THE ACCESSIBILITY OF THE CLEIC SCHEME TO VICTIMS OF HUMAN TRAFFICKING

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1 THE ACCESSIBILITY OF THE CLEIC SCHEME TO VICTIMS OF HUMAN TRAFFICKING This paper has been prepared by Liberty Asia with the assistance of its pro bono legal team. The information and opinions, which are contained in this paper are not intended to be a comprehensive study or to provide legal advice, and should not be treated as a substitute for specific legal advice. Please seek professional legal advice concerning individual situations. INTRODUCTION Compensation is an important part of access to justice for victims of violent crimes, including victims of human trafficking. Some may feel that no amount of money could compensate for the suffering they have endured and choose to forego the opportunity to pursue compensation in order to forget about their trauma and move on with their lives. Others may choose to pursue compensation for injuries suffered or to recover unpaid wages as the only means to support themselves or to break the cycle of debt bondage. For many victims one of the realistic methods of financial redress is through a victims compensation scheme. Burdens imposed by criminal or civil court proceedings often deny or delay victims in obtaining their rightful compensation. If compensation is regarded as payment or reparation for injury or harm, a conviction against an offender in a legal proceeding should not be a prerequisite for compensation. Moreover, the identification and involvement of the trafficker in court proceedings may unfairly deter victims from claiming compensation due to fear of threats from traffickers and abusers. The trial itself may also be lengthy and time consuming often prompting victims to give up their claims for compensation. In addition, pursuing criminal or civil compensation claim often means victims having to recount the traumatic experiences they have endured, which some victims of trafficking may be unable or unwilling to do. Hence, a state funded compensation scheme provides one of the most accessible avenues for victims of trafficking seeking compensation. The shortcomings of the criminal and civil systems are removed and a victim can access compensation if eligible. With the right compensation scheme eliminating overly restrictive eligibility criteria and unnecessary procedural hurdles victims of human trafficking will have a real opportunity to seek compensation for the abuse, injuries and trauma that they have suffered.

2 OVERVIEW 1.1 The Criminal and Law Enforcement Injuries Compensation ("CLEIC") scheme is available to provide compensation to victims of violent crimes in Hong Kong. However, given that the CLEIC scheme was conceived for crimes of violence, its eligibility requirements render it inaccessible to victims of human trafficking. There is no scheme presently available in Hong Kong, which provides victims of human trafficking with a realistic or viable framework to enable them to claim compensation in Hong Kong. 1.2 This paper will examine and comment on: (a) (b) (c) (d) (e) the CLEIC scheme, including the eligibility requirements for making an application, the types of criminal injuries it covers and the available awards under the scheme; the treatment of applications under the CLEIC scheme by the bodies tasked with administering the scheme; the definition of human trafficking under Hong Kong law; the UK Criminal Injuries Compensation Scheme 2012; and the need for a new compensation scheme to be developed for victims of human trafficking in Hong Kong. 1.3 This paper concludes that there is a real and pressing need for a new scheme to be developed in order to provide a real opportunity for victims of human trafficking as a distinct vulnerable group - to seek compensation for the abuse, injuries and/or trauma that they have suffered in Hong Kong as a result of the trafficking

3 THE CLEIC SCHEME Introduction to the CLEIC scheme 2.1 The CLEIC scheme is administered jointly by the Criminal Injuries Compensation Board and the Law Enforcement Injuries Compensation Board ("CIC Board"). Both boards have the same Chairman and members who are all appointed by the Chief Executive of Hong Kong. The Secretariat to both Boards is appointed by the Social Welfare Department ("SWD"), which is also responsible for the assessment and payment of compensation. 2.2 The CLEIC scheme is a non-means tested and non-contributory scheme. Through the CLIEC scheme, the Hong Kong Government provides payments to victims who are killed, injured or disabled as a result of a crime of violence or by the actions of a law enforcement officer wielding a weapon in the execution of his duties. Eligibility Requirements for an Application 2.3 The requirements for making an application under the CLEIC scheme are publically available and can be found on the websites of the SWD and the Hong Kong Police Force (although there is no definition document available). The eligibility requirements were last updated in January The CIC Board will only consider an application by the applicant (or, in the case of a deceased victim, an application by the deceased's spouse or dependant) where all of the following requirements are met: (a) (b) (c) (d) (e) (f) the victim sustained injury or death that is directly attributable to a crime of violence; the victim had a right to remain in Hong Kong under the Immigration Ordinance (Cap. 115) at the time they sustained their injuries and was not in contravention of any limit of stay at such time; the incident resulting in the injury occurred within 3 years of the application; the injury was sufficiently grave to warrant sick leave of at least 3 days (except in cases of death, permanent disability or other special circumstances which justify waiving the requirement), or the injury was sufficiently grave to warrant 3 days' loss of earnings or working capacity, as certified by a registered medical practitioner; the circumstances of the injury (i.e. the incident causing the injury) were reported to the police without unreasonable delay or the victim's injuries became the subject of criminal proceedings; and the applicant gave the CIC Board all related information and reasonable assistance. 1 Hong Kong Social Welfare Department "CLEIC Scheme Important Information in Brief for Applicants" (January 2011) - 3 -

4 - 4 - Types of Criminal Injuries covered by the CLEIC scheme 2.5 The CLEIC scheme provides compensation to victims who are injured, disabled or killed as a result of a crime of violence. Common injuries that have previously received grants include those suffered from assault or wounding, robbery, arson and sexual offences. A payment schedule is available setting out the different types of payment grant, the level of grant and its conditions (see below) Victims of human trafficking may be able to claim monetary compensation in Hong Kong if they can show that have suffered physical injury in accordance with the requirements of the CLEIC scheme. A victim of human trafficking may be able to claim compensation under the "injury grant" resulting from rape or assault. However, because the CLEIC scheme is limited to criminal injuries only, a victim of trafficking will only be eligible to claim compensation under the CLEIC scheme if they are able to prove that they have suffered criminal injury. 2.7 The requirement for a criminal injury means that it is not possible to obtain compensation by virtue of being a victim of human trafficking; evidence of a criminal injury is essential. 2.8 It appears to be more difficult for a male victim of sex trafficking to seek recourse. This is because rape is a criminal offence that only men can commit against women under Hong Kong law 3 and so it is inherently unlikely that the CLEIC scheme could recognise rape against a male victim for the purpose of paying compensation. However, section 118 of the Crimes Ordinance does provide the offence of nonconsensual buggery and section 122 of the Crimes Ordinance provides that indecent assault is a criminal offence. Accordingly, male victims of sex trafficking would not be eligible for compensation on the grounds of rape but could make an application in respect of injury suffered as a result of non-consensual buggery or indecent assault. It is not possible for a male under the age of 16 to consent to buggery. Available awards under the CLEIC scheme 2.9 There are three types of grants available under the CLEIC scheme: "disability grant", "injury grant" and "injury maintenance grant". Victims of human trafficking are likely to claim only for an injury grant due to the criteria set by the CIC Board The maximum amount a victim can claim under an injury grant is HK$52,590 depending on the gravity of the injury, although there is discretion to double this amount for rape claims. Accordingly, the maximum a victim of sex trafficking may potentially claim is HK$105,180 and other victims of human trafficking can only claim up to HK$52, As such, even if a victim of trafficking were able to meet the stringent requirements of the CLEIC scheme, the possible award available is very low (particularly when compared to comparable schemes, such as the Criminal Injuries Compensation Scheme 2012 ("CICS") in the UK). 2 3 Social Welfare Department "Criminal and Law Enforcement Injuries Compensation Scheme Payment Schedule" Section 118 of the Crimes Ordinance (Cap. 200) - 4 -

5 TREATMENT OF VICTIMS BY THE CIC BOARD 3.1 No information on how the CIC Board has dealt with cases where the applicant is or may be a victim of human trafficking is presently available. Publicly available information 3.2 Information in relation to CLEIC scheme can be found on the website of the SWD. 4 The Annual Report issued by the Chairman of the CLEIC scheme (currently Kwok Tung-Ming, Eric SC) is available from the SWD's website. 3.3 From the Annual Report, it is apparent that: (a) the vast majority of applications in 2012/2013 (253 out of 285) were in respect of assault/wounding; (b) the police referred the majority of the applications (171 out of 285), with 102 further applications being made directly and only 10 applications originating from outreach and 1 from the SWD; (c) whilst the majority of cases were successful, cases were rejected or withdrawn for various reasons. Notably, 33 applications were withdrawn due to: (i) unwillingness to be investigated; or (ii) the sick leave period being below the minimum requirement. 3.4 According to the Annual Report, application forms and publicity materials such as posters and leaflets are available at the SWD offices, police stations, hospitals, District Offices of the Home Affairs Department and at related institutions and locations. The Information and PR Unit of the SWD is reported to have assisted in publicising the CLEIC scheme by answering enquiries from the media, as well as providing information to the media on particular cases, which attracted public interest The Annual Report also confirms that, during last year, regular contact and close coordination was maintained with the Hong Kong Police Force, the Hospital Authority, the Labour Department and other related bodies in relation to the CLEIC scheme, and police community relations officers, social workers of Integrated Family Service Centres and medical social workers also assisted in introducing the CLEIC scheme to potential applicants. 3.6 Whilst the CLEIC scheme appears to have been run to successfully award numerous victims of criminal injury in recent years, it does not presently provide much, if any, scope to enable compensation to be provided to victims of human trafficking No record of such publicity has been located

6 - 6-3-year time limit 3.7 The SWD has confirmed that the 3-year limit is likely to be strictly enforced on all applicants. The CIC Board is unlikely to take into consideration an applicant's reasons for submitting an application that falls outside this time limit. 3.8 This time limit presents an obvious problem for victims of human trafficking who are physically or psychologically unable to escape from their traffickers. Victims of human trafficking may have had their passports, travel and identity documents withheld by their traffickers. Traffickers may also use threats and other means of abuse to prevent victims from escaping. This means that it will not be possible for victims of human trafficking, in many cases, to bring an application within the 3-year period. 3.9 It is also likely that many victims who may be eligible applicants will not be aware that they may claim compensation under the CLEIC scheme until after the 3-year deadline has lapsed. They are also likely to be unaware of the procedures involved in claiming compensation and may need legal assistance to file an application. These obstacles may be further compounded by the fact that many trafficking victims are not fluent Cantonese or English speakers and thus will not have access to or understand the information that is publically available (although it is noted in this regard that there is a leaflet available, albeit a brief one, which has been translated into Hindi, Indonesian, Nepali, Tagalog, Thai and Urdu) Victims of human trafficking are vulnerable and may suffer from mental and psychological injuries including Post-Traumatic Stress Disorder ("PTSD"). It is possible that many victims may delay making a CLEIC application due to personal reasons, including feelings of shame, PTSD, trauma or other psychological injuries as well as not wanting to re-live and tell their traumatic experiences. Cooperation with the Hong Kong Police 3.11 The CLEIC scheme requires applicants to fully cooperate with the police at all times throughout their application process. The SWD has suggested that this could be demonstrated by the applicant reporting their circumstances to the police or that the perpetrator(s) ultimately become the subject of criminal proceedings in Hong Kong Whether or not the police prosecute the alleged perpetrator(s) will be taken into account when the CIC Board reviews the CLEIC application. As such, if the police decline to prosecute a perpetrator, the CIC Board may be less likely to advance an applicant's application This requirement also means that victims of human trafficking must be able to collate strong evidence of their criminal injuries (such as rape). In a trafficking or forced prostitution scenario, this may be very difficult given that most victims may not have ready (or any) access to hospitals or health care providers. The police may decline to prosecute perpetrators on the basis that there is insufficient evidence to do so. However, these reasons should not have a direct causal link with whether or not a victim of trafficking should be able to claim compensation under the CLEIC scheme for their injuries

7 Human trafficking victims who are not involved in a forced prostitution scenario may have even dimmer prospects. The police may not prosecute suspected assailants given that section 129 of the Crimes Ordinance (Cap. 200) only regulates sex trafficking in and out of Hong Kong. Victims of human trafficking (other than forced prostitution) will have to show that they sustained injuries of a criminal nature, although this does include mental or psychological injuries Further, human trafficking victims who are involved in a forced labour scenario cannot even make a complaint to the police, as there is no applicable offence under Hong Kong law unless they have suffered criminal injury Applications may also be rejected if the CIC Board is of the opinion that the victim has not fully cooperated with the police. This does not take account of the special nature of trafficking cases, in which victims are commonly in situations where they cannot provide their full assistance to the police. It is common for victims of human trafficking to believe that their personal safety or their families will be threatened if they report their traffickers and assailants to the police (often for good reason). Victims of human trafficking may also be too frightened or traumatised to testify, give evidence at trial, or to proceed once a complaint is made. It is also likely that threats may be received once they file a complaint or a report to the police The inability of a victim of trafficking to fully cooperate with the police should be construed with an appreciation of the sensitive and difficult circumstances in which a victim of trafficking is likely to be subject. It is suggested that the unique circumstances of trafficking victims ought to be taken account of when considering any application under the CLEIC scheme. Requirement to show loss of earnings 3.18 In general, an applicant will be deemed to have suffered 3 days' lost earnings or earning capacity if: (a) he/she is on sick leave as certified by a registered medical practitioner/registered Chinese medical practitioner (or any equivalent certificate from a clinical psychologist if the victim suffers from mental trauma); or (b) if the victim is in the hospital whether he/she is a wage earner or not The above methods for proving the requisite loss of earnings or earning capacity are evidently very onerous, if not impossible, for a victim of trafficking to prove. The very nature of human trafficking means that the victim has restricted freedom. Most victims of human trafficking would simply not be in a position to obtain a sick leave note or medical care at a hospital, either due to physical restrictions on their freedom or duress The CIC Board may in certain exceptional circumstances waive the requirement to show loss of earnings. 7 The only exceptional circumstance stated by the CLEIC scheme that is of potential assistance to victims of human trafficking is where the 6 7 CLEIC Administrative Document (March 2009), paragraph 6(b) CLEIC Administrative Document (March 2009), paragraph 6(b) - 7 -

8 - 8 - applicant is the victim of rape. Whilst this may apply to certain cases, it does not provide any assistance for the numerous forms of human trafficking that do not involve sexual offences. Right to remain in Hong Kong 3.21 The requirement that a victim must have a right to remain in Hong Kong at the time of the relevant incident presents an obstacle for trafficking victims who have been illegally brought or smuggled into Hong Kong and/or trafficking victims who came into Hong Kong legally but have since become in breach of their conditions of stay. This requirement acts to effectively bar such victims from making an application under the CLEIC scheme Many victims of human trafficking will likely face difficulty in satisfying this requirement. Victims may have entered Hong Kong on a short-stay tourist visa, a temporary work visa (either arranged by themselves or their traffickers), or using visa-on-arrival. However, it is highly likely that their circumstances will mean that they have remained in Hong Kong beyond the duration they are legally permitted to remain in Hong Kong, which would render them ineligible to make an application The CIC Board has stated that, in these circumstances, the applicant has to report their situation to the police as quickly as possible and an applicant will only be able to claim compensation for the injuries committed against them during the time they were legally permitted to be in Hong Kong (even if this is a very short period of time) It is therefore likely that victims of human trafficking will face difficulty in reporting their criminal injuries that occurred during the window of time they were legally permitted to be in Hong Kong. Compensation for victims of sexual offences 3.25 In relation to compensation for victims of sexual offences, the CIC Board will consider whether there was "any responsibility, either because of provocation or otherwise" on the part of the victim. 8 In this regard, the CIC Board will reduce the amount of compensation, or reject the application altogether, if it considers compensation to be inappropriate based on the conduct, character and way of life of the victim. 9 This raises the possibility that the CIC Board may deny compensation to victims of sex trafficking depending on the surrounding circumstances Further, the CLEIC scheme provides that, in respect of sexual offences, the CIC board will "consider applications for compensation for loss of earnings or earning capacity (whether caused by injury or pregnancy) attributable to the sexual offence". 10 This reference to "injury or pregnancy" ignores the trauma suffered by victims of sexual offences, particularly those who are victims of human trafficking CLEIC Administrative Document (March 2009), paragraph 9 CLEIC Administrative Document (March 2009), paragraph 12 CLEIC Administrative Document (March 2009), paragraph 9-8 -

9 - 9 - Tariffs 3.27 The CLEIC scheme sets out a tariff system for criminal injuries. However, on the basis of the information that is currently publicly available, the CLEIC scheme does not provide tariffs for mental injuries even though they are classified as criminal injuries An applicant must have a specific injury that falls within the tariff otherwise they will not be able to claim an award. The CLEIC scheme appears to require that victims prove, to the criminal standard of proof (i.e. through a criminal conviction), that they have suffered the injuries they say they have. This is supported by the fact an application will be prejudiced if the police decline to prosecute an assailant. By requiring victims of human trafficking to provide this level of evidence of their injuries and/or to show that there has been a conviction presents an extremely onerous procedural hurdle for such applicants There are currently no specific tariffs for sexual abuse. Further support for victims of human trafficking 3.30 The current level of emotional and practical support offered to victims of human trafficking has a direct impact on their ability to rebuild their lives, cooperate with the police and apply for compensation. There is currently no accessible or clear framework to assist in physically protecting victims of human trafficking CLEIC applications may take up to a year or two to resolve (or longer if the case is appealed). Victims of human trafficking are vulnerable and the majority are unlikely to be Hong Kong residents. It may also be difficult to keep track of their physical location or address; victims may miss correspondence from the CIC board and therefore miss important deadlines that will prejudice their claim Typically, by virtue of their precarious immigration status, victims of trafficking will not be eligible under Hong Kong law to seek employment, and are thus are very vulnerable to exploitation. Having adequate support and protection while their application is assessed is vital to ensure they are not at threat from their trafficker(s)

10 DEFINING HUMAN TRAFFICKING UNDER HONG KONG LAW 4.1 There is currently no domestic legislation that adequately defines human trafficking in Hong Kong. Whilst section 129 of the Crimes Ordinance provides a definition of trafficking (see below), it is very narrow and does not encompass the various forms of human trafficking that have been recognised by international legislation. 4.2 One definition of human trafficking is provided in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the "Palermo Protocol"): "Trafficking in persons" (or Human Trafficking) shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs." 4.3 Paragraph 18 of the Hong Kong Prosecution Code states that "The exploitation of persons and the trafficking of them for that purpose are both serious crimes and violations of fundamental human rights and freedom." It defines human exploitation as including activities that "demean the value of human life such as sexual exploitation, enforced labour, domestic servitude, debt bondage and organ harvesting." 4.4 Section 129 of the Crimes Ordinance defines human trafficking to or from Hong Kong only as the "Exploitation of other persons for sexual purposes" and provides that "a person who takes part in bringing another person into, or taking another person out of, Hong Kong for the purpose of prostitution shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 10 years". This definition fails to acknowledge the various types of victims of human trafficking; it only addresses the scenario of a person trafficked to or from Hong Kong for the purpose of prostitution. 4.5 Accordingly, while the Palermo Protocol definition is embodied in the Prosecution Code, there is currently only a narrow legal definition of human trafficking under Hong Kong law pursuant to section 129 of the Crimes Ordinance. In order to recognise victims of human trafficking as a separate group of vulnerable applicants, it is essential that there is clear awareness about who is a victim of human trafficking. 4.6 While the Crimes Ordinance would ideally be revised to reflect a more encompassing definition of human trafficking, beginning with recognising all victims of human trafficking as a vulnerable group of people, as a first step the Prosecution Code should be used to recognise victims of human trafficking as a distinct group of applicants with particular circumstances and needs

11 A COMPARATIVE REVIEW CRIMINAL INJURIES COMPENSATION SCHEME (UK) 5.1 The CICS is, similarly to the CLEIC scheme, a government funded scheme designed to compensate victims of violent crime in Great Britain. The Criminal Injuries Compensation Authority ("CICA") administers the scheme. The rules of the CICS and the value of the payments awarded are set by Parliament and are calculated by reference to a tariff of injuries (which includes awards ranging from 1,000 to 500,000). 11 An application under the CICS can be made online Whilst the CICS is not yet sufficient to provide ready access for victims of human trafficking, it offers a better system through which such victims can realistically obtain compensation than the CLEIC scheme. In 2012, the CICA made victims of human trafficking exempt from the residency requirements and they are eligible to apply so long as they have been "conclusively identified by a competent authority as a victim of trafficking in human beings". This occurs when, on completion of the identification process required by Article 10 of the Council of Europe Convention against Trafficking in Human Beings (CETS No.197, 2005), a competent authority concludes that the person is such a victim. "Victim of trafficking in human beings" has the same meaning as under that Convention. 5.3 A victim of trafficking may be eligible to make a claim under the CICS if they have: (i) suffered a physical and/or psychological injury in Great Britain; (ii) apply within 2 years of the crime occurring; (iii) report the crime to the Police; and (iv) cooperate fully with the Police and the Criminal Justice System in the UK. The 2-year time period may be extended in exceptional circumstances (which meant an application could not have been made earlier) or where there is evidence that a crime of violence occurred and a decision can be made without extensive further enquiries. The experience of our colleagues at Hogan Lovells International LLP, who have assisted victims of human trafficking obtain compensation through the CICA over the past 7 years, is that the 2-year time period has been waived in several cases where it has been demonstrated that a victim of trafficking was unable to seek outside help and/or obtain awareness of the existence of the CICA. 5.4 The main barriers to the CICS that remain for victims of human trafficking are: (a) (b) the definition of "crime of violence" (which is an undefined term under the present CLEIC scheme) is insufficiently defined to allow access to victims of human trafficking; and the tariff scheme (whilst an improvement on the position under the CLEIC scheme) does not adequately compensate victims of human trafficking and the lack of clarity often makes the process lengthy, more expensive to administer and difficult for victims of human trafficking to access. 5.5 Accordingly, whilst the CICS itself remains an insufficient scheme for the purpose of administering compensation to victims of human trafficking in the UK, it is more accessible to victims of trafficking and valuable insight can be gained from the CICS and how it has evolved

12 DEVELOPMENT OF NEW SCHEME FOR VICTIMS OF HUMAN TRAFFICKING 6.1 It is clear that the CLEIC scheme does not afford victims of human trafficking a realistic prospect of making a successful claim for compensation. 6.2 The definition of crime of violence is problematic for victims of human trafficking who may seek to claim compensation under the CLEIC scheme as well as the CICS scheme. As is widely accepted, many situations of modern day slavery involve subtle coercive techniques rather than overt and identifiable violent acts. Given that the CLEIC and the CICS scheme have at their hearts that an applicant must have been a victim of violent crime, they are generally not suitable for victims of human trafficking. 6.3 Moreover, the eligibility requirements of the CLEIC scheme are not tailored to the needs of victims of human trafficking and several of those requirements present major (and likely insurmountable) difficulties for the typical victim of human trafficking. 6.4 Further, the current CLEIC scheme looks exclusively at criminal claims. Victims of human trafficking are presently unable to seek any compensation under the CLEIC scheme for civil injuries, which specially (and would most commonly) include the torts of false imprisonment, harassment, intimidation and, where a group of traffickers is involved, unlawful means of conspiracy. Accordingly, victims of human trafficking must currently resort to bringing a civil claim against their perpetrators if they are seeking damages. However, the law of civil torts has not generally evolved with the foresight of aiding victims of human trafficking and there is a lack of a specific tort of which victims may avail themselves. The burden of proof required and the lack of protection with regard to evidence and procedure do not lend themselves to protecting victims of human trafficking. 6.5 In light of this, there is a real and pressing need for a new scheme be developed in order to provide a real opportunity for victims of human trafficking (as a distinct and unique group of people) to seek compensation for the injuries and/or trauma that they have suffered whilst being in Hong Kong (the "New Scheme"). The New Scheme 6.6 It is recommended that the New Scheme is put in place to specifically provide compensation to victims of human trafficking. Whilst the scope, requirements and tariffs of the New Scheme would need to be matters of careful debate, some preliminary recommendations as to what a compensation scheme suited to victims of trafficking should encompass are set out below. 6.7 It is also recommended that the New Scheme be administered by a newly formed board or otherwise/in the interim by the CIC Board (who are familiar with this type of application process). 6.8 The New Scheme should not incorporate any of the procedural hurdles embodied in the present CLEIC scheme and CICS scheme (as identified above). 6.9 Unlike the CLEC Scheme, it is recommended that there be a basic set award for victims of human trafficking in Hong Kong. Such award (which could be calculated on

13 the basis of the duration of the abuse) should take into account the psychological damage often attributable and the loss of liberty and other injuries that victims of human trafficking typically suffer In addition, it is recommended that there should be an additional award for victims of human trafficking for prostitution. This award (which would be compensation in addition to the basic set award) would take into account the severity of the situations faced by this unique category of victims who will often be repeatedly raped and therefore suffer sustained trauma With respect to the eligibility requirements for the New Scheme, it is recommended that the New Scheme requires the following: (a) (b) (c) the applicant be a victim of human trafficking in Hong Kong (to be determined by a Board by reference to Code 18 of the Hong Kong Prosecution Code); the applicant makes the application within 3 years of being trafficked (although with discretion to waive such requirement in appropriate circumstances where the victim is able to clearly demonstrate that they were physically unable to or coerced against making an application); and the applicant gives the relevant Board all related information and reasonable assistance It is recommended that there be no requirement for the victim to have a right to remain in Hong Kong under the Immigration Ordinance (Cap. 115) or to not be in contravention of any limit of stay at the relevant time It is also recommended that there be no requirement for the applicant to have reported their situation to the police. Some victims and their families are threatened with violence if they report their traffickers and abusers to the police. Given the exceptional levels of violence used against these people as a mechanism of control, the victims take such threats seriously and, often, will be too frightened or traumatised to give evidence at trial or to proceed once a complaint is made. CONCLUSION Obtaining compensation is fundamentally important to help victims of human trafficking to rebuild their lives and in turn prevent them being re-trafficked or exploited as a result of their continued vulnerability. Compensation also serves the purpose of enabling the justice system to provide some comfort to victims and to encourage them to come forward and acknowledge the abuse that they have suffered. The CLEIC scheme is not sufficiently accessible to victims of human trafficking, having been conceived for victims of violent crimes rather than the crime of human trafficking. Victims of trafficking therefore do not presently have a realistic prospect of seeking compensation. For those reasons, there is a real and pressing need for a new scheme to be developed in order to provide a real opportunity for victims of human trafficking to seek compensation for the abuse, injuries and/or trauma that they have suffered in Hong Kong as a result of the trafficking