The Second Periodic Report on the Hong Kong Special Administrative Region of the People’s Republic of China in light of the International Covenant on Civil and Political Rights


Submission by Hong Kong Human Rights Monitor



March 2006















4/F Kam Tak Building, 20 Mercer Street, Sheung Wan, Hong Kong

Phone: (852) 2811-4488     Fax: (852) 2802-6012

Email: contact@hkhrm.org.hk     Home page: http://hkhrm.org.hk



Chairperson: Cyd Ho  Deputy Chairs: Chong Yiu Kwong, John Clancey

Secretary: Betty Cheng  Treasurer: Raymond Tsui

Founding members: Paul Harris; John Kamm; Phillip Ross; Ho Hei Wah; Johannes Chan; Andrew Byrnes; Charles Mok; Christine Loh

Table of Contents


Executive Summary                                                                 para 1- 7


Chap. 1: Self Determination and the Right to Participate in Public Life (Art 1 & 25)


1.     Self-Determination                                                        para 1-3

2.     SCBOC Interpretation                                                   para 4-9

3.     Post-Handover Legislative Council                                 para 10-20

4.     CE Election                                                                    para 21-37

5.     2004 Elections                                                               para 38-46

6.     District Councils                                                            para 47-49 

7.     Political Rights of Women                                              para 50-55

8.     Threats and Vandalism Against Democratic Legislators para 77-79

9.     Human Rights Education                                              para 84-87


Chap. 2: Ensuring Rights to All Individuals & Enforceable Remedies without Distinction; Equal Rights of Men & Women (Arts 2 & 3)


1.     Establishing A Human Rights Commission & Independence of Other Bodies                                                               para 88-98

2.     Lack of Transparency in Appointment of EOC Chairperson

para 99-108

3.     Violence Against Women (Domestic and Sexual) para 109-118


Chap. 3: Emergency and Limitation on Derogation: Right to Life; No Torture and Slavery (Arts. 4,6,7,8)


1.     Human Trafficking                                               para 119-129

2.     Forced Labour                                                      para 130-136

3.     Emergency Regulations Ordinance 1922             para 137-143


Chap. 4: Liberty and Security of the Person; Detention and Rights of Detainees; Prohibition of Torture and Inhuman Treatment (Arts 7,9,10)


1.     Police Complaints System                                    para 140-151

2.     Monitoring of Prisons                                           para 152-159

3.     Monitoring of the Immigration Department                   para 160-164


Chap 5: Liberty of Movement; Choice of Home & Alien’s Right to Appeal against Expulsion


1.     Immigration Law & Immigration Appeal               para165-167

2.     Status of Refugees/Asylum Seekers                    para 168-193

3.     Domestic Workers: Choice of Home                     para 194-196


Chap. 6: Children and Family; Equality before Courts; Right to Fair and Public Hearings; Legal Aid; Due Process; Equality before the Law; Privacy (Arts 14, 17, 23, 24 and 26)


1.     Narrowing of Right of Abode                                 para 197-212

2.     Legal Aid and the Duty Lawyer Scheme              para 213-222

3.     Invasion of Telecommunications Privacy               para 223-225


Chap 7: Freedoms of Expression, Opinion, Thought, Conscience and Religion (Arts 18, 19, 20, 21 and 22)


1.     Politically Motivated Censorship                          para 226-229

2.     Patriotism Campaign and Media Self-censorship para 229-260

3.     Immigration Barrier to Political and Academic Discussions   

                                                                  para 261-267

4.     Immigration Barrier to Religious Freedom           para 268-272

5.     Pressure, Threats and Attacks over Falun Gong Related Newspaper

                                                                           para 273-278

6.     Detention of HK-based Professionals by Mainland Security Agents for Political Reasons                                                para 279-286

7.     National Security Bill                                           para 287-289


Chap. 8: Right of Peaceful Assembly; Freedoms of Association & Trade Union (Arts 21 and 22)


1.     Police Commissioner’s Overbroad Discretion in Public Order Ordinance   para 290-299

2.     Police Tactics/Freedom of Demonstration            para 300-317

3.     Rolling Back of Societies Ordinance                    para 318-329

4.     Restricting Foreign Connections                          para 330-334

5.     Right to Form Trade Unions                                 para 335-337

8.     Right to Protection Against Anti-union Discrimination

                                                                           para 338-345


Chap 9: Rights of Minorities and Equal Opportunities (Art 2, 3 and 27)


1.     Failure to Combat Racial Discrimination            para 346-356

2.     Foreign Domestic Workers                                  para 357-362

3.     Transgendered Persons                                       para 363-370

4.     Discrimination Against Sexual Orientation         para 371-378


Appendix 1                                                                              para 379-385

Executive Summary


1.         Hong Kong Human Rights Monitor (The Monitor) notes with regret the lack of observance by the Hong Kong Government of its obligations under the ICCPR and its attitude towards the UN Human Rights Committee. In early March, Secretary for Home Affairs Patrick Ho was quoted as saying “We will not make hasty decisions for short-term applause...The Committee's views are well-intentioned. But they are so far away and may not have a deep understanding of our situation."[1]  


2.         The Monitor is concerned about the rule of law and the independence of the judiciary over the 3 interpretations of the Basic Law by the Standing Committee of the National People’s Congress (SCNPC) post-handover.


3.         The Monitor is disappointed that in spite of requests by the Human Rights Committee and the people of Hong Kong (The July 1st march of 2003), there have not been significant constitutional changes to address the inequities of the functional constituency system, the appointment system existent in the District Council elections as well as the latest Chief Executive election which will be addressed in this report.


4.         Although the government has just drafted an Interception of Communications and Surveillance Bill, the Monitor is concerned  over the use of ambiguous terms in language (protecting “public security”). Judges who are responsible for approving covert surveillance applications, will be required to undergo integrity checks, the Monitor expresses skepticism over these “integrity checks”.


5.         The Monitor is concerned over the impending threat over the freedom of the press, with increasing self-censorship as well as the threatened editorial independence of the territory’s only public broadcaster, Radio Television Hong Kong (RTHK)


6.         In spite of repeated requests from the Human Rights Committee to legislate against racial discrimination, the Hong Kong government is still delaying and procrastinating on the issue of legislating and the Monitor calls on the Committee to press the government to show a whole-government commitment to enact the law and to implement the treaty bodies’ recommendations with respect to such laws.


7.         The Monitor refutes the Hong Kong government’s assertion that a National Human Rights Institution is not necessary under the existing legal framework and various specialist institutions. In fact, the powers conferred on the Ombudsman, the Equal Opportunities Commission (EOC) and the Privacy Commission are very limited. The Monitor calls on the Committee to not only recommend the setting up of an independent Human Rights Commission while at the same time ensuring that independent bodies such as the EOC remain independent. (See report for full details)


8.         The Monitor calls on the Committee to call for a comprehensive review of the Public Order Ordinance in the light of recent judgments in Hong Kong and the standards laid down in the ICCPR.


9.         Supplementary information to be submitted in a year’s time should be requested from the HKSAR on the progress in the amendments of the electoral laws and democratic development, the measures of the Government related to the review of Public Broadcast Service, and the enactment of the Race Discrimination Bill with emphasis on the government to commitment to outlaw all forms of racial discrimination.
































Since the first report submitted by the Hong Kong government in 1999, there has not been much progress in constitutional development or in the advancement of civil and political rights in Hong Kong.


In this report, THE MONITOR examines the violations of the ICCPR covenants by the Hong Kong Government and would suggest recommendations for the Human Rights Committee to consider.



Chap. 1: Self Determination and the Right to Participate in Public Life (Art 1 & 25)




1.     The principle of self determination is firmly established in international law[2]. Article 1 of the ICCPR provides that “all peoples have the right of self-determination…right to freely determine their political status and freely pursue their economic, social and cultural development”. The right of determination here also encompasses the right to have the constitution of a country or territory determined by the people themselves. Not only did the people of Hong Kong not have any say over the drafting of the constitution, they also have limited power over the aspects of self determination as they relate to constitutional development.


2.     A separate vote count is provided for in Annex II of the Basic Law, with private member’s bills or amendments to government bills having to be passed by majorities in each of those divisions of the Legislative Councils, the first consisting of functional constituency legislators and those returned by the Election Committee and finally those who are elected by universal and equal suffrage. The 2004 interpretation of the Basic Law together with the decision by the Standing Committee of the National People’s Congress ruled out universal suffrage for the election of the Chief Executive in 2007 and for electing all members of the Legislative Council in 2008. The interpretation is totally contrary to the wills of the Hong Kong people for full democracy expressed in massive demonstrations and opinion polls.


3.     In addition, Article 23 of the Basic Law requires the HKSAR to “enact laws on its own to prohibit any act of treason, secession, sedition, subversion against the Central Government…” which has been a subject of much controversy (this will be dealt with in the latter part of this report).



SCNPC Interpretation



4.     In the Human Rights Committee’s Concluding Observations in 1999, the Committee expressed concern over “the implications for the independence of the judiciary of the request by the Chief Executive of HKSAR for a reinterpretation of article 24 (2)(3) of the Basic Law by the Standing Committee of the National People's Congress (under article 158 of the Basic Law) following upon the decision of the Court of Final Appeal (CFA) in the Ng Ka Ling and Chan Kam Nga cases, which placed a particular interpretation on article 24 (2)(3). The Committee has noted the statement of the HKSAR that it would not seek another such interpretation except in highly exceptional circumstances. Nevertheless, the Committee remains concerned that a request by the executive branch of government for an interpretation under article 158 (1) of the Basic Law could be used in circumstances that undermine the right to a fair trial under article 14.”[3]


5.     Since the handover, the Standing Committee of the National People’s Congress exercised its power of interpretation of the Basic Law 3 times. Article 158 of the Basic Law stipulates that “the power of interpretation shall be vested in the Standing Committee of the National People’s Congress, effectively giving a green light to the NPC to challenge the Court of Final Appeals’ rulings.


6.     On 6 April 2004, the Standing Committee of the National People’s Congress gave its interpretation on Articles 45 and 68 of the Basic Law of the HKSAR. This proved to be an effective step to put the constitutional development in Hong Kong on hold. According to the interpretation and the subsequent decision issued on 26th April 2004, the elections of the third Chief Executive in 2007 and the fourth Legislative Council in 2008 will not be through universal suffrage.[4]


7.     Different sectors of society have also expressed deep concerns about the additional reporting procedure which could preclude any changes to the electoral structures if the proposed changes are not approved by the SCNPC.[5]


8.     The “interpretation” is different from the original text of the Basic Law Annexes I and II, in which the power to initiate amendments is vested to Hong Kong institutions. But after the interpretation, any reform procedure must be initiated with SCNPC approval. According to Professor Yash Ghai, a Basic Law expert and Professor at the University of Hong Kong Faculty of Law, the requirement to seek approval from the SCNPC to start the reform mechanism is not found in the Basic Law.[6]


9.     The three-step mechanism stated in Basic Law stipulated that “the impetus and design for the amended method of selection must come from the HKSAR”.[7] Given the aloofness that has always been demonstrated by the central government, one can hardly be optimistic with Hong Kong’s road to universal suffrage if it has to be kicked off with a nod by the SCNPC.[8]  




·        The Monitor urges the Committee to call on the government to honour its guarantees in the Basic Law under Article 39 which guarantees the application of the covenants of the ICCPR.

·        The Monitor calls on the Committee to urge the Government to request for an interpretation only under highly exceptional circumstances.



Post Hand-Over Legislative Council


Functional Constituencies


10.                        In its recommendations, them Human Rights Committee stated: “The Committee reiterated its concern, expressed in paragraph 19 of its concluding observations, adopted at the end of the consideration of the fourth periodic report, that the electoral system for the Legislative Council does not comply with articles 2, paragraphs 1, 25 and 26 of the Covenant. The Committee is concerned about the impending abolition of the Municipal Councils that would further diminish the opportunity of HKSAR residents to take part in the conduct of public affairs, that is guaranteed under Article 25” and that “The HKSAR should reconsider this step. It should take all necessary measures to maintain and strengthen democratic representation of HKSAR residents in public affairs”[9]


11.                        As mentioned above, the National People’s Congress’s re-interpretation of the Basic Law in 2004 was very disappointing.[10] It was decided that the election of legislative council members in 2008 would not be by universal suffrage and that the ratio of functional constituency members and geographical constituency members would not be changed. More recently, the Hong Kong government proposed a reform package to increase the number of Legco seats (half of which would be functional constituency seats) and to double the size of the Election Committee that elects the CE.[11]


12.                        Not even the 250,000 peaceful marchers of December 4th 2005 could convince the government at the very minimum to provide a timetable for universal suffrage. In light of the promising steps that have been taken, since the 1997 handover towards the ending of the functional constituencies system,[12] the recent approaches taken by the NPC and the Hong Kong Government have disheartened the many who were looking forward to enjoying the rights conferred by Art. 25 of the ICCPR.


13.                        Far from adopting the Committee’s recommendations, the government presented the public with a half-hearted constitutional reform package which was voted down by the legislature. The package proposed doubling the size of the Election Committee which selects the Chief Executive next year (2007) to 1600 including the adding of all 529 District Councilors. 10 seats would also have been added to Legco, 5 of which would be geographically elected and five functional constituency seats which would be chosen by District Councillors.[13] Although this proposal gave a clear way for the District Councils, who have been marginalized in the past, to participate, there was no clear time table for universal suffrage (a sticking point which led to the voting down of this proposal).


14.                        It must again be reiterated that the various ways in which the current functional constituency system infringes on the ICCPR. There are numerous systemic problems with the FC system that are perpetuating inequality and discrimination. In relation to the recognition of functions, the system does not reflect or cover all major economic, social or professional sectors in Hong Kong. For instance it is incomprehensible as to why housewives, students and retirees, who make up a significant part of the Hong Kong population are not recognized as being “functional”; whilst political advisory bodies such as the Heung Yee Kuk and the District Councils, who already have a mandate and ability to influence the government, are given further representation in Legco.[14]


15.                        The grouping of functions, namely, the method by which different sectors may be encompassed under the same FC due to the FC’s broad name and definition, leads to problems of effective representation. This is because it is difficult for the elected representative to represent and understand all the diverse and potentially conflicting interests within the FC.[15] For example the Industrial (First) FC electorate encompasses an enormous diversity of different industrial sectors e.g. The Airport Authority, Allen & Overy (law firm), Asia Financial Holdings Ltd, The Australian Chamber of Commerce in HK etc.[16] Another important issue is the differing sizes of each of the different functional constituencies. In the 2004 legislative council election, the Education FC had 77,696 individual electors registered whilst the Heung Yee Kuk only had 149.[17]

16.                        The majority of the functional constituencies have electorates of less than 1500 voters, and among this group many have corporate voting. The five smallest constituencies apart from the Urban and Regional Councils are the Heung Yee Kuk rural organisation; Agriculture and Fisheries; Insurance; Transport; and Finance. Apart from the Heung Yee Kuk, these electors are all representing corporations. Between them, these 837 electors elect the same number of Legislative Council members as one quarter of the total registered electorate of Hong Kong - 698,843 people - in the geographical constituencies.

17.                        However, these simple figures do not convey the true picture, because the real electorates of these small functional constituencies are actually even smaller than the official figures. This is because manipulation of the corporate vote enables a single organisation to have more than one vote. Thus, in the banking functional constituency many banks have two votes, one through their banking company and one through their finance company. Some do not stop at 2. The Hong Kong and Shanghai Bank, the Kincheng Tokyo Bank, the Hang Seng Bank and the Bank of East Asia each have 3 corporate votes through different subsidiaries. As the Hang Seng Bank is itself a subsidiary of the Hong Kong Bank, the Hong Kong Bank group has 6 votes in this constituency. The member elected for this constituency, Mr David Li, is the chief executive of the Bank of East Asia and so is in a position to control 3 votes for himself through organisations he controls. (In addition, Mr Li, of course, has control of a further 3 votes in the banking sub-sector of the election committee, as well as his personal vote in the geographical constituency, so he controls a total of at least 7 votes in the Legco election). If second or third votes by companies which are obviously part of the same group are discounted, the real electorate of the banking constituency drops from 207 to no more than 178.

18.                        Such FC size variations affect how much weight a person’s vote carries and thus results in inequality in voting power, which is against the principles of equal suffrage.[18] There also exists the dilemma surrounding corporate voters. The mechanism for corporate voting is open to easy manipulation as it enables a single individual to incorporate many companies and thus to control the vote in small FCs.[19] Furthermore, it must also be reminded that not all individuals who are permanent residents within a FC are entitled to vote. All in all, when viewing the election system in its full light (i.e. remembering that direct voting occurs only for half the members), it cannot be denied that such a system is extremely discriminatory and without justification.


19.                        However, in spite of this the Chief Executive Donald Tsang has already indicated that "an opportunity to take a significant step towards full democracy" has been lost.[20]




20.                        The Monitor recommends the abolition of this unfair electoral system and to replace it by genuine universal and equal suffrage embodied in a one-man-one-vote system[21].


The Chief Executive Election


21.                        The selection procedure for the Chief Executive is of critical importance for the constitutional development of Hong Kong, since he/she bears crucial responsibilities, including the implementation of the Basic Law, signing bills and budgets passed by the Legislative Council, promulgating laws, making decisions on government policies and issuing executive orders.[22] These duties are all directly related to the well-being of Hong Kong and therefore, opinions from all walks of life should be included to make sure the head of the SAR is chosen in a just and legitimate manner.    


22.                        The size of the Election Committee was increased to 800 members in July 2000 by the Legislative Council and is supposed to be broadly representative according to Annex I of the Basic Law.[23]


23.                        The Election Committee is the only organ designated by the Basic Law, to elect the head of Hong Kong Special Administrative Region. Without the opportunity of directly participating in the election of the head of the region, the citizens of Hong Kong can only rely solely on the Election Committee. Thus, the credibility and fairness of the formation and operation of the Committee must be closely scrutinized.


24.                        Among the 800 members, there are 664 members representing 35 elected sub-sectors, with a total electorate of 178,985 in the 2000 election.[24] This in itself demonstrated a staunch contrast with Hong Kong’s population of seven million. Therefore, it is of little surprise that the CE election has been labelled as a “small-circle election”[25].


25.                        Firstly, there has never been a clear rationale from the Government on the inclusion and or exclusion of the chosen 35 sub-sectors, which many suspect do not represent all major economic, social, or professional sectors in Hong Kong.[26]  


26.                        Secondly, there is an imbalanced distribution of the number of members of each sub-sector in relation to its constituency. For example, in the 2000 EC election, the education sub-sector, with 66,562 registered voters, was to elect 20 members into the EC; while the Heung Yee Kuk sub-sector, with a much smaller electorate of 143, elected 21 members into the EC[27].


27.                        Thirdly, the credibility of the members of the EC can further be questioned given the relatively high number of uncontested candidates. For example, in the 2005 supplementary sub-sector by-election, 12 out of the 33 vacancies were uncontested, and thus elected without competition[28].


28.                        Apart from the loopholes of the Election Committee, the recent Chief Executive Elections in 2002 and 2005 provided vivid examples of how the current election mechanism can lead to distorted and unfair results.


29.                        The Chief Executive Election Ordinance (CEEO) enacted by the Legislative Council on September 21, 2001 stipulated that the election process can close at the end of the nomination stage if only one candidate is able to secure the necessary minimum of 100 nominations. In both the 2002 and 2005 CE Elections, the Chief Executive was elected uncontested, because the then-candidates guaranteed a “sure-win” by securing more than 700 nominations, which made it impossible for other candidates to enter the race.


30.                        The unchallenged victory of the current CE Donald Tsang in the 2005 election sparked public concern over the fairness and validity of the election. Article 25 (Section 2) of the ICCPR stated that genuine periodic elections shall be held by secret ballot to guarantee the free expression of the will of the electors. The biggest loophole in the previous election which violated the above principle was the nomination procedure, in which EC members were required to disclose their preferences. Both the democrats and pro-Beijing parties complained that members of the EC, e.g. the social welfare sector,[29] faced pressure exerted by officials from the Central Government and Mr. Tsang himself.[30] Even the National People’s Congress deputy Victor Sit Fung-shuen said, “a lot of voters supported Tsang only because of pressure from Beijing”.[31] Mr. Tsang even went so far as to question a voting member’s morality should they elect to choose another person. Such an opinion was also echoed by pro-Beijing newspapers.[32] Therefore, the open nomination procedure and the pressure jointly exerted by the Central Government and Mr. Tsang effectively stymied the free expression of the will of the electors, which is the essence of a free and fair election as guaranteed by the ICCPR, Basic Law and the Hong Kong Bill of Rights. 


31.                        The secret ballot system of the voting stage would have allowed the EC members to cast their votes without pressure, yet this was effectively shelved by the “landslide victory” of Mr. Tsang at the nomination stage.


32.                        Not only were the electors of the EC pressured by the Central Government in Beijing, potential candidates who expressed their intention to challenge Mr. Tsang also reported being subject to direct and indirect pressure from Beijing. Candidates reporting such pressure included Mr. Chim Pui Chung, a legislator representing the financial services constituency. Mr. Chim reported pressure from mainland officials, including the Central Government’s Liaison Office director Gao Siren, when he announced his plan to participate in the election.[33]


33.                        With all the “hints” from the Central Government to explicitly support Mr. Tsang and thwart other potential rivals, the election has been criticized as a “well-scripted succession”[34] to ensure a smooth transition from Mr. Tung to the preferred successor of the Central Government - Mr. Tsang.





34.                        To urge the HKSAR Government to expand the electorate of the Election Committee for the Chief Executive Election in 2007. The central government of the PRC should also refrain itself from creating an unfair playing field by exerting unnecessary pressure to potential candidates and members of the Committee to ensure a fair election.

35.                        To urge the HKSAR Government to set a clear timetable to demonstrate how the ultimate aim of achieving universal suffrage will be realized in elections beyond 2007.

36.                        To urge the Central Government to refrain from further intervention in Hong Kong’s constitutional development by means of interpretations that would impose additional hurdles on Hong Kong’s progress to universal suffrage. 

37.                        To request China to submit a supplementary on the progress of Hong Kong’s constitutional development.


2004 Elections


38.                        The September 12th 2004 Legislative Council elections were “clean and fair”, according to the chief of the Independent Commission Against Corruption Raymond Wong.[35] Human Rights Monitor however disagrees with this “verdict”, in fact, it found many irregularities and believe that the elections were in fact handled in a very chaotic manner.


39.                        According to a report compiled by the Hong Kong Democratic Network, the government had cut the expenditure for publicity campaigns surrounding the 2004 elections, which in turn failed to drum up voter registration and turnout. During the month of May in the run-up to the elections apart from the resignations of 3 prominent radio show hosts, there have been many complaints on local phone in programmes regarding the intimidation of Hong Kong voter from Mainland officials. According to a report in the Apple Daily on 10th May 2004, a member of the Progressive Alliance had asked his company’s staff member to register to vote and to register on behalf of their relatives as well. There were other reports about asking voters to cast their vote, and to use their mobile phones to take a picture of the vote “cast” to prove they voted for the “right person”.


40.                        Alex Ho, a Democratic Party candidate on the Kowloon East list was detained on the Mainland for allegedly hiring a prostitute in Dongguan. The Public Security Bureau released a series of explicit photos in what some dubbed a smear campaign.[36]


41.                        This sort of voter intimidation prompted the establishment of the “NGO Fair Elections Monitors”. These monitors including academics and legal experts to ensure that the electoral process was fair and provided a platform for discussion. Human Rights Monitor also assisted in setting up a hotline to receive complaints from voters as well as contact overseas observers (5 came to Hong Kong altogether) to observe the September 12th elections.


42.                        Human Rights Monitor along with The Alliance for Reform and Democracy (ARDA) visited over 12 polling stations and interviewed voters, candidates and polling staff. A number of irregularities were observed, including the lack of ballot boxes, and the arrangements for voting were very chaotic. In one of the polling stations in Taikoo, the areas for voting were in clear view, and if people went up the escalator, they would be able to clearly see who the voter was voting for. The arrangements for counting the ballots were also chaotic. Political parties complained about polling arrangements at the election, which saw ballot boxes that were too small to hold sufficient numbers of the large-sized ballot papers. There were also problems relating to the transportation of the ballot boxes, with some ballot boxes being “lost”. In some cases, polling station staff even opened and repacked the boxes in breach of election protocol. Some polling station staff also asked candidate’s agents to leave when the boxes were being sealed.[37] Meanwhile, the Electoral Affairs Commission Chief Justice Woo still maintained that the elections were “clean, fair and honest”.[38]




43.                        Urges the Committee to call for an official explanation over the blunder in relation to the chaos surrounding the counting up of the votes

44.                        Calls on the Committee to urge the Government to adopt a tougher attitude over voter intimidation and to set up a mechanism to allow for immediate statutory relief if in breach

45.                        Calls for international observers to be allowed into polling stations to ensure that fair process is being adhered to.

46.                        Urges the Committee to call on the Government to review the role of the Electoral Affairs Commission, and to strengthen the electoral guidelines and to establish an independent Commission to look into the blunders surrounding the 2004 elections to better prepare for the upcoming elections.


District Councils


47.                        The appointment system of the District Councils still exists. On 23 November 2003, more than a million voters cast their votes to elect over 300 District Councillors.  Disregarding these democratic elections, armed with the District Councils Ordinance, the Chief Executive on his own, handpicked up to 102 members for the District Councils, and in effect this one person has cast the same number of ballots cast by hundreds of thousands of voters. It does not matter who has been appointed or his or her political affiliation, the appointment of even one member has effectively diluted the elected representation of the District Councils. The appointment system should be abolished immediately.


48.                        Since the end of November, political parties, NGOs and even members of the public have expressed their demands to abolish the appointment system. They have participated in public processions, petition and signature campaigns, and even written to newspapers or participated in radio phone-in programmes to call for an end to the appointment of members to the District Councils. Unfortunately, pro-government parties or individuals that have received the most appointed seats in the past have been in favour of retaining the appointment system.


49.                        The latest reform proposals by the government to include more District Councillors in the Election Committee, although in theory seem to indicate more participation, in fact are a step away from universal suffrage. The appointed district councillors have no mandate from the people to represent their interests, and the reform package would grant them much more power.




·        The Monitor calls on the Committee to urge the government to scrap the dated appointment system.


Political Rights and Political Participation of Women in Hong Kong

50.                        In 2005, Hong Kong’s 3.64 million women made up 52.2%, of the overall population. 162.3 million of those women are economically active, constituting 44.9% of the total labour force.[39]


51.                        Hong Kong women, for the majority, are generally seen but not heard. Regardless of the economic as well as educational attainment[40] they have achieved over the years, and in spite of the statutory provisions we have on equal rights and opportunities for political participation,[41] women in Hong Kong still represent substantially lower than the UN target of at least 30% and 50% in both civil and political services, supposedly to be achieved by 1995 and by 2000 respectively.[42] The pledge was committed by the Hong Kong government as one of the members of the Fourth World Conference on Women.


52.                        Since the establishment of the HKSAR in 1997, fewer than 20% of political candidates and elected officials on the Legislative and District Councils have been women. The constant under-representation of women at all levels of our constitutional setup has for a long time been a subject of concern and attention.


53.                        In this regard, both the UN Human Rights Committee and the Committee on Elimination of Discrimination Against Women have urged in their Concluding Observations on respective HKSAR reports that the HKSAR government should take all measures necessary to ensure the equal representation of women in all constituencies, including rural committees, on the basis of the principle of universal and equal suffrage.[43] 



Elections for Legislative & District Councils


54.                        The under-representation of women in electoral politics is reflected both in the number of candidates[44] as well as that of councillors elected or appointed to the Legislative Council and the District Councils.


55.                        For the current term of service, women make up only 18.3% of the 60 Legislative Council seats and 17.9% of the 502 seats for District Councillors (see tables 1 and 2) in spite of the fact that when the election took place in 2004, they made up 48.9% of all registered voters and 48.7% of all those who actually voted. In the light of this, political apathy or non-interest cannot sufficiently explain the under-representation of women in politics. It is rather the structural obstacles embedded in the electoral system and the lack of a gender perspective in our social policies that render it disadvantageous for women to partake in the political process.


56.                        The functional constituency[45] part of the Legislative Council elections, apart from the many problems that have for long been criticized, is also gender discriminatory. The 28 sectors forming the functional constituencies were decided in a non-transparent process without public consultation.


57.                        And these functional constituencies, as a result, have diminished the opportunity of women by giving undue influence to prominent leaders of male-dominated professions and the business community. While the 690 thousand-strong homemakers, predominantly women, were never considered as requiring a constituency; the traditionally male-dominated Heung Yee Kuk and the Fishery & Agricultural sector for example, are able to have a representative for each in the Legislative Council in spite of their extremely small electoral base of respectively 149 and 162 voters.     


58.                        In the most recent Legislative Council election held in 2004, 19 out of all the 28 functional constituencies did not have any women candidates and only 5 of them (out of the 13 candidates for 9 functional constituencies) were returned in the end, resulting in exactly the same scenario for the 2000 election when a mere 16.6% of the Legislative Council seats for functional constituencies were represented by women. 



Table 1:  Women Legislative Councillors[46] 





Returned by Geographical Elections

4 (20%)

5 (20.8%)

6 (20%)

Returned by Functional Constituencies

4 (13.3%)

5 (16.6%)

5 (16.7%)

Returned by Election Committee

2 (20%)

1 (16.7%)


No. of women LegCo Councillors (overall %)

10 (16.7%)

10 (16.7%)

11 (18.3%)

Sources: Electoral Affairs Commission Reports, Records of the Legislature, GIS Press release


Table 2: Women District Councillors[47]





Returned by District Board/ Council Election

36 (11.4%)

57 (14.6%)

71 (17.8%)

By appointment


15 (14.7%)

19 (18.6%)

No. of women District Councillors (overall %)

36 (11.4%)

72 (14.6%)

90 (17.9%)

Sources: Electoral Affairs Commission Reports, GIS Press Release



The Appointment system

59.                        Although it is appreciated that the ratio of women appointees serving in advisory and statutory bodies has increased from 19.3% in 2001[48] to 24.8% in June 2005[49], coming close to the benchmark rate set by the government in 2003, it however remains a matter of concern that the conservative benchmark rate of 25%[50] is in itself contradictory to the same government’s pledge to “[ensure] that both men and women who are suitable for appointment should have an equal opportunity to be appointed”.[51]


60.                       Unless a review with gender-quota study is conducted soon, it is possible that what was put in as being a minimum would end up being the maximum ceiling that would be achieved.  It should be noted in this regard that the enhancement of women’s participation is by no means just a matter of increasing numbers.  It is also concerned with the equal and fair chance for women from various social sectors and stakeholder groups to be represented. Currently appointments to advisory and statutory bodies are recognized as being in favour of those from the business/commercial sector.


61.                       In this regard, reforms should be made to the currently non-transparent appointment system.  For example, the number of advisory and statutory bodies one can be appointed to should be lowered so that more places can be released for people from wider walks of life. A study done at the end of 2003 revealed that the breaching of the current rule of serving a maximum limit of “6-boards” and “6-years” was not uncommon.[52]  


62.                        The seemingly encouraging development of increased number of women appointees into the advisory and statutory bodies is however checked by a reversing trend in the appointment of other prominent positions in the conduct of public affairs. 


63.                        To start with, in the Executive Council, which is an organ the Chief Executive consults for all important policy decisions and legislation except at times of emergencies, the participation of women has been greatly reduced in recent years, from 23.1% in 2001 to 15.8% in 2003 and 13.8% in 2006 whereas in 1998, women took up 26.7% of the Executive Council seats.


64.                        Secondly, the Commission on Strategic Development, an advisory body newly set up at the end of 2005, and one which the Chief Executive referred to as being “most important” to “reflect and gauge community views” and “[explore] major issues relating to long-term development,[53] saw only 26 of its 153, i.e.17%, non-official appointed members being women.


65.                        Thirdly, while the number and percentage of women directorate officers in the civil service has grown steadily over the past two decades (see table 3), the introduction of the Principal Officials Accountability System in 2002 which granted the Chief Executive the sole power to nominate and replace officials, saw the number of women as policy makers dropping from 13.3% in 1998 to 10.5% in 2005.[54]


Table 3: Women Directorate Officers in the Civil Service










35 (4.9%)

















Source: Women and Men in Hong Kong: Key Statistics 2004 & 2005  



Villages Elections in the New Territories


66.                        For a long time, the elections for village representatives for the 700-odd indigenous villages or composite indigenous villages in Hong Kong (divided into 27 rural districts) were conducted in accordance with a set of election non-statutory rules known as the Model Rules which allowed villagers to exclude women as voters.


67.                        We welcome the government’s move in 2003 to bring under statutory framework the elections of representatives in the indigenous and composite indigenous villages of the New Territories, in order to make them consistent with the Hong Kong Bill of Rights Ordinance and the Sex Discrimination Ordinance.[55] However it remains our concern the low representation rate of women in these elections in spite of the passage of the new law.


68.                        In the 2003 elections, only 10[56] out of the total of 1324[57] village representatives elected, i.e. 0.75%, were women, and none of them were elected to any chairing positions in the Rural Committees.


69.                        Village Representatives are not just honorary positions; they have tangible power. In the course of a 4-year term, they will handle general village affairs, including matters on concessionary right (small house entitlement), as well as liaise with the government on matters regarding interests of the villages.


70.                        Once elected as representatives, they may be elected into one of the 27 Rural Committees, the chairpersons of which will be appointed by the government as ex-officio members of the district councils in the New Territories; and the chair, together with the vice-chairpersons, will simultaneously become members of the Heung Yee Kuk (literally the Rural Assembly)[58]. The Heung Yee Kuk in its turn provides a functional constituency at the Legislative Council and at the Election Committee (for election of the Chief Executive).


71.                        While exact reasons for the low representation of women in the recent village elections can only be understood with more thorough research, it is apparent that obstacles to a truly fair and equal election still exist in these elections.


72.                        Firstly, triad influence remains prominent in some of the villages. Although there were no incidents of petrol bombs in the 2003 elections as there were in 1999, there were still a number of cases relating to vandalism, gangster fights, show of force and threatening, etc.


73.                        Secondly, the indigenous villages are where traditional cultural practices are most deeply rooted. To reverse the negative, and quite often subconscious, perception and stereotyping of women being inferior among both men and women, it is necessary that the government accompanies the new election law with public education and training on gender equality. Gender mainstreaming as a policy needs more substance.




74.                        The Committee should urge the HKSAR government to take all measures necessary to ensure the equal representation of women in all constituencies, including rural committees, on the basis of the principle of universal and equal suffrage.


75.                        The Committee should urge the HKSAR government to reform the currently non-transparent appointment system. 


76.                        The Committee should urge the HKSAR government to fulfil the UN target of at least 30% and 50% of women’s participation in both civil and political services.



Threats and Vandalism Against Democratic Legislators


77.                        Human Rights Monitor is concerned about attacks against Hong Kong democratic legislators’ offices, and fear these attacks may have been politically motivated. During the elections in 2004, vandals set fire to posters and fittings to the regional headquarters of the Frontier party’s office. A hate message,all traitors must die” was written on the wall. Emily said these sort of attacks have happened before, but police are always slow to react.[59] 


78.                        Meanwhile, in the same year, advertisements promoting the protests commemorating the Tiananmen Square massacre were vandalized or removed.[60] It is also not uncommon to find posters of democratic legislators being defaced.




79.                        The Committee should urge the government to take concrete action to protect legislators against vandalism attacks


Electoral Affairs Commission


80.                        The Electoral Affairs Commission is headed up by Justice Woo Kwok Hing. The rules and regulations relating to election campaigning are unnecessarily stifling. Advertising in the print media is allowed so long as the words “Election Advertisement” is clearly stated. Commercial broadcasters according to the guidelines including the operators of television and radio channels are generally not allowed to accept advertisements of a political nature. In certain countries television advertising is an integral part of modern political campaigning. With close monitoring to ensure fairness, there is no reason why the Electoral Affairs Commission should impose such a blanket ban.


81.                        There are also guidelines asking the print media to provide “fair and equal treatment.” Some print media organizations have clear political stances or preferences, and to be “fair”, there would have to be a selective media shutdown.

Human Rights Monitor also f
inds it regrettable that up to this date, the Electoral Affairs Commission still bans foreign observers from entering polling stations. The Chief Electoral Commissioner of New Zealand told the Monitor in 1998, that it allowed international observers to enter polling stations, and this was a common event around the world. There is clearly a need to move the Electoral Affairs Commission to get with the times.




83.                        We urge the Committee to ask for a review of the current Electoral Guidelines to make them less restrictive, and open up Hong Kong’s elections to fair competition and independent international observation.


Human Rights Education


84.                        The Hong Kong Government has thus far not shown any political will or determination to develop a policy on human rights education. In the recent educational reforms, the government highlighted 7 learning goals for kindergarten, primary and secondary education, including promotion of a healthy lifestyle, increasing breadth of knowledge, developing learning skills, enhancing language skills, develop a habit of reading, understanding of one’s own national identity and recognize own roles and responsibilities. Human rights education has not even been mentioned.


85.                        Human Rights Monitor is also surprised by the awarding of a government contract to educate teachers on human rights and anti-discrimination to the Society for Truth and Light (a group which is known for its conservative and extremist homophobic views). Proposals by known human rights educators from the University of Hong Kong such as law professor Benny Tai and Hong Kong Institute of Education and civic education expert Leung Yan Wing were rejected.[61]



86.                        The Committee should express concern that human rights education in Hong Kong is being sidelined, and that to fulfil its obligation "to promote universal respect for and observance of, human rights and freedoms" (ICCPR, Preamble), the HKSAR government should place a focus on human rights education as part and parcel of the education policy and have it incorporated into the education curriculum.

87.                        The Committee should urge the government to review its human rights education policy and choose more carefully who it appoints to teach these subjects.


Chap. 2: Ensuring Rights to All Individuals & Enforceable Remedies without Distinction; Equal Rights of Men & Women (Arts 2 & 3)


Establishing A Human Rights Commission & Independence of Other Bodies


88.                        The Human Rights Committee stated in the Concluding Observations that it was “concerned that there is no independent body established by law to investigate and monitor human rights violations in HKSAR and the implementation of Covenant rights”.


89.                        The establishment of National Human Rights Institutions ensure the effective protection of human rights with the precondition that it is independent from the executive branch of government.[62] According to the Paris Principles, “A national institution shall be vested with competence to promote and protect human rights”. These institutions should also have pluralistic membership and be representatives of those organizations that fight for the protection of human rights.


90.                        The Hong Kong government maintains that a NHRI is not necessary as the existing legal framework and the various specialist institutions offer adequate human rights protection. In paragraph 20 of the government’s second report to the ICCPR, it stated that it “observed that a Bill of Rights enabled the courts to provide effective remedies against violations of human rights. This was complemented by a truly independent judiciary, a sound and comprehensive legal aid system, an effective Ombudsman and an active advisory committee on civil education.”


91.                        The government has been proved wrong time and again in suggesting that there is no need for an independent Human Rights Commission. The Ombudsman, the Privacy Commission and the Equal Opportunities Commission all operate with limited powers.

92.                        The Ombudsman Ordinance (Cap. 397) contains a number of restrictions preventing the Ombudsman's office from functioning as an independent and effective human rights commission as envisaged in the "Principles Relating To the Status of National Institutions" (also known as the "Paris Principles").

93.                        The jurisdiction of the Ombudsman is severely limited by broad and vague exceptions in the Ombudsman Ordinance. According to Section 7 of the Ombudsman Ordinance, the Ombudsman may only investigate actions taken by or on behalf of specified government departments[63]. With regard to the Hong Kong Police Force, the Ombudsman may only investigate actions in the "exercise of its administrative functions in relation to the Code on Access to Information published by the Government." The Ombudsman is also barred from investigating "[a]ny action taken in matters certified by the Chief Executive as affecting security, defence or international relations (including relations with any international organization) in respect of Hong Kong." Restricting the jurisdiction of the Ombudsman in this manner is incompatible with the Paris Principles, which provide that a "national institution shall be given as broad a mandate as possible."

94.                        Finally, Section 15 of the Ombudsman Ordinance requires the Ombudsman and his staff to maintain confidentiality regarding any investigation or complaint. Individuals who breach the confidentiality of a complaint may be subject to a $50,000 fine or imprisonment for two years. In practice, this has meant that when a Justice of the Peace, responsible for inspecting prisons in Hong Kong, refers a prisoner's complaint to the Ombudsman, he is unable to learn about the outcome of the complaint because of the Ombudsman's obligations to maintain secrecy[64].

95.                        Similar structural and operational defects can be found in the Equal Opportunities Commission and the Office of the Privacy Commissioner[65] Improvements to these institutions are necessary to meet the standards set out in the Paris Principles.

96.                        The Privacy Commissioner’s Office has no conciliation measures, provision of legal advice or aid, nor any power to bring legal proceedings. Recently the Privacy Commissioner Roderick Woo has been quoted as saying that it is time to “put real teeth” into the Privacy Ordinance by empowering the commission to get tough on offenders.[66] He would like powers to be expanded to include issues of “great public interest” even in the absence of a complaint[67].”

97.                        As discussed above and in other parts of this report, there are serious problems with our institutions essential to the protection of human rights, and without a doubt, we need a dedicated Human Rights Commission

98.                        In the past few years, various incidents have caused concern over the independence of Hong Kong’s rights-protecting institutions. It seems that the government has tried to rid these institutions of persons who would have a tendency to criticize and scrutinize government action.



Lack of Transparency in the Appointment of an EOC Chairperson


99.                        The EOC has been the subject of a controversy in the past few years. It has seen the unjustified removal of top personnel. In July 2003 EOC chairperson, Anna Wu, an active human rights advocate, was sacked and replaced by Michael Wong, a retired judge from the Court of Appeal.


100.                   Immediately following the appointment, an abrupt decision was made by Wong to fire Patrick Yu, who had just been appointed the position of Director of the new Operations Division. The common denominator for both Wu and Yu’s removal were that they had strong, active and liberal backgrounds in Human Rights.


101.                   Wu had achieved two legal victories against the government which resulted in real systemic impact.[68] In K,Y, and W v The Secretary for Justice,[69] the District court held the government’s long standing policy of rejecting an applicant, who had a close relative with a history of mental illness, to join the disciplined services was unlawful.


102.                   The second successful litigation came after the government refused to follow the EOC’s recommendation to reform the education system. The Court of First Instance, as a result, held that the Department of Education’s system of allocating students to secondary schools was unlawful because it discriminated on the grounds of sex.[70] This was regarded by many within the government as biting the hand that feeds it. Yu, who was a Commissioner of the Northern Ireland Human Rights Commission and the Deputy Chairperson of the Commission for Racial Equality for Northern Island, was also considered by many non-governmental organizations as ‘uniquely qualified’ for the position.[71]  Although Wong failed to clarify and justify the dismissal, there was widespread speculation that Wong was deliberately trying to downsize the EOC. Similarly the non-renewal of Wu’s contract could be interpreted as a move by the government to take control and to make the EOC a less assertive statutory body.[72]


103.                   Even though a panel was appointed, albeit by the government, to investigate the EOC incidents there have been doubts over the impartiality of the findings. It has been reported that the panel’s findings largely exonerated Wong by citing that ‘the termination of the appointment of Yu was properly authorized by a resolution passed by the EOC at its meeting on 18th September 2003.’[73] Furthermore it reported that the ‘six’ allegations that surfaced in the media were either unsubstantiated or exaggerated.[74]


104.                   The EOC continues to be subject to scrutiny. The appointment of Raymond Tang as chairperson was done reportedly through a ‘behind-the-scenes process.’[75] Tang’s term as the Privacy Commissioner had not yet expired when he took up his new position as EOC chairperson. Hopping from one post to another at the government’s invitation surely undermines international rights standards which stipulates that human rights protection bodies should offer stability of tenure and thus head officials appointed for a specified period should not be removed or induced to leave the office prematurely.[76]


105.                   More recently, the government agreed to separate the post of executive chair into two posts: non-executive chairman and chief executive officer.[77] Although the government claims that this is a bid to restore credibility to the controversy-plagued body, NGOs are concerned that the move will take away from the EOC the strong position of leadership a human rights institution should have.[78] Alternatively, this may be ‘a mere excuse for another person to ride around in a flashy car all day’[79]. As a result, the EOC’s credibility and reputation remains to be restored.


106.                   The independence of the rights protecting institutions have been called into question and the issue of credibility has become very much an issue to contend with.[80]




107.                   Human Rights Monitor urges the Committee to recommend that a National Rights Institution be established (and any appointments should be made in a transparent manner).

108.                   Establish the EOC as an independent body



Violence Against Women (Domestic and Sexual)


109.                   Gender-based violence is a serious issue covered under Article 3 of the ICCPR, and remains an issue that needs to be addressed. The SAR Government has taken some steps to face the problem of gender-based violence in the home, such as the establishment of a Women’s Commission (WoC) in January of 2001. The WoC began tackling the subject of domestic violence in April of 2004. In addition, a special task force to address domestic violence was proposed by the Hong Kong Police in January of 2006. Additionally, several NGO’s such as Harmony House, established in 1985, have continued to provide indispensable services to help both the victims of abuse, and more recently, habitual abusers.


110.                   After his appointment in 2005, Chief Executive Donald Tsang vowed to make the elimination of domestic violence a top priority. This is of utmost importance, as three important academic studies, including the results of the WoC’s work on the issue, have recently concluded that the steps taken by the Government have not been enough to tackle the problem in the most effective ways possible[81].


111.                   The Government can no longer rely on NGOs to perform the functions of crime deterrence and victim assistance, for which the Government should be held responsible, according to the terms of Article 3 of the ICCPR. Specifically, it can be concluded according to these reports that the SAR Government’s failure to reform the 1986 Domestic Violence Ordinance[82], widely believed to be inadequate, shows a lack of commitment to tackle the problem in a direct and unambiguous way that can deter escalation of abuse and better protect potential victims. Thus far, the Hong Kong Government has not responded to demands for reform of the Domestic Violence Ordinance.


112.                   The fact is that emotional, psychological, and physical abuse remains a problem in Hong Kong, according to the cited studies. Unfortunately, such abuse remains legal until other criminal statutes such as assault or rape laws have been violated, in which case it may be too late to protect the victims from such crimes.


113.                   Under the Domestic Violence Ordinance, an abused spouse or the parent of an abused minor may only seek legal recourse by seeking a court injunction against their spouse, a civil proceeding, but cannot file a criminal complaint or force any other sort of sanctions against the abuser, until another specific law has been broken, in which case the complainant may have already suffered severe distress or injury, or until a court ordered injunction has been broken, which also means that the complainant has already been exposed to much higher risk of abuse which may lead to injury. There is no mechanism for the court to order the rehabilitation or counselling of a habitual abuser until a serious crime such as injurious assault, sexual assault of a minor, or rape has been committed.


114.                   In addition, there remains a prevailing culture of the acceptance of abuse within the Hong Kong community. According to a 2003 survey performed by the Chinese University of Hong Kong, 30% of police officers questioned believed that husbands were entitled to hit their wives if necessary, and 25.4% were of the opinion that husbands have the right to have sexual intercourse with their wives whenever they wanted, regardless of whether their wives wanted to or not.[83]


115.                   The danger of the SAR Government’s failure to adequately protect potential victims was made tragically apparent in a recent high-profile case in which a man frequently reported for abuse, chopped his wife and her twin six-year-old daughters to death just hours after the woman had urgently sought help from the police.


116.                   While this case cannot be blamed entirely on the lack of government action, the aforementioned lack of legal protection and the sadly prevailing social culture of the acceptance of abuse make such a case much more likely than might otherwise have been the case had better preventative measures and social awareness been made available.




117.                   Reform the Domestic Violence Ordinance to better protect potential victims from repeated abuse or injury; and

118.                   Better provide comprehensive public awareness programs, victim services, as well as enforced rehabilitation programs for frequent abusers.Hong Kong Honbvbcvbgghhhhhhhhhhhhhhhhhfgdfgdf



Chap. 3: Emergency and Limitation on Derogation: Right to Life; No Torture and Slavery (Arts. 4,6,7,8)


Human Trafficking 


119.                   In 2002, Scientific American ranked HK in terms of inflowing human trafficking at level 3, and outflowing human trafficking at level 1, on a scale ranging from 0 to 4.[84] The UN Protocol on Trafficking defines human trafficking as a situation where the recruitment, transportation, harbouring or receipt of persons involves force, coercion, deception or abuse of power for the purpose of exploitation.


120.                   Hong Kong has no specific anti-trafficking law, but related criminal ordinances are used to prosecute traffickers. The HKSAR has specific legislation dealing with trafficking of women for the purpose of prostitution. Section 129 of the Crimes Ordinance stipulates that a person, who takes part in bringing another person to, or taking another person out of, Hong Kong for the purpose of prostitution, shall be guilty of an offence. Section 137 of the same Ordinance makes it an offence for any person to live on the earnings of prostitution of others.


121.                   However, there is no specific legislation for trafficking in persons for other purposes than prostitution, or legislation in “smuggling migrants”. The government denies that human trafficking is taking place in HK. “Hong Kong is not a destination for human trafficking. Nor is it a place of origin for exporting illegal migrants….[85]


122.                   However, according to the Trafficking in Persons Report 2005, released by the US Department of State,Hong Kong was a point of transit and destination for persons trafficked for sexual exploitation and forced labor from China and Southeast Asia (…) traffickers have used forged or illegally obtained travel documents to attempt to smuggle persons through the Hong Kong airport.


123.                   During the first half of the year (2004), authorities intercepted 1,288 forged travel documents and arrested 12 persons for related offenses”.[86] The government’s denial of and incapacity to crackdown on human trafficking breaches article 8 of the ICCPR.


124.                   HK’s domestic laws meet its various international obligations to criminalize trafficking for the purpose of prostitution but does not, however, provide for the protection and assistance of victims of trafficking. Technically, victims of trafficking can be charged for soliciting, but may be granted immunity if they agree to act as witnesses against their traffickers.


125.                   However, a woman who has agreed to act as a witness may find herself in difficult circumstances.  She may have her passport confiscated.  She is not allowed to work, nor is she given any living expenses from the Hong Kong Government. She is usually accommodated by, and at the cost of, a non-governmental organization.  The police do not appear to provide a safe house or witness protection before, during or after the trial.[87] Women victims of trafficking need help and assistance.


126.                   No publicly available statistics are kept on the number of prosecutions and convictions in relation to these cases. The Trafficking in Persons Report 2005 states that the government has started to maintain case documentation on the number of illegal migrants who may be trafficking victims. The government should also maintain case documentation on the traffickers.


127.                   There is no official data available on the types of sentences handed down to traffickers. The Trafficking in Persons Report 2003 states that the sentences of 6 traffickers convicted in 2002 ranged from one- to five-year prison terms.[88] These sentences are highly unlikely to act as a deterrent to traffickers, given the huge profits involved, and are also extremely lenient compared with the three- to fifteen-months sentences received by the women brought to HK.


128.                   Community organizations express concern that the police rarely investigate whether women have been forced into prostitution, or are working under coercive conditions. The women are widely encouraged to plead guilty and leave HK after a short jail sentence instead of pressing charges against their traffickers.[89]


129.                   It should be noted that HKSAR is Hong Kong is also a transit country for people smuggling, mainly from Asian countries to Australia and US.




·        The Committee should express concerns about human trafficking in the HKSAR. We ask your committee to urge the HK government to take much more concerted efforts to bring traffickers to justice and to utilize the existing trafficking offence more frequently.

·        Increase public awareness on trafficking.

·        Keep statistics on prosecutions and convictions.

·        Allow more transparency on human trafficking issues. The media should be encouraged to follow up on trafficking cases.

·        The police need to adopt a more proactive approach to establishing whether women have been trafficked or are in need of assistance. The women may not be aware of their rights or may be reluctant to engage with the police.

·        The women should be encouraged to prosecute their traffickers.

·        HK government should take steps to assist and help women victims of trafficking.


Forced Labour


130.                   Scientific American estimates that there are between one and two thousands slaves in HKSAR.[90] The principal victims of forced labor are foreign domestic workers (FDWs). The government’s inability to tackle these problems puts HK in breach of article 8 of the ICCPR, which prohibits slavery or forced or compulsory labour.


High agency fees result in debt-bondage situation


131.                   FDW must pay high placement fees to agencies, as well as excessive agency fees in order to renew existing employment contracts. According to a survey conducted in Hong Kong, 89 per cent of respondents were charged fees higher than the legal maximum of HK$367 (US$47) set by the Hong Kong Government.[91] FDWs often need to work several months to repay their debts to the agencies. Hence, even if migrant domestic workers are mistreated and forced to work long hours under harsh conditions, they cannot leave because of the contract they have signed and the money "owed" to agencies.


Underpayment Worsens FDWs Situations


132.                   According to baseline research, 90 per cent of Indonesian migrant workers do not receive their weekly rest days, and 24 per cent have undergone physical abuse.[92] The Hong Kong government stipulates a minimum wage of HKD3,270 for domestic workers, regardless of nationality. The HKDW Survey[93] found that around 42% of Indonesian migrants surveyed are underpaid. Underpayment makes it even more difficult for FDWs to escape slave-like situations.


133.                   Please refer to Chapter 9.4 for further details on FDWs situations.




134.                   The committee should express concerns about the debt-bondage situation faced by FDWs. The committee should urge the HKSAR government:

135.                   To control and force agencies and finance companies to respect the legal minimum placement and contract renewal fees;

136.                   To set up a system ensuring that FDWs receive above legal standard wages.


Emergency Regulations Ordinance 1922


137.                   As set out in the Monitor’s previous Shadow Report to the Committee, the Emergency Regulations Ordinance (Cap. 241) grants the Chief Executive sweeping powers to "make any regulations whatsoever which he may consider desirable in the public interest" during times of emergency or public danger. Although in theory this Ordinance has the trappings of Article 4(1)[94], such regulations may provide for, among other things, censorship and the control and suppression of publications, writings, photographs, and other means of communications. Emergency regulations may also empower the Government to require persons to do work or render services, or to appropriate or control property, which potentially violates Articles 7 and 11, respectively, of the Covenant.


138.                   The Emergency Regulations Ordinance therefore still has serious implications for the freedom of expression as prescribed by Article 19(2) of the Covenant[95]. Pre-Handover efforts to amend the Ordinance only succeeded in removing the draconian regulations that had been made under it.


139.                   The United Nations Human Rights Committee has already expressed its concern over the scope of the Emergency Regulations Ordinance and its incompatibility with the International Covenant on Civil and Political Rights which also requires that any restrictions on rights be narrowly construed and strictly necessary.


140.                   The wording of the Emergency Regulations Ordinance does not conform to the requirement in Article 4 of the Covenant that any limitation on rights must be compatible with the nature of the right and necessary to promote the "general welfare in a democratic society." Since the Emergency Regulations Ordinance contravenes the ICCPR, it violates Article 39 of the Basic Law, which requires that "restrictions [on rights and freedoms] shall not contravene the provisions" of the ICCPR. Thus, the Government has an obligation to revise the Emergency Regulations Ordinance itself and repeal all provisions that violate the ICCPR and the Basic Law.


141.                   Article 18 of the Basic Law provides that the Standing Committee of the National People's Congress may declare a state of emergency "by reason of turmoil within the Hong Kong Special Administrative Region which endangers national unity or security and is beyond the control of the government of the region." In a state of war or emergency, the Central People's Government may apply relevant national laws in the Region. Amendment of Article 18 is necessary, in the face of deficiencies and vagueness in the Article. Firstly, Article 18 lacks procedural and other safeguards on the declaration of a state of emergency. Secondly, key words such as "turmoil" and "endangerment of national unity" are undefined, leaving the provision open to abuse. Thirdly, Article 39 of the Basic Law provides that the "rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law" and that "such restrictions shall not contravene" the ICESCR, the ICCPR and the international labour conventions.


142.                   However, it is unclear whether the word "law" as used in Article 39 and the requirement of the law's conformity with international human rights standards apply also to Chinese national laws when they are extended to Hong Kong by means of Article 18 of the Basic Law[96]. Article 18 should be amended to clarify that the application of Chinese national laws to Hong Kong is subject to the Article 39 requirement of conformity to international human rights law. Finally, the scope of Article 18 exceeds the requirements of necessity and conformity with human rights imposed by Article 4 of the Covenant.




143.                   The Monitor recommends that the Emergency Regulations Ordinance and Article 18 of the Basic Law should be amended for it to conform with the ICCPR.


Chap. 4: Liberty and Security of the Person; Detention and Rights of Detainees; Prohibition of Torture and Inhuman Treatment (Arts 7,9,10)


Police Complaints System

144.                   Complaints against the police are usually dealt with by the Complaints against Police Office (CAPO) which is part of the police force. And this body is monitored by the Independent Police Complaints Council (IPCC). Back in 1995, the UN Human Rights Committee recommended in its 1995 Concluding Observations that the IPCC should incorporate non-police members in the investigation of all complaints against the police. Up till now, there is still no independent mechanism to handle complaints against police brutality and abuse continues to be a problem.

145.                   The government revived in its 2004 policy initiatives that its plan to make the Independent Police Complaints Council (IPCC) a statutory body, and to further strengthen the system of handling complaints against the police, the work, functions, powers and related matters of the IPCC would be all laid down clearly in law. At the eve of the Handover, a similar IPCC Bill was withdrawn by the then Secretary for Security because an amendment to empower the IPCC to investigate certain cases had been passed by the then Legislative Council. In the revised new proposals the Government maintained its position not to allow the IPCC to be given any power to investigate complaints.

146.                   Human Rights Monitor considers that as a minimum the Government should provide the IPCC with statutory status, empower the IPCC to undertake investigation of serious cases, introduce a civilian to head CAPO, and implement a lay observer scheme at police stations.

147.                   Additionally, Human Rights Monitor still very much doubts the Government’s sincerity in enforcing the Crimes (Torture) Ordinance. In a key case in question, it was never explained how the Secretary for Justice did not prosecute under the CTO, but rather charged accused persons with assault occasioning in actual bodily harm which ended with a 4 months’ imprisonment term.[97]

148.                   The Commissioner of Police also has the discretion to choose how to discipline officers and whether to refer cases to the Public Service Commission for its advice on the conduct and discipline of officers under the Public Service Ordinance. Section 12 of the PSO prohibits the disclosure of any information on disciplinary processes without the written permission of the Chief Executive. Section 10 ensures that the relevant documents are privileged because their production may not be compelled in any legal proceedings unless the Chief Executive under the hand of the Chief Secretary consents to their production in such proceedings. This secretive process makes it difficult to monitor the punishment of convicted officers.

149.                   In a recent development, it was reported in early March that a database from the IPCC with highly confidential records dating back to 1996 containing over 20 thousand names, addresses and HK id numbers for each complainant towards the police were found published on the internet.[98] In some cases, the information contained criminal records of the complainants.[99]


150.                   Public confidence in the IPCC had been seriously affected in this case. People who complain to the police do not expect to be exposed in this fashion. In spite of previous calls by the UN Human Rights Committee for the Hong Kong government to set up an independent complaints against police body, the calls have been largely ignored. The government planned to turn the council into a statutory body this year but Human Rights Monitor is concerned that this recent blunder may mean a delay in the process.[100]




151.                   Human Rights Monitor recommends the setting up of an independent complaints against police body.


Monitoring of Prisons

152.                   As mentioned in the last report, prisoners have several options when it comes to airing their grievances, such as through the Correctional Services Department’s bodies, visiting Justices of the Peace (JPs), the Ombudsman, and the courts. JPs are the primary mechanism for outside monitoring of the prisons. Appointed by the Chief Executive (previously by the Governor), JPs enjoy an array of formal powers, although their main practical function is to visit prisons and other penal and correctional institutions. The job of a JP is not a full-time occupation. It is an appointment meant to honour the recipient for services rendered. JPs include both government officials (known as official JPs) and members of the public (known as unofficial JPs). In spite of their name, they have no judicial functions.

153.                   Human Rights Monitor asserts that there are still defects existing in the arrangements for JP visits. Visits are largely overseen by prison authorities, and there is also a lack of continuity, as JPs often visit different facilities each time.

154.                   In our last prisons report, we mentioned that the Prison Rule 68B, closely modeled on the UK's Prison Rule 43, authorizes segregation "for the maintenance of good order or discipline" or for prisoners' own protection. There are three types of Rule 68B segregation.

155.                   The first type covers those who require protection from other prisoners because they are ex-policemen or because they provided testimony for prosecution in criminal cases. The second type is for those who ask for protection for other reasons e.g. because they are in debt to other prisoners or they fear that other prisoners will hurt them. The final type, also the most problematic, is called administrative confinement. It covers prisoners deemed to be "violent and influential characters." Prisoners of this type are segregated from the general prison population because prison officials fear that they would cause disruption, either through their own actions or through influencing other prisoners. Inmates placed in disciplinary confinement for a set period of time are often subsequently placed in Rule 68B administrative confinement for an indefinite period. Although this type of confinement is technically not punishment, it is no different from punishment when viewed from the prisoners' perspective. The fact that it is technically not punishment, however, means that the concerned inmates are deprived of the right to a disciplinary hearing and that the confinement can be extended indefinitely. However, until now there has been no amendment to this rule.

156.                   Prison overcrowding is still a problem. The government had initially proposed the building of a $12 billion super jail on Lantau Island, but this plan was eventually shelved amidst strong protest from green groups and the local community.[101] Some place the problem with the sentencing policy. At the moment some prisoners are kept in prison as a result of immigration offences, and it would seem that there is no reason why these offenders should not be sent back to the Mainland.[102] An agreement between Hong Kong and the Mainland so prisoners could serve out their sentences in China could be explored.





157.                   The SAR Government should ensure that Rule 68B is not misused or abused by the authorities, and the Government should institute an effective prisons complaints mechanism in compliance with Article 10 of the ICCPR;

158.                   The inspection complaints system should be revamped;

159.                   The sentencing policy should be reviewed to ensure that the “length of sentence” served in Hong Kong is not prolonged unnecessarily


Monitoring of the Immigration Department

160.                   Although Human Rights Monitor has not received as many complaints regarding abuses by officers of the Immigration Department relating to right of abode seekers, complaints are still being received from other minorities.

161.                   Earlier this year, the Ombudsman had been asked to investigate a complaint by a Sri Lankan man that the Immigration Department has consistently discriminated against visitors from the Indian Ocean island nation to Hong Kong. Many Sri Lankans had apparently been denied entry to the city even though they possessed valid visas. Some complainants have put this down to discrimination against their skin color.[103]

162.                   Hong Kong immigration lawyer Sarath Dissanayake and resident Fahmy Jowharsha said even a visa did not guarantee problem-free entry for Sri Lankans. Human Rights Monitor hopes this sudden increase in complaints does not represent a serious deterioration in the standards of the Immigration Department.

163.                   All formal complaints against the Immigration Department were investigated by the Department and reviewed by a Complaints Review Working Party headed by the Assistant Director (Administration and Planning). Such a complaints handling mechanism is entirely internal and is therefore institutionally even less independent than that the system for handling complaints against police officers.[104]




164.                 The Government should introduce an effective independent mechanism to prevent and investigate abuses by immigration officers.

Chap 5: Liberty of Movement; Choice of Home & Alien’s Right to Appeal against Expulsion


Immigration Law & Immigration Appeal


165.                   According to the Immigration Ordinance 1972, Section 53 provides that all decisions made by Immigration Officers under the Ordinance may be reviewed by the Chief Executive in Council except for decisions mentioned in sub-section 8 which are removal orders of one kind or another.

166.                   This in effect means that individual cases concerning the imposition of conditions of stay can be reviewed, however it is Human Rights Monitor’s understanding that this decision is made, the person is generally not informed of his right of review.[105] Human Rights Monitor submits that as a matter of course, people should be informed of their rights, and urges the Government to inform people of their right for judicial review

167.                   At the moment, the Chief Executive in Council would be overwhelmed by review work if people were informed of their rights, and instead of referring all review cases to the CE, it is Human Rights Monitor’s submission that an independent body should be set up to review all immigration review cases in a transparent manner which is accountable to the public.


Status of refugees/asylum seekers


168. In Hong Kong, there is no law providing the legal right to seek asylum and obliging the Government to handle asylum requests. Nor is there a statutory refugee determination procedure. Arbitrary detention and unlawful expulsion breaches articles 7 and 13 of the covenant. 
169. China has not yet extended its Refugee Convention signatory status to the HKSAR. In these circumstances, UNHCR undertook refugee status determination and provides assistance to individual refugees and asylum seekers of various nationalities[106]. But even though the commission provides a channel for assessing these claims, it stands outside any legal jurisdiction in Hong Kong, so any decision given by the commission cannot be appealed or enforced. This leaves an asylum seeker or a certified refugee without any recourse for protection or safety.
170. A statement by the HK Security Bureau said it has no international obligation to assess refugees and has a “firm policy of not granting asylum”. The government statement said: “Hong Kong’s situation, set against the backdrop of our relative economic prosperity in the region and our liberal visa regime, makes us vulnerable to possible abuses if the Refugees Convention were to be extended to Hong Kong”.
171. Since 2001, the UNHCR in Hong Kong has been processing close to 2,000 applications a year making an average of about 100 decisions a month. With a staff of 20 in Hong Kong, the UNHCR, which has been present in the territory for more than 50 years, has  repeatedly emphasized it is supposed to be an agency to assist governments in emergency situations only[107].

172.                   HKSAR is a party to the Convention against Torture. Article 3 of the CAT provides that no one, including those convicted of crimes, should be sent back to a country where they would be at risk of torture. There are an estimated 700 asylum seekers in Hong Kong, with about 50 claiming they have been tortured in their home countries[108].

173.                   Asian Human Rights Commission’s first annual report, entitled “The State of Human Rights in Ten Asian Nations”, released in January 2006, reveals a severe hike in regional state-sponsored torture. But despite the deteriorating situation in the region, the SAR government continues to make it difficult for people fleeing torture to settle in Hong Kong. Last year, following damning criticism by the Court of Appeal, the administration finally set up a system to process people under the CAT. According to the Security Bureau, as of last month, there were 136 cases under review, but so far none has been resolved since the system was put in place.[109]

174.                   Many asylum seekers are detained in Victoria Prison and other detention centres even while their case is being reviewed by the UNHCR. Previously, asylum seekers with cases pending a decision by the UNHCR were not generally detained. Recent practice has changed, however, and asylum seekers are now routinely denied visa extensions while their case is assessed and are either detained or forced into remaining in Hong Kong as an illegal overstayer, facing probable detention or deportation.

175.                   While they are in detention, asylum seekers in Hong Kong face isolation from their friends and family members. Once detained, asylum seekers are generally not released on recognizance, despite the fact that most do not pose any sort of threat to the community and are unlikely to abscond.

176.                   There are very few accurate statistics openly published in Hong Kong on the number of refugees detained, the length of their imprisonment or their countries of origin. Figures fail to distinguish between asylum-seekers and aliens who are being held for other reasons. This lack of transparency makes it difficult to monitor quality of decisions taken by the Immigration Department.

177.                   There have been reports of asylum seekers wishing to claim asylum being detained at the airport on arrival and forced back on the next flight to their home country – without having had the opportunity to have their cases properly considered by the UNHCR.

178.                   Asylum-seekers and their children are denied access to social benefits and education, often leaving them destitute and dependent on charity. Asylum seekers also have limited access to legal advice in presenting their case for asylum[110].

179.                   HKSAR tries to “sub contract” its obligations[111] to the UNHCR (as it unlawfully tried to do with its obligations under under CAT [see the Prabakar CFA case] )—a body that cannot be compelled to appear in HKSAR courts.

180.                   UNHCR refugee status determination (“RSD”) process lacks a number guarantees ensuring procedural fairness such as: transparency, written reasons for refusal; provision for legal assistance, judicial review. Because of its lack of domestic legal personality (and lack of resources) it cannot be a surrogate for the HKSAR properly assuming its obligations.[112] There are problems relating to access to the UNHCR.

181.                   HKSAR is bound by and continues to risk running afoul of the principle of non-refoulement at customary international law.[113]

182.                   Under CAT, and post Secretary for Security and Sakthevel Prabakar,[ June 2004, Court of Final Appeal FACV 16 of 2003] the HKSAR has implemented “discretionary” screening procedures[114] for CAT claimants only. However, the procedures are non-statutory, and despite the seriousness of the consequences of the decision involved there is no provision for legal representation—no legal aid, no Duty Lawyer Service (“DLS”).[115]

183.                   Further, the HKSAR considers that it has no obligation to assist CAT claimants (or asylum seekers/refugees) with accommodation, food, or education for children, leaving the “problem” to the ad hoc good graces of NGO’s.[116] The applicants are not allowed to work. Without guaranteed support what are they supposed to do?

184.                    Detention of asylum seekers/refugees/CAT claimants. The claimants again suffer from a lack of legislation, lack of a clear policy and a lack of any appeal on the merits.[117]

185.                   Prosecutions of asylum seekers/refugees/CAT claimants. Persons fleeing persecution and torture often do not have valid travel documents and international refugee law has provided that in general such persons should not be prosecuted for immigration offences. HKSAR still prosecutes, even for offences such as “overstaying” when it is quite clear that the person concerned is here exercising the fundamental right to claim asylum or the right not to be removed or deported to face torture.


The Committee should express concerns about the situation of refugees and asylum-seekers in HKSAR. We ask your committee to urge the HKSAR government to:

186.                   Reconsider its position regarding the extension of the Convention relating to the Status of Refugees, and its cooperation with the UNHCR;

187.                   Reconsider its position in no longer funding asylum seekers in Hong Kong from May.

188.                   Face its international responsibilities and take over UNHCR’s tasks;

189.                   Increase transparency regarding the treatment of individuals seeking asylum on arrival in Hong Kong;

190.                   Release detained asylum-seekers;

191.                   Allow asylum seekers to work in HKSAR while their case is being reviewed by UNHCR, or provide them with subsidies;

192.                   Grant asylum seekers and their children access to social benefits and education;

193.                   We are also concerned about recent changes to immigration policy denying entry to Nepalese nationals and we ask the government for reassurance that these changes will not have an adverse impact on their right to seek asylum.



Domestic workers choice of home


194.                   Since April 2003, the standard Employment Contract for foreign domestic helpers was reviewed and revised to incorporate a mandatory live-in requirement to “better reflect the policy intention to admit live-in FDHs to make up for the shortage of local workers who are willing to provide such services.”[118]


195.                   Pursuant to Article 12(1) and 12(3), people who stay lawfully within a territory, including foreign domestic helpers, have their rights and freedom to choose their residence. The term in the standard Employment Contract provided by the Immigration Department of the HKSAR, however, violates this freedom and the rights of domestic helpers. The provision also infringes upon the right of liberty of movement according to the Hong Kong Bill of Rights Ordinance[119].




196.                   The Hong Kong Human Rights Monitor requests your committee to urge the Government to abolish this term of mandatory live-in requirement, in order to protect the rights and freedom of choice of residence for foreign domestic workers.


Chap. 6: Children and Family; Equality before Courts; Right to Fair and Public Hearings; Legal Aid; Due Process; Equality before the Law; Privacy (Arts 14, 17, 23, 24, 26)


Narrowing of Right of Abode

197.                   With every one thousand families in Hong Kong at least one family is separated from a member of their nuclear family. With the three Basic Law interpretations – the first one being on the right of abode issue in 1999, many fear that confidence in the rule of law may be diminished. With each interpretation the more the rule of law and Hong Kong’s autonomy is eroded.

198.                   The UN Committee on Economic Social and Cultural Rights has expressed its “deep concern over the growing numbers of split families in Hong Kong.”[120]  Although Article 24 of the Basic Law clearly provides for the right of abode in Hong Kong for children of permanent residents of Hong Kong, this right has not been honoured by the Government, which established a one-way permit system and amended the immigration ordinance.


199.                   With continuing uncertainty over the right of abode for children who have been adopted or children who were born before their parents became permanent residents, the number of families split between Hong Kong and China is increasing. Exacerbating the problem has been the Government’s refusal to implement a 29 January 1999 decision in which the Court of Final Appeal recognized the right of abode for children whose parents had not yet acquired residency status at the time of their birth. On 20 May 99, the Government requested the Standing Committee of the National People’s Congress to give an “interpretation” of the Basic Law; the interpretation, issued on 26 June essentially overturned the ruling by the Court of Final Appeal.  A lot of those affected are no longer eligible to apply to come to and reside in Hong Kong to join their family as they do not fall within any eligible category.


200.                   While the Government maintains that the daily quota permitting 150 immigrants to enter Hong Kong was “designed to ensure a rate of settlement that our resources could reasonably absorb,”[121] this figure was criticised by the Committee on the Rights of the Child as “manifestly insufficient to meet the needs of the estimated 60,000 children currently in China who may have the right of abode in Hong Kong.”[122] 


Split families and the right of abode of expatriates


201.                   Although the eligibility requirements for ordinary residents are similar if not identical in the Basic Law, the Hong Kong Government has amended the Immigration Ordinance to provide for very different requirements in the name of implementing the Basic Law. The effect is that non-Chinese expatriates will be less likely to get the status of permanent resident in Hong Kong, leading to split families.


202.                   Article 24 of the Basic Law provides, inter alia,

(A)     "(2) The permanent residents of the Hong Kong Special Administrative Region shall be:


(C)     2) Chinese citizens who have ordinarily resided in Hong Kong for continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region;


(E)     4) Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region"


203.                   The Court of Appeal gave its judgment in the case of Fateh Muhammad V. Commissioner for Registration on 20 April 2000 which has highlighted the worst possible effect of the Government's discriminatory provisions in the Immigration Ordinance[123]. We are also concerned that the Basic Law has, yet again, been restrictively interpreted so that an expatriate, like Fateh Muhammad, who is the respondent to the case and who obviously made Hong Kong his home, cannot get permanent residence status in Hong Kong on account of him spending some time in prison.


204.                   Fateh Muhammad is a Pakistani who has lived in Hong Kong for the last 35 years or so. He has a family in Hong Kong. He paid taxes and contributed to society. Unfortunately, he is a non-Chinese expatriate and was convicted of a criminal offence and served a prison sentence.


205.                   The court said that the restrictions imposed in the Immigration Ordinance are constitutional in spite of the fact that such restrictions do not appear in Article 24 of the Basic Law.


206.                   Such restrictions include, among others, that


(A)     All expatriates (i.e. non-Chinese) have been ordinarily resident in Hong Kong for "a continuous period of 7 years . . . immediately before" his application for the status of Hong Kong permanent resident [Para. (1)(4)(b) of Sch. 1 to the Immigration Ordinance] (emphasis added); and


(B)     A person shall not be treated as ordinarily resident in Hong Kong during any period, whether before or after the commencement of this Ordinance, of imprisonment or detention pursuant to the sentence or order of any court [Section 2(4)(b) of the Immigration Ordinance].


207.                   Such an interpretation does not, on the face of it, seem to be consistent with the generous and purposive approach in the interpretation of the Basic Law as adopted by the Court of Final Appeal in Ng Ka Ling v Director of Immigration which judgment was delivered on 29 January 1999. In that judgment, the CFA has been extremely reluctant to accept restrictions that were not found in the Basic Law. A constitutional right should not be easily taken away by a restrictive interpretation of a provision meant to confer rights.


208.                   We are also concerned that the Government claimed and the High Court accepted that the detention as specified in the Immigration Ordinance actually breaks the residence requirement. Therefore, a non-Chinese resident who, for any reason is sentenced to a term of imprisonment will have his or her residence prior to detention broken by the remand or prison sentence (with his or her residence will be treated as starting anew from the day of release). This could occur even if the person were bailed for the alleged offence and later acquitted. The rule seems to impact on the presumption of innocence which holds that no one is liable to conviction (and, hence, imprisonment), unless their guilt is proved beyond reasonable doubt. It would be grotesque if a person was detained for two or three days by order of a court before being granted bail and the detainee was later acquitted but his application for permanent resident status was denied because of such temporary detention.


209.                   In theory, a person who is ordered to receive compulsory observation by order of a court will break his or her residence. 


210.                   If section 2(4)(b) of the Immigration Ordinance was constitutional, the period of imprisonment should have only been discounted rather than taking it as a break of the period of ordinance residence for the purpose of application for the status of permanent resident. However, this view has not yet been adopted by the Government and the Court.


211.                   Human Rights Monitor urges the Committee to question the Government on its discriminatory immigration legislation, to express similar concerns and to urge the Government to amend the laws immediately to repeal the discriminatory elements in the Immigration Ordinance, and to ensure that imprisonment or detention by a court order does not unjustly break the requirements for residence in Hong Kong.


212.                   Recently, immigration officials have been urged to clarify their policy after 2 children of a long time Filipino domestic helper were granted the right of abode. The two children speak Cantonese and read and write Chinese. Activists are asking the Immigration Department to confirm on what basis they were granted the right of abode and to maintain consistency in such decisions.[124]





o       Human Rights Monitor requests the Committee urge the Government to implement the right of abode as provided for in the Basic Law as interpreted by the Court of Final Appeal and in a manner consistent with its obligations under Article 10(1) of the Covenant.


Legal Aid and the Duty Lawyer Scheme


213.                   The right to a fair trial and fair representation to all persons is required under article 14 of the ICCPR. Under Hong Kong’s legal system, this right is very clearly and specifically extended to the people in the both Basic Law[125], and the HK Bill of Rights Ordinance[126].


Insufficient legal aid fees


214.                   Unfortunately, there are many inherent problems with the obsolete legal aid system in Hong Kong, first introduced in 1967[127]. First of all, it has long been considered that the maximum remuneration for legal services provided under legal aid[128] has long been inadequate, leading to a situation whereby for criminal cases, appropriate and experienced counsel is becoming increasingly difficult to engage. This results in a situation where persons receiving legal aid are being represented by counsel who are far less effective than what can be afforded by those who can afford to pay an average market rate for legal services. This would appear to be a clear violation of the equality clause contained within Article 14, Paragraph 1 of the ICCPR, mirrored in the Hong Kong Bill of Rights, as referenced. Very clearly, persons with ample financial resources are receiving far superior treatment under the current system. While this may be the case in jurisdictions other than Hong Kong, the situation is exacerbated here because the remunerative difference between legal aid cases and the market rate for privately funded legal services is so disproportionate.


Unjustified denial of legal aid


215.                   In Hong Kong, applicants for legal aid must pass two tests for eligibility: the means test, and the merits test. The means test is a clearly defined measure of financial capability for self-funding of legal services, and though it has been criticized by some as being too rigid, it will not be a focus of this report. The merit test, however, whereby a case or an appeal is reviewed by the Director of Legal Aid to determine whether it is “in the interests of justice”[129] and where the applicant has demonstrated “reasonable grounds” for court action[130], is in itself not as clear, and not subject to a transparent review process in cases where legal aid has been denied. The rules for appeal of this decision differ for civil and criminal proceedings.


216.                   In criminal proceedings, the only means for an appeal of the Director’s opinion is directly to the Court of Final Appeal. Alternatively, the applicant can apply to a judge for legal aid to be granted to him, though there will be no aid given for the purpose of that application. This affords the Director of Legal Aid, an employee of the Hong Kong government, with a way to discriminate in cases where he may have a prejudicial view of the outcome, or, theoretically, where he has been instructed by a higher authority within the government not to facilitate the case.


217.                   Additionally, under standard practice, the merit test is weighted toward cases where money is involved, or where the liberty of the applicant is at stake. This means that civil rights and human rights cases, brought against the government or the private sector, are often overlooked for Legal Aid if statistically significant monetary compensation is not involved in the outcome. This, itself, is another significant restriction of the right to equal access to the courts.


218.                   It should be noted that in criminal proceedings held in the magistracies, there is an additional resource for defendants, in the Duty Lawyer Service. In addition to limited free legal advice granted without the need for a means test, a very valuable service, it provides defendants with free legal counsel, provided they pass a means test which is more restrictive than the means test for Legal Aid, and a merits test, which is administered by the legal profession. However, this service is subject to similar problems with the merits test, and the limit of qualified cases is more restricted.


219.                   The self funded scheme, “Supplementary Legal Aid Scheme” (SLAS), while valuable, is limited to cases where monetary compensation to the defendant is the likely outcome of the case. Therefore, the SLAS does not really affect the situation relating to the ICCPR.




220.                   The Committee should recommend that the SAR Government:


221.                   Overhaul the remuneration system for Legal Aid to bring it more closely in line with the market rate for legal services, so as not to deter qualified counsel from taking up legal aid cases;

222.                   Provide a more transparent system for determining the merits of a case for the purposes of legal aid eligibility, which includes issues of social justice or questions of civil rights or human rights as a major consideration of merit.


Invasion of Telecommunications Privacy


223.                   The Human Rights Committee in its Concluding Observations was concerned that the Interception of Communications Ordinance passed in 1997 had still not been brought into effect.


224.                   Despite being on notice for many years of the importance to pass such legislation, it was not until two recent court cases which ruled these activities to be unconstitutional that the government was pushed into action. The Chief Executive attempted to fix the problem by issuing an Executive Order, to seemingly authorize such activities in the interim, but the judge ruled that such an order "is no more than a body of administrative directions binding only on government servants”.[131]


225.                   Meanwhile, faced with a 6-month moratorium following the case, the Executive Council has just approved the introduction of the Interception of Communications and Surveillance Bill. Although the Human Rights Monitor welcomes the introduction of such a law on the basis that “something is better than nothing”, we wish to raise the following concerns:


·        Section 3(1a) of the proposed bill states that the purpose sought to be furthered by carrying out the interception or covert surveillance is that of preventing or detecting serious crime; or protecting “public security”. We submit that the definition of public security is far too wide and open to interpretation and would like this clarified;

·        Judges who are responsible for approving covert surveillance applications, will be required to undergo integrity checks. Although the government has assured the public and lawmakers that such checks will not amount to ‘political censorship’, Human Rights Monitor submits that all judges should have undergone some sort of integrity checks in the first place, and this sort of “double vetting” could open up potential political background checks. We would like to ask for clarification on this issue;

·        The bill also does not cover cases concerning law enforcement agents from outside the territory, and does not explain whether this law would cover them. More clarification is needed, and protection needs to be added to ensure that any material gathered by overseas agents does not just disappear from the jurisdiction without leaving a record that can be scrutinized locally.

·        The bill also focuses on empowering law enforcement agents or “public officers”, but does not effectively implement Article 30 of the Basic Law: The freedom and privacy of communication of Hong Kong residents shall be protected by law. This could be seen in the fact that no criminal sanctions are imposed upon those who violate these terms.


Chap 7: Freedoms of Expression, Opinion, Thought, Conscience and Religion (Arts 18, 19, 20, 21, 22)


Politically Motivated Censorship


226.                   Reporters Without Borders was quoted as saying Yahoo’s Hong Kong unit had provided information about Li Zhi (a man from southwestern China sentenced in 2003 for subversion after posting comments online criticizing official corruption). Yahoo Hong Kong however said it did not have access to Li’s Chinese account and never releases information to the Chinese Government. Human Rights Monitor is, however, concerned that internet providers could be releasing information without the knowledge of the subscribers.[132] In a written statement, the US Internet search engine issued a statement on online freedom and said it is concerned by efforts of governments to restrict and control open access to information and communication.


Threat to Freedom of Press


227.                   Over half of Hong Kong people believe that the local news media practice self censorship according to a recent Hong Kong University opinion poll.[133] Many of those polled believed that the media generally was apprehensive when it came to criticizing the Central Government. Former Chief Secretary Anson Chan has also warned previously that one of the most cherished rights is freedom of press and was quoted as saying that “There’s no question that there’s a sense of self-censorship in Hong Kong in some of the media,” and that she hopes, it’s a trend that doesn't continue.”[134] She did not name publications or media organisations in her statements.


228.                   Ming Pao daily was the subject of an attack late last year, when a bouquet was delivered to the editor’s office. When the secretary opened an attached box, there was an explosion, causing minor injuries. The enclosed letter referred to an article the paper had allegedly printed in mid-October and demanded the paper make amends by donating a $30 million contribution to the Community Chest within 3 days.[135] This was not the first time a media organization had been targeted. In 1993, the office of Next Magazine was vandalized; in 1996, Leung Tin Wai a publisher of Surprise Weekly was attacked by 2 men at his office; and current legislator Albert Cheng, a radio commentator and political columnist, was chopped outside Commercial Radio in 1998. Although the motives remain unknown, these attacks undoubtedly had a “chilling effect” on the public.


Editorial Independence for Public Service Broadcasting


229.                   Here in Hong Kong, challenges are being made to public broadcasting, and the role it serves is becoming more of an issue. As it stands, RTHK is a government department, and is fully funded by the government. Although as stated by the Legislative Council Brief that there is apparently “no clear policy” on public broadcasting in Hong Kong[136], RTHK’s Mission, Vision and Values should provide a clear idea of what its mandate is all about. However, the fact that this is constantly challenged may indicate to an extent that this mission and vision is not shared by the government or its critics. The more contentious value, which is of particular concern to the Human Rights Monitor, is that of “editorial independence”, although other factors could also pose a potential “threat” if interfered with.


230.                   Although it is often pointed out that RTHK should be focusing on promoting the government’s policies, the government already has its own “media machine” in the form of the Government Information Services (GIS), and there is certainly no room for another mouthpiece. RTHK exists as a public broadcaster and not as a propaganda machine.


231.                   Issues relating to editorial independence and press freedom are intrinsically linked. Article 19 of the International Covenant on Civil and Political Rights provides that “Everyone shall have the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any media of his choice.[137]


Past to Present

232.                   Since the handover, the role of RTHK has been consistently challenged: Should it be a government mouthpiece or an independent public broadcaster? In fact, back in 1998, a member of the Chinese National People’s Political Consultative Conference Standing Committee, Xu Simin, said that when responding to his request to keep RTHK “under control”, the then Chief Executive Tung Chee Hwa told him, “slowly, slowly”. When asked at a press conference later whether it was indeed true that he said this, Mr. Tung made no denials.[138]

233.                   Mr. Tung also lashed out at the broadcaster when one of its satirical programmes, Headliner, compared the Taleban regime in Afghanistan to Tung’s policy address in a skit, calling it “bad taste”.[139]

234.                   Xu Simin is no stranger when it comes to attacking the broadcaster, having been quoted as saying,No public radio in the world teases its country and leadership, but RTHK does. Do they have the power to tease [the] Chinese Government?”[140] He has also implied that RTHK should not bite the hand that feeds it (note that the EOC has had similar problems in its role).[141] 

235.                   Issues relating to editorial independence and the free press are often intrinsically linked. Prominent radio hosts Albert Cheng and Raymond Wong (both of whom worked in Commercial Radio) quit their programmes in 2004 claiming that they were harassed and had been assaulted.[142]

236.                   Albert Cheng took a “sabbatical” in March 2004 after claiming that he had received death threats, and the two presenters who stood in also left after allegedly receiving anonymous criticisms of the Chinese government. When Mr. Cheng announced a few months later that there was a possibility that he would stand for elections, Commercial Radio’s Chief Executive Winnie Yu allegedly told him that his contract would only be honoured if he did not stand. Sure enough, after he announced that he would in fact be standing for election, his popular show, Teacup in a Storm, was yanked off the air. The new show that took its place was more mellow compared with the raucous Cheng style, known to many to represent the airing of their views.[143] Mr. Cheng indeed had good reason to fear for his life, since he barely survived an attack by 2 men who slashed him with butcher knives outside the station in 1998.

237.                   Likewise, equally candid host Raymond Wong quit over threats made to his safety. One of his shops was doused with red paint, an action generally associated with triad activity. He was also confronted in the street by 3 triad members. According to a local English satirical magazine Spike (which has since closed), threats received by the broadcasters are most probably linked to an underworld linked HK business giant acting for the Chinese secret police.[144]

238.                   When political commentator Allen Lee took over from Albert Cheng, he soon announced he would resign as a National Party Congress deputy and would stop working at the radio station. He claimed that he had been approached by a number of prominent local and mainland people following his taking up of his job as radio host, who had all of a sudden expressed an interest to “speak to him”. Meanwhile, a vocal morning programme host on RTHK’s Talkabout, Ng Chi Sum, was switched to a much less listened to evening programme, Open Line, Open Views, in a move the public broadcaster maintained was unrelated to political pressure.[145]

239.                   Although Chief Secretary Michael Suen Ming-yeung sought to reassure the community that the “rule of law would prevail”,[146] many feared this meant the end of press freedom. RTHK, however, still symbolically stood for editorial independence, providing members of the community with a platform to express their free and unfettered views.

240.                   According to press reports, RTHK has recently been looking at recruiting Raymond Wong to host one of their programmes. This move has drawn criticism from the pro-Beijing parties, including the Democratic Alliance for the Betterment of Hong Kong, with one of its members, Lau Kong Wah saying it would be unthinkable for RTHK to employ a talk show host who “opposes the government everyday”[147]. This is a classic example of people not having a clear understanding of what a public broadcaster should do.

241.                   Human Rights Monitor urges the government not to interfere with editorial independence of the public broadcaster.


242.                   During Chief Executive Donald Tsang’s electoral campaign he expressed his dislike for RTHK’s racing coverage, and it was later revealed that in fact, there had been an agreement between the broadcaster and the government to drop the coverage[148]. He was also quoted as saying that RTHK should be spending more time explaining government policies rather than broadcasting racing and entertainment programmes such as the Top Ten Chinese Gold Songs.

243.                   Human Rights Monitor expresses its concerns over the handling of this issue as it can be perceived as a threat to the autonomy of the broadcaster and freedom of the press as a whole.

Public Broadcasting Review Committee


244.                   Earlier this year, the Chief Executive appointed an independent committee to “review” public broadcasting in Hong Kong. The Secretary for Commerce, Industry and Technology John Tsang reiterated that it was not targeting RTHK at all, and that it was only “one of the components of public broadcasting”.[149] However this comment is in itself questionable, since RTHK is the only public broadcaster in the territory, any conclusions made by this committee will undoubtedly affect its future.


245.                   According to the government release, the committee would be examining “the justifications for PSB in the development of Hong Kong’s broadcasting market, as well as its role and purposes against the resources required for such broadcasting” of “…issues concerning public accountability, programming policy and good governance as well as measures for the administration to evaluate the effectiveness of PSB.[150] Human Rights Monitor is concerned that although the government is looking for “the best way forward”[151], the fact that the word “justification” was used, arguably denotes a sense that RTHK in fact has to prove its worth in order to survive or exist.


246.                   Human Rights Monitor is also concerned over the composition of this committee. In spite of calls from both RTHK and the RTHK union as well as legislators to have a wider representation within the Public Broadcasting Committee, the composition of the committee consists of former “rivals” so to speak, basically people who formerly worked in the commercial sector as well as newspaper editors or academics, none of having worked in the public broadcasting sector before, not even a single RTHK ex-staffer.


247.                   Although Human Rights Monitor acknowledges it may be difficult to change the composition or membership of the committee at this late stage, it could still provide a forum or “channel” for RTHK staff and management to share their experiences and provide for a more comprehensive review.

248.                   Human Rights Monitor believes that before any structural changes are made to the public broadcaster, there should be open and wide consultation with members of the community and the legislature, as well as the staff and management of RTHK (who will ultimately be those most affected by any changes implemented).

249.                   The UN’s Paris Principles apply to the status of national institutions vesting them with the right to “protect and promote human rights[152].” As a public broadcaster, RTHK’s role is to reflect the goings on of the society while at the same time offering the community and public a platform to air their views. The Paris Principles should apply in the broad sense to the public broadcaster as well, and accordingly, there should be a “stable mandate for members of the institution, without which there can be no real independence, their appointment shall be effected by an official act…[153]

250.                   One legislator, the aforementioned former broadcaster Albert Cheng, expressed concern over what he suspected were attempts to “dry up RTHK” by cutting its funding and not giving it facilities.[154] Some sources say that the amount of bureaucratic paperwork (synonymous with any government department), which has to be involved to hire camera crews, equipment, etc., but to name a few) stifles the broadcaster from functioning effectively in this ever changing and fast-paced media environment.

251.                   Although there were plans to move the broadcaster to new headquarters in Tseung Kwan O, plans were indefinitely shelved and had, according to the Deputy Secretary for Commerce, Industry and Technology Marion Lai, been listed as the lowest priority for a public works project. The broadcaster currently occupies 3 buildings in Broadcast Drive, which if sold, could have paid for the new premises. With the lack of new facilities and the use of old equipment, housed in a dilapidated building, many are concerned that this will eventually affect the broadcaster’s smooth running and efficiency.[155]


Public Access Channels

252.                   Human Rights Monitor supports in theory the provision of more channels enabling more access to the airwaves for the community. The setting up of community channels should be supported. However, THE MONITOR reiterates that this should not come at the expense of the preservation of RTHK as an effectively functioning public broadcaster.



253.                   The Monitor urges the Committee to recommend that:

254.                   The government take action to protect media organizations and media workers from violence;

255.                   The Government should pledge that the public broadcaster RTHK will remain a public broadcaster and not be morphed into a government mouthpiece;

256.                   A review should be conducted into the cumbersome administrative and financial procedures coupled with depleting resources, which makes it difficult for the broadcaster to function competitively in a technologically driven media environment;

257.                   Any attempt to change the corporate structure, accountability mechanism and revamp the governance should be proceeded with caution and in an open and transparent manner and should not proceed without proper consultation;

258.                   RTHK’s editorial independence and press freedom, as stipulated in the international covenants and in the Framework Agreement signed between the broadcaster and the government, should be enacted into law. Statutory remedies should be available in case of breach;

259.                   The job security of staff members be preserved and it should be ensured that the staff union can operate in an unfettered manner and function effectively as broadcasting professionals;

260.                   Any interference with the public broadcaster could result in local and international ramifications as in the case of the BBC, therefore the government is urged to exercise caution in this review.

ICAC’s raid on media


261.                   The raid by Hong Kong’s corruption investigation agency, the Independent Commission Against Corruption (ICAC), on seven local newspapers triggered serious concerns over the protection of journalistic sources to Hong Kong’s media. On 24 July 2004, the ICAC executed fourteen search warrants and searched offices of seven newspapers and homes of their journalists. Materials were seized after the search.


262.                   The raids generated concerns amongst local and international human rights and journalists organizations.[156] The Newspaper Society of Hong Kong called the raids “a very bad precedent” and asserted that they “seriously affected freedom of the press”.[157] The Committee to Protect Journalists condemned the action as “harassing and intimidating” the media.[158] The “freedom to seek, receive and impart information of all kinds” enshrined in Article 19 of ICCPR was infringed upon and public confidence in the media has been affected.


263.                   The incident was litigated at the Court of First Instance by one of the affected newspapers. The legal requirements under Section 84(1) of the Interpretation and General Clauses Ordinance requires law enforcement agencies to exhaust all other avenues before applying for a search warrant or production order against a newspaper. The judge ruled that the ICAC “could have achieved its legitimate aim by less intrusive measures” and ordered that the warrants issued against the litigated newspaper be set aside.[159] Yet, when the ICAC lodged an appeal, the judge at the Court of Appeal left the case with confusion as he dismissed the appeal on technical grounds, and claimed the ICAC action was lawfully administered.[160] Worries over the impact on press freedom were immediately elevated again, as expressed by a statement released by the Hong Kong Journalists Association shortly after the judgment.[161]


264.                   Such a legal framework leaves doubts on the reliability on the protection of journalistic materials and their sources because the promise of anonymity to the informants can no longer be guaranteed. The implication of such a problem is daunting: that the free flow of information, the freedom of the press and the public’s right to be properly informed would be compromised.



Immigration Barrier to Political and Academic Discussions


265.                   Taiwan Mayor Ma Ying-jeou (who was born in Hong Kong) had his visa application refused, and the Hong Kong Government refused to provide any explanation as to why such a decision was made. Many suspected that the reasons for his refusal of entry may have been political.[162]


266.                   Mayor Ma had been invited to attend cultural events at two universities, and was due to deliver a speech on global culture and tourism, of a non-political nature.[163]




267.                   The Monitor urges the Committee to ask the Government for an explanation as to why the Mayor’s visa application was rejected, and whether it is taking political considerations into account.


Immigration Barrier to Religious Freedom


268. The Falun Gong mixes martial arts and meditation in a creed which claims to have thousands of believers in China. Beijing authorities have branded it a counter-revolutionary threat and banned it on the mainland. Although it is not banned in Hong Kong, sect leaders fear followers are discriminated against by authorities under pressure from China.
269. 80 Taiwanese Falun Gong followers who came to Hong Kong in February 2003 to attend a conference organized by the sect were detained at the border and refused entry although they were holding valid visas. The group believes they were denied entry on religious grounds, which would constitute a violation of article 22 of the ICCPR. The group claimed that immigration officials in Hong Kong had "roughly mistreated" their members[164]. 
270. Four of them (Theresa Chu Woan-chyi, Liao Hsiao-lan, Lu Lih-ching and Chang Jenn-yen) decided to use legal channels to seek justice from the Hong Kong Government. Government counsel Daniel Fung told the Court of First Instance that Falun Gong followers were not refused entry to Hong Kong because of their religion, but because officials feared they might pose a threat to public order[165]. According to Theresa Chu, none of them has a criminal record. Their only common characteristic is that they are Falun Gong followers[166].
271. In February 2006, The Hong Kong government prohibited public disclosure of the documents concerning how the four Falun Gong practitioners were placed on a Department of Immigration watch list, arguing that they are too sensitive for open court, and that their release could jeopardize the territory's safety. Although they conceded that Mr. Justice Hartmann could examine those documents covered by the certificates, the four practitioners' legal team would not be allowed to view the documents[167].
272. In September 2005, Falun Gong members were also forced to cancel an international conference arranged to be held at Hong Kong's Conrad Hotel. Organizers were told at the last minute that the ballroom they'd booked weeks in advance was unavailable, while participants from all over the world had gathered for the forum to debate human rights and political issues in China. Staff at the hotel told organizers the room was unsuitable because it had suffered water damage. After the cancellation, however, three security staffs were posted at the ballroom's locked doors preventing an AFP reporter from inspecting the room. One of the invited speakers, right-wing Canadian MP Rob Anders, accused local authorities of giving in to pressure from Beijing[168].
o       The Committee should express concerns about the freedom of belief of Falun Gong followers in HKSAR. The Committee should urge the HKSAR to ensure that the four Falun Gong followers are given a fair trial. 
o       The Committee should urge the government to disclose the reasons the Falun Gong followers were on the immigration watch list as soon as possible. The committee should express concerns about the Falun Gong’s overall situation in HKSAR. Please refer to the next chapter (Epoch Times).

Pressure, threats and attacks over Falun Gong related newspaper

273.                   The Epoch Times, an internationally published daily newspaper related to the Falun Gong, well-known for criticizing the authorities of the People’s Republic of China, especially for human rights violations, has been victim of increasing pressure and threats.

274.                   In May, 2005 a company that had been printing the newspaper for more than a year announced that it was terminating its contract without giving any explanation. Epoch Times editor Cheryl Ng said she was convinced political pressure was brought to bear on the printer by the Chinese authorities, after the newspaper brought out a special issue in November 2005 with a print run of 1 million copies containing a series of critical editorials about the ruling Chinese Communist Party entitled the "Nine Commentaries" [169]

275.                   On 28 February 2006, four unidentified men targeted the offices of the Epoch Times in Hong Kong. Cheryl Ng said she believed the assailants were local thugs recruited by the Chinese Communist Party. According to Ms. Ng, several of her colleagues receive regular threats against the Falun Gong. Four men broke into the office after smashing its glass doors. They took a hammer to a specialized printer which digitizes the newspaper’s pages. The newspaper had just bought the new printer, since over the past year it had failed to sign a contract with any other printing company, and had been forced to make arrangements to print from day to day, which held up its distribution[170]. It should be noted that similar attacks happened in other countries: On 8 February 2006, journalist Li Yuan was assaulted in his home in Atlanta in the United States. The Epoch Times also said that letter bombs had recently been sent to its offices in Sydney.

276.                   Recently, there have been several incidents of attacks of journalists in Hong Kong, like those against the Apple Daily. These are serious challenge to free press and free speech.


277.                   The Committee should express concerns over the state of freedom of expression in the HKSAR, especially about criticism over Mainland China politics and the Falun Gong.

278.                    The Committee should urge the HKSAR government to ensure that police investigations are efficient, and that free press and free speech are guaranteed. 

Detention of HK Based professionals by mainland security agents for political reasons


279.                   According to Immigration figures, at least 83 Hong Kong residents are being detained on the Mainland.[171] A reciprocal notification system has been in place since January 2001, but activists say the government is not doing enough to inform relatives of detained persons.[172] The Secretary for Security, Ambrose Lee, has warned that the one country, two systems principle could be damaged if the government actively intervenes in cases where Hong Kong residents are allegedly detained unfairly on the mainland.


280.                   The detention of a Hong Kong journalist by the Chinese authorities in 2005 has sparked a renewed wave of worries among journalists and the public at large. Ching Cheong, a Hong Kong journalist working for Singapore’s Straits Times, was detained in Guangzhou on 22 April 2005 and was not formally arrested until 5 August 2005. Ching Cheong was later alleged to have admitted to acts of espionage. This particular incident has raised concerns on three aspects:


281.                   First, the legal procedures adopted by Beijing and the reaction of the SAR government have worried other journalists who are working in the field. The Hong Kong Foreign Correspondent Club (FCC) issued a letter to Mr. Liao Hui, the director of the Hong Kong and Macao Affairs Office of the State Council, to protest against the prolonged pre-trial detention of Mr. Ching.[173] Mr. Ching was not treated “fairly and according to law”, as promised by Li Gang, vice-director of the Central Government’s liaison office in Hong Kong. Mr. Li has failed to ease these worries by saying that he did not know how long the judicial process would last, as “it depends on the evidence collected.”[174]


282.                   Mr. Ching was also deprived of legal assistance for over a month while in custody.[175] The detention of Mr. Ching has exceeded ten months and no formal charges have been lodged after investigations in both the State Security Bureau and the Beijing No 2 People’s Procuratorate.


283.                   The lack of action on the part of the SAR government to protect its citizens has had a chilling effect on Hong Kong journalists. Despite repeated calls from local and international journalists organizations and legislative councillors, the then acting Chief Executive, Mr. Donald Tsang, has paid little heed to the incident and insisted that the government could not interfere with mainland’s legal system due to the principle of “one-country, two systems”.


284.                   The Hong Kong Journalists Association disagreed and insisted that the notification system between the Chinese authorities and the Hong Kong government should be implemented properly so as to protect the rights of Hong Kong residents.[176] This is of crucial importance to Hong Kong journalists who frequently conduct research about or within China, who can become the targets of investigation by the Chinese authorities. 


285.                   The incident reminded other journalists of the uncertainties and dangers attached with working across the mainland border. Mr. Ching was charged with espionage, yet no solid evidence has been provided by Beijing. This only further highlights the “vagueness of China’s national security provision”.[177] This has always been a major problem that has plagued journalists who research and report about China.


286.                   Some news organizations may try to avoid certain topics when covering China, and such deliberate screening of news adversely affects the journalists’ rights to impart information, and also the readers’ rights to receive information, which are both guaranteed under article 19 of the ICCPR.


National Security Bill


287.                   Chief Executive Donald Tsang reassured legislators last year that the controversial Article 23 legislation would not be introduced, at least during his term. This controversy sparked the march which was attended by over 500,000 people in 2003.


288.                   China's National People's Congress passed an anti-secession law effectively allowing China to attack Taiwan if the island moves to formalize independence.[178]


289.                   Many people are concerned about whether this law would affect Hong Kong’s future related legislation, and whether the law can operate on its target. Some commentators believed that the enactment of the anti-secession law might affect Hong Kong’s legislation of Article 23 of the Basic Law as it requires the HKSAR to legislate against the “seven sins”. [179]




290.                   The Committee should urge the government to shelve plans related to Article 23 legislation until the Chief Executive and the whole Legislative Council are elected by universal and equal suffrage and consistent with the Covenant standards.


Chap. 8: Right of Peaceful Assembly; Freedoms of Association & Trade Union (Arts 21 and 22)


Police Commissioner’s Overbroad Discretion in Public Order Ordinance


291.                   In 1995, the UN Human Rights Committee expressed concern about the Public Order Ordinance (POO). Recently, the Court of Final Appeal (CFA) finally held in Leung Kwok Hung and Others v HKSAR that :

292.                   “(1) The Commissioner’s statutory discretion to restrict the right of peaceful assembly for the purpose of “public order (ordre public)” provided for in ss.14(1), 14(5) and 15(2) of the Ordinance does not satisfy the constitutional requirement of “prescribed by law” and is unconstitutional.

293.                   “(2) The appropriate remedy is the severance of public order (in the law and order sense, that is, the maintenance of public order and prevention of public disorder) from “public order (ordre public)” in such provisions.

294.                   “(3) After severance, the Commissioner’s discretion in relation to public order satisfies the constitutional requirements of “prescribed by law” and necessity and is constitutional.”

295.                   The CFA judgment primarily focused on the concept of “ordre public” in respect to its application to public processions. It declared that “order public” was too broad and vague a concept to guide the exercise of the discretion of the Commission of police given to him to refuse or restrict a constitutional right. The term therefore does not satisfy the constitutional requirement of “prescribed by law” in respect of the regulation of public procession. It also commented incidentally, that the validity of the discretion in relation to the purpose of “public order (ordre public)” in contexts other than in public processions 'must be regarded as doubtful.' That is, in contexts like public meetings and the control of amplification devices, the reliance on the concept of “ordre public” should be cancelled.

296.                   The majority judgment actually questioned more than just “ordre public”. It expressly questioned the grounds for “the protection of the rights and freedoms of others”. It remarked, 'it can be seriously argued that in the context of the Commissioner’s statutory discretion to restrict the right of peaceful assembly, a purpose based on a notion of such wide and imprecise import does not satisfy the constitutional requirement of “prescribed by law”.'

297.                   The Monitor noted that the expressions "public safety", "public order (ordre public)", "the protection of public health" and "the protection of rights and freedoms of others" in the POO, are expressly said to be "interpreted in the same way as under the International Covenant on Civil and Political Rights as applied to Hong Kong."

298.                   The term “national security” is left out from that sentence and is defined in the next sentence in the same sub-section as "the safeguarding of the territorial integrity and the independence of the People's Republic of China."[180] The exclusion of the term "national security" in the first sentence and giving it an express definition in a separate sentence gives room for the claim that it is not intended to have the same meaning as in the ICCPR. Anyway, the express definition of "national security" is still too vague to guide the exercise of discretion of the term “national security”. The fact that the then Chief Executive had to issue an Executive Order on its interpretation is evidence that it is vague. By the same logic, the Commissioner’s statutory discretion to restrict the right of peaceful assembly for the purpose of “national security” is unable to satisfy the “prescribed by law” requirement, and therefore should also be called into question.



299.                   Human Rights Monitor urges the Committee to call on the government to conduct a thorough review of the POO through public consultation and to make any necessary amendments to remove all overbroad discretion purportedly given to the Commissioner..


Police Tactics/Freedom of Demonstration


300.                   The right of peaceful assembly is recognized under Article 21 of the ICCPR. Since 1996, Human Rights Monitor has been “monitoring” demonstrations as a core part of its work, to ensure that the freedoms of expression and assembly are not violated. The role of the Monitor is to observe the demonstrations, and record the rundown of the demonstration, the action or measures taken by the police, any media interviews etc. Its role, however, is not to interfere in the goings on.

301.                   In 2000, Human Rights Monitor was very concerned about the confrontation between police and students from the Hong Kong Federation of Students and right of abode claimants outside the Central Government Office. Human Rights Monitor was handling complaints made by student representatives referred to it by a Legislative Councillor’s office. The students were protesting against the National People’s Congress Standing Committee’s reinterpretation of the basic Law made at 26th June 1999. The police dispersed protesters using pepper spray, allegedly in contravention of an agreement reached by both sides a bit earlier. The protesters were in fact willing to go into “designated demonstration areas” to avoid obstructing the CGO doorway as requested by the police.

302.                   The use of pepper spray was a form of violence or force against the protesters. Force may only be used when it is strictly necessary.

303.                   Meanwhile, at the WTO protests just last year, the Monitor was again there to monitor the demonstrations, and this time we feel that the police should be praised for showing general restraint, especially on the first couple of days, in not arresting any protestors - even the comparatively violent ones.

304.                   The Monitor still had the following concerns on the use of force:


305.                   The use of tear gas was not  kept to the minimum (e.g. they should have thrown just one canister into the air and give time for the crowd to disperse or retreat, creating a buffer zone between the police and protestors, especially the violent ones);

306.                   The use of Super Sock bag Rounds (and the subsequent covering up until the police were questioned about it by a journalist based on complaints by a protestor wounded by one round);

307.                   The lack of proper warning in their use: The explanation by a police anti-riot training officer that there were warnings by the police conducts was unacceptable. The Monitor found that most of the journalists, bystanders and protestors at those scene did not hear any warning. It was confirmed by a TV crew from RTHK that there was indeed a female officer warning protestors through a small handheld amplifier that the police would use force before tear gas was used. But her warning lacked specificity to amount to a proper warning;

308.                   The amount of pepper spray used seemed to be excessive from time to time;

309.                   There was apparent indiscriminate use of the water hose at times; and

310.                   There was some possible overuse of police batons.


311.                   While praising the police efforts to contain the confrontation and minimise initial arrests, the Monitor considered statements made by the police on the use of minimum force to be misleading, and UN guidelines on the use of firearms by law enforcement officers was not strictly adhered to.

312.                   Compared with the use of force issues, however, we are more concerned about the outrageous treatment the detainees received. Our lawyers witnessed some such maltreatment. We are now working with a number of NGOs in getting statements from the protestors and other witnesses to document and better understand exactly what happened.

313.                   We were also alarmed by the police interference into the operation of NGOs including their search of a foreign domestic workers' union office, as well as their pressure on hotel and transport operators in their dealings with NGOs.

314.                   We have already requested that LegCo conduct an inquiry into the whole event to understand the tactics and measures adopted by the police so that we and future organisers of WTO meetings would be able to learn from it and address the problems we had to prevent them from happening again. They can also learn from Hong Kong police in their general restrained approach in policing such an event.

315.                   The Hong Kong Human Rights Monitor also denounces the police for denying its observers access to the detainees in police custody at a time when there were allegations of `inhumane treatment'. Such denial of access is in breach of the Johannesburg Principles and inconsistent with the interest of the police and persons in custody in the light of the large number of complaints of maltreatment and denial of criminal justice.


316.                   Human Rights Monitor urges the police to adopt restraint when policing demonstrations to allow the free and unfettered expression of views, as well as the freedom of assembly to be exercised.

317.                   The Committee is urged to call on the government to have clear guidelines on the use of force when policing demonstrations and to ensure that these are in line with international principles.


Rolling Back of Societies Ordinance

318.                   The Societies Ordinance is arguably still the single most important statute governing the formation, operation, and dissolution of NGOs. It is therefore central to the freedom of association in Hong Kong. It governs, among other things, how societies may get lawful status in Hong Kong.

319.                   In spite of the Committee’s expression of concerns in 1999 over the freedom of association and the fears that the Societies Ordinance could be applied in such a way as to restrict the enjoyment of Article 22 rights, the Hong Kong government has not seen any need to review this Ordinance.

320.                   Article 23 of the Basic Law requires the enactment of laws in Hong Kong "to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies."

321.                   In Spring 1997 the Standing Committee of the National People's Congress resolved to repeal the 1992 "major amendments" to the Ordinance, and on the day of Re-unification the Hong Kong SAR Government rolled back the Ordinance by re-installing the registration system. The 1997 amendments provide that if the Societies Officer (who is the Commissioner of Police) "reasonably believes" that the prohibition of a society "is necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others," he may make a recommendation to the Secretary for Security, who may ban the society concerned.

322.                   Article 22(2) of the ICCPR provides: "No restrictions may be placed on the exercise of [the right of free association] other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others." The purpose of this article was not to provide convenient excuses for governmental authorities to restrict the freedoms and rights of their people, but to prevent any government measure for restricting rights from going beyond the permissible limits as defined by the ICCPR and related international jurisprudence.

323.                   Legitimate restrictions of rights must be limited to those necessary to meet sufficiently important social exigencies to justify their imposition. It is the authorities' duty to prove that there are grave social needs and legitimate aims.

324.                   Article 5 of the ICCPR states clearly that "nothing in this Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant," and that "there shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing. on the pretext that the present Covenant recognizes them to a lesser extent." Unfortunately, the SAR administration has chosen to interpret the ICCPR in a very restrictive manner.

325.                   The use of the term "national security" is particularly objectionable because this concept has frequently been used in China to delegitimize the right of expression and to persecute those with legitimate demands such as democracy and human rights. Its inclusion raises fears of extension of such Mainland Chinese practices to Hong Kong, especially in light of Article 23 of the Basic Law.

326.                   The consensus of international jurists as enumerated in the Siracusa Principles is that national security "cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order." It may be invoked "to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force." Its inclusion in the Societies Ordinance and the Public Order Ordinance is therefore unwarranted, as it is difficult to suggest that a society or a demonstration in Hong Kong would threaten the existence of China. If there is any local and isolated threat to law and order, it can be dealt with under the heads of public order and public safety.

327.                   The Johannesburg Principles, which are concerned more with the freedom of expression, also stress the significance of violence in relation to justifying restrictions on the ground of national security. The Principles state that the freedom of expression may be restricted as a threat to national security only if a government can demonstrate that the expression is intended to incite violence, that such violence is likely to be incited, and that there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

328.                   However, the ground of "national security" was introduced without any qualification with regard to the requirement of violence or force, despite local and international criticisms. A concession was made by the Chief Executive in respect to the definition of "national security" in that it was defined as the "safeguarding of the territorial integrity and the independence of the People's Republic of China" while linking its meaning to that in the ICCPR. It is difficult to understand how the HKSAR's omission of the requirement of force can be reconciled with the ICCPR's definition of "national security". It may be that a court would be prepared to impute the requirement of force in light of the wording of the definition in the 1997 amendments, but this is far from certain. The Government's refusal to include the requirement of force in the ground of national security has already set a bad precedent for other legislation under Article 23 of the Basic Law.

329.                   The police are empowered by the 1997 amendments to conduct political censorship of societies when they apply for registration or exemption. They are also empowered to monitor the activities of societies at all times, prohibiting them if required. It should be noted that except for these changes, the provisions in the last pre-Handover Ordinance remain unchanged and the authorities inherit all the powers in the last pre-Handover Ordinance, including, among others, the power to inquire, enter, search, and seize.

Restricting Foreign Connections

330.                   The restrictive aspects of this ordinance being "a political body" having "connection with a foreign political organization or a political organization of Taiwan." "Political body" means a political party or an organization purporting to be one, or an organization whose principal function is to promote or prepare a candidate for an election. "Foreign political organization" includes foreign political party or government and its political subdivision or agent. "Connections" refer to all direct or indirect financial support or sponsorship from, affiliation to, participation in, decision making by, or having policy determined by, foreign political groups.

331.                   As the restriction covers not just election contributions, it has a serious effect on political parties, especially in a territory without full democracy. A political party may be deterred from many legitimate activities, including, say, endorsing a declaration drafted by foreign parties sharing similar platforms, or engaging in joint projects funded by a better off foreign partner for comparative studies to improve social services. Moreover, as the police are empowered to monitor the activities and finances of political parties, an authoritarian government could starve an opposition party by contacting donors to "verify" donation information. All societies should have the right to pursuit their objects by political as well as non-political means free from unnecessary restrictions.

332.                   Societies which do not directly take part in elections are not directly caught by these changes. However, this broadly couched restriction may still have a chilling effect on civil society in Hong Kong. Societies with foreign connections may be discouraged from fielding candidates in elections or trying to have elected representatives of their own to promote causes neglected by main-stream political parties. This restriction also gives the police excuses to inquire into the expenditures, incomes, and sources of incomes, not only of political parties, but also of all societies. The  restriction has no basis in the ICCPR. It cannot be argued that it is based on "public order" or even "national security". Unless substantially narrowed and qualified, foreign connections alone cannot be said to endanger "public order" or "national security".

333.                   Human Rights Monitor urges the Committee to express its concern about the politicization of the police, to stop police interference with the freedom of association, and to work for the repeal of all legal provisions which threaten the freedom of association.

334.                   We also urge the Committee to issue as soon as possible a General Comment on the freedom of association with a liberal interpretation of the freedom to guide various authorities to respect the democratic space of  non-governmental organizations.

Right to form trade unions


335.                   Article 8(1)(a) of the Covenant provides for the “right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned.” Article 3 of Convention No. 87 further provides for the right of trade unions to “elect their representatives in full freedom” without any interference or restrictions from public authorities.


336.                   As amended by ELRO, Section 17(2) of the Trade Union Ordinance requires that an officer of a trade union must be “engaged or employed in a trade, industry or occupation with which the trade union is directly concerned.”[181]  Section 17(6) further provides that “Any person who is an officer of a registered trade union in contravention of this section shall be guilty of an offence and shall be liable on summary conviction to a fine of $1000 and to imprisonment for 6 months.”  The ILO Committee found that such restrictions were contrary to Convention No. 87 and stated that “the determination of conditions of eligibility of union office is a matter that should be left to the discretion of union by-laws and the public authorities should refrain from any intervention which might impair the exercise of this right by trade union organizations.”[182] 


337.                   Accordingly, it requested the government to repeal the occupational requirement for trade union offices.  To date, the Government has not adequately addressed the concerns of the ILO Committee in spite of its renewed effort to follow up on the developments. 



Human Rights Monitor requests that the Committee to urge the Government to respect the right to form unions.


Right to protection from anti-union discrimination


338.                   Inherent in the right to join trade unions, as provided for in Article 22 of the Covenant, is the right to protection from dismissals or other retaliatory measures motivated by anti-union discrimination. 


339.                   The Hong Kong Government claims that the Employment Ordinance protects employees from anti-union discrimination in two ways.  First, employers who engage in anti-union discrimination may be subject to a criminal prosecution and a fine of up to HK$ 100,000.  Second, employees who are subject to dismissal due to their union activities may seek remedies such as reinstatement, re-engagement, terminal payments or compensation.[183]


340.                   While prosecution for anti-union discrimination by employers is theoretically possible under Section 21B of the Employment Ordinance, in practice, successful prosecution is difficult.  The reason for this has been explained by the Government itself.  In its Review of Industrial Relations System in Hong Kong, 1993, the Education and Manpower Branch conceded that “although the Government has from time to time received complaints from employees against their employers for anti-union discrimination, there has yet to be a successful prosecution case.


341.                   The Employment Ordinance does not offer any remedies for individuals who have subject to other forms of anti-union discrimination, aside from dismissal.  The ILO Committee “remind[ed] the Government that protection against acts of anti-union discrimination should cover not only dismissal, but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker.”  The ILO Committee urged the Government to amend the Employment Ordinance so as to provide for protection against all acts of anti-union discrimination.[184]


342.                   The paucity of effective legal protections against anti-union discrimination has resulted in the increasing boldness of employers to take actions against individuals who engage in union activities.  In the first six months of 1999, at least three major cases of dismissals allegedly based on anti-union discrimination have been reported.  In January 1999, Tang Sin-hing, a container driver employed at the Orient Overseas Container Line, stated that he was forced to resign because of his participation in a union established in May 1998.[185]  On 23 February 1999, the Far East Hydrofoil Company dismissed 44 cabin attendants, a majority of whom were members of the Hong Kong & Macau Marine Passengers Transportation Service Employees Union, formally registered on 22 January, 1999.  Some of the dismissed workers had been employed with the company for more than 18 years.[186]  In June 1999, more than 80 workers of Seven Seas Chemical (Holdings), all union members, also claimed that they had been dismissed for their union activities.[187]


343.                 More recently, in a judgment a magistrate criticized Hong Kong’s labour laws as being outdated and hit a government service contractor with a fine for sacking workers taking part in union activities. He criticized the laws as lagging behind those of other countries. The government however disputed the magistrate’s comments and says Hong Kong’s labour laws are both complete and comprehensive. Earlier, British Airways was fined $5000 for breaching labour rights of the head of its Hong Kong cabin crew union.[188]





344.                   Human Rights Monitor requests the Committee urge the Government to respect the right to join unions, as provided for in Article 8(1) of the Covenant, and the right to protection against anti-union discrimination.

345.                   Specifically, the Government should provide effective protections against and remedies for anti-union discrimination, including 1) undertaking vigorous prosecutions of employers who take retaliatory measures against their employees, motivated by anti-union discrimination; 2) amending Section 32N of the Employment Ordinance to include the possibility of the right to reinstatement without the prior mutual consent of both the employer and the employee; and 3) amending the Employment Ordinance to provide remedies for a full range of anti-union discriminatory measures.



Chap 9: Rights of Minorities and Equal Opportunities (Art 2, 3 and 27)


Failure to Combat Racial Discrimination


346.                   The Hong Kong Government has again offered an inexcusable delay on legislation to prohibit racial discrimination in Hong Kong. A consultation paper on “Legislating Against Race Discrimination” was conducted in June 2003, the Hong Kong Government seemingly went a step further by preparing “the necessary law drafting instructions, the proposals of which would form a basis for consultations on the future bill before its introduction into the Legislative Council.”[189].


347.                   Thirty seven years after the introduction of International Convention to the Elimination of All Forms of Racial Discrimination, the Hong Kong Government, however again, delayed to table the proposed Race Discrimination Bill to the Legislative Council deviating from its original plan[190], owing to “technical and legal issues”[191], raised during process of drafting. The delay definitely prevents ethnic minorities from protection against racial discrimination.


348.                   The Hong Kong community is now much more familiar and aware of the concept of racial discrimination than compared with 1997.  The community is also showing more support than in the past. 16 out of 34 business organizations and all 44 non-governmental organizations in the consultation in 2004 gave their support to legislate against racial discrimination.[192] There is no excuse when “consider[ing] the overall interest of the community”[193] for the Hong Kong Government to postpone the anti-discrimination law on the ground of race. It is believed that the delay is coming from pressures from senior officials in the government, as well as problems in relation to the allocation of resources.


349.                   Some provisions in the proposed race discrimination legislation have also been questioned. New immigrants and foreign domestic workers are excluded from the existing proposal. In the proposed bill, foreign domestic workers are treated as a separate category from ethnic minorities, and they will not be covered by the proposed legislation. In other words, foreign domestic workers would not be protected by future legislation once they have been discriminated against by their employers on the ground of race. For example, the “Two-week Rule”, which restricts foreign domestic helpers from leaving Hong Kong within two weeks once their contracts are terminated, will continue to be in force without any worry of it being dragged into the race issue. It is unacceptable that foreign domestic workers are not protected as a result of an immigration technicality.


350.                   The two-week rule targets only foreign domestic workers. It requires them to leave HK within 14 days after the termination of their contract even if they have found another employer to employ them. It is indirect discrimination against ethnic minorities from South and South East Asia. This rule in fact should be abolished in light of the impending new legislation. Treatment of non-citizens should not be racially discriminatory. For example, there should not be different treatment on the grounds of race between a non-citizen British person and a non-citizen Filipino.


351.                   In 1997, the Hong Kong Government published a consultation paper in which it considered that discrimination against new arrivals should be covered by the race discrimination ordinance, with the reason that “international bodies concerned with race-related issues consider that ‘racial discrimination’ includes discrimination against identifiable minorities within a particular culture, even those of the same ethnic stock as the host community”, that according to paragraph 1.7 of the consultation paper published in 1997, as well as the consideration of  the “Irish Traveler” by the UN Committee on Elimination of Racial Discrimination[194]. Yet, discrimination against new immigrants from the Mainland has not been included in the revised consultation paper in 2004. The Hong Kong Government claims the new arrivals from the mainland should not be tied in to the definition of race based on “race, colour, descent, or national or ethnic origin” in accordance with Article 1 of the International Convention to the Elimination of All Forms of Racial Discrimination.


352.                   The convention provides the minimum protection to those who are discriminated against by the majority of the community. There is no reason for excluding the Mainland Chinese from the legislation, even if they do not fall into the definition of race in the Convention. The International Convention on the Elimination of All Forms of Racial Discrimination provides the minimum standards for protection. Even if it is true that new arrivals from the Mainland do not fall within the definition of ICERD there is no reason not to offer the protection. Wider protection can be found in the Race Relations Act in UK which protects discrimination based on "nationality". The Australian Racial Discrimination Act also prohibits discrimination against immigrants and ex-immigrants.


353.                   It is reasonable to protect new arrivals from the Mainland since they face similar problems as ethnic minorities, e.g. in the need to adapt to the life in Hong Kong. The definition of "national origin" can be slightly expanded to include “any jurisdiction of the People’s  Republic of China” to cover new arrivals. To provide for protect new arrivals from places other than from China, the law should also prohibit discrimination on the grounds of a person’s current or past status as an immigrant.


354.                   The Government should faithfully implement Article 2(1)(d) of ICERD which requires all Governments “to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists”. The Government should release a list of legislation, which requires the Government to exempt itself from complying with the ICERD provisions.


355.                   Article 2 of the Covenant ensures that all individuals are protected from violation of rights or freedoms including in their official capacity[195], but the immigration legislation will not be affected by any provision in the proposed bill. Immigration officers may discriminate against ethnic minorities during  immigration procedures, as demonstrated by a recent complaint raised by a Sri Lankan visitor[196]. The UN Committee on Economic, Social and Cultural Rights urged the SAR Government to recommend that the Race Discrimination Ordinance should be further extended to cover existing immigration legislation in the Concluding Observations in 2005[197].


356.                   Moreover,  a 3 year moratorium will be granted to small employers from being bound by general provisions[198]. A survey on public attitudes towards racial discrimination showed that the general public is familiar with the concept of racial discrimination in certain aspects such as employment, housing and education[199].  




o       Urge the Committee to express concern over the Hong Kong Government on the inexcusable delay in legislating against racial discrimination.

o       Urge the Committee to urge the government to submit a supplementary report a year later.


Foreign Domestic Workers


357.                   The UN Committee on Human Rights and the UN Committee on Economic, Social and Cultural Rights have repeated their criticisms[200] on the failure of the HKSAR Government to abolish the “two-week” rule, which requires foreign domestic workers to find employment, or else they would have to leave Hong Kong within two weeks if their employment contracts were terminated. The rationale behind this rule is to prevent “job-hopping”, unapproved employment and other problems associated with it.


358.                   Some “well-known” exemptions are available to foreign domestic workers which allows them to derogate from the 14 day rule: the death of an employer; financial incapacity of the employer; permanent departure of the employer from Hong Kong; and “abuse” by the employer. Foreign domestic workers also easily find themselves in a position where they do not feel they could refuse a request by their employers to work on unauthorized tasks, or risk having their contract terminated because they refused to do so, as they fear they may not be able to find employment in Hong Kong. Moreover, under the “two-week” rule, foreign domestic workers still have to return to their country of origin to wait for approval, even if they have applied for a change of employment[201].


359.                   The Hong Kong Government proposed to enact legislation against racial discrimination in 2004. However, foreign domestic helpers are treated as a separate category and will not be protected by this ordinance; the immigration ordinance, including the “two-week” rule will not be affected by the proposed bill.


360.                   Lack of protection through legislation may prevent the workers from reporting the violations of unpaid wages, pay below the minimum wage, sexual harassment, denial of statutory rest days or holidays, or other exploitation which infringes the rights guaranteed under the Covenant.


361.                   Furthermore, the Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (ILO Convention No.143) provides in Article 8(1) that “[o]n condition that he/she has resided legally in the territory for the purpose of employment, the migrant worker shall not be regarded as being in an illegal or irregular situation by the mere fact of the loss of his employment, which shall not in itself imply the withdrawal of his authorization of residence or, as the case may be, work permit. China however has not yet ratified ILO Convention No.143.




362.                   We urge the Committee to request the Hong Kong Government to stop the exploitation towards foreign domestic helpers and infringement of the Covenant, owing to the “two-week” rule and to come up with measures to protect them.


Transgendered Persons


363.                   For over 20 years the government has provided public funding for transgendered persons to undergo treatment through a specialist Gender Identity Clinic.[202] In addition, the government has also put in place many administrative concessions to make the lives of transgendered persons easier. For example transgendered persons who have undergone reassignment surgery are able to apply to the Immigration Department to have their Identity Cards changed. The road is then paved for the changing of passports and other documents, for example driving licenses, credit cards, bank accounts and even education certificates.


364.                   In July 2003, a most welcomed policy change by the Department of Immigration alleviated a possible source of inconvenience and discrimination against transgendered persons. It was decided that the ‘B’ code would no longer be required to denote the fact that the gender displayed on the card is different from that recorded on the birth certificate. However, no measure has yet been taken to give this minority group legal recognition.


365.                   The inability of transgendered persons to amend their birth certificates creates many problems that violate human rights principles. Firstly, because Hong Kong law prohibits persons of the same biological sex from marrying, transgendered heterosexuals have no means to marry and thus are deprived of all the rights and benefits that accompany a marriage. Even if they succeed in marrying by simply showing their Identity Cards, as HK residents are able to do, their marriage would be ‘null and void’ by law.[203] The idea of validly marry overseas and then returning to Hong Kong also does not seem viable as the marriage may not be recognized in Hong Kong.[204] This is because the courts have jurisdiction to hear cases only in respect of ‘monogamous marriages’[205] which, most likely, would be interpreted as the voluntary union between a biological man and a biological woman.[206] In light of Goodwin,[207] which held that the UK’s failure to allow a post-operative transsexual person to marry someone of the same biological sex, violates the right to marry as stipulated in the European Convention; Hong Kong may well be held to have violated Article 23(2) of the ICCPR.


366.                   The inability to amend birth certificates would also mean that the biological sex and transgender history of transsexuals may be revealed against his/her wish whenever required to present this document. Not only would this violate article 17 of the ICCPR, it would also unnecessarily expose transgendered persons to more prejudice and discrimination.


367.                   Another important issue faced by transgendered persons is that there is no existing legislation that specifically protects them against the discrimination they experience in their every day lives.[208] Although Hong Kong has three anti-discrimination ordinances, neither of them seem to be a viable means for protection. The Sex Discrimination Ordinance is problematic because it is debatable as to whether it would encompass discrimination against transgendered persons, “simply” on the grounds that they are transgendered, that is, without reference to an opposite sex comparator.[209] With regards to the Disability Discrimination Ordinance, on the basis of gender disphoria, transgendered persons that have undergone a reassignment treatment should have a cause under this act.


368.                   However an action under this act relies on the argument that transgendered persons have a disability and thus negative connotations associated with transgendered persons would most likely arise. Furthermore any protection under either of the three ordinances is still untried.[210] Consequently discrimination of transgendered persons remains alive and well in Hong Kong.


369.                   The inability of transgendered persons to amend their birth certificates and the lack of clear legislative provisions protecting them against discrimination results in many human rights violation. There are a growing number of countries and states that have passed legislation granting partial or full legal recognition to transgendered persons. In Asia Pacific, New Zealand, Singapore, Japan and, a number of Australian states have legislated in this area. It has even been reported that some areas of China have granted full legal recognition to transgendered persons for the purposes of marriage.[211]




370.                   We recommend that the Committee should urge the Government to give transgendered persons legal recognition and also a means to protect them from discrimination.


Discrimination Against Sexual Orientation


371.                   Hong Kong should enact an anti-discrimination legislation based on sexual orientation, in accordance with ICCPR Articles 2(1), 2(2), 2(3) and 26. The Hong Kong Government has failed to protect sexual minorities through legislation, and is in breach of the ICCPR.


372.                   The UN Committee on Economic, Social and Cultural Rights has repeatedly criticized the failure of the Hong Kong Government to combat discrimination against sexual minorities[212]. The Committee stated again in 2005 that it was concerned that “present anti-discrimination legislation [in Hong Kong] does not cover discrimination on the basis of …sexual orientation.”[213] The UN Committee on Human Rights also had similar criticisms of the Hong Kong Government in 1999[214].


373.                   In January 2005, four provisions[215] in Section 118 of the Crimes Ordinance (Cap 200) were challenged to be in violation of the Basic Law and the Hong Kong Bill of Rights Ordinance[216], in the case of Leung TC William Roy v Secretary for Justice. Section 118C of the Crimes Ordinance prohibits buggery between two males under the age of 21, even if it is on a private and consensual basis, and a maximum sentence of life imprisonment would be imposed on offence. Section 118H of the ordinance recommends a maximum two-year sentence for acts of gross indecency between men where at least one of them was under 21. The discrepancy lies on the age of consent which for a heterosexual couple is  16, and a sentence may only be imposed on the man if he was found guilty, a woman is almost never convicted. In August 2005, the High Court declared that these provisions were inconsistent with the Basic Law and the Hong Kong Bill of Rights Ordinance (Leung TC William Roy v Secretary for Justice).


374.                   These sections apparently violated not only the Basic Law and/or the Hong Kong Bill of Rights, but also the international laws.


375.                   Hong Kong should not forget to provide equal opportunities for sexual minorities especially since they face discrimination all the time. Sexual minorities are discriminated against in employment, housing, sales of service or goods, and can be found both in the private and public sectors. Non-discrimination legislation on the ground of sexual orientation has to be expedited to effectively protect the rights and equalities of people with different sexual preferences.


376.                   In the past, the Hong Kong Government considered the public attitude towards sexual minorities as a significant part on whether to introduce an anti-discrimination legislation. A survey[217] conducted by the Hong Kong Polytechnic University in 2002 found that up to 80% of respondents supported an extension of equal rights to homosexuals. The Government should not hide behind the cloak of “civil education”, since the public already supports the idea of equal opportunities for all, and supports the Government in extending the rights to sexual minorities.


377.                   The Hong Kong government’s consultation on whether or not to legislate sparked a deluge of letters opposing the extension of the law (mostly coming from extremist Christian groups co-ordinated by the Truth and Light Society), full page ads were also taken out in local newspapers voicing opposition against this legislation and attacking sexual minorities on the grounds of their being a source of disease and shame.[218] This however does not reflect the opinion of the public at large.



378.                   The Hong Kong Human Rights Monitor asks the Committee to urge the Hong Kong Government to enact and enforce legislation against discrimination based on sexual orientation and to further promote equal opportunities for sexual minorities.




































Appendix I


Commission on Strategic Development:


379.                   The Chief Executive, Mr. Donald Tsang, appointed the Committee on Governance and Political Development under the Commission on Strategic Development to explore issues pertaining to the implementation of universal suffrage in Hong Kong. A briefing paper was published to give its members a better understanding of the concept of “universal suffrage”. To the Hong Kong Human Rights Monitor’s disappointment, instead of making substantial suggestions to a road map for universal suffrage, it cited overdue references in an attempt to deny the public’s aspiration to participate through direct election of their own government.





380.                   The CSD referred to the reservation by the British Government upon the ratification of the Covenant in 1976. The reservation held that, “The Government of the United Kingdom reserves the right not to apply sub-paragraph (b) of Article 25 in so far as it may require the establishment of an elected Executive or Legislative Council in Hong Kong.” The CSD claimed, “in accordance with the Central People’s Government’s notification to the United Nations Secretary-General in June 1996 and Art. 39 of the Basic Law, this reservation continues to apply to the HKSAR” after reunification with the People’s Republic of China. (CSD/GC/3/2006, ICCPR (4))


The Monitor’s Views:

1.     In the Concluding Observation of the Human Rights Committee (Hong Kong): United Kingdom of Great Britain and Northern Ireland released on 09/11/95 (CCPR/C/79/Add.57), the HRC explicitly pointed out that, “once an elected Legislative Council is established, its election must conform to article 25 of the Covenant. The Legislative Council in Hong Kong has since 1995 become a fully-elected legislature and hence, the reservation should not be in force thereafter.





381.                   The CSD also stated that under section 13 of the Hong Kong Bill of Rights Ordinance (Chapter 383), article 21 does not require the establishment of an elected Executive or Legislative Council in Hong Kong.


The Monitor’s Views:

382.                   Article 21 of the HKBORO (a replication of article 25 of the ICCPR) guarantees permanent residents of Hong Kong are entitled to universal and equal rights to participate in public life. In the case of Lee Miu Ling v The Attorney-General of Hong Kong, Mr. Justice Keith has also ruled that, since the introduction of an elected Legislative Council and the Letters Patent amended, section 13 cannot be used to justify the infringement of Art 21 of the BORO. The later appeal in the Court of Appeal did not restore the above reasoning. 






1.     The CSD argued that “equal suffrage does not require that each vote should have the same effect on the outcome of the election, and there can be “reasonable variations amongst the constituencies in respect of the ratio between the number of seats and the size of registered voters.”


The Monitor’s Views:

1.     The UN Human Rights Committee have stated in its General Comments on Art. 25 of the ICCPR that, “within the framework of each State’s electoral system, the vote of one elector should be equal to the vote another."[219]


2.     When we look at the practice in the U.S., in the case Bush v Gore, the Supreme Court of the United States stated that one source of the fundamental nature of the right to vote lies in the equal weight accorded to each vote and the equal dignity owed to each voter. (the equal protection clause of the Constitution’s Fourteenth Amendment.)  


3.     Addressing the electoral system of the Legislative Council, the Human Rights Committee has pointed out in the same observations to Hong Kong that it did not meet the requirements of article 2, 3, 25 and 26 of the ICCPR. More specifically, it pinpointed that the concept of functional constituencies gave undue weight to the views of business community, discriminated against voters on the basis of property and functions, which violated articles 2, paragraph 1, 25(b) and 26.


2.     The composition of the Legislative Council is explained in paragraph 11 of the Government’s submission. The 2004 Legislative Council Election was held on 24th September 2004, details of which are not covered by the Government’s submission due to the submission date on 31st October 2003. Although the number of geographical constituencies was increased from 24 to 30, which we applaud as a step forward to democracy; the government had done nothing to undo the unfairness inherited from functional constituencies, which the Committee has repeatedly commented on its violation of the Art. 25 of the ICCPR.


383.                   Wide variations can be found between the ratio of electorate and representatives of geographical and functional constituencies. In 2002, the UN Human Rights Committee ruled that there had been a violation of Art. 25 of the ICCPR in Slovakia due to its large differences between ratios of residents to elected representatives (200:1 and 1,400:1).[220]  The even more appalling differences found in Hong Kong should call for an equal, if not worse, violation of the ICCPR. In geographical constituencies, the ratio of electorate to representatives varied from 103,075:1 (Hong Kong Island) to 110,084:1 (New Territories East). A big contrast in found in functional constituencies, where the ratios ranged between 149:1 (Heung Yee Kuk) and 77,696:1 (Education). Also, more than half of the 28 functional constituencies had an electorate of less than 5,000.


Corporate voting:


3.     The problem of corporate voting within FC was explained in the ICCPR Report regarding the HKSAR Government we submitted in 1999. The number of FCs that consisted of only corporate bodies as electors has increased from 8 in the 2000 election to 9 in the 2004 elections. Moreover, some tycoons have multiple votes with the establishment of subsidiary companies. For example, Hutchison Whampoa Limited has an ownership in 36 companies across 4 FCs. Among these, it owns 24 companies in the Commercial (First) functional constituency.[221]     


384.                   Hence, THE MONITOR urges the Committee to recommend the HKSAR Government to reform the existing unjust electoral system.    





385.                   The CSD suggested in a briefing paper that a bicameral parliamentary system can be considered. A more in-depth discussion on the issue of adopting bicameral parliamentary system to incorporate functional constituencies into universal suffrage was also explored by the same commission in 2005 February[222].


The Monitor’s Views:

1.     The Human Rights Monitor is concerned that this measure would become a tool for the business and pro-government communities to exercise de facto veto power over policies put forward by legislators.


2.     This could also become an instrument to entrench the Functional Constituency, which violates the principle of “universal and equal suffrage”. The bicameral parliamentary system should not be a disguise of the Functional Constituency.




[1] “UN rights body 'too far away to understand HK'” SCMP 2 March 2006

[2] Barcelona UNESCO Conference 1998

[4] Decision of the Standing Committee of the National People’s Congress on issues relating to the methods for selecting the Chief Executive of the Hong Kong Special Administrative Region in the year 2007 and for forming the Legislative Council of the Hong Kong Special Administrative Region in the year 2008, S.S. NO. 5 TO GAZETTE EXTRAORDINARY NO. 8/2004.  

[5] Christine Loh, ‘SCNPC Interpretation’. Civic Exchange.

[6] ‘Interpretation undermined democracy and autonomy’. Hong Kong Human Rights Monitor. 6/4/2004.

[7] ‘Views on Articles 45, 68 and Annexes I, II of the Basic Law: Constitutional Development’. Hong Kong Bar Association. 11/3/2004.

[8] Brad Adams, executive director of Human Rights Watch’s Asia division called the interpretation “a transparent attempt to stifle public debate about greater democracy”. ‘Hong Kong: interpretation of Basic Law serious setback electoral reform’. Human Rights Watch. 07/04/2004.

[10] ‘Decision of the Standing Committee of the National People’s Congress on issues relating to the methods for selecting the CE of the HKSAR in Yr 2007 and for forming the legislative council of HKSAR in Yr 2008,’ S.S.No. 5 To Gazette extraordinary no. 8/2004

[11] “Opposition vote down reform package” China Daily

[12] In 1998 Legco consisted of 30 Functional constituency seats, 20 Geographical constituency seats and 10 seats appointed by the election committee. In 2000 there were 30 FC seats, 24 GC seats and 6 appointed by EC. In 2004 Legco consisted of 30 FC seats and 30 GC seats. Refer to Art. 68 of Basic Law.

[13] Back to Square One For Tsang December 22, 2005 The Standard 

[14] ‘A critical introduction to Hong Kong’s Functional Constituencies’ by Simon N.M. Young and Anthony Law, Centre for Comparative and Public Law, HKU.

[15] Ibid, 22.

[16] Ibid.

[17] EAC 2004 LegCo Report

[18] Manfred Nowak UN Covenant on Civil and Political Rights CCPR Commentary, 447-8.

[19] Gladys Li, SC and Nigel Kat, ‘Functional Constituencies: The Legal Perspective’ August 2004, Civic Exchange Functional Constituency Research Project 2004.

[21] See Appendix I attached

[23] In Annex I of Basic Law, it is stated that “The Chief Executive shall be elected by a broadly representative Election Committee in accordance with this Law and appointed by the Central People's Government.”

[24]‘The Promise of Democratization in Hong Kong’. The National Institute for International Affairs.

[26] Hong Kong Bar Association stated in its paper, titled ‘Development of the Hong Kong Special Administrative Region’s Political System’, that the method of selecting or electing members to the Election Committee vary greatly sector to sector and within sector.

[28] Ibid.

[29] Chris Yeung, ‘The winner is…’, 3 June 2005, SCMP

[30] Cannix Yau, ‘Tsang bulldozed voters to take sides’, The Standard (Hong Kong), 16 June 2005, A11; Gary Yeung & Dikky Sinn, ‘Tsang backs system that gave victory unopposed’, South China Morning Post (Hong Kong), 17 June 2005, EDT3; ‘北京操控特首選舉 708選委支持曾蔭權玩晒’, Apple Daily (Hong Kong), 16 June 2005, A01; ‘提名變表態 選舉惹質疑’, Hong Kong Economic Times (Hong Kong), 16 June 2005, A03.

[31] Cannix Yau & Michael Ng, ‘So easy for Tsang’, 16 June 2005 The Standard  

[32] Chris Yeung, ‘An immoral choice?’, 8 June 2005 South China Morning Post

[33] Yeung, above n 6.

[34] Ibid.

[35] ICAC chief says LegCo election clean and fair Xinhua News Agency 14th September 2004

[36] Poll chief plays down smear claims; I have no idea if detained candidate was set up: Justice Woo SCMP 10 September 2004

[37] NO FALL GUY FOR LEGCO POLL MESS: WOO The Standard November 22, 2004

[38] ibid.

[39] Statistics for the end of 2005, Census and Statistics Department

[40] A study by David Post (2004) noted that by 2001, 88.5% of girls in Hong Kong had reached upper- secondary level compared to 83% of boys and a respective 18.4% and 15.7% of them continued to university study 

[41] Article 25 of the ICCPR stipulate that every citizen shall have equal right and opportunity to part in the conduct of public affairs, to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot and to have access, on general terms of equality, to public service in his country. The rights are applied to women by virtue of Art.2 (1) of the Covenant.  In Hong Kong, the Covenant is applied locally via Art.39 of the Basic Law. Other statutory ground for the protection of women’s rights to partake in the political process can further be noted in the Hong Kong Bill of Rights Ordinance (Art.1, 21, 22) and the Sex Discrimination Ordinance (Art. 35, 38).

[42] Economic and Social Council Resolution E/RES/1990/15 (24 May 1990) of the United Nations

[43] See §12 and §16 under section on Principal Subjects of Concerns and Recommendations made by the UN Human Rights Committee in its 67th session, 12 November 1999, and §319 - §322 under section on Factors and difficulties affecting the implementation of the Convention made by the UN Committee on Elimination of Discrimination Against Women in its 20th session, 3 February 1999

[44] Women accounted for 15% of the overall LegCo candidates in 1998, 18% in 2000 and 16.4% in 2004

[45] There are 28 functional constituencies to return 30 out of the 60 seats in the Legislative Council.

[46] Results of by-elections included

[47] Results of by-elections included

[48] Women and Men in Hong Kong: Key Statistics 2004 & 2005, Hong Kong Census and Statistics

[49] GIS press release, August 2005