Take Your Rights Seriously

On educating yourself as to your legal rights

Jim Rice
for the Hong Kong Human Rights Monitor


Contents

  • Discrimination and the Law
  • Identity Cards
  • Search and Seizure
  • Arrest
  • The Right to Silence and Statements to the Police
  • Getting Access to a Lawyer
  • The Duty Lawyer Scheme
  • Bail
  • Detention
  • Getting Access to Detainees


    Discrimination and the Law

    Are there different laws for domestic helpers, different laws for other foreigners and different laws for Hong Kong people?

    Immigration laws about who can come here and who can stay here are different for different nationalities. But once you are here, there is one legal standard which applies to everyone.

    But domestic helpers and other overseas contract workers need valid employment contracts. If an employer terminates my contract, then I must get a good release letter to take to the immigration department and a new contract with a different employer all within two weeks. Is this the same for other foreigners like Americans or Japanese?

    No, it's not. It's much easier for them to switch from job to job. This is because very few of them come here as domestic helpers. Foreigners who are not domestic helpers are not subjected to the so-called "two week rule" for example.

    Well, I thought that you said there is only one law for all of the people living in Hong Kong. It doesn't sound like that to me.

    It's true that the law doesn't always treat everyone the same. There are special rules for domestic helpers. Some of these, like the two week rule, are unfair. That rule has been criticized by the United Nations as a form of racial discrimination. But this is a book about what the law actually is, not what it should be. I didn't actually say that all of the laws were fair. That's another question altogether. The laws of Hong Kong should provide equal protection and equal duties to all people living here regardless of ethnic group, race or nationality. The fact that it doesn't always do this means that we should try and work for greater justice in this society.

    Now, what about me?

    Yes, let's talk about you.


    Identity Cards

    Do I really have to carry my passport or Hong Kong ID card with me at all times?

    If you're over 15 years old, then yes you do, when you go out in public places. The Immigration Ordinance and the Police Force Ordinance of Hong Kong tell us that police officers or immigration officers may require any person over the age of 15 to produce his/her ID card while in a public place. People living in Hong Kong then have a duty to produce some legal form of identification such as a passport or Hong Kong identity card while in public. Failure to do so actually constitutes an offence which may result in a $1,000 fine.


    Search and Seizure

    If I'm stopped when I'm in public, like on the street for example, can the police then search me?

    The Police Force Ordinance states that if a police officer believes that you are acting suspiciously, he/she has the power to stop you and in addition to requiring you to show your ID card can question you about things like your address, where you were going what you were doing and things like that. The same law also gives the police officer the power to search you if he/she has a belief that you are carrying a weapon or anything that might be a threat to the officer.

    What if I refuse to be searched?

    In that case, the law gives the police the authority to detain you for a reasonable period and do a search of you and your stuff. It's generally a good idea to be polite and cooperative in these situations. However, you may wish to politely ask to see the officer's warrant card in order to confirm that this person is really a police officer.

    If I refuse to be searched, and the police search me anyway, and find nothing illegal, can they charge me with not agreeing to be searched?

    So long as you do not resist physically (which is never a good idea anyway) they can't charge you with the offence of simply refusing to be searched.

    What if I am at home? Do I have to produce my ID if the police or immigration officers come to my house?

    No. The position here is that if the police or immigration officers come to your house and demand that you open the door, you may if you like, invite them in.

    Do I have to?

    No, not really. If you aren't sure that you would like these officers in your home, or if you really would not care for them to come in, you should ask them if they have a search warrant which specifies your address and is signed by a judge or magistrate. If they produce one, then you have to allow them in. If not, there is no legal obligation on your part to open the door.

    The whole idea here is that you don't have to open your door to just anyone who knocks loudly. The authorities are the same as anyone else in that they have a duty to obey the law just as you do. What gives them the power to enter your house is not their uniform or their badge, but legal authority that must normally be given to them by a judge or magistrate based on reasonable suspicion that there is some illegal substance (such as drugs) or there are overstayers or illegal immigrants in that house.

    Why do the police need the signature of a judge or magistrate to get a search warrant?

    Because a judge or magistrate is seen as being somewhat independent of the police. Many people believe that if the police could enter and search any house, flat or other types of private property any time they wanted, that it would lead to an abuse of power by the police.

    Do the police or immigration officials always need a search warrant to enter a house?

    No. According to the law, police or immigration officials do have the power to enter and search houses where they have a good reason to believe that an arrestable offence has been committed there. An arrestable offence means any kind of serious offence, including an immigration offence. Generally, this "good reason" will be in the form of a tip-off to the authorities from a member of the public. However, this does not mean that law enforcement officers may make random visits or house-to-house searches based on that "suspicion". They must have a genuine reason to believe that an offence has been committed.

    Well, if the police or immigration officers can enter and search houses based only on their "suspicion" won't this lead to an abuse of their power?

    There are many people who feel this way, and that's why it's a good idea for us to carefully observe what they are doing in the community and report any abuses that we encounter.

    So are you saying then that I should let them in immediately?

    No, I'm not. If they are going to rely on their special powers to enter your house because of a "good reason to believe that an arrestable offence has been committed there", then they will do so no matter what you do. But you should ask them why they want to come in. If they do not say that they want to come in because they believe that an arrestable offence has been committed there and they don't have a warrant then you do not have to let them in. If you invite them in, they will just say that they had permission to enter your house anyway. The point is that in these situations you can't keep the authorities out of your home as though it were a fortress. You can however, ask them to explain to you why they have to come in. Also ask them to record that you did not give them permission to enter.

    What if the police or immigration officers behave badly after they enter my house?

    No police or immigration officer is allowed to use unnecessary force on people that they are dealing with. That means if you don't resist them, they shouldn't grab, hit or restrain you. In addition, they are not permitted to use abusive language. If they do you will help others if you make a formal complaint about their behaviour. Tell them to leave. Unless the police or immigration officers have a warrant, they must leave your home with reasonable speed if you tell them to go. If they do not leave, or satisfy you that they do not need a warrant, then they are breaking the law and you should complain about that too.

    What if I'm at my employer's house and the immigration officials knock at the door?

    In that case, your employer may let them in, and if they do enter, they can ask to see your identification. Just like in the last case though, your employer may ask to see a search warrant.

    What if my employer isn't home at the time that the immigration officers knock on the door?

    Could I just ask you now, this is your employer's house right? Would you let in anybody who knocked on the door in the case that your employer wasn't home?

    No, I wouldn't.

    Well, that more or less answers your own question as to whether you must open the door while at your employer's house. The best thing would probably be to wait until your employer has returned.

    But the immigration officer has ordered me to open the door. Can I get into trouble for not obeying his order?

    The point is that if he has no search warrant, then he has no legal authority to order you to open the door, and submit to a search of the house. He is counting on you to obey because he thinks you will be ignorant of your rights. It's never a good idea to resist with force. In reality, you may want to defend your house against the authorities like a fort, but it doesn't really work that way. It's a much better idea to ask the authorities why there is a need to enter your house. Remember that the police are required to follow the law just as you do.


    Arrest

    Okay, can you tell me what to do if I am arrested?

    This is a difficult area to give advice about, because obviously, being arrested by the police or immigration authorities is about as big a trauma as anyone is ever going to face. It's also hard to give advice about this because the circumstances about arrests differ a lot from case to case. But it is clearly not a pleasant experience. You have a responsibility to yourself and to your friends and family to maintain your own dignity and to help yourself. Hopefully, this information will assist you to do that.

    The thing is that you must try and keep a cool head about you. If you are being arrested by the authorities, the most important thing is not to resist physically. This will only give them an excuse to use physical force on you. Don't fight back. Instead, stay calm. Use your head.

    How will I know if the officer has arrested me?

    The arresting officers should tell you, "You are under arrest..."

    If you are being arrested, the important thing is to be clear what you are being charged with. If you are not clear in your own mind, ask, am I under arrest? Because if you are not under arrest, then you really don't have to continue to speak to the officers. If you are not under arrest you certainly don't have to go anywhere with them.

    But what if they tell me that I am under arrest?

    Then you must ask them,

    "What crime am I being charged with?"

    Get that straight first. Often they will not tell you anything. Insist on knowing what you have been arrested for.

    They should also tell you,

    "You are not obliged to say anything unless you wish to do so, but what you say may be put into writing and used in evidence."That means that you don't have to say anything to them, but if you do, the police or the immigration officers may try to use anything that you tell them in order to convict you of a crime.


    The Right to Silence and Statements to the Police

    That sounds scary. Then I should not say anything to them?

    You're right!

    If I am arrested, is it legal for the police to search me?

    Yes. The arresting officer may conduct a search of your person, including your pockets and your handbag. He may also take property which may be used as evidence against you, such as illegal drugs, stolen property or weapons.

    What happens next?

    The authorities who are arresting you should take you promptly to some place such as a police station or the immigration office. There, they may want to question you.

    When you have been taken into a police station or the immigration office, you should tell them first of all, that you demand the assistance of a solicitor. Secondly, you must demand to make at least one phone call.

    Who should I call?

    That depends. You may have a best friend or relative that you know that you can depend on. The thing is that if you are prepared in your own mind for this kind of event, you will be able to figure out who to call. The best person to call is either a dependable friend, relative or a person who is responsible who is also sympathetic to you. If you don't know someone like that, then it might be a good idea to call one of the help groups listed at the end of this book.

    What if they ask me questions?

    As I mentioned before, every case is different. It's difficult to give advice here for all possible situations. But unless you are really sure as to what you are doing, the best thing to do, is to politely say that you will not speak to anyone until you have spoken to your lawyer. Even if you don't know a lawyer, this should indicate to the police that you would rather remain silent.

    Do I have to answer their questions?

    Absolutely not. But it will take a lot of courage to say no. Just remember that according to the law, you have the right to silence. The point here is that it is your decision whether you say anything to them. But if you are not comfortable with the situation, or you are not sure what you should do, the best thing is to say nothing to the police.

    What if they tell me that all these problems can be solved if I only answer their questions?

    Tell them that you want to speak to a lawyer.

    What if they ask me the names of my friends?

    Tell them that you want to speak to a lawyer.

    What if they ask me what I had for breakfast?

    Tell them that you want to speak to a lawyer.

    So then, I should tell them absolutely nothing?

    Right.

    Okay, let's get back to the problem of the arrest. What if they ask me to sign something, like some document? Do I have to sign it?

    No.

    Often police will want you to sign a "statement". Sometimes this statement will amount to you admitting that you committed a crime. More importantly, this document can be used in court as evidence that you have committed a crime. Very often, the police will write it out themselves while they are questioning you, and then demand that you sign it.

    If you do sign such a document, it will be pretty difficult to later argue in court that you didn't say those things. Remember, you do not have to sign anything unless you want to write down what you have said. You also have the right to alter or add what's written because it is your document.

    If I do sign a statement, then can I have a copy for myself?

    Yes. If you sign a statement made to the police or to the immigration department, you are entitled to have a copy of that statement for your own records. As I say, it's your document. It is a very good idea to ask for a copy, because you may want to show it to a lawyer at a later date. That statement will provide very important information relating to your case. Always request a copy of any statement that you sign.

    What if I'm not sure whether it's a good idea to sign it, but they tell me that it is a good idea for me to sign it anyway?

    If you are not absolutely clear as to exactly what you are signing, you should never, never sign it. It will not be in your best interests to do so.

    Can the police force me to sign a statement?

    No, they cannot force you to sign anything. You should be aware that the police are prohibited from trying to get a statement from you based on threats, intimidation or inducements (promises). It is a serious offense for the police to use any physical violence on you. It's also important to remember that it is a serious offence for the police to sexually assault or harass anyone in their custody. If you are a woman, and being questioned, there always should be a female officer present.

    Any statement that you make, or that you sign should only be what you have done of your own free will.

    Again, if in doubt, you should say that you would like to see a lawyer and get his or her advice on whether to sign a statement or not. Keep in mind who your real friends are. Are the people who have arrested you going to be your friends?

    I don't think so...

    Well then, is it really a good idea to trust them concerning what will happen to you?

    Well, if I have got your questions right, I am being questioned by the immigration officers. I am away from my home and my friends. I'm not comfortable with those people. What if I am thirsty or have to use the toilet?

    Then ask them for a glass of water or to use the toilet. You are entitled to these things while you are being questioned.

    Don't you understand my problem?

    I think that I do.

    Well, if I am not supposed to listen to the advice that they give me then who can I trust? Who should I trust?

    Trust yourself. Demand to see a lawyer and trust him or her. Let's say that the police or the immigration people have arrested you and taken you away from your work and your home. Why would you want to place your trust in their hands?

    I suppose you have a point. That's not going to be easy, is it?

    No, it won't be.

    What if the police tell me that if I don't answer their questions or sign some paper that I am hiding something? I mean, can I get into trouble for not talking to them?

    Absolutely not. You will never get into more trouble by remaining silent. Remember, if your case does go to court, the authorities have to prove to the magistrate or judge that you are guilty. You don't have to prove that you are innocent. Your silence cannot be taken to mean that you have something to hide.


    Getting Access to a Lawyer

    So then, what will a lawyer be able to do for me?

    A lawyer will be able to give you specific advice on your situation. He or she will be able to assist you by arguing your case before a judge if the case goes to court. A lawyer which you have requested is acting for you alone, and will never be able to inform the police or immigration officials about what you have told her. A lawyer may be able to get you released from detention while you are waiting for your case to be decided. A lawyer may be able to argue the circumstances of your case to a judge, and this might mean you avoid being sent to prison. In any case, you will not be worse off if you ask for a lawyer.

    What if the authorities tell me that I'm only making trouble by asking for a lawyer?

    Ask them to see a lawyer once again.

    If I have been arrested, and I do ask to see a lawyer, (or my friends ask for me) when will I get to see her?

    That depends. If you do know a lawyer, then you should be allowed to see her as soon as it is practical for you to do so. If you don't know any lawyer, you may not get to see one while you are in police custody. But the police must take you before a judge as soon as possible, and you have the right to demand a lawyer at that point.

    Okay, how, am I going to get to talk to this lawyer that you keep talking about?

    First of all, if you know a lawyer, by all means, demand to see him/her as soon as possible after you have been arrested.

    What if I don't know any lawyer or have no money to pay for one?

    In that case, you may be entitled to a lawyer through the Duty Lawyer scheme.


    The Duty Lawyer Scheme

    What is the Duty Lawyer scheme?

    The Duty Lawyer scheme is a service provided by the Hong Kong Government along with the Law Society and the Bar Association. It is intended to provide people with legal representation who would normally not be able to pay for it.

    What kinds of services does the Duty Lawyer scheme provide?

    In addition to providing legal representation to people who are in need, the Duty Lawyer scheme offers free legal advice to people on just about any question. To get this advice you must visit them at their offices. Their telephone number is provided at the end of this book.

    Would I be able to get a lawyer under the Duty Lawyer Service?

    That would depend you and your situation. It would depend on how much money you earn, and on what type of offense you were charged with. For example, if you are being charged with certain crimes such as illegal hawking, or traffic related offences you would not qualify for the Duty Lawyer Service.

    Are immigration related offences, like overstaying or illegal employment, covered by the Duty Lawyer Service?

    In the past, those charged with immigration offences have not been automatically entitled to a duty lawyer. At the present time, however, people charged with some immigration offences are now covered by the Duty Lawyer Service. If your are charged with an offence which is not covered you should always ask the duty lawyer service to make an exception in your case. The problem with this though, is that for many people who have been accused of committing a crime, they only get to see their lawyer, just an hour or so before the trial. If the accused person has already signed a confession statement, there is nothing much that the lawyer is able to do, except to ask for a light sentence. However, if you believe that your confession statement is incorrect or incomplete, you can always tell this to your lawyer, and he or she will be able to challenge this in court. The important thing is for a person accused of a crime, to have access to a lawyer early on in the process. Also, remember, that even though the duty lawyer is not being paid substantially by you, he or she is actually working for you. Your lawyer has a duty to represent your best interests. Make sure that your lawyer is doing a good job for you!

    So how can I do that?

    Well, one idea is for you to contact one of the help groups which you can find at the end of this book. Some of them have lawyers who might be able to help you. Again, you can always contact the Duty Lawyer office and tell them of your situation. They might be able to help.

    Finally, it never hurts to ask the police or magistrate for you to have access to a lawyer. Because if you don't request legal representation, it's very unlikely that you will get it. And if you don't have legal representation, your chances of receiving justice are much poorer than if you do.

    Is there anything I can do if the Immigration Department makes a decision against me, like for example saying I can't extend my visa?

    If the Immigration Department makes that kind of decision, what you can do is to write a letter of appeal giving the reasons why the decision was wrong and why you should be allowed to stay. Address the letter to the Chief Secretary within 14 days.

    So how else can I deal with all of this stuff?

    Well, one way is to be prepared for what might possibly happen to you if you get arrested.

    Like how?

    For a start, be aware of your rights. If you do get arrested, you will probably be detained for a period of time. Keep in mind that the police officers who have arrested you must take you before a judge as soon as possible, or at least within 48 hours of your arrest.

    Also, you may possibly be released on bail.


    Bail

    What's bail?

    Bail generally refers to the release from detention of someone who has either been charged or convicted of an offense on certain agreed conditions. That person who applies for a release on bail first must agree to appear later in court or surrender to custody. The idea here is that for crimes which are not regarded as being very serious, the accused person should be allowed to go free while waiting for trial. However, the police, immigration officer or judge making the decision to grant bail must first be satisfied that the accused person will not avoid his/her court appearance or run away.

    Sometimes an amount of money is required to be deposited with the police to help make sure that the person will comply with the conditions of bail. The money will be returned if and when the conditions are met. In addition, the authorities who are making the decision whether to grant bail may require that another person give a guarantee that the person who is applying for bail will meet the conditions that they set.


    Detention

    What other things can I or my friends do to help my situation?

    Remember that if you have friends, they will be thinking about you and praying for you maybe, but they will wish to help you in practical ways too. For example, they might want to visit you where you are being kept. It is very important that they know your whole name.

    One practical thing that you can do to help yourself right now, is to tell your best friends your whole name, the way it appears on your passport or ID card. In fact, give your ID number to your closest friend and take down and keep his/her your own ID number as well.

    That's a good point. For most of my friends I just know them by their first names or nicknames. They just know me by my nickname too! But why is that important?

    It's important because if you want to visit someone in prison you have to produce the whole name just as it appears on their ID card. To help each other, know the entire name.

    Is there something else that I can do?

    Yes. When you are being processed into the detention centre, the prison officers will let you list those people who you would like to see. Most people in that situation will tend to put down their mother or father or other relatives.

    But for me, they would not even be in Hong Kong!

    Exactly. It's not likely that they will be visiting you now, is it?

    So who do I put on the list?

    You put the friends here in Hong Kong who you have given your full name to. You prepare for this, right?

    I see, we have sort of an arrangement to help each other.

    That would certainly be a good idea. Then you can keep in communication with each other. The Immigration Department has made all of the rules which limit and restrict visits to isolate and confuse you. You are alone. No one will visit you because they can't. They won't know where you are. But you don't know that while you are in jail. So there you sit, and the prison officials who are detaining you get to control you absolutely which of course is exactly what they want.

    Wow! If I am being detained, other than putting my friends names down, what can I do to get people to visit me?

    Hardly anything. That's one reason why it's not nice to be detained.


    Getting Access to Detainees

    Okay, well let's turn it around then. If my friend is being detained, then how can I visit them?

    First, you must know their entire name, just as I have mentioned. Then you have to find exactly where they are being detained.

    Is that hard?

    Yes, it often is. There are several places where they could be. But if you keep trying, you will find out eventually.

    So what do I do?

    Call the police station near to where you believe the arrest occurred. Ask to speak to the Duty Officer, and tell him/her the situation. Say that you are looking for your friend who you believe has been arrested. Always be polite. Tell him or her the person's name, and when and where the arrest took place. Ask what charges were made against your friend, and ask where the person is being detained. Sometimes you will be referred to immigration or to other police stations. You might find that this is frustrating work. But keep at it and track your friend down.

    Will I get into trouble for visiting my friend in jail or for asking about her?

    No. You can't get into trouble for visiting your friends in jail. On the other hand, visiting someone in jail is not easy to do. Detention centers are most certainly not like hotels. You have to submit your ID card at the front gate. Your ID card will probably be run through a computer by a prison guard. You have to write down your name and address. While you are waiting to visit your friend (and you will do a lot of waiting) you will be in a part of the detention center that is locked up as well. The prison guards might treat you rudely. You find out soon that they are not your friends either.

    So what can I do for my friends when I visit them in jail?

    By visiting them you will be doing a lot of good. First of all, just by being there, it will lift their spirits. In addition, you can remind your friends that they ought to be demanding to see a lawyer. Finally, you can bring certain things to your friends to make their lives easier.

    What are the prisons like and what kinds of things may I bring to my friends there?

    The Victoria Immigration Control (VIC or Victoria Prison) located in Central Hong Kong, is generally used by the security services as a place where both men and women (and sometimes children) are held before they are deported. It is one of the oldest buildings in Hong Kong and is often fairly crowded for the inmates being held there. There, you may give most clothing items. Warm clothes are really appreciated in the winter! You may also bring certain approved brands of soap, toothbrushes, toothpaste and tissues. Other items such as food and cigarettes are quite restricted.

    For example, you are only allowed to bring in two kinds of candies (Maltezers and Peanut M & M's) and only one brand of cigarettes (Hilton). You may bring most types of toothbrushes, and either Colgate or Darlie toothpaste. You may bring only one brand of skin cream (Pears) but it has to be in 80 ml. size tube and only Kao shampoo in the 200 or 220 ml. transparent plastic bottle. The prison guards will allow you to bring in many types of magazines (such as news or fashion magazines), but they won't allow you to bring in a newspaper. Generally, you are allowed to give novels or other books to detainees in Victoria Prison. In the other prisons such as Tai Lam or Chi Ma Wan, the rules about reading materials are very repressive. The rules state that unsuitable materials include: Books of pornographic content, manufacturing of weapons, martial art, policical doctrine, law, medical aspects, military tactics, ammunition and explosive substances and haunting stories.

    In addition, you are not permitted to give a detainee money or anything which is valuable like a watch or jewelry.

    Chi Ma Wan Correctional Institute for Women located on Lantau Island is currently being used to detain large numbers of women migrant workers and others who have gotten in trouble with the law. Chi Ma Wan can only be reached by a ferry which goes to and from Peng Chau.

    The Tai Lam Correctional Institute for Women, located near Tuen Mun in the New Territories, is Hong Kong's main place of detention for women who have been convicted of criminal offences. The regime for inmates of Tai Lam is more harsh than the VIC or Chi Ma Wan, and Tai Lam is more restrictive in terms of what you may give to prisoners.

    For example, here you may not give most items of clothing, as the prisoners are all forced to wear uniforms. You may give books, but nothing like a name or a dedication may be hand written inside. The prisoners are only allowed to have at most, five books at any one time.

    Very often when you finally get to the detention centre, you will discover that the guards will not let you give the things that you brought with you, because the don't conform to the strict list of things that are allowed. Quite frankly, this is very frustrating and disappointing. But just to have a visit from a friend makes such a difference in the lives of someone in jail. You will really help the situation of your friend by your visit. Your visit will give hope and strength more than you realize.

    What's the point of trying to learn all of these things when the authorities have all of the power and we have none?

    It's not true to say that we have no power. The rule of law which still applies in Hong Kong gives us some measure of power in fact. This means that the laws on Hong Kong apply to all people living here. And by educating yourself, by knowing your rights and by challenging the people who hold positions of power, you are showing them that you are a human being with dignity and value. You are demonstrating that you are a person who is to be respected. Very often, if you don't stand up for yourself, no one else will!


    Some useful telephone numbers...

    Chi Ma Wan Correctional Institute for Women
    2984-8358

    Complaints Division of the Legislative Council Secretariat
    2526-4027

    Correctional Services Department
    Complaint Investigation Unit
    2832-5030

    Duty Lawyer Service
    2526-5969

    Helpers For Domestic Helpers
    2523-4020

    Hong Kong Bar Association
    2869-0210

    Immigration Department
    2824-6111

    Lai Chi Kok Reception Center
    2743-5311

    Philippine Consulate
    2823-8500

    Tai Lam Correctional Institute For Women
    2450-8214

    Victoria Immigration Control
    2522-3091

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