set forth in the 2000 UN TIP Protocol; increase efforts to proactively identify sex and labor trafficking victims among vulnerable populations such as mainland Chinese and foreign migrants, domestic workers, and women and children in prostitution and refer them to protection services; cease penalization of victims for non-violent crimes committed as a result of being subjected to trafficking; vigorously prosecute suspected labor traffickers and recruiters, especially those who exploit foreign domestic workers; increase legal protections for populations vulnerable to trafficking; enforce new penalties to penalize employment agencies that charge excessive fees to vulnerable populations, particularly foreign domestic workers; increase protective services available specifically for trafficking victims; increase efforts to consult with civil society on anti-trafficking policies; make labor tribunals more effective through improved translation services, better access to counsel, and anti-trafficking training for judges; grant foreign victims permission to work and study while participating in judicial proceedings against their traffickers; remove requirements that foreign domestic workers must depart Hong Kong within two weeks of quitting or being let go from their positions to renew their visas; expand existing guidelines or adopt an anti-trafficking action plan with resources committed to implementation; provide legal alternatives to foreign victims who may face hardship or retribution in their home countries; and increase public awareness campaigns and trainings to educate police, labor inspectors, prosecutors, judges, and the public on human trafficking as defined by international standards.

PROSECUTION

The government maintained anti-trafficking law enforcement efforts. Hong Kong law does not criminalize all forms of human trafficking for example, it does not include forced labor and the government relies on various provisions of laws relating to prostitution, immigration, employment, and physical abuse to prosecute trafficking in persons crimes. Section 129 of the crimes ordinance, which criminalizes "trafficking in persons to or from Hong Kong," requires transnational movement and does not require the use of force, fraud, or coercion, and is therefore inconsistent with the 2000 UN TIP Protocol. Section 129 prescribes penalties of up to 10 years imprisonment, which is sufficiently stringent and commensurate with punishments prescribed for other serious crimes, such as rape. Section 130 of the crimes ordinance criminalizes the harboring, controlling, or directing of a person for the purpose of prostitution and prescribes penalties of up to 14 years imprisonment. Section 131 criminalizes procuring a person to engage in commercial sex acts and prescribes penalties of up to 10 years imprisonment. The government amended the prosecution code an administrative handbook to guide prosecutors in building criminal cases in 2013 to include the 2000 UN TIP Protocol's definition of trafficking; the security bureau, which is responsible for coordinating and implementing the government's overall anti-trafficking efforts, adopted the same definition at the working level in 2016. There was no parallel change in the criminal laws, however, and trafficking investigations and criminal prosecutions of trafficking-related crimes remained low compared to the scope of the problem. In December 2016, the Hong Kong Court of First Instance ruled that the government was required to increase victim protections, expand procedures to prosecute traffickers, and expand existing trafficking laws, including by enacting a comprehensive anti-trafficking law.

The government reported investigating 15 cases with elements of trafficking (six in 2015), initiating prosecutions of seven employers of exploited foreign domestic workers and five alleged sex trafficking suspects (17 prosecutions in 2015), and obtaining convictions of 32 offenders under various statutes (eight in 2015) in 2016. The government reported obtaining convictions of five employers of foreign domestic workers for crimes such as assault and inflicting bodily harm but it was unclear if these cases included the elements of human trafficking consistent with the international definition. Courts sentenced one of these employers to eight months imprisonment and a fine of 40,000 Hong Kong dollar (HKD) ($5,160), and others were sentenced to probation or fines. The government reported obtaining 28 convictions on offenses related to sex trafficking, including sections 129, 130, and 131 of the crimes ordinance. The government reported 18 offenders received immediate custodial sentences, and reported sentencing only three to prison terms exceeding one year. Prosecutors sometimes used victims' receipt of unlawfully low wages or their acceptance to work outside of their contracts under duress as evidence that victims violated their immigration status, instead of as evidence of abuse and prosecuted victims for immigration violations. While victims could go to labor tribunals to attempt to claim back wages, poor translation services, lack of trained defense attorneys, the inability to work while awaiting a decision, and judges' inexperience with forced labor cases sometimes impaired victims attempts at restitution; the cases of two exploited domestic workers identified in 2016 were settled in labor tribunals, but it was unclear if the victims received compensation from their employers. In an effort to improve the efficacy of labor tribunals, the government increased the number of available translators and provided victims with the right to counsel.

Authorities trained approximately 1,000 police, immigration, labor, justice, and customs officials on human trafficking awareness, victim identification, and the investigation of trafficking cases. The labor department introduced a training module on labor laws protecting against child labor and exploitation of foreign domestic workers for new employees. The immigration department's victim identification training was incorporated into training courses for new employees at all law enforcement agencies, and the customs and excise department added a training requirement for new employees covering international human trafficking trends and analysis. Authorities did not report any investigations, prosecutions, or convictions of government officials complicit in trafficking offenses.

PROTECTION

The government maintained efforts to protect victims. In 2016, authorities identified 36 trafficking victims (16 in 2015), including 16 victims of sex trafficking and 20 victims of labor exploitation (11 sex and two labor trafficking victims in 2015). Although the government had a policy to refer all identified victims to services, it was unclear what specific services were provided to victims identified during the reporting period. In July 2016, the government introduced a new victim identification and referral mechanism for police and immigration officials to screen vulnerable populations and refer potential victims to services. The government also expanded the scope of vulnerable persons to be screened to include foreign domestic workers, legal and illegal migrant workers, as well as recognizance form holders (generally refugees, asylum, and torture claimants). After a pilot period, the police, immigration, and customs departments fully implemented the identification and referral mechanism, and labor officials initiated a pilot of the mechanism before the end of the reporting period. The government conducted 9,099 screenings of vulnerable individuals, compared to 7,133 screenings in 2015. The government developed an "aide memoire" outlining a whole-of-government anti-trafficking strategy and issued guidelines for inter-departmental cooperation for the handling of trafficking cases. The government subsidized six NGO-run shelters, and operated three government-owned shelters to serve victims of violence, abuse, or exploitation, including trafficking victims. These shelters provided temporary accommodation, counseling, and access to public hospital medical and psychological services to local and foreign victims, regardless of gender or age. Some government-funded shelters were specifically equipped to provide services and protection to child victims. Government-subsidized centers operated 24-hour hotlines, which were available for trafficking victims to receive crisis support counseling and assistance with referral to authorities or services. Local NGOs praised existing government services but reported concern authorities did not consult civil society when developing new identification guidelines and reported a need for more consistency in victim identification across the government.

Economic barriers to reporting and victims' fears of being penalized for low-level immigration violations discouraged victims from self-identifying, seeking assistance, or leaving employment where they suffered exploitation. For example, the government's policy of requiring foreign domestic workers to return home within two weeks and renew their visa in order to work for a new employer in Hong Kong deterred trafficking victims from leaving exploitative employment as it imposed a prohibitive cost on changing their employer. The government reported a new policy allowing exploited foreign domestic workers to pursue new employment visas without having to leave the country in criminal, civil, and administrative cases; the government granted this approval to 22 workers in 2016. In response to concerns over the safety of domestic workers, the government banned employers from requiring them to clean outside high-rise windows and added worker safety clauses to standard employment contracts. The government encouraged victims to participate in the investigation and prosecution of traffickers, including by offering financial assistance to victims residing overseas to enable them to return to Hong Kong as witnesses and establishing a policy to offer visa fee waivers to trafficking victims, as well as foreign domestic workers determined to be victims of illegal conduct; the government granted 130 visa fee waivers in 2016. This allowed some trafficking victims to work during pending prosecutions; however, the government did not have a statutory policy allowing all victims to work while participating in trials that were sometimes lengthy, which deterred victims from cooperating with authorities or leaving exploitative employment. As a result, many victims opted to repatriate immediately or were deported. The government's new guidelines state that victims should not be prosecuted for crimes committed as a direct result of being subjected to trafficking. However, NGOs and victims reported the government sometimes prosecuted unidentified victims for crimes committed as a direct result of being subjected to human trafficking, such as violating their labor contracts, using forged identity documents given to them by recruitment agencies or employers, prostitution, drug trafficking, and immigration violations, and that victims often pled guilty to these charges to facilitate expeditious deportation. For example, one victim forced to carry drugs into Hong Kong was sentenced to 25 years imprisonment on drug trafficking charges, according to court records. The government's public defender service collaborated with an NGO to provide training to defense lawyers to assist in the identification of victims not previously identified by front-line personnel. Hong Kong does not allow trafficking victims who are foreign domestic workers to receive permanent residency status for cases in which repatriation may constitute a risk of hardship or retribution in the victim's home country; other victims of trafficking may be eligible to receive permanent residency status depending on their visa status upon entry to Hong Kong.

PREVENTION

The government maintained efforts to prevent trafficking; however, the government did not fully mitigate the vulnerabilities facing foreign domestic workers or conduct campaigns to raise awareness of or prevent sex trafficking. An interdepartmental working group led by the security bureau, established in 2010 and expanded in 2016 to include the police, immigration, customs and excise, labor, and social welfare departments, continued to meet. The government began drafting a national action plan to combat trafficking in 2013, but still had not announced the formal adoption or implementation of the plan by the close of the reporting period. The government reported funding NGOs that operated hotlines available to assist trafficking victims. The government increased efforts to improve both the public's and workers' awareness of the rights of foreign domestic workers and the responsibilities of employers including by publishing simplified information leaflets that it required employment agencies to distribute; developing separate web information portals for employers and employees in multiple languages; erecting electronic workers' rights information kiosks in public areas; working with the Philippine and Indonesian consulates in Hong Kong to provide information briefings to newly arriving domestic workers regarding their rights; and publishing translated versions of standard employment contracts in additional foreign languages. The government continued placing advertisements in newspapers, distributing information packets and screening videos on employment rights in popular gathering areas for foreign domestic workers, and distributing anti-trafficking pamphlets in five languages to foreign domestic workers at the airport, through their consulates, and in Filipino and Indonesian language newspaper advertisements. NGOs reported employment agencies and employers often seized these packets.

NGOs reported fines and penalties for employment agencies exploiting foreign domestic workers were too light and did not act as a deterrent for unscrupulous agencies. In February 2017, the government introduced legislation that will increase the penalties for operating an employment agency without a license or overcharging workers to include up to three years imprisonment and increase potential fines from no more than 50,000 HKD ($6,450) to 350,000 HKD ($45,130). The government increased regular and unscheduled labor inspections of employment agencies in 2016 to 1,800, compared to 1,300 in 2015. The government began to require employment agencies to comply with a newly instituted "code of practice" covering statutory requirements and standards for Hong Kong-based employment agencies. In 2016, the government reported convicting five employment agencies for charging workers excessive fees, and three for unlicensed operations. The commissioner for labor revoked the licenses of five additional employment agencies on suspicion of overcharging foreign domestic workers. Despite praising the government's efforts to prosecute some unscrupulous employment agencies, NGOs encouraged the government to increase efforts to improve inspections to better identify errant agencies and further prevent exploitation of vulnerable domestic workers. The government reported efforts to reduce the demand for commercial sex and forced labor. The government did not provide anti-trafficking training to its officials posted overseas.

TRAFFICKING PROFILE

As reported over the past five years, Hong Kong is primarily a destination, transit, and to a much lesser extent, a source territory for men, women, and children subjected to forced labor and sex trafficking. Victims include citizens from mainland

China, Indonesia, the Philippines, Thailand, and other Southeast Asian countries as well as countries in South Asia, Africa, and South America. Approximately 351,000 foreign domestic workers, primarily from Indonesia and the Philippines, work in Hong Kong; some become victims of forced labor in the private homes in which they are employed. An NGO report released in 2016 estimated as many as one in six foreign domestic workers is a victim of labor exploitation. Employment agencies generally charge job placement fees in excess of legal limits, which may lead to situations of debt bondage of workers in Hong Kong. The accumulated debts sometimes amount to up to 80 percent of workers' salaries for the first seven to eight months of employment. A 2013 survey found 58 percent of the more than 3,000 workers surveyed experienced verbal abuse in the home, 18 percent physical abuse, and six percent sexual abuse. Some workers are unwilling to report abusive employers for fear of losing their jobs and being unable to repay their debts; some employers or employment agencies illegally withhold passports, employment contracts, or other possessions until the debt is paid. Domestic workers have also reported working 17-hour days, receiving less than minimum wage, experiencing physical or verbal abuse and confinement in the employer's home, and not receiving a legally required weekly day off. A government policy, mandating foreign domestic workers depart Hong Kong within two weeks of quitting or losing their job, discourages domestic workers from seeking assistance. Some foreign domestic workers sign contracts to work in Hong Kong, but upon arrival are sent to work in mainland China or the Middle East. Separately, criminal syndicates or acquaintances sometimes lure women to Hong Kong from the Philippines, South America, and mainland China using false promises of lucrative employment and subsequently force them into prostitution to repay money owed for passage to Hong Kong. Traffickers sometimes psychologically coerce sex trafficking victims by threatening to reveal photos or recordings of the victims' sexual encounters to their families. "Compensated dating" continues to facilitate commercial sexual exploitation of Hong Kong children and make them vulnerable to trafficking.