Ignorance of the Law on the Hong Kong Beat
Allow me to begin with a hypothetical. Imagine a world in which police work was based on presumption rather than defence of the law. At times there might be sufficient coincidence of those two positions – should an offence be committed against you, now and then you might be protected under what could pass as fortification of the public good. But at others, many others, the good constable you meet could well presume that you are breaking the law, even when you’ve been the victim of harm. And because you could never judge which side of the presumption you might land on there is a very good chance you would be cowed into inaction, silence, sufferance.
When a state encourages police to act in this way the presumption tends to be increasingly arbitrary. We have a name for that – totalitarianism. But when it’s simply the case of officers on the beat being unaware of specific provisions under the law, and of particular policy directions laid down by the government, we should have a different name – wilful stupidity. Such is the state of Hong Kong’s street beat, wherein police officers have no idea they are trying to protect the illegal activities of employment agencies.
Now these are not just any employment agencies – that would make the situation far too obvious. They’re agencies that recruit foreign domestic helpers and bring them to Hong Kong. Anecdotal evidence, and quite a few documented cases, suggests that most of these agencies charge placement fees well over the legal limit, often involving large loans through allied companies in the Philippines, Nepal, India or Indonesia. That, in itself, is never investigated, but is not the point this time around.
What is particularly important, and what the police seem ignorant of, is that these agencies have a tendency to work as extensions of employer flippancy, often offering a sort of refund system under which an employer can chose up to three helpers through them if they’re not satisfied with the first. So far nothing illegal, but consider the women involved and the frequency of arbitrary dismissal and the word ‘unethical’ springs to mind. What is illegal is what happens to the women once they’re sacked.
Many employment agencies work like enforcers, collecting the dismissed helpers, making them stay at a particular boarding house for a fee, holding their passports and possibly – but not always – finding them a new employer. If no new employer can be found the women are driven to the airport, given their tickets for the next flight home and told to leave. Most of the helpers endure this through desperation and in the hope they might yet find a suitable employer. Many don’t.
At the full extent of the law a number of crimes would be committed every time this scenario unfolds. Illegal possession of someone else’s passport would be the most obvious. Kidnapping would be in the mix. Deprivation of freedom wouldn’t be too hard to prove. Quite possibly criminal intimidation would be worth looking at. But – and this is the real bell-ringer – most police on the beat, or those called out to intervene when the process starts, presume that the employment agencies have legal power over the helpers.
They do not.
This can play out in a couple of ways – and thankfully not always with bad results because the Hong Kong police force is blessed with some gentleman officers. I can offer two examples that I’ve been involved with recently as evidence of adaptability and stubbornness in the same force, neither of which should have ever come to pass considering that police are, after all, meant to uphold the law.
The first instance occurred a week ago when the group with which I work called police to go to a nearby residence so two helpers, dismissed at 11.30 the previous night, could return to their employer’s house, retrieve their clothes and passports, and obtain their severance pay. After a time they collected their clothes, arranged to collect their severance pay the next day, but were told that they would have to collect their passports from the employment agency through which they were hired. The two police officers saw nothing wrong with this.
Now almost every country has a law stating that holding another person’s passport is an offence – to acquiesce to that occurring twice for two women at the same time is a step well down the road to ignorance. And so we informed the officers, who had a good deal of sense about them and reasoned that the eight standers by were not likely to be conspiring to fool them. The situation ended happily with passports retrieved, severance pay collected the next day and two police officers, sceptical as they were given the weight of practice contradicting it, hopefully willing to stop and think before next they are called to deal with a similar situation.
Hopefully. But you can never tell.
The second instance occurred last night, when three members of the group went to another district to collect a person who had contacted us on the weekend. She had been sacked by her employer but had been forced to serve out the one month notice period working for the employment agency as a form of ‘training’. And it just so happens – luck’s a fortune, as they say – that the employment agency was owned by the employer’s sister. So the agency owner thought she could get a free helper for a month.
When the police arrived this time around they informed the group that only one person could go to the apartment where the helper was being held and then that the agent had every right to ‘train’ the woman. A curious law book they must have read, to not have mentioned deprivation of liberty. And when the helper and the sole negotiator refused to back down, the officers said that the case would be treated as one in which the helper ran away. The employer, it seems, wanted the woman back for the rest of the month. The implications of this are troubling, because in Hong Kong helpers are obliged to stay with their employers. Oh sorry, but she had already been forced to leave the employer’s residence, by the employer. A peculiar logic, yes?
The woman is no longer with the agent or the employer and had already written a letter of complaint about the situation to the Immigration Department. Today she filed a case with the Labour Department. She has not been paid for her work in September and probably wasn’t going to be paid for October. She had only been in Hong Kong since the end of August.
The agency scam goes on and two policemen are blissful in their ignorance. They have a case number for the confrontation, and it will be very interesting if they attempt to enforce the law as they are obliged to do. Which law will they enforce? That stated in the statute books, under which all people in Hong Kong are treated equally in the pursuit of justice? They should, perhaps, read Articles 35 and 41 of Hong Kong’s constitutional Basic Law, which provide just that. Or will they enforce a law under which foreign domestic helpers have no right to liberty and choice of accommodation?
That might be tricky – these are guaranteed under Articles 5 and 8 of the Bill of Rights. Even the quasi-legal policy of the Immigration Department, which effectively removes the right to choose accommodation from foreign domestic helpers, will not be of much use. Clearly stated under Section 4 of the Schedule of Accommodation and Domestic Duties of the domestic helper employment contract is a prohibition against working in residences other than that of the employer.
By and large, the second pair of officers were dumb, not only in the sense that they didn’t know the law as it stands, but also because they couldn’t effectively speak their position. They had no logic with which to enforce their presumption, to strengthen their attitude. The Hong Kong police force has a motto that insists ‘we serve with pride and care’. Perhaps they should have included ‘thoughtfulness’, but for some of its officers that might have been asking too much.