Cablegate: Hong Kong Police Ready to Prosecute Tip If Victims

VZCZCXYZ0677
PP RUEHWEB

DE RUEHHK #1878/01 2790635
ZNR UUUUU ZZH
P 060635Z OCT 09
FM AMCONSUL HONG KONG
TO RUEHC/SECSTATE WASHDC PRIORITY 8686
INFO RUEHOO/CHINA POSTS COLLECTIVE PRIORITY

UNCLAS HONG KONG 001878

SIPDIS

DEPT FOR G/TIP, G, DRL, INL, EAP/RSP, EAP/CM

E.O. 12958: N/A
TAGS: KTIP KCRM PHUM SMIG HK CH
SUBJECT: HONG KONG POLICE READY TO PROSECUTE TIP IF VICTIMS
WILL PRESS CHARGES

1. (SBU) SUMMARY: Although Hong Kong uses a broader
definition of sex trafficking in persons (TIP) than that
found in international covenants, its officials across the
board insisted to visiting G/TIP officers September 9 that
identified sex TIP crimes continue to be rare. Police and
immigration officers argued that while they look for TIP
indicators during interviews of suspects detained for
possible immigration or prostitution violations, evidence has
shown that most of the sex workers come of their own
volition, which would preclue them from being identified as
TIP victims by Hng Kong authorities. On foreign domestic
worker (FDWs), the Labor Department relies on public
eucation campaign, surprise inspections, and the athority
to revoke operating licenses to help protct the rights of
the 270,000 FDWs in the territoy, over half of whom are now
Indonesian. Attemps to punish employment agencies for
illegally withholding FDWs' passports generally prove
unsuccessful, as most FDWs are unwilling to press charges
after retrieving their passports with police intervention and
the police do not pursue criminal investigations charges on
their own. An Indonesian workers' NGO representative
described an illegal salary structure that encourages Hong
Kong employers to pay as little as half of the Minimum
Allowable Wage of HKD$3580. Fifty-three percent of
Indonesian domestic workers surveyed by the NGO in 2005
reported being underpaid. END SUMMARY

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Law Enforcement Efforts, TIP Definition Discussed
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2. (SBU) Office to Monitor and Combat Trafficking in Persons
(G/TIP) officers Mark Taylor and Christine Chan-Downer met
with the Hong Kong government, foreign consulate officials,
and migrant worker NGOs during their one-day visit to Hong
Kong September 9. The Hong Kong police (HKP) outlined
recently adopted measures to enhance their anti-human
trafficking efforts. They report they have increased
training to front-line officers, issued formal standardized
procedures for trafficking in persons (TIP) investigations,
increased the number of inspections of suspected vice
establishments, and arranged with the Department of Justice
to give legal advice at the early stages of TIP
investigations. HKP stressed that "TIP," or people
smuggling, was one of a select few issues the elite Organized
Crime and Triad Bureau (OCTB) was dedicating resources to
fighting.

3. (SBU) In response to the G/TIP officers' questions about
how Hong Kong laws define TIP, OCTB Chief Superintendent
Samson Yu explained that any movement of a person in or out
of Hong Kong for the purposes of prostitution was a TIP crime
under the Crimes Ordinance. Taylor noted this definition
differed from that used in international TIP covenants which
required elements of force, fraud or coercion to be
considered a TIP crime. Taylor voiced concern that Hong Kong
laws may focus too much on the movement of people and not on
the exploitative conditions that could cause someone already
in Hong Kong to be forced into a trafficking situation. Yu
acknowledged Hong Kong's definition cast a wider net for sex
TIP crimes (though not covering labor trafficking), but that
by no means implied Hong Kong does not take into account
aggravating factors such as force, fraud and coercion when
prosecuting TIP crimes. (Note: Although this was not raised
at the meeting, Hong Kong's Crime Ordinance Section 130 does
punish for harboring or controlling another person with the
intention of committing unlawful sexual acts with others.
This crime is not contingent on the cross-boundary movement
of a person, and the punishment of 14 years is more stringent
than the 10 years imprisonment for TIP. However, Hong Kong
authorities do not report usage of this law in their
reporting of trafficking cases. End note.) Presentations by
the Hong Kong Immigration Department and Customs Department
addressed 'smuggling' and 'trafficking' interchangeably, and
focused on efforts to combat illegal smuggling into Hong
Kong. When Taylor inquired how the Crimes Ordinance would
address debt bondage or labor trafficking cases, Yu responded
that offenders could be charged with "conspiracy to traffic,"
though during the meeting he acknowledged that this
conspiracy centers around the transportation of individuals
into Hong Kong for the purpose of prostitution. Post has
requested HKP police provide further clarification on this
point.

4. (SBU) Taylor was surprised that there had not been more
TIP prosecutions given the low evidentiary threshold for TIP
crimes and the fact that Hong Kong arrested 3,500 women
(mostly from the PRC) for illegal prostitution last year
alone. Yu insisted the HKP looked for certain TIP indicators
when interviewing suspects arrested for prostitution and/or

immigration violations, including whether the person was
assisted by other individuals in coming to Hong Kong
illegally. Furthermore, when the HKP determined a person
likely was not a TIP victim and handed the case over to
immigration authorities, immigration officers also looked for
TIP indicators during their interviews. While Yu did not
elaborate on the TIP indicators used by HKP or immigration
officers, he confirmed that they were in line with Hong
Kong,s definition of 'trafficking in persons'; i.e.,
relating to movement of persons and not relating to force or
coercion. Yu noted his experience had shown the majority of
women working in Hong Kong's sex trade came of their own
volition and when caught, simply wanted to return home. Many
of the women worked as prostitutes in mainland China as well,
but they come to Hong Kong because they could make more
money. When asked whether a woman who came to Hong Kong
willingly to engage in prostitution but was later coerced or
forced into sexual servitude could be considered a TIP victim
in Hong Kong, Yu replied that such a person would not be
considered a victim, due to their initial willingness to
engage in prostitution. Individuals identified as TIP victims
were required by Hong Kong law to testify in court and give
evidence against their trafficker. All victims are returned
to their country of origin after participation in court
cases. (Note: The conflation of human trafficking and people
smuggling under Hong Kong law seems to partly explain the
difficulties experienced by Hong Kong law enforcement
authorities in identifying victims of sexual servitude or
forced labor. End Note.)

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Challenged by Growing Foreign Domestic Helper Workforce
--------------------------------------------- ----------

5. (SBU) With an estimated 270,000 foreign domestic workers
(FDWs) in Hong Kong, Labor Department officials admitted it
was a challenge to monitor all employers or employment
agencies for possible violations of the Employment Ordinance.
They point to public education campaigns, regular but
unannounced inspections, and the power to revoke licenses as
their primary tools to ensure labor violations are detected
and punished. Currently, there are 1,000 Hong Kong
employment agencies licensed to place FDWs, according to
Assistant Commissioner Fong Ngai. The Labor Department
annually conducts approximately 1,000 surprise visits to
employment agencies. Two agencies have had their licenses
revoked for overcharging fees to FDWs this year. Authorities
explained offenders do not get imprisoned for overcharging,
but they can be fined up to HK$50,000.

6. (SBU) Referring to U.S. concerns raised in the 2008 and
2009 TIP reports about some Hong Kong employment agencies
reportedly illegally holding FDWs' passports, Fong noted
keeping someone's passport with their consent or for certain
administrative processing was not illegal. Fong did
acknowledge there have been instances where HKP was called on
to retrieve FDWs' passports from their employment agencies or
employers. The problem, OCTB officers explained, is most FDWs
decline to press charges against the agencies once their
passports have been retrieved, thus making it hard to
prosecute agencies for this practice.

7. (SBU) In response to Fong's question about how other
jurisdictions with large numbers of FDWs dealt with
labor-related violations, Taylor said some governments
blacklist employment agencies to prevent them from doing
future business. Although he agreed with Taylor that
protecting FDWs was a shared responsibility between source
and destination territories, Fong claimed the large amount of
debt imposed on FDWs by agencies in their home countries was
beyond Hong Kong's control. Taylor noted G/TIP often cited
Hong Kong as a standard-bearer for the rights enjoyed by its
FDWs, but there were always going to be people who would
abuse the system, as is also seen in the United States. He
encouraged the Hong Kong government to be proactive and seek
out potential victims as most victims were ignorant of how
and where to seek help.

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NGO Outlines Underpayment Scheme
--------------------------------

8. (SBU) Indonesian migrant NGO representative Eni Lestari
told us some Hong Kong and Indonesia-based employment
agencies operated an illegal scheme where they offered
Indonesian FDWs at a discount rate to Hong Kong employers,
sometimes 50 percent cheaper than the Minimum Allowable Wage
of HKD$3580 per month. Describing the plight of Indonesian
domestic workers in Hong Kong as that 'akin to slavery',
Lestari, stated that almost every Indonesian recruited for

work as a domestic worker in Hong Kong incurred a debt of
approximately 21,000 Hong Kong dollars (approximately $2,700)
which required FDWs seven full months of work to pay off at
the Minimum Allowable wage. An employer willing to pay the
employment agency an agreed portion of their FDWs' training
and administrative costs up front in one lump payment would
only have to pay the FDW a HKD$1800 monthly salary for the
remainder of the 2-year contract. Lestari told us employment
agencies coach employers that accept this arrangement to have
their FDWs sign
receipts showing they were paid the full minimum wage. A
2005 survey of FDWs by the Association of Indonesian Migrant
Workers found 53 percent reporting they were not receiving
the minimum wage. Lestari believed the situation remained
the same today.

9. (SBU) Indonesian Consulate officials told us they had
received some complaints about underpayment, but those cases
were rare. The Indonesian Consulate cited, however, a
similarly high figure representing recruitment costs for
Indonesian FDWs -- HK$20,000 (HK$17,000 plus 3,000 in
interest). Both Filipino and Indonesian migrant groups
report that some women lose their jobs before repayment is
complete. In these situations, Indonesian Consulate
officials explained that the Hong Kong agencies had to find
the FDW a new employer. The agency is allowed to charge no
more than 10% of the first month,s wage, though according to
Lestari, the fees, which are added to existing debt, often
exceed this legal limit. On October 5, Indonesian Consulate
official Sri Setiawati told E/P Chief that FDWs who returned
home before repayment of debt was complete, however, were not
normally liable for their debts since the Indonesia
Government did not want employment agencies going after FDWs
in their poor villages.
MARUT

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