Governments and businesses across the world are increasingly expected to detect, report, and prevent incidences of forced labour and human trafficking. In the recent case of ZN v Secretary for Justice, Director of Immigration, Commissioner for Police and Commissioner for Labour HCAL 15/2015), the High Court decided that the HKSAR Government – perhaps like the rest of the world – needs to do more.
The Asia-Pacific region has, according to the estimates of the International Labour Organisation, the largest number of victims of forced labour – some 11.7 million, which represents over 55% of the global total. The majority (around 70%) of labour exploitation worldwide occurs in economic activities, as distinct from, for example, sexual exploitation. The highest risk business sectors include construction, manufacture, retail and agriculture.
Article 4 of the Hong Kong Bill of Rights (‘the BOR’) contains the rights not to be subjected to slavery, servitude or forced/compulsory labour. These rights are wholly non-derogable, and can – and do – impose positive obligations on the state.
No slavery or servitude
(1) No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
(2) No one shall be held in servitude.
(3) (a) No one shall be required to perform forced or compulsory labour.
(b) For the purpose of this paragraph the term “forced or compulsory labour” shall not include –
( i ) any work or service normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;
( ii ) any service of a military character and, where conscientious objection is recognized, any national service required by law of conscientious objectors;
(iii) any service exacted in cases of emergency or calamity threatening the life or well-being of the community;
(iv) any work or service which forms part of normal civil obligations”
The International Labour Organization (ILO) Forced Labour Convention 1930 (No.29) define ‘forced labour’ as work for which a person has not offered him or herself voluntarily and which is performed under the menace of any penalty. In accordance with the ILO guidelines, an individual is considered as being in forced labour if they are experiencing both involuntariness and menace of penalty in any one of three specified circumstances, namely unfree recruitment, work and life under duress and impossibility of leaving
In ZN v Secretary for Justice and others HCAL 15/2015, the High Court (Hon Zervos J) found a critical flaw in the HKSAR Government’s fulfillment of its obligations under Article 4 of the Bill of Rights (BOR) – the lack of a criminal offence and penalty that addresses the prohibition on forced or compulsory labour.
Although Article 4 makes no express reference to human trafficking, the High Court there found that the prohibition against trafficking a person for slavery, servitude and forced or compulsory labour is implicit in each of those three concepts prohibited under Article 4 (see §260). It was, to that extent, then irrelevant that HKSAR has an exemption to the Palermo Protocol (the Protocol to Prevent, Suppress and Punish Trafficking in Persons), to which China is otherwise – together with 116 other states – a signatory.
The High Court in ZN also rejected, in terms, the HKSAR Government’s argument that there is already in place a comprehensive and adequate regime to address human trafficking and forced labour, for instance, under Section 129 of the Crimes Ordinance (human trafficking for the purpose of prostitution – the only trafficking-specific provision) and the general domestic criminal law. It was argued, unsuccessfully, that, allowing for the margin of appreciation, it is not for the courts to tell the legislature how best to combat human trafficking.
These arguments echoed the comments of the HKSAR Government in July 2016, when it “vehemently and categorically rejected” the city’s grading in the US Department of State’s 2016 Trafficking in Persons Report. That report had recommended that Hong Kong “enact a comprehensive anti-trafficking law that prohibits all forms of trafficking” and had placed it on the Tier 2 Watch List.
The High Court in ZN plainly agreed with the report’s recommendations, observing:
“… if this case is an example of the effectiveness of the Hong Kong’s regime in tackling human trafficking and forced labour, then it has failed to achieve even the most basic objectives…
…the current regime does not address adequately or effectively the positive obligations under Article 4 of the BOR to tackle the practice of forced labour and the trafficking of persons for forced labour.”
Of course ZN was a decision at first instance. And it remains to be seen whether or not the HKSAR Government will take up the calls to legislate against forced labour and human trafficking, and, if so, what provision will be made for corporate liability.
Companies doing business across the world already face commercial and/or reputational risk and potential legal liabilities if forced labour or trafficking is taking place anywhere in their business or supply chains. Some of the existing legislation is wide-reaching and has extra-territorial effect. For example, the UK’s Modern Slavery Act 2015 confers extra-territorial jurisdiction over UK nationals who commit trafficking offences overseas and provides that any qualifying company (UK or overseas) that carries on a business (or part of a business) in the UK will be subject to the supply chain transparency provisions of the Act.
At the very least, the recent judgment in ZN is consistent with increasing global expectations on governments and companies alike to end involvement in these practices. It will be seen by many as a significant step in the right direction.