FINANCIAL SYSTEMS MIGRANT LABOUR LEGAL ANALYSIS VICTIM ID AND RIGHTS OF HUMAN TRAFFICKING IN libertyasia.org [email protected] facebook.com/libertyasiahk twitter.com/libertyasia justgiving.com/libertyasia 2015 FINANCIAL SYSTEMS MIGRANT LABOUR Contents SECTION A – HUMAN TRAFFICKING Paragraph Question 1 What (if any) are Hong Kong’s specific anti-trafficking legislation? 1 – 19 Question 2 Where Hong Kong has ratified regional or international anti-trafficking conventions (in- 20 – 24 cluding the Palermo Protocol) does its legislation comply with those that would be needed in order to ensure that it can, in theory, meet its obligation? Question 3 What legislation exist to cover labour laws (i.e. protection of workers’ rights, domestic 25 – 44 LEGAL works)? Are migrant workers – both legal and illegal – covered by such legislation? Question 4 What legislation exists to protect women and girls from gender-based exploitation (i.e. 45 – 57 forced prostitution, domestic violence, child marriage, and temporary marriage) and are migrants – both legal and illegal – covered by these legislation? ANALYSIS Question 5 Do victims of trafficking have protected status under the law? 58 – 73 Question 6 Can victims of trafficking be criminalized for crimes committed as a direct result of their 74 – 77 trafficking (e.g. is a victim of forced prostitution able to be tried and found guilty under laws against prostitu- tion)? VICTIM ID AND RIGHTS OF Question 7 Are the penalties / punishments of those found guilty of trafficking sufficiently stringent? 78 – 81 Question 8 Are the penalties / punishments of those found guilty of violence against women (i.e. do- 82 – 88 HUMAN mestic violence, violence against employees such as domestic workers) sufficiently stringent? Question 9 What are the numbers / ratio of investigations, prosecutions and convictions of traffickers 89 – 96 (is there a difference in the likelihood of investigation, prosecution or conviction between cases in which an individual has trafficked another for the purposes of forced labour, and those who have trafficked another for TRAFFICKING the purposes of sexual exploitation)? Question 10 If a person is found to have been trafficked into the country, and is without legal status, is 97 – 100 that person likely to be imprisoned and/or repatriated? IN Question 11 If a person is repatriated to that state, having been found to have been trafficked to a third 101 – 102 country, is that person liable to be imprisoned for acts considered as criminal (i.e. prostitution, travel without documents) but which were a direct result of her having been trafficked? SECTION B – MONEY LAUNDERING AND HUMAN TRAFFICKING Paragraph Question 12 What (if any) are Hong Kong’s specific anti-money laundering legislation? 103 – 136 Question 13 Where Hong Kong has ratified regional or international anti-money laundering conven- 137 – 152 tions does its legislation comply with those that would be needed in order to ensure that it can, in theory, meet its obligation? Question 14 What legislation exists to address money laundering arising as a result of human traffick- 153 – 170 ing? Question 15 Are the penalties / punishments of those found guilty of money laundering sufficiently 171 – 182 stringent? libertyasia.org Question 16 What are the numbers/ratio of investigations, prosecutions and convictions of traffickers 183 – 187 [email protected] for money laundering offences? SECTION C – CORRUPTION AND HUMAN TRAFFICKING facebook.com/libertyasiahk twitter.com/libertyasia Question 17 What (if any) are Hong Kong’s specific anti-corruption legislation? 188 – 237 justgiving.com/libertyasia Question 18 Where Hong Kong has ratified regional or international anti-corruption conventions does 238 – 240 2015 its legislation comply with those that would be needed in order to ensure that it can, in theory, meet its obli- gation? Question 19 What legislation exists to address corruption arising as a result of human trafficking? 241 – 249 Question 20 Are the penalties / punishments of those found guilty of corruption sufficiently stringent? 250 – 255 Question 21 What are the numbers / ratio of investigations, prosecutions and convictions of traffickers 256 – 264 for corruption offences? Contents SECTION A – HUMAN TRAFFICKING Paragraph Question 1 What (if any) are Hong Kong’s specific anti-trafficking legislation? 1 – 19 Question 2 Where Hong Kong has ratified regional or international anti-trafficking conventions (in- 20 – 24 cluding the Palermo Protocol) does its legislation comply with those that would be needed in order to ensure that it can, in theory, meet its obligation? Question 3 What legislation exist to cover labour laws (i.e. protection of workers’ rights, domestic 25 – 44 works)? Are migrant workers – both legal and illegal – covered by such legislation? Question 4 What legislation exists to protect women and girls from gender-based exploitation (i.e. 45 – 57 forced prostitution, domestic violence, child marriage, and temporary marriage) and are migrants – both legal and illegal – covered by these legislation? Question 5 Do victims of trafficking have protected status under the law? 58 – 73 Question 6 Can victims of trafficking be criminalized for crimes committed as a direct result of their 74 – 77 trafficking (e.g. is a victim of forced prostitution able to be tried and found guilty under laws against prostitu- tion)? Question 7 Are the penalties / punishments of those found guilty of trafficking sufficiently stringent? 78 – 81 Question 8 Are the penalties / punishments of those found guilty of violence against women (i.e. do- 82 – 88 mestic violence, violence against employees such as domestic workers) sufficiently stringent? Question 9 What are the numbers / ratio of investigations, prosecutions and convictions of traffickers 89 – 96 (is there a difference in the likelihood of investigation, prosecution or conviction between cases in which an individual has trafficked another for the purposes of forced labour, and those who have trafficked another for the purposes of sexual exploitation)? Question 10 If a person is found to have been trafficked into the country, and is without legal status, is 97 – 100 that person likely to be imprisoned and/or repatriated? Question 11 If a person is repatriated to that state, having been found to have been trafficked to a third 101 – 102 country, is that person liable to be imprisoned for acts considered as criminal (i.e. prostitution, travel without documents) but which were a direct result of her having been trafficked? SECTION B – MONEY LAUNDERING AND HUMAN TRAFFICKING Paragraph Question 12 What (if any) are Hong Kong’s specific anti-money laundering legislation? 103 – 136 Question 13 Where Hong Kong has ratified regional or international anti-money laundering conven- 137 – 152 tions does its legislation comply with those that would be needed in order to ensure that it can, in theory, meet its obligation? Question 14 What legislation exists to address money laundering arising as a result of human traffick- 153 – 170 ing? Question 15 Are the penalties / punishments of those found guilty of money laundering sufficiently 171 – 182 stringent? Question 16 What are the numbers/ratio of investigations, prosecutions and convictions of traffickers 183 – 187 for money laundering offences? SECTION C – CORRUPTION AND HUMAN TRAFFICKING Question 17 What (if any) are Hong Kong’s specific anti-corruption legislation? 188 – 237 Question 18 Where Hong Kong has ratified regional or international anti-corruption conventions does 238 – 240 its legislation comply with those that would be needed in order to ensure that it can, in theory, meet its obli- gation? Question 19 What legislation exists to address corruption arising as a result of human trafficking? 241 – 249 Question 20 Are the penalties / punishments of those found guilty of corruption sufficiently stringent? 250 – 255 Question 21 What are the numbers / ratio of investigations, prosecutions and convictions of traffickers 256 – 264 for corruption offences? SCHEDULES Schedule 1 Legislation relevant to Human Trafficking Schedule 2 International Conventions and Regional Commitments applicable to Hong Kong and rele- vant to Human Trafficking – Hong Kong Compliance Schedule 3 Legislation relevant to Gender-Based Exploitation Schedule 4 The FATF Recommendations – Hong Kong Compliance Schedule 5 International Conventions and Regional Commitments applicable to Hong Kong and rele- vant to Money Laundering – Hong Kong Compliance Schedule 6 Legislation relevant to Corruption Offences Schedule 7 International Conventions and Regional Commitments applicable to Hong Kong and rele- vant to Corruption – Hong Kong Compliance Schedule 8 Defined terms Schedule 9 Legislation referred to in the report SECTION A HUMAN TRAFFICKING Question 1: What, if any, are Hong Kong's specific anti-trafficking legislation? 1. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the Unit- ed Nations Convention against Transnational Organized Crime (the “Palermo Protocol”)1 is ratified in the People’s Republic of China (the “PRC”) and is applicable to both the PRC and the Macao Special Administrative Region (“Macao”). Its application does not extend to the Hong Kong Special Administrative Region (“Hong Kong”). As such, Hong Kong currently does not have any comprehensive legal framework specific to anti human trafficking as defined under the Palermo Protocol, and adopts only a partial / limited definition