In Hong Kong, there is no specific criminal offence against human trafficking.
ZN v. Secretary for Justice, Director of Immigration, Commissioner of Police, Commissioner for Labour  is a landmark case that examined the interpretation of Article 4 of the Bill of Rights Ordinance (“BOR4”) and whether it included human trafficking. The key issues were whether the protection derived from BOR4 covers human trafficking and whether a positive duty existed for the government to enact a specific criminal offence against human trafficking. The Court of Final Appeal (“CFA”) delivered its written judgement last Friday afternoon (January 10).
The Appellant, a Pakistani national arrived in Hong Kong to work as a migrant domestic worker, but was subjected to “terrible working conditions” and abusive treatment for four years . Despite multiple complaints to relevant authorities, no investigation was carried out.
Regarding the extent or existence of any duty to have a specific human trafficking criminal offence, the CFA decided that while an investigative duty existed, a wide margin of discretion has been afforded to the Hong Kong Special Administrative Region Government on whether to criminalise slavery, servitude and forced or compulsory labor. It must be shown that the breach of the BOR4 rights had arisen due to a lack of a specific criminal offence . The lack of a causal connection in the appellant’s specific case ultimately failed to establish the requirement of the Government to enact a bespoke offence criminalising forced or compulsory labor. Nonetheless, this judgement of the CFA did not prevent a different conclusion being reached in a future case .
We welcome the Court and the Government’s recognition of human trafficking as not only a global issue, but also a “Hong Kong problem” . In addition, the Court also recognised that the large local population of migrant domestic workers alone presents “potentially a sizeable number of persons at risk of exploitative practices that might constitute either forced labour or compulsory labour or human trafficking” , and this observation is completely in line with Justice Centre’s research results as summarised in our Coming Clean report in 2016 .
Drawing on the Court’s affirmation that BOR4 does impose a positive duty on the Government to “take steps” to protect victims of slavery, servitude and forced or compulsory labour , we urge the Government to introduce a comprehensive bill on anti-human trafficking covering the aspects of prevention, protection and prosecution. And we again urge the Government to maintain data, as pledged, in the Action Plan to Tackle Trafficking in Persons and to Enhance Protection of Foreign Domestic Helpers in Hong Kong, and to ensure that it is regularly published. We also call upon the Government to request the extension of Palermo Protocol to Hong Kong, as recommended by UN treaty bodies .
Justice Centre Hong Kong look forward to working with all stakeholders in driving change for a fair and just society, where all have access to justice, including victims of human trafficking and those at risk.
 See para 45, ZN v Secretary for Justice and Another (02/08/2018, CACV14/2017)  3 HKLRD 778,  HKCA 473
 See para 92, ZN v Secretary for Justice & 3 Others (10/01/2020, FACV4/2019)  HKCFA 53
 See para 122(4), ibid
 See para 6, ibid
 See para 8, ibid
 Justice Centre Hong Kong. (2016). Coming Clean: The prevalence of forcedlabour and human trafficking for the purpose of forcedlabour amongst migrant domestic workers in Hong Kong. Available at https://www.justicecentre.org.hk/report/comingclean/.
 See para 27, ZN v Secretary for Justice & 3 Others (10/01/2020, FACV4/2019)  HKCFA 53
 See para 21(a): United Nations Committee against Torture. (2016). Concluding observations on the fifth periodic report of China with respect to Hong Kong, China. Available at https://documents-dds-ny.un.org/…/G…/017/38/pdf/G1601738.pdf
See para 20: United Nations Human Rights Committee. (2013). Concluding observations on the third periodic report of Hong Kong, China, adopted by the Committee at its 107th session (11 – 28 March 2013). Available at https://undocs.org/en/CCPR/C/CHN-HKG/CO/3.