ccording to Article 3(a) of the “Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime” (Palermo Protocol), trafficking in persons (TIP) is defined as –
“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the 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 of 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, which shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs .”
Although there is no sign that Hong Kong is being actively used by syndicates as a destination or transit point for TIP, or that TIP is a prevalent or widespread problem in Hong Kong, the Hong Kong Special Administrative Region (HKSAR) Government attaches great importance to combatting TIP. We have put in place a package of effective and comprehensive legislative and administrative measures to combat TIP with continuous enhancements, including, among the others –
Hong Kong addresses TIP through various pieces of local legislation. The conduct of TIP as defined in the Palermo Protocol is covered and effectively prohibited by various pieces of legislation in Hong Kong, encompassing, among other things, the following offences -
- Trafficking in persons to or from Hong Kong (section 129 of Crimes Ordinance, Cap. 200)
- Control over persons for purpose of unlawful sexual intercourse or prostitution (section 130 of Crimes Ordinance, Cap. 200)
- Causing prostitution (section 131 of Crimes Ordinance, Cap. 200)
- Living on earnings of prostitution of others (section 137 of Crimes Ordinance, Cap. 200)
- Abduction of child or juvenile (section 26 of Protection of Children and Juveniles Ordinance, Cap. 213)
- Offences relating to child pornography (section 3 of Prevention of Child Pornography Ordinance, Cap. 579)
- Failure to grant any rest days to employees (section 63 of Employment Ordinance, Cap.57)
- Non-payment / under-payment of wages or delay in payment of wages (section 63C of Employment Ordinance, Cap. 57)
- Prohibition of commercial dealings in human organs (section 4 of Human Organ Transplant Ordinance, Cap. 465)
This ‘multiple-legislation’ approach provides law enforcement agencies (LEAs) and prosecutors with more flexibility in investigating and prosecuting TIP cases.
To enhance prosecutors’ awareness of TIP and forced labour, the Prosecution Code published in 2013 by the Department of Justice (DoJ) introduced a new paragraph on “Human Exploitation Cases”, with the aim and purpose of providing guidance to prosecutors as to what may amount to TIP and exploitation as well as the proper approach to be adopted in cases involving these elements.
Inter-departmental co-operation is crucial for combating TIP. There are established mechanisms for the inter-departmental co-operation in this regard –
At the policy level, an Inter-departmental TIP Working Group (TIP Working Group), led by the Security Bureau (SB) and comprising the DoJ, Hong Kong Police Force (Police), Immigration Department (ImmD), Customs and Excise Department (C&ED), Labour Department (LD) and Social Welfare Department (SWD), was established in 2010 to enhance enforcement strategy against TIP. The Working Group monitors the overall situation of TIP and formulates the overall strategy for combating TIP in Hong Kong;
In 2016, a “Guideline on Inter-departmental Cooperation for the Handling of Suspected Cases of Trafficking in Persons” was issued to provide guidance for the TIP Working Group departments/bureaux on the general principles and procedures on the inter-departmental cooperation in the identification and handling of potential TIP cases; and
At the operational level, the Inter-departmental Joint Investigation Team (JIT), set up in 1998, enables intelligence exchange and joint investigation / cooperation on TIP activities in day-to-day operations. Police, ImmD, C&ED, and LD are standing members of the JIT. The JIT meets regularly to discuss the current trends in TIP, monitor case statistics and law enforcement initiatives to combat the crime.
The Police, ImmD and C&ED have put in place enhanced mechanisms for TIP victim screening and identification. Under the mechanism, Police, ImmD or C&ED officers, as a standard procedure, conduct initial screening on vulnerable persons, including sex workers, illegal immigrants and foreign domestic helpers (FDHs), etc., will conduct screening and identification on those vulnerable person who are arrested or who put themselves forward to the authorities with a view to ascertaining whether they are TIP victims.
Tier 1 – Initial Screening
To assess whether the circumstances surrounding the vulnerable person indicates a possible TIP scenario, law enforcement officers will conduct initial screening by using the 7 trafficking indicators as a guide after all normal enquires.
Tier 2 – Full Debriefing
Should one or more of the answers to the indicators is “Yes”, the officer should proceed to conduct full debriefing on the subject vulnerable person. Law enforcement officers will ask the subject a set of standard questions, to establish whether the subject person is genuinely a TIP victim.
After investigation officers finished all the questions, they should be able to assess whether the subject vulnerable person is TIP victim. Criminal investigation will be commenced if subject is identified as TIP victim, criminal investigation will be commenced.
Protection for Victims
Identified TIP victims will be provided with holistic and humane protection, including –
Witness protection programme: when circumstances warrant, the Police will activate witness protection programme to protect the victims from further exploitation; they would also seek assistance from overseas LEAs for providing assistance and assurance to victims and families in their home country;
Provision of welfare support and assistance: the victims will be provided with the necessary support and assistance in a timely manner, including the provision of shelter, medical services, psychological support, counselling and financial assistance, etc. Where necessary, SWD will assist to assess the welfare needs for the victims and provide them with the appropriate services;
Provision of financial assistance: departments concerned may consider providing financial assistance to victims residing overseas to enable them to return to Hong Kong to testify as witnesses. The assistance covers expenses incurred during their stay in Hong Kong, including accommodation, passage, daily subsistence and visa processing fees, etc.;
Consideration of proper arrangements during prosecution process: departments concerned bring TIP cases to the attention of the Prosecutions Division of DoJ promptly, so that a timely and proper assessment of the issue, including the question of immunity, can be made by DoJ;
Visa fee waiver: ImmD grants visa extension and waives the visa fees for victims who need to stay in Hong Kong to act as prosecution witnesses in legal proceedings instituted by the Police, ImmD or LD; and
Exceptional approval for FDHs to change employers in Hong Kong: ImmD may also consider granting exceptional approval for FDHs to change employers when there is evidence suggesting that they are being exploited or abused by their employers.