4. Unlawful Transfer of the Possession, Custody or Control of a Person for Valuable Consideration

4. Unlawful Transfer of the Possession, Custody or Control of a Person for Valuable Consideration

Under section 44(1) of the Offences against the Person Ordinance (Cap. 212): "Any person who takes any part in any transaction the object or one of the objects of which is to transfer or confer, wholly or partly, temporarily or permanently, the possession, custody or control of any other person for any valuable consideration shall be guilty of an offence triable either summarily or upon indictment, and shall be liable to imprisonment for 2 years." 

Under section 44(2) of the Offences against the Person Ordinance: "Any person who without lawful authority or excuse harbours or has in his possession, custody or control any person with respect to whom the temporary or permanent possession, custody or control has been transferred or conferred for valuable consideration by any other person within or without Hong Kong shall be guilty of an offence triable either summarily or upon indictment, and shall be liable to imprisonment for 2 years." 

Section 44 addresses conduct amounting to "trafficking in, or transferring control over, a person". Section 44(1) means that where a person takes part in a transaction the object (or one of the objects) of which is to obtain, in exchange for money or some other thing of value, the care, possession or control of another person, whether temporarily or permanently, he commits an offence, punishable by up to 2 years' imprisonment. 

Section 44(2) addresses a different situation: where a person, knowing that another has been "trafficked" (that is, that someone has, for money or other consideration, acquired control over that person), nevertheless takes in, cares for, controls or has possession of that person, whether within or outside Hong Kong, without any lawful authority or excuse, he likewise commits an offence, again punishable by a maximum of 2 years' imprisonment. 

For example, if A pays B $50,000 to have B hand over a child to A, so that A may keep and control the child, B—and anyone who arranges or carries out the transaction—may contravene section 44(1), because the object of the transaction is to transfer the custody or control of a person for valuable consideration. 

After the child has been handed over in return for the payment, C, knowing of the above circumstances, nevertheless agrees to conceal the child in his own home and to look after the child on B's behalf. C may contravene section 44(2), because C is harbouring, or has in his possession, custody or control, a person whose custody or control had previously been transferred for valuable consideration, and C has no lawful authority or excuse. 

Under section 44(5), the fact that the person who was "trafficked" or whose "control was transferred" himself consented, or received the money (or part of the consideration), is no defence. In other words, so long as the conduct itself is unlawful, the consent of the person concerned does not render it lawful, nor can it be relied upon to escape criminal liability.