CIVIL REMEDIES: JUSTICE FOR VICTIMS OF TRAFFICKING IN HONG KONG - 2 - INTRODUCTION The crime of trafficking and the ensuing criminal justice proceedings if any can be extremely disempowering to victims as they both take away the victim’s autonomy. In many cases criminal proceedings fail for a number of reasons and there is a real risk that the victim will not be granted justice in any shape or form. Civil remedies provide an alternative and/or supplement to criminal proceedings and are attractive as a means of holding perpetrators accountable but also providing victims with some compensation for harm they have endured and losses incurred. Although the use of civil remedies is gaining popularity in many jurisdictions across the world it still remains largely under-utilised. This Report provides a comprehensive overview of various civil remedies available under Hong Kong Law and comments on their applicability to trafficking victims. Remedies in contract, tort and pursuant to the Basic Law together with the eligibility criteria and judicial procedure(s) for each remedy are examined. We hope that despite the difficulties presented by the ability to remain in-country to pursue justice and the fact that compensation for victims remains a low priority, this Report will provide a creative means of informing front-line responders of different approaches that can help secure justice for victims. Lawyers and NGOs engaged in legal service provision will find this Report very useful in their daily work. Whilst the challenges abound in victims’ quest for justice, there is hope. Service providers equipped with better knowledge and information can help victims achieve justice through various means. This Report is about sharing knowledge with practitioners and offering hope to victims. Sincere thanks and gratitude to Hogan Lovells’ team of pro-bono lawyers who have dedicated much time, thought and effort in getting this Report together. We are very grateful for your hard work and thankful for your partnership. Archana Sinha Kotecha Head of Legal Liberty Asia - 3 - The tables below set out an overview of Hong Kong civil law provisions and remedies that may be helpful to victims of trafficking in Hong Kong. The document does not set out to provide a comprehensive analysis of civil remedies, but rather identifies statutory provisions and case law that are likely to be most helpful in the continuing fight for justice for victims. This document is provided for information only: the merits of a particular individual's claim and the applicability of each provision to their case will depend on the relevant facts and a detailed analysis of the applicable legislation and case law. This document is not a substitute for any case specific legal analysis. September 2014 - 4 - EXECUTIVE SUMMARY • Victims of trafficking do not have a civil right of action against their traffickers for damages for the act of trafficking itself. However, there are a number of other potential civil claims that may be relevant in the circumstances of trafficking, depending on the facts of each individual's case. These include tortious claims such as trespass to the person, sexual harassment claims and employment law claims. • Overarching charters and the Basic Law of Hong Kong seek to protect basic civil rights, but these laws and charters do not of themselves provide an avenue for a civil claim. • Tortious claims are likely to apply to many trafficking situations. Even if the person against whom damages are claimed may not have sufficient resources to be in a position to pay a significant award of damages, the publicity and deterrent effect of bringing test cases in the Hong Kong Courts are likely to have value. • Employment tribunals are unlikely to offer an effective remedy for victims who are not legally employed. • There are other possible avenues of compensation for victims of crime including the Criminal and Law Enforcement Injuries Compensation Scheme, although there are a number of eligibility criteria to fulfil before access to this scheme can be gained. - 5 - CONTENTS A. Overarching charters and Basic Law 1. Basic Law of the Hong Kong Special Administrative Region 2. Hong Kong Bill of Rights Ordinance (Cap 383) 3. The Victims of Crime Charter B. Tortious claims 1. Trespass to the person 2. Tort of deceit 3. General tort of negligence 4. Tort of negligence as relating to employment C. Employment law 1. Employment Ordinance (Cap 57) 2. Other employment law legislation and case law 3. Employees' Compensation Ordinance (Cap 282) D. Sex Discrimination Ordinance (Cap 480) E. Contractual remedies F. Other avenues of compensation 1. Criminal Procedure Ordinance (Cap 221) 2. Magistrates Ordinance 3. The Criminal and Law Enforcement Injuries Compensation Scheme - 6 - A. OVERARCHING CHARTERS AND BASIC LAW 1. BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION Legislative What does this provision Eligibility criteria Remedies Judicial Review procedure Applicability to trafficking provision provide? and appeal Article 4 The HKSAR shall safeguard Applies to both Hong The court can grant • Applications to be made Article 4 applies to victims of the rights and freedoms of Kong residents and non- appropriate remedies in accordance with Order trafficking equally whether Hong Kong residents and residents. where legislation or 53 RHC and Practice they are Hong Kong residents other persons in Hong Kong executive action Direction SL3 or non-residents. It is arguable in accordance with law. Hong Kong residents contravenes the Basic that Article 4 also covers include both permanent Law. • Commence JR individuals who are in Hong and non-permanent proceedings promptly Kong illegally. residents (Article 24). If rights and freedoms and in any case within are not safeguarded in three months of the date The court has power to (i) Article 11 The systems and policies N/A. accordance with the when grounds for the declare legislation invalid if it practised in Hong Kong, law, a person may application arose contravenes the Basic Law, including those safeguarding seek leave to bring • Two-stage procedure: (ii) provide a remedial the fundamental rights and Judicial Review construction of legislation to freedoms of its residents, proceedings. 1. application to Court of ensure validity, and (iii) shall be based on the First Instance for leave provide remedies in a judicial provisions of the Basic Law. to bring JR application review of executive action (Form 86 and supporting where the action is in breach No law enacted by Hong affidavit) of the Basic Law. Kong's legislature can 2. JR application by contravene the Basic Law. filing Originating These provisions do not Summons (Form 86A) provide victims with a right of within 14 days after civil action, but they may form leave granted part of an argument that the executive should take further • If leave is refused, the steps to ensure civil remedies applicant can appeal to are sufficient to safeguard the Court of Appeal rights and freedoms of victims within 14 days of trafficking. • If JR application is - 7 - Legislative What does this provision Eligibility criteria Remedies Judicial Review procedure Applicability to trafficking provision provide? and appeal refused, applicant can appeal to the Court of Appeal within 28 days • If Court of Appeal refuses the JR application, the applicant may apply within 28 days to the Court of Appeal or the Court of Final Appeal for leave to appeal to the Court of Final Appeal Chapter III The freedom of the person Persons in Hong Kong Seek leave to bring As above These provisions apply to the Article 28 of Hong Kong residents shall other than Hong Kong Judicial Review relationship between the state be inviolable. residents shall, in proceedings before the and individuals rather than accordance with law, Court of First Instance. between private individuals. No Hong Kong resident shall enjoy the rights and They do not therefore provide be subjected to arbitrary or freedoms of Hong Kong a civil remedy for victims, but unlawful arrest, detention or residents prescribed in may provide some protection imprisonment. Arbitrary or Chapter III (Article 41). in circumstances where arms unlawful search of the body of the state act in of any resident or Hong Kong residents contravention of these basic deprivation or restriction of include both permanent laws. the freedom of the person and non-permanent shall be prohibited. Torture residents (Article 24). The provisions apply to of any resident or arbitrary or "persons in Hong Kong other unlawful deprivation of the than Hong Kong residents". It life of any resident shall be is arguable that this includes prohibited. victims of trafficking who are in Hong Kong illegally. Chapter III The homes and other Article 29 premises of Hong Kong Kong Yunming v Director of residents shall be inviolable. Social Welfare (2013) 16 - 8 - Legislative What does this provision Eligibility criteria Remedies Judicial Review procedure Applicability to trafficking provision provide? and appeal Arbitrary or unlawful search HKCFAR 950: The Court of of, or intrusion into, a Final Appeal held that not resident’s home or other every right and freedom premises shall be prohibited. prescribed in Chapter III of the Basic Law is a fundamental Chapter III Provides Hong Kong right, in this case the right to Article 31 residents with freedom of social welfare under Article movement in Hong Kong. 36, which is a right which intrinsically involves the Chapter III Hong Kong residents have Government setting rules Article 35 the right to confidential legal determining eligibility. advice, access to the courts, choice of lawyers for timely The applicability of the protection of their lawful provisions will be subject to rights and interests or for Hong Kong's immigration laws representation in the courts, (Ghulam Rbani v Secretary for and to judicial remedies. Justice [2012] HKEC 1659).