BUREAUCRATIC JUSTICE: THE INCARCERATION OF MAINLAND CHINESE WOMEN WORKING IN HONG KONG'S SEX INDUSTRY

I haven't quite read through the following yet, but am glad that someone (all women!) from the legal sector are working on the issue. Hope they don't mind I am copying their work here.

If you are interested, here are the two organizations in HK supporting sex workers:

Ziteng http://www.ziteng.org.hk/
Action for Reach Out http://hkaids.med.cuhk.edu.hk/reachout/

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SUMMARY FOR THE ROUNDTABLE ON 27 APRIL 2006

(by Dr.Robyn Emerton, Dr. Karen Joe Laidler and Dr. Carole Petersen of the University of Hong Kong)

In the new millennium Hong Kong has witnessed a rapid and dramatic increase in the number of mainland Chinese visitors to the territory, including women who cross the border to engage in sex work. While sex work itself is not a crime in Hong Kong, several related activities, such as soliciting, are prohibited. Moreover, sex work is treated as a form of work for immigration purposes and visitors who engage in work without an employment visa are in breach of their conditions of stay. More than 10,000 mainland Chinese women have been arrested, prosecuted, and sentenced in the past five years, causing Hong Kong's female correctional population to expand beyond capacity.

This paper presents information from interviews conducted in 2004 with 58 mainland Chinese women incarcerated in three correctional institutions in Hong Kong for criminal and/or immigration offences related to sex work. The interviews were arranged with the kind assistance of the Correctional Services Department.

By interviewing an incarcerated population, we were able to access women who had worked in a variety of settings, including women who had worked under third-party management. This group is usually inaccessible to researchers, as the women remain hidden in villas prior to their arrest. Our study showed that the majority of women came voluntarily and were assisted by others who profit from them, both on the mainland and in Hong Kong. Certainly some organized crime involvement exists, but its extent is unclear from the women's accounts.

Most women reported financial considerations as the primary factor influencing their decision to come to Hong Kong. Some were driven by urgent and dire economic circumstances, while others believed that this opportunity could offer higher earning potential than working in factories or the service industry in the mainland. In fact, many of the women were arrested before making a profit, but others reported significant earnings on this or a previous visit (as much as HK$80,000 in one case).

The women's responses to questions about the criminal justice system indicate that cases are processed efficiently, but with limited regard to individual circumstances or to the defendants' understanding of their alleged offences. Describing their experiences in police stations, the majority said they understood the charges for which they had been arrested, but nine were confused, believing they had been charged with “prostitution” rather than immigration charges. Some women were not clear why they had been charged in the circumstances: four of the 19 women charged with soliciting said that the police had initiated the transaction, and five women arrested on the street for soliciting or immigration offences said they were not working when the police stopped them. The majority of women were allowed a telephone call, were provided with an interpreter and generally agreed with the statement, or chose not to read it. Seven women reported, however, that they had signed statements which they were not able to read, either because they were illiterate or because the statement was in English and traditional Chinese. One woman reported that she signed several blank pieces of paper. Finally, the accounts of three respondents raise concern about responses to women who allege that they were deceived and then forced into sex work. Despite informing various officials of their situations, these women's cases were handled in a standardized fashion.

In court, one strategy to expedite cases involves the duty lawyer conducting group interviews, and the magistrate hearing certain cases together. Five of our respondents had experienced such collective treatment. Two of them reported that their individual circumstances were not put before the court, and one said that she believed herself to be innocent, but pleaded guilty because the others in her group had done so. Six women complained that the translation was too fast, and that they did not understand the proceedings. Nearly all of the respondents (N=53) pleaded guilty when they first appeared in court, which clearly contributes to the expedient processing of cases. The remaining five, who initially pleaded not guilty, changed their plea to guilty at their second court appearance, having been advised by other women on remand that pleading not guilty would result in a lengthier trial process than pleading guilty. Our observations of the proceedings in the magistrates' courts between July 2005 and April 2006 confirmed the speed and routine with which these cases are managed. The average time to complete an individual defendant's case was only three minutes.

In this context – the volume of cases, the grouping of cases, routine guilty pleas, the standardization of cases, the tendency to ignore individual circumstances, and normative sentences – the criminal justice system takes on the features of a bureaucratic machine. The consequence of this bureaucratic response – the short-term imprisonment of a large number of women – is expensive and has yet to demonstrate a deterrent or rehabilitative effect. Although the majority of the first-timers said they would not return to Hong Kong for sex work once released, 15 of our respondents had been arrested on one or more previous occasion, which raises questions as to the individual deterrent effect of current practices. Further, current policies have yet to demonstrate a general deterrent effect in discouraging other mainland Chinese women from coming to Hong Kong to engage in sex work. There has been a recent decrease in arrests, which the Secretary for Security attributes to vigorous law enforcement and improved immigration control. However, this decrease may reflect a decrease in the rate of police detection. In any event, a higher prosecution rate has meant that the number of mainland women being incarcerated in Hong Kong has continued to rise.

In light of "one country, two systems", how might the respective governments and authorities begin to better address this issue? Consideration could be given to alternative approaches, such as a "suspended sentence" for first time offenders accompanied by a slower and more individualized judicial process, in which women are clearly advised of the nature of their offence and warned they will receive a much stiffer penalty if they repeat it. Thus far, however, there has been little public debate on alternative strategies for addressing the issue. Some discussion has taken place amongst government officials and the Legislative Council on the regulation of the sex industry generally and on the possibility of creating of red light districts. Such measures might arguably assist the situation of local sex workers, but they would not resolve the thorny issue of how (or whether) to create a space for migrant sex workers. Without changes to Hong Kong immigration law, this group would still be contravening the law simply by working.