Submissions to the United Nations Committee Against Torture
in relation to the Report of the Hong Kong Special Administrative Region under the
Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
May 2000
I. INTRODUCTION
The Hong Kong Human Rights Monitor commends the Hong Kong Special Administrative Regional Government (the HKSAR Government) on its informative report to the United Nations. The HKSAR Report is however inadequate in many aspects. This inaccuracy highlights the importance of submissions by non-governmental organisations (NGOs) so that the UN Committee Against Torture may have a more complete and accurate picture of the implementation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT or the Convention) in Hong Kong.
This paper concentrates on the application of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to Hong Kong and the problems of the Crimes (Torture) Ordinance which is the most important legislation attempting to domesticate the Convention. It also seeks to highlight the problems of major governmental bodies in discharging the obligations of the HKSAR Government under the Convention. Each major body will take up a separate chapter.
II. APPLICATION OF THE CONVENTION TO HONG KONG
In June of 1997, the Central People's Government of the People's Republic of China notified the Secretary General of the United Nations that the Convention would continue to apply to the Hong Kong Special Administrative Region (HKSAR).
The Reunification has unfortunately led to the reduction in applicable mechanisms of protection in the enforcement of the Convention. The mechanisms on inquiry by the Committee at its own initiative upon reception of reliable information (article 20), on inter-state complaints (article 21), and on arbitration on interpretation and application of the Convention and the involvement of the International Court of Justice (Article 30), all of which were applicable to Hong Kong before 1997 are now no longer applicable.
Firstly, a declaration was made by the British Government that under Article 21 of the Convention it recognized the competence of the Committee Against Torture to receive and consider communications submitted by another State Party. In its 1997 notification, China has not made such a declaration in respect of Hong Kong in relation to inter-state complaints. China therefore effectively excludes this communication mechanism which was previously applicable to Hong Kong.
Secondly, the Central People's Government has made the following declaration in the same notification, "the reservations made by the Government of the People's Republic of China to article 20 (1) and paragraph 1 of article 30 (2) of the Convention will also apply to the Hong Kong Special Administrative Region." The reservations are:
(1) The Chinese Government does not recognize the competence of the Committee against Torture as provided for in article 20 of the Convention.
(2) The Chinese Government does not consider itself bound by article 30, paragraph 1, of the Convention.
The British Government did not opt out of Articles 20 and 30 of the Convention when it extended the application of the Convention to Hong Kong. China therefore effectively denunciates the Committee's inquiry and arbitration mechanisms previously applicable to Hong Kong.
The UN Committee Against Torture recommended in its 1996 Concluding Observations in respect of the United Kingdom of Great Britain and Northern Ireland and Hong Kong (A/51/44), "Declaring in favour of article 22 of the Convention and specifically on behalf of Hong Kong and the other United Kingdom dependent Territories" (para. 65). The HKSAR Government so far has failed to take up the opportunity of the Reunification to request the People's Republic of China to implement this recommendation by declaring in favour of the article in respect of Hong Kong in China's1997 notification. We understand that there were precedents in which the HKSAR Government has requested the Central Peoples' Government to extend the application of a treaty to Hong Kong. Moreover, the United Kingdom has demonstrated that it could extend the application of human rights treaties to Hong Kong with reservations different from those to the United Kingdom. For instance, the reservation entered into in respect of the right to participate in public life under article 25 of the ICCPR has been qualified by a reservation that the article did not require the establishment of an elected Executive Council or Legislative Council in Hong Kong -- a reservation did not apply to the United Kingdom. Furthermore, Article 153 of the Basic Law (the mini-constitution of Hong Kong) provides, inter alia, "The Central People's Government shall, as necessary, authorize or assist the government of the Region to make appropriate arrangements for the application to the Region of other relevant international agreements." (3) The Government can surely request the application of the Convention to Hong Kong in a way different from those in the Mainland and to revive all previous mechanisms applicable to Hong Kong.
Recommendations
Human Rights Monitor asks your Committee to urge the HKSAR Government to work with the Central People's Government in restoring the protection applicable to Hong Kong before 1 July 1997. This can be achieved by urging the HKSAR Government (1) to withdraw its declaration removing Hong Kong from the scope of the article 20 procedure, (2) to reinstate the recognition of the competence of the Committee under article 21 to conduct inquiry at its own initiative upon reception of reliable information, and (3) to withdraw its declaration relating to article 30(1) of the Convention denouncing the arbitration mechanism.
We also ask your Committee to maintain your recommendation in respect of article 22 in respect of Hong Kong and to urge the HKSAR Government to discuss with the Central People's Government to accept the competence of the Committee under article 22 of the Convention to receive individual communications in respect of Hong Kong. This is particularly important in light of the limitations of the existing procedures for investigating complaints.
III. TORTURE IN HONG KONG LAW AND ITS ENFORCEMENT
The Basic Law
Torture is expressly prohibited under Article 28 of the Basic Law. (4) However, there is no explicit mention of cruel, inhuman or degrading treatment or punishment in the Basic Law. As such, the Basic Law as the "mini-Constitution" of the HKSAR lacks express constitutional safeguards against cruel, inhuman or degrading treatment or punishment. Nonetheless, because Article 39 (5) of the Basic Law has declared that the provisions of the International Covenant on Civil and Political Rights (ICCPR) are fully enforceable in HKSAR, article 7 (6) of the ICCPR, is thus prima facie enforceable in the HKSAR.
However, it should be noted that on at least one recent occasion in the courts (a case involving rural elections) the government has argued that the provisions of article 39 are not directly effective, but require implementing legislation (which presently exists in the form of the Bill of Rights). Previously, the Government has represented to a number of the treaty bodies that in its view article 39 is directly effective.
Recommendations
The Committee should seek clarification of the Government's position and an explanation as to why it has argued that the provisions of article 39 are not directly effective before the Hong Kong courts in spite of its established views presented to various UN treaty bodies to the opposite.
To avoid any doubt as to the prohibition of cruel, inhuman and degrading treatment or punishment, and to bring the Hong Kong Basic Law into line with the ICCPR and article 16 (7) of the CAT, Human Rights Monitor asks the Committee to urge the Administration to amend the Basic Law to explicitly include the prohibition of cruel, inhuman and degrading treatment or punishment.
The Crimes (Torture) Ordinance (CTO) was introduced in 1993 and is the HKSAR Government's legislative attempt to fulfil its obligations and responsibilities under the CAT. However, the CTO is inadequate in many aspects when it comes to complying with the standards set forth in the CAT.
Defence Provisions
The combined effect of sections 3(4) and (5) of the CTO is a wider defence provision than permitted by Article 1.1 of the CAT, which only excludes from its definition, pain or suffering "arising only from, inherent in or incidental to lawful sanctions." (Emphasis added).
Section 3(4) provides that:
[I]t shall be a defence for a person charged with the offence of torture to prove that he had lawful authority, justification or excuse for that conduct.
Section 3(5) further provides that:
For the purposes of this section "lawful authority, justification or excuse" means:
(a) in relation to pain or suffering inflicted in Hong Kong, lawful authority, justification or excuse under the law of Hong Kong;
(b) in relation to pain or suffering inflicted outside Hong Kong-
(i) if it was inflicted by a public official acting under the law of Hong Kong or by a person acting in official capacity under that law, lawful authority, justification or excuse under that law;
(ii) in any other case an authority, justification or excuse which is lawful under the law of the place where it is inflicted.
By providing a person charged with the offence of torture with an affirmative defence that he had lawful authority, justification or excuse for the infliction of pain or suffering either in Hong Kong or abroad, these two sections clearly violate international treaty obligations under article 4 of the CAT by not ensuring that "all acts of torture are offences under its criminal law." (8) Under section 3(4) and 3(5) of the CTO, if a foreign official committed acts of torture within the definition of the CAT outside Hong Kong where the domestic law of the place falls below international law standards in the sense that such law justifies, authorizes or excuses such acts of torture within the definition of the Convention, he may avoid legal sanction in a Hong Kong court by invoking the defence that he was acting under lawful authority, justification or excuse of that law. Such impunity is totally inconsistent with the quasi-universal jurisdiction approach to prevent and criminalize acts of torture required by the Convention.
Canada and Australia have similar torture legislation the language of which is almost identical to its Hong Kong equivalent, but which do not contain a similar defence provision. The HKSAR Government argues in para. 6 of its report that these provisions are consistent with Article 1 (9); and are not intended to authorize "conduct intrinsically equivalent to torture."
Recommendations
Human Rights Monitor asks the Committee to seek clarification of whether under Hong Kong law it would be possible to charge someone with torture and convict them for a lesser included offence of assault if the elements of torture are not made out, or whether it is possible to charge two offences in the alternative. This is likely to be a fairly technical area, so it would be good to get government clarification.
We also urge the Committee (1) to ask the HKSAR Government to confirm that it will do its best to avoid any doubt as to the possible effect of the CTO in authorizing such conducts of torture; (2) to state your query that these provisions of the CTO may in fact provide for such doubts; and (3) to recommend to the HKSAR Government to introduce amendments for the avoidance of doubt by repealing the two subsections altogether.
Repatriation and Rendition Provision
The Convention prohibits the surrender by the HKSAR Government of fugitive offenders to jurisdictions "where there are substantial grounds for believing that he would be in danger of being subjected to torture." This is achieved by the Fugitive Offenders Ordinance.
However, it does not apply to arrangements with Mainland China. Currently the Government is negotiating with the Mainland Chinese authorities on a rendition agreement between the two jurisdictions.
In a government press release detailing the speech by the Secretary for Security Ms. Regina Ip at a meeting of the Legislative Council Panel on Security to discuss the issue on 13 April 2000, she was reported to have told the meeting, "The rendition arrangement should take account of the One Country Two System principle and the differences in the legal and judicial systems of the two places. We should have mutual respect on each other's laws and systems. The arrangement should prevent criminals from escaping justice and also safeguard the rights of individuals. We have to strike a right balance between these two factors. The usual safeguards in our SFO Agreements with other jurisdictions will be useful reference of importance to us." Conformity to the Convention was not mentioned as a basic safeguard.
For the Committee's reference, we would also like to highlight the concern expressed by the UN Human Rights Concluding Observations on Hong Kong delivered last November that "In the light of the fact that the [ICCPR] is applied in HKSAR subject to a reservation that seriously affects the application of article 13 in relation to decision-making procedures in deportation cases, the Committee remains concerned that persons facing a risk of imposition of the death penalty or of torture, or inhuman, cruel or degrading treatment as a consequence of their deportation from HKSAR may not enjoy effective protection." It recommended, "In order to secure compliance with articles 6 and 7 in deportation cases, the HKSAR should ensure that their deportation procedures provide effective protection against the risk of imposition of the death penalty or of torture or inhuman, cruel or degrading treatment." (10)
Recommendations
Human Rights Monitor therefore urges your Committee (1) to urge the HKSAR Government to undertake that no fugitive offender will be surrendered to Mainland China if he would be in danger of being subjected to death penalty, torture, or inhuman, cruel or degrading treatment; (2) to recommend to the HKSAR Government the inclusion of the Convention as basic safeguards in all its extradition arrangements with all foreign jurisdictions and rendition arrangements with the Mainland China; and (3) to recommend the withdrawal of the reservation made in respect of article 13 of the ICCPR.
Consent Provision
Section 4 of the CTO requires that "proceedings for an offence under section 3 shall not be instituted except with the consent of the Secretary for Justice." However, this provision may become an obstacle in the enforcement of the CTO by private individuals in that it may prevent any private prosecution of alleged perpetrators and acts as a restriction on the possible channels for redress. There are no strong reasons for justifying the government's veto power over an individuals' ability to charge under the CTO. Civilians should have the opportunity to bring charges under the CTO by way of private prosecution without hindrance especially in cases where the HKSAR Government has decided not to prosecute for, say, protecting a scandal from going public or for harbouring certain public officers. The Secretary for Justice would in any event still have the power to take over a prosecution and enter a nolle prosequi where a case involved an abuse of process, and the courts would also have the power to halt a prosecution if it considered the prosecution to be a breach of process.
Recommendations
Human Rights Monitor urges the Committee to express concern over the existence of such a consent requirement in pursuing private prosecutions under the CTO. It further asks your Committee to urge the HKSAR Government to remove this provision from the CTO as a display of its commitment to the prevention and prosecution of acts of torture.
"State of Emergency"
Article 18 of the Basic Law states that "In the event that the Standing Committee of the National People's Congress decides to declare a state of war or, 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, decides that the Region is in a state of emergency, the Central People's Government may issue an order applying the relevant national laws in the Region." However, there has been no clarification of what "relevant national laws" may be made applicable to the HKSAR and whether such laws involve the sanctioning of, or provide justification for, acts of torture and other cruel, inhuman or degrading treatment or punishment.
Furthermore, section 2(1) of the Emergency Regulations Ordinance of the HKSAR which empowers the Chief Executive on any "occasion of emergency or public danger" to "make any regulations whatsoever which he may consider desirable in the public interest" is overly vague compared with the corresponding term in Article 2(2) of the CAT which is "a state of war or a threat of war, internal political instability or any other public emergency." The HKSAR Government's Third Report to the United Nations Human Rights Committee admitted that there were in fact no defined criteria for invoking the powers of the Ordinance. Such regulation may allow the HKSAR Government to justify acts of torture or other types of cruel, inhuman or degrading treatment or punishment under the terms provided by section 3(4) and 3(5) of the CTO in times where a "state of emergency" or "state or war" has been declared. This Ordinance is particularly unsatisfactory because it vests tremendous powers in the authorities to restrict human rights, like freedom of expression, but provides for no necessary safeguards like the absolute prohibition of torture. (11)
Article 18 (12) of the Basic Law and the Emergency Regulation Ordinance does not meet the requirements of Article 2.2 of the CAT, which states that "[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." The HKSAR Government's argument that the Ordinance should be read in conjunction with Article 39 of the Basic Law has failed to appreciate the fact that it is extremely undesirable to omit such important safeguards in a legislation dealing with true or alleged emergency. For this reason, the UN Human Rights Committee in its 1995 Concluding Observations on Hong Kong was critical of the fact that Article 18 of the Basic Law failed to correspond with the International Covenant on Civil and Political Rights (ICCPR). (13)
Recommendations
In order to comply with Article 2.2 of the CAT and Article 7 of the ICCPR, Human Rights Monitor asks your Committee (1) to reaffirm the UN Human Rights Committee's comment on this issue; (2) to urge the HKSAR Government to clarify what are the "relevant national laws" to be applied to Hong Kong; and (3) to recommend that such "national laws" and the Emergency Regulations Ordinance conforms with international standards, by building in procedural and substantive safeguards like spelling out expressly both in the Basic Law and Ordinance that torture and other cruel, inhuman or degrading treatment or punishment are strictly prohibited under all circumstances even in a state of emergency declared by either the HKSAR or the Standing Committee of the National People's Congress.
Enforcement Policy
The HKSAR Government has defended in its report its non-enforcement of the CTO in HKSAR v. Chuen Lai Sze for "no reasonable prospect of securing a conviction" (para. 16, HKSAR Report). Its excuse for not charging the officers under the CTO was that it would have been necessary to prove the officers not only intentionally committed the act, which inflicted pain, but also that the officers intended the act to inflict severe pain on the victim. The HKSAR Government concluded that there were not sufficient evidence to for securing the conviction for a charge of torture under the CTO.
We believe the HKSAR Government's justification for not charging the officers in the case under the CTO is without merit. Reading the judgment, it is in our view indisputable that what the officers were proven beyond reasonable doubt to have done to the victim showed an intention to inflict severe pain. It is an understatement to say that the officers' actions were extreme.
Deputy Judge Lugar-Mawson wrote in his judgment,
"The evidence led at trial relevant to the issues in this appeal is as follows:
All four appellants are police officers from Special Duty Squad at Kwai Chung Police Station. In the early evening of 3 March 1997, YIU So-man, the first prosecution witness, was intercepted by the 3rd and 4th appellants at the Ground Floor of Wing Lok House on the Fuk Loi Estate, Tsuen Wan, close to where he lived. He was handcuffed and taken to the refuse room on the 16th Floor. Having been asked what he thought he had done wrong and having refused to answer, he was ordered to lie on the floor on his back. The 3rd appellant sat on his pelvis and punched him in the chest. The 4th appellant removed his spectacles and sat on his shins. The 2nd appellant entered the room and, after discussion with her colleagues, told him that his methadone card had been found, together with a quantity of heroin. When YIU denied that the heroin was his, he was punched in the chest by the 3rd appellant.
The 1st appellant, the inspector in charge of the team, then joined the officers and a further discussion took place which YIU was unable to hear. The second appellant stuffed a shoe in his mouth. Then the 1st appellant, followed by the 2nd appellant, poured water from metal drinks cans into his ears, nose and mouth until he found it difficult to breathe, whilst the 3rd and 4th appellant sat on his body. He said that a Coca-Cola can and a San Miguel beer can were used to do this. Some sheets of cardboard were placed under him.
He was told that he would be released if he was able to borrow money to buy drugs. When he expressed doubt at being able to do this, all four officers carried him to the railings in the refuse room and the 1st appellant threatened to have him thrown to the ground. He agreed to cooperate. He was returned to his position on the floor, where the 3rd appellant pressed his thumbs onto his neck, whilst the 2nd appellant poured more water into his nose and mouth, which caused him to lose consciousness.
When he came around, the 4th appellant handed him a mobile phone. He made a call to his mother and asked her for $7,000. Other police officers then arrived . He was given a change of clothing, as his own were wet, and released on the basis that they would be in touch with him again shortly. He managed to receive his spectacles, which were broken, and his wallet from which he said $200 were missing.
YIU was uncertain as to exactly how long the incident lasted but believed it was approximately four hours and that he had been released at around 1 p.m. He was not convinced at the time that those who had assaulted him were police officers." (14)
It is fair to say that this conduct shows, by any remotely reasonable standard, an intention to inflict pain "above that which is normal". If it does not, how severe does the alleged torture have to be before the HKSAR Government will prosecute under the CTO?
The prosecution has clearly adduced sufficient evidence which have led the court to the findings of facts in the judgment detailing the acts of torture set out above. It was simply untrue that the HKSAR Government had not enough evidence at the time of laying charges against the four officers. It was equally highly improbably that the court would have failed to convict the officers on such findings had they been charged of torture under the CTO. It seemed that either the Secretary of Justice has failed to make its prosecution decision professionally or she has deliberately failed to charge them with torture for unacceptable ulterior purposes such as shielding the officers from the much heavier sentence under the CTO.
The HKSAR Government's decision to charge the officers only with assault occasioning actual bodily harm and to prosecute them in the Magistrate's Court resulted in the officers receiving remarkably light sentences of 4 months in two officer's cases, and 6 months in the other 2 cases. The length of those sentences combined (20 months) is considerably less than that which the victim is likely to have received if he had been convicted on a charge of possessing 56 grams of heroin after his confession to same was extracted by these officers by means of torture. Had the officers been charged under the CTO, they would have been liable to a sentence of life imprisonment. This is unfair to the victims. The decision is also not in the public interest.
The HKSAR Government's decision not to charge the officers under the CTO sets a precedent for future cases. The message it has sent to our disciplined services is that the HKSAR Government will not prosecute its officers under the CTO when they torture persons unless the torture is of such a heinous type that it is worse than the torture inflicted on the victim in this case.
Human Rights Monitor takes the view that no reasonable person would deny that what the officers did to this victim constituted torture, including for the purposes of the definition in the CTO. Accordingly, they should have been prosecuted under the CTO. Even if -- and this appears to us to be unlikely in the extreme -- a jury had accepted that the alleged acts were proven but that the intention to inflict severe pain had not been proven, the jury could have convicted the officers for assault occasioning actual bodily harm which charge could have been offered in the alternative.
In view of the fact that that no police officers have been charged with torture and that the HKSAR Government has refused to charge the officers under the CTO even in the clear case as HKSAR v. Chuen Lai Sze, Human Rights Monitor questions the sincerity of the HKSAR Government to enforce the CTO.
Human Rights Monitor urges the HKSAR Government to reconsider its unwarranted reluctance in enforcing the CTO. We believe it is appropriate for the HKSAR Government to state publicly -- and in particular to inform the disciplined services -- that the test it has previously applied for prosecutions under the CTO has been reconsidered and that in future, cases of a similar nature will be prosecuted under the CTO.
Recommendations
We urge your Committee (1) to question what will amount to torture if the acts set out in the judgment were not considered ones; (2) to express concern at the reluctance of the Government to enforce the CTO especially in Chuen Lai Sze's case; and (3) to recommend for the laying of charge of torture under the CTO without hesitation in similar cases in the future.
Immunity in relation to head of state/former head of state under Hong Kong law
The decision of the House of Lords in the Pinochet case made it clear that extraterritorial criminal jurisdiction in relation to torture must be exercised over all alleged torturers who are apprehended within the territory of a State party. This would include, in the view of the House of Lords, a former head of state, and in the view of some commentators, a serving head of state as well.
Up to 1997 the question of immunity from prosecution or extradition for the crime of torture was covered by the United Kingdom's State Immunity Act and related legislation. This was the legislation which the House of Lords construed in the Pinochet extradition proceedings. However, from 1 July 1997, the United Kingdom legislation ceased to apply to Hong Kong and there is now no legislation specifically applicable to Hong Kong governing issues of State immunity, while issues relating to diplomatic and consular immunity (including the immunity of visiting high level officials from foreign countries) are covered by China's national regulations on these subjects.
As a consequence, it is not at all clear that Hong Kong law implements the China's obligations under the Convention to ensure that former heads of state of government officials who are sought for alleged offences of torture cannot claim immunity in criminal proceedings or extradition proceedings. In addition, it is not clear whether there is any restriction on the Chief Executive's exercising his discretion not to surrender a fugitive offender in such a case on purely political grounds, or whether he would have to follow directions from the Central People's Government in such a case.
Recommendations
Human Rights Monitor recommends that the Committee seek a clear statement from the PRC/HKSAR delegation as to whether a serving or former head of state or government official accused of torture enjoys immunity from criminal or extradition proceedings before the courts of Hong Kong. If so, what steps the governments propose to take to bring the law into line with the applicable international obligations. Since foreign affairs matters are within the remit of the Central People's Government, there is an overlap of responsibility between the two governments. It is important that the Committee not allow the HKSAR government to argue that it has nothing to say on this because it is a Central People's Government responsibility, and the Central People's Government to say that it is a matter within the autonomy of the HKSAR.
Recent decision of the Court of Appeal
There was a recent decision of the Court of Appeal discussing the scope of article 9(1) of the ICCPR and article 5(1) of the Bill of Rights on the right to liberty. In it, the court took a restrictive view of the scope of the provision to challenge the content of laws permitting detention. In HKSAR v Coady, (15) in the judgment of the Court of Appeal which was delivered by Mr Justice Keith, the court basically argued that the guarantee against arbitrary deprivation of liberty in article 9(1) of the ICCPR (art 5(1) of the BOR) did not allow substantive review of criminal provisions which imposed substantive liability and penalties, but was in effect limited to review of those procedural laws relating to "arrest and detention". Thus, if an offence and the punishment for it was harsh or oppressive, the judge took the view that this offence and penalty could not be attacked under article 9 of the ICCPR, although it might be reviewed under other articles.
Recommendations
Human Rights Monitor calls on your Committee to clarify with the HKSAR Government what measures it will adopt to ensure that the laws of Hong Kong will be in line with international standards laid down in article 9(1) of the ICCPR.
IV. THE HONG KONG POLICE FORCE
Complaints Against Police Office (CAPO)
The Scale and Types of Police Abuse and Factors Leading to Abuse
In the experience of many HK human rights groups, a large number of victims of police abuse fail to lodge their complaints for reasons which include: (a) their distrust of the system including a believe that complaints are rarely substantiated; (b) fear of retaliation; (c) being persuaded or misled by police officers not to pursue a complaint; (d) being inhibited by the lengthy and cumbersome complaint procedures. Despite this, a large number of complaints are lodged against the police in HK. The number of cases handled by Complaints Against Police Office (CAPO) and examined and agreed by the Independent Police Complaints Council (IPCC) was 4200 in 1998; 4854 in 1997, and 5052 in 1996 (Table 1). (16)
Table 1: Types of Allegations Handled by CAPO and Endorsed by the IPCC in the Years 1996, 1997 and 1998
| Name of Allegations in complaints | 1996 (17) | 1997 (18) | 1998 (19) |
| Assault | 1,600
(32%) |
1,324
(27%) |
941
(22%) |
| Overbearing/Impolite Conduct/Abusive Language | 1,460
(29%) |
1,485
(31%) |
1426
(34%) |
| Neglect of Duty | 854
(17%) |
919
(19%) |
878
(21%) |
| Unnecessary Use of Authority | 488
(10%) |
469
(10%) |
407
(10%) |
| Fabrication of Evidence | 363
(7%) |
362
(8%) |
264
(6%) |
| Threat | 201
(4%) |
201
(4%) |
224
(5%) |
| Other Offences (.e.g. theft, deception, perverting the course of justice, rape, indecent assault, etc) | 84
(2%) |
85
(2%) |
44
(1%) |
| Police Procedure | 2
(0%) |
9
(0%) |
16
(0%) |
| Total | 5,052 | 4,854 | 4,200 |
The accumulated knowledge of lawyers and human rights groups dealing with issues of police abuse of powers indicate that there is a serious problem in police culture. The anecdotal evidence is that there is a significant proportion of police officers who enjoy exercising their coercive powers, and who frequently dominate suspects and even members of the public stopped for such matters as identity cards checks. There is also evidence that a substantial number of police officers consider it appropriate to use unjust and unlawful means to obtain convictions. Others may be motivated by the pressure to improve their crime "detection" rate, or that of their team, unit or division. The pressure to make arrests and lay charges is given institutional incentive in that a case is considered detected (or solved) if someone is charged with an offence even though such charge fails at trial. (20)
There are insufficient safeguards to check these abuses. For instance, although the majority of police stations have videotaping facilities, there is no strong emphasis on using these facilities to tape interrogations other than in the most serious of cases; those likely to attract a term of sentence on conviction in excess of 7 years imprisonment. Although the Law Reform Commission completed its Report on Arrest seven years ago, many of its recommendations to safe-guard suspects' rights have not been implemented. Most importantly, there is no independent and effective complaints handling mechanism to check police abuses of power.
Under HK law, a defendant can be convicted solely on the evidence of his own confession, although courts should theoretically ensure that confessions were given voluntarily without threat, or under duress or undue influence, and that there are no other procedural improprieties. There is a strong temptation to extract a confession from a suspect rather than going through painstaking investigation into circumstantial and other evidence. Cases have been reported not infrequently of some police officers fabricating evidence by, for example, planting drugs on a suspect and then charging him.
Police in HK have traditionally relied heavily on confession statements. An exceptionally high proportion of confession statements are ruled inadmissible in Hong Kong courts as compared to those in the English and Wales. (21) The scale of the problem can be illustrated by the large number of confessions adduced and the high percentages of statements ruled inadmissible by the court when challenged (37% in High Court and 23% in District Court). See Table 2.
Table 2 : Confession Statements from Videotaped and Non-videotaped Police Interviews Adduced in Court in 1997 (22)
(*Note: Each interview resulted in a statement.)
| High Court | District Court | |
| Persons charged (Not all persons charged are interviewed) | 542 | 1966 |
| Total number of interviews* | 515 | 1565 |
| Non-videotaped interviews | 346 | 1414 |
| Non-videotaped interviews challenged | 115 | 496 |
| % of Non-videotaped interviews challenged | 33% | 35% |
| Non-videotaped interviews not admitted into evidence | 43 | 116 |
| % of non-videotaped interviews successfully challenged and therefore not admitted into evidence | 37% | 23% |
Similar research carried out by Dr Janice Brabyn of the University of Hong Kong in June and July 1995 on the Magistracy Court level corroborates the above findings.
Dr Brabyn's study researched the frequency and nature of defence challenges to prosecution evidence that the defendant made an out of court written or oral confession. Defendants may claim that :-
(i) the confession evidence is fabricated;
(ii) the defendant spoke, wrote or signed the confession because of improper threats, inducements, force or oppression;
(iii) admission of the confession evidence would in any case be unfair.
The study also attempted to discover court reaction to defendants' claims, especially the rate at which prosecution evidence was excluded or disregarded.
As part of this study all Hong Kong Magistrates conducting trials during the months of June and July 1995 were asked to fill in a special form for each trial they conducted. Replies concerning 762 defendants were received. Of these, 162 (21%) involved confession evidence. In 74 of these cases the Defendant contested the voluntariness of the confession; 43 alleged actual assault, 36 alleged threats of various kinds including threats of detention (denial of bail), assault, and prosecution of family members.
In 29 of these 74 cases (39%) in which the voluntariness of statements was challenged, the magistrate concerned was not satisfied that the confession was obtained voluntarily and the confession was therefore excluded. This was almost one in five (18%) of the cases in which confession evidence was rejected when they were challenged.
Both the proportion of cases in which the admissibility of a confession was challenged and the proportion cases in which the challenge was upheld are very high compared to other jurisdictions such as England and Wales. In absolute terms, 29 cases over a 2 month period in which magistrates were not satisfied that confessions had been obtained voluntarily is a large number. Magistrates dealing with criminal cases in Hong Kong, unlike in England, are full-time professionals, many of them with past prosecution experience. They are unlikely to be over-receptive to allegations against the police which are not well-founded.
These statistics confirm and provide a empirical underpinning for what many people in Hong Kong, particularly lawyers, have believed for a long time. Police assaults on suspects, particularly those who do not make confessions initially, occur so regularly that they are virtually routine. This is a problem of police culture rather than simply being isolated incidents perpetrated by a few "bad apples" not being brought to book.
Although these statistics are very useful, the HKSAR Government seems to be reluctant in maintaining and publishing them routinely as important social indicators.
While there is a need to highlight the problem of police abuse in extracting confession statements because of the seriousness of the consequences for the victim concerned, there have also been many instances in which police officers resort to violence, or other improper or even unlawful retaliation, when their exercise of powers were rightly "challenged" by persons with legitimate reasons. Sometimes such "challenges" were just questions by civilians about the identity of the police officer involved, or the reason why a particular action was taken against them; e.g. why one's identity was checked.
One of the most notorious of these in recent years was R v Cheung Kin Tak & Ors (23) involving serious unprovoked assaults on the spot by police on a group of off-duty customs officers. The customs officers tried to stop an incident of police brutality they encountered. Unlike other civilians who could have been assaulted by police without redress, the assaults on these customs officers led ultimately to the prosecution and conviction of the police officers concerned. It would be naive to believe that such a case involving not 1 police officer but a group of 6 of them, is simply an isolated outrage with 6 "bad apples" coincidentally all the same place at the same time. It is indicative of a police culture in which many officers believe that they can get away with breaking the law.
Recommendations:
Human Rights Monitor urges the Committee to express concerns that (1) there are a significant number of complaints of serious police abuses; and (2) there are a high proportion of confession statements rejected by the court due to the possible police improprieties.
We ask your Committee to recommend the HKSAR Government to (1) maintain and publish statistics of confession statements rejected by the Hong Kong judiciary at all court levels; (2) install videotaping and recording facilities in police interview rooms and other suitable locations (e.g. entrance to detention areas) to provide better protection to suspects as well as police officers; (3) institute a rule whereby confession statements are routinely video-taped including for less serious crimes; (4) address and to implement the Law Reform Commission's recommendations in the Report on Arrest; and (5) adopt effective measures aimed at changing the culture within the police force that resort to unlawful use of force is acceptable.
De Facto Monopoly by CAPO of Investigation into Complaints Against Police Officers
Articles 12 and 13 of the CAT concern the investigation into allegations of torture. Specifically, article 12 provides that "[e]ach State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation . . . . " Article 13 provides that "[e]ach State Party shall ensure that any individual . . . has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against ill-treatment or intimidation as a consequence of his complaint or any evidence given." Human Rights Monitor believes that the HKSAR Government has failed in the implementation and enforcement of these two provisions of the CAT.
The present police complaint procedure remains the subject of criticism for the lack of any independent mechanism to investigate complaints. Currently, all complaints except those non-reportable ones (24), irrespective of origin, are referred to the Complaints Against Police Office (CAPO). CAPO, however, is not independent of the police system, but rather a part of it where officers are entrusted with the responsibility of investigating fellow police officers whenever a complaint is filed. CAPO alone investigates the complaint, or oversees the handling of complaints by other fellow police, and submits a completed investigation report to the Independent Police Complaints Council (IPCC) for endorsement. The IPCC is a non-statutory civilian review body composed of 18 members, most of who are Justices of the Peace and/or Legislative Councillors appointed by the Chief Executive (25). Members of the IPCC work on a voluntary basis and also have the burden of their full time job, as well as their responsibilities to the IPCC.
The IPCC reviews CAPO's investigation report, researching into relevant Police General Orders, Police Headquarters Orders, police policies, procedures and practices, where appropriate. If satisfied with CAPO's investigation, the IPCC will endorse the complaint classification given by CAPO. If unsatisfied, the IPCC can raise queries and seek clarification from CAPO on areas of disagreement, suggesting further interviews with witnesses, experts, etc. CAPO will then clarify the areas of ambiguity and consider carrying out IPCC's recommendations for further interviews, if deemed appropriate. CAPO will re-submit its report to the IPCC, which will re-examine the complaint. The cycle repeats until all clarifications and further interviews are completed. The IPCC then either endorse the classification or documents their disagreement. (26) The IPCC may decide to report its disagreement to the Chief Executive.
The low substantiation rate and the lack of independence and credibility
If one is a victim of police abuse other than corruption or certain violations of Code on Access to Information, he may complain to various channels which will eventually refer the case to CAPO for investigation. The 1998 report of the IPCC says, "All complaints, irrespective of origin, are referred to CAPO for investigation." (27) A complaint lodged with, for example, the Chief Executive or the Legislative Council, will almost invariably be referred to CAPO as all these authorities lack the relevant resources to conduct their own investigation. (28)
The victim may also bring a private prosecution against the police officers and/or the Commissioner of Police, or he may elect to bring a civil action for civil remedies. However, normally the only channel for redress for most people is CAPO. Without substantiation or other faults recognized by CAPO, the HKSAR Government will not prosecute the police complained of nor will they be disciplined. (29) While other channels such as private prosecutions or civil litigation may be available, CAPO is the only channel that has the power to investigate and requires little financial resources on the part of the complainant. A victim's right to a remedy therefore depends very much on the work of CAPO.
However, the independence, impartiality, and effectiveness of CAPO are doubtful. It is part of the police force under the same Commissioner, and CAPO's officers not only come from the police force, but will also return to other police posts in the future. The current system of fellow police officers investigating each other, all serving in same organisation under the one head, is unsatisfactory. CAPO, as part of the police force, has a self-evident and pronounced conflict of interest, and this is one explanation for the low rate of complaint substantiation.
From an annual average of 4,702 allegations of police misconduct (a complaint may consist of more than one allegation) for the years 1996 through 1998, less than 3% of these allegations were substantiated or substantiated other than reported (SOTR) (30). The breakdown for the individual years are as follows:
Table 3: Substantiation Rate of Complaints Examined by the IPCC
| 1996 | 1997 | 1998 | Average for 1996-98 | |
| Number of complaints (31) | 3309 | 2937 | 2908 | 3051 |
| Number of allegations (32) | 5052 | 4854 | 4200 | 4702 |
| Number of allegations found to be substantiated or SOTR (33) | 113 | 135 | 149 | 132 |
| % of allegations found to be substantiated or SOTR (34) | 2.2% | 2.8% | 3.5% | 2.8% |
A rate of substantiation that is low may not necessarily (35), on its own, be indicative of a serious problem in a police complaints and monitoring system. But such a very low rate, and it being consistently so low, coupled with the problematic institutional arrangements and the other evidence available of the level of abuses that exist, is indicative of a serious problem requiring urgent redress. This was by the United Nations Human Rights Committee, which stated in its Concluding Observation on Hong Kong in 1995:
The Committee expresses concern over the investigative procedure in respect of alleged human rights violations by the police. It notes that the investigation of such complaints rests within the Police Force itself rather than being carried out in a manner that ensures its independence and credibility. In light of the high proportion of complaints against police officers which are found by the investigating police to be unsubstantiated, the Committee expresses concern about the credibility of the investigation process and takes the view that investigation into complaints of abuse of authority by members of the Police Force must be, and must appear to be, fair and independent and must therefore be entrusted to an independent mechanism. The Committee welcomes the changes made to strengthen the status and authority of the Independent Police Complaints Council but notes that these changes still leave investigations entirely in the hands of the police. (36)
The Committee recommended: "that the State party adopt the proposal of the Independent Police Complaints Council to incorporate non-police members in the investigation of all complaints against the police." (37)
The UN Human Rights Committee reiterated this view in its 1999 Concluding Observations on Hong Kong:
It went on to recommend:
Recommendations:
Human Rights Monitor urges the Committee to reiterate the concerns expressed by the UN Human Rights Committee, and to endorse their view that investigation of complaints of the police should be entrusted to a body independent of the police.
The HKSAR Government highlighted in paragraph 102 of its report that "[a]ll persons in Police custody have the right to complain if they are aggrieved by the conduct of Police officers in the execution of their duties." However, Human Rights Monitor found that this "right" is often curtailed by the improper conduct of CAPO officers. When one attempts to file or pursue a complaint with CAPO, its officers frequently:
There are many cases in which a prospective complainee, his team mates or supervisors, tried to dissuade a complainant from lodging complaints. They may even negotiate with a person who intends to complain by offering to drop or not to lay charges against him, his family members or friends. Some CAPO officers have even tried to dissuade or mislead a complainant from continuing his complaint by "explaining" to him the "misunderstanding" involved coupled with a lot of inconvenient complaint and investigation processes (40). As most of the interviews by CAPO officers are videotaped, attempts to dissuade victims or other complainants from filing or continuing with their complaints are usually done through telephone conversations and discussions outside the interview room.
A prospective complainant is often threatened with possible charges or other retaliation if he makes or proceeds with a complaint. It is the practice of some officers to charge victims of police brutality with offences like "assaulting a police officer" or "resisting arrest" in order to justify their use of violence when there is medical evidence of injuries sustained on the body of their victims. (41) Relatives and friends who witness an assault by police officers are often threatened on the spot with possible charges of "obstruction of a police officer in the execution of his duties". (42) Human Rights Monitor has been informed by Elsie Tu, a former legislator and a veteran community activist who has for years assisted victims of police abuse, that she has discouraged her clients from lodging complaints because her experience has convinced her that filing a complaint can often invite trouble and backlash from the police, such as trumped up charges of resisting arrest or assaulting a police officer.
The lack of independence of CAPO and their bad practice further exacerbate this type of police misconduct and cultivates such practices. The statement made by a complainant may be used by the police, including his complainees, as evidence to lay a charge and also in the trial against him. Once the complainant is convicted, his complaint against any police officers involved in the investigation of the case will usually be regarded as unsubstantiated. This practice puts a complainant in a very disadvantageous position in relation to his complainee. It also reminds us of the fact that CAPO, as a branch of police, will make available evidence they obtained to other branches of police, including officers being complained, although such evidence were given by the complainee for other purposes and it was not contemplated that police might use it in this way. (43)
CAPO officers often try to delay the investigation process or discourage the pursuance of a complaint by:
The investigation is conducted in a way which causes a lot of inconvenience to the complainants and witnesses, like repeated interviews and statement taking, fixing appointments during office hours, leaving telephone messages that "the police is looking for him" at the office of a witness or complainant, telephoning the complainant at small hours, etc. These practices lead to disruption of family life, loss of employment, etc. (44)
As a result of these practices, at least in part, allegations in complaints which were withdrawn and not pursuable accounted for 42% of all allegations in 1998, 48% in 1997 and 58% in 1996. These are unacceptably high percentages.
For those complaints which were pursued, 26% of all allegations in 1998 were resolved by informal resolution, 21% in 1997 and 19% in 1996. Under the informal resolution procedure, complaints do not undergo the normal, full investigation. A senior officer (Chief Inspector or above) acts as a Conciliating Officer (CO). The CO makes inquiries into the facts of a complaint by interviewing the complainant and the complainee separately. He may clarify any "misunderstanding" involved in the incident and, "where appropriate", the complainee may be advised to be more polite or tactful, etc. There is no punishment in such procedure. In theory, this procedure should only be used for complaints that are not serious breaches of discipline or criminal in nature, and requires the consent of the complainant. (45) However, in practice, police officers have persuaded complainants to agree to resolve their complaints by informal resolution in spite of their complaints involving serious breaches of discipline or being criminal in nature like assaults.
Recommendations:
Human Rights Monitor urges your Committee to (1) express concern about the high proportion of withdrawn and not pursuable complains, and the evidence of the tactics employed by CAPO; (2) urge the HKSAR Government to adopt measures to provide basic protection against the use by CAPO of various means preventing a complainant from lodging or pursuing complaints; and (3) urge the HKSAR Government to ensure that the informal resolution procedure will not be abused.
The denial of impartial investigation
As an institution, CAPO is part of the police force under the command of the same Commissioner and has the common interest in protecting the image of the force and interest of their fellow officers. CAPO therefore has the natural tendency to defend the complainees. As a police officer, a CAPO investigator inevitably have to face the pressures that originate from their work against the interest of their fellow colleagues and the fact that he may have associated in the past or will associate in the future in work, entertainment and other activities. Another dilemma he has to face is that one day he may be the subject of a complaint and will be investigated by other officers or he may have been investigated by other officers before he was transferred to CAPO. The HKSAR Government and the Commissioner of Police do not so much as impose measures to avoid transferring officers from other branches of the police to CAPO and vice-versa to reduce the conflict of interests and other "fraternity concerns".
One form of compromising the effectiveness of an investigation is having the complainee's statement taken by officers of the same rank. When questioned about this practice by the IPCC, CAPO "stated that CAPO were not very particular about the rank of the statement takers who were simply a tool. It had never been a strict policy, but a normal practice was for the statement taker to be least one rank senior to the complainee/police witness. Management's concern was whether the statement taker was experienced and competent for the job." (46) Although they assured the IPCC that "if it was a prima facie serious complaint, a more senior officer would be deployed for the job," (47) they maintained that they "could not agree with the view that senior officers had more honesty or integrity than junior officers. All police officers, regardless of rank, aspired to the same high standard." (48) They insisted:
The supervisory officers were [senior police officers in CAPO] and ultimately IPCC Members would monitor and scrutinise each and every case. CAPO's concern was to get the best person to ask the right questions to ensure all information was gathered; the best person would often be a front line investigator. However, junior officers were often more suitable for the job as they has more recent experience in statement taking, whereas senior officers seldom took statements from witnesses in the course of their work. (49)
Human Rights Monitor is of the view that the supervision and subsequent monitoring by another authority cannot be used to justify a bad practice of investigation. We share the concern of the former Chairman (50) of IPCC who "doubted the effectiveness of asking an officer of the same or more junior rank to take a statement because he might not dare to ask pointed or in-depth questions. The situation simply rendered the investigator vulnerable." (51) This in turn compromised the thoroughness and fairness of the investigation.
Another problematic practice is that there were complaints against CAPO officers investigated by the same CAPO office. (52) CAPO's view is that "the general policy in the Force was the same as that in the UK where all minor complaints were investigated in-house while the more serious ones would be dealt with by another formation to ensure impartiality. Minor complaints normally would not involve questions of integrity; moreover, it was useful to let local management have knowledge of the complaints." (53) Unfortunately, the IPCC was convinced by such an response. Human Rights Monitor believes the reasoning is plainly unsound. Management can also be informed of the result of an investigation by another office. (54) The distinction of "minor complaint" is not acceptable either - it is the credibility of the system which should take precedence over administrative convenience. CAPO's reasoning reflects its attitude towards having a proper investigation system.
A more serious problem is that very often CAPO investigators tend to frame issues in a light favourable to the complainee when taking statements and adopt a defensive rather than an investigative perspective in analyzing evidence. This tendency is most apparent in two cases: (1) when CAPO has to weigh witness statements in a one-against-one situation; and (2) when CAPO has to weigh statements given by the relative, friends and colleagues of a complainant and those of fellow colleagues in respect of a police officer complained against.
In respect of the first situation, a member of the IPCC raised in an IPCC meeting: "In many CAPO reports which involved one-against-one situations, CAPO would automatically come to a conclusion of 'Unsubstantiated'." (55)
In respect of the second situation, another member of the IPCC criticized CAPO officers in another case: "In their comment on this case ..., CAPO argues that complainant witnesses are not independent and hints that their evidence may not be trustworthy. In my memory, similar argument had been applied to other cases." (56) Subsequent research done by the Secretariat of the IPCC on recent cases considered by the IPCC identified 8 such cases. The Secretariat concluded:
On the basis of the [7] quoted cases, CAPO apparently did not give much weight to statements of witnesses who were relatives and friends of [complainant]. On the other hand, team mates of Police officers were generally regarded as independent witnesses. The Secretariat can find only one case in which CAPO took a different approach ... . In [that other] case, the versions of the complainants and their witnesses, who were all family members and relatives of the [complainants], were accepted. Disciplinary action was subsequently taken against the officer concerned for using foul language. (57)
Random strangers who witness the incident complained of will usually not volunteer to be witnesses. Their identity is normally unknown and their contact information are difficult to obtain. Witnesses thus will usually be a family member or friend. While a complainant's friend present at the time of the incident will normally not be regarded as an independent witness for this purpose, a complainant in a one-against-one situation against an officer will have his case automatically classified "unsubstantiated". Such a biased approach practiced by CAPO must contribute to the low substantiation rate.
This unqualified disregard of evidence from family members, friends, colleagues, and others in any way connected with a complainant is an affront to justice. A proper approach would be to evaluate the value and weight of all the available evidence in light of the relationship between the witness and the complainant, and take all other circumstantial evidence into account.
A system with biased practices built into it such as these violates not only Article 12 (58) of the CAT which requires the state to ensure that competent authorities proceed to a prompt and impartial investigation for torture, but also Article 13 (59), which obliges the state to ensure torture victims access to competent and impartial authorities.
Recommendations:
Human Rights Monitor ask the Committee to recommend, before a more independent police complaints mechanism is established, to the HKSAR Government: (1) to stop the transference of officers between CAPO and other branches of the police; (2) to ensure that statement takers are at least one rank senior to the complainee/police witness; (3) to prevent all investigation of CAPO officers by the officers in the same office; (4) to prohibit the automatic classification of complaints as "Unsubstantiated" in one-against-one situations; and (5) to provide checks against unqualified disregard for evidence from family members, friends, colleagues, and others in any way connected with a complainant.
Lenient punishment and ineffective proceedings in the system
If a complaint against a police officer has been found to be substantiated or "substantiated other than reported" or the officer is otherwise found to be at fault, the Commissioner of Police has full discretion in the action to be taken against the officer provided there is sufficient evidence to support such a course of action. He may decide that no action will be taken at all. Without a disciplinary hearing, he may decide "in very serious cases a factual entry of the incident and advice regarding expected conduct would be made in the officer's record". (60) He may choose to obtain a legal opinion whether to initiate disciplinary proceedings if he wants to impose disciplinary punishments. He may even elect to obtain a legal opinion with a view to initiating criminal proceedings. (There are rare exceptions: e.g. he needs the consent of the Secretary for Justice if he wants to charge an officer with the offence of torture under the CTO). If an officer has been acquitted by a court or no criminal prosecution has been brought against him upon legal opinion, the Commissioner may choose to initiate disciplinary proceedings provided legal opinion supports disciplinary action. Possible disciplinary action penalties can range from the most serious being a dismissal to the most lenient being a "Recorded Warning" or just an "advice". (61)
In practice, the Commissioner's discretion is exercised by CAPO or other designated officers in the police force and in a way extremely lenient to officers found to be at fault by CAPO. The IPCC can only comment on the proposed disciplinary action and criminal charges, which in its opinion was not commensurate with the gravity of the offence. This system allows the police force to use their discretion in deciding the gravity of punishment and allows them to protect officers by imposing generally lenient disciplinary action. This further inhibits the limited effectiveness of the IPCC, by giving police officers the message that they can act as they do without fear of commensurate punishment.
In an internal report, CAPO provided the following figures:
In substantiated cases, the most common recommendation is that advice be given to the officer(s) concerned. In 1998, 66.7% of the cases substantiated have so far resulted in advice being given, compared with 70.4% in 1997 and 67% in 1996. (62)
Again, from the table below, we can see that action taken by the police force against those police officers in substantiated cases endorsed by the IPCC in the years 1996 to 1998 are mostly advice which could only be described as light punishment, if advice amounts to punishment at all.
Table 4: Criminal / Disciplinary Proceedings and Internal Action Taken by Police in respect of Cases Endorsed in the Years 1996, 1997 and 1998 (63)
| No. of officers | |||
| 1996 | 1997 | 1998 | |
| Criminal proceedings instituted (a) | 7 | 8 | 4 |
| Disciplinary proceedings instituted (b) | 22 | 28 | 38 |
| Action by Formation Commanders -- Warning with entry in Record of Service (c) | 2 | 3 | 1 | Sub-total (punishment) [(a)+(b)+(c)] | 31 | 39 | 43 |
| Action by Formation Commanders - Advice (d) | 86 | 108 | 86 |
| Total (punishment + Advice) [(a)+(b)+(c)+(d)] | 117 | 147 | 129 |
Again, a general pattern of light punishment would not be cause for alarm if the complaints found substantiated were suitably trivial in nature. This, however, is not the case. Such lenient treatment can be seen in HKSAR v. Chuen Lai Sze in which four officers who should have been charged with torture were only charged with assault occasioning actual bodily harm. This type of unfair lenient approach is clearly illustrated by the following two cases quoted from two of the most recent annual reports of the IPCC.
The first case involved a complainant who:
alleged that he was assaulted on two occasions for crime information. On the first occasion, he was hit by PC X in the chest and back about ten times when he refused to supply dangerous drug information, but did not seek medical attention. On the second occasion, he was stopped and asked by PC X again for such information in the presence of PC Y. When he declined, PC X pulled his hair and struck his left flank several times while blaming the complainant for delaying the officers' meal break. . . . He then felt on the ground. PC X punched him on the back for one to two more minutes and warned him not to come back. The complainant subsequently felt such severe pain that he sought treatment at the Accident and Emergency Department of a hospital and was hospitalized for a surgical operation of a ruptured spleen. The doctor commented that the spleen rupture might be the result of assault or a traffic accident."
Forensic evidence revealed that fibers from the complainant's T-shirt were consistent with those of a control fiber from a police uniform and suggested that the complainant may have come in contact with PC X whom he identified in a identification parade. Although CAPO substantiated the assault complaint, the only disciplinary measure taken was an entry into PC X's record of service "to observe proper procedures in handing suspects and the rights of suspects. (64)
In the second case, a complainant alleged that during a stop and search, PC A and PC B assaulted him and burnt the right side of his penis with a lighted cigarette in the staircase of a building. (65) He further alleged that one of the officers damaged his mobile phone and pager, and stole his identity card. The caretaker of the building corroborated the complainant's accusation that the police officers took him to the staircase. However, there were doubts raised on the part of CAPO as to the origins of the burns, standing behind the belief that the burns were possibly self-inflicted or caused by an accident such as dropping a lighted cigarette while the complainant was seated on the toilet. CAPO initially classified the allegations as not fully substantiated, but finally agreed to change the classification to substantiated after a request by the IPCC to consult the Consultant Forensic Pathologist who opined that both of those scenarios would be the most unusual of events. However, the disciplinary action taken in this case was the mere factual entry of this incident in their record of service.
The evidence of these two cases were considered insufficient for either criminal or disciplinary proceedings. In the first case the weaknesses identified by the police were the weak credibility of the complainant as a drug addict and the alibi evidence given by Sergeant Z in favour of PC X that PCs X and Y were back in the station for meal break at the material time. The alibi could be challenged on three grounds including that fact that the evidence of Sergeant Z was doubtful as he has made wrong entries in the occurrence book concerning another two auxiliary officers who were actually on beat duty and had not returned for meal break and that other police team members confirmed that they did not see PCs X and Y at the meal break. These cases quoted from the IPCC's report indicate that CAPO is too considerably generous to the officers being complained of.
Disciplinary proceedings are further rendered less useful due to their lengthy and tedious nature and the fact that the force has decided to adopt a very high standard in the burden of proof -- one very close to that required in a criminal conviction -- rather than a burden of "a sliding scale" as adopted by the IPCC, which in turn is a higher standard ("the high civil standard") than a balance of probability in most private sector employment contracts. The court's liberal approach in favour of police officers found at fault by CAPO has been fully exploited by the police force to leave police officers at fault unpunished or "punished" only by advice or recorded warning.
A recent initiative by CAPO to review whether a "recorded advice" and a "recorded warning" are forms of punishment requiring disciplinary proceedings seeks to further undermine the available disciplinary options. CAPO opines that they are punitive in nature and natural justice requires that they can only be administered after disciplinary proceedings to ensure natural justice. CAPO further proposes that they be permitted to make a mere "factual entry" without punitive element on officer's records as a substitute in cases which would have been given a "recorded warning". (66) The IPCC expressed reservations about this proposal. An argument was raised that
it is considered that it would not be inappropriate to give 'Recorded Warning' to complainees in some CAPO cases as long as the officers are fully briefed of the intended action before entries are made in their Records of Service and that they are given a chance to make representations to the Force management in line with the usual practice adopted in the Civil Service. (67)
The review by the Police and the discussion between CAPO and the IPCC on this issue is ongoing.
An IPCC discussion paper has expressed concern over the current view proposed by CAPO. It states:
If CAPO's argument is accepted, then "recorded warning" will become an obsolete form of punishment in the Force. It would be tantamount to a mockery of the police complaints system if police officers in "substantiated" complaints could be advised but not warned in writing by their supervisors. (68)
Recommendations:
Human Rights Monitor urges the Committee to express concern about the lenient manner in which police officers are disciplined when complaints against them are substantiated.
Independent Police Complaints Council (IPCC)
The HKSAR Government's CAT Report tries to talk up the independence of the Independent Police Complaints Council (IPCC). However it omits the fact that the IPCC remains a body established as a result of an administrative decision and has no statutory basis. It can be abolished by an executive decision without the need even to amend the law. The HKSAR Government's CAT Report describes,
In July 1996, the Government introduced a Bill into the then Legislative Council with the aim of making the IPCC a statutory body. The Bill was withdrawn in June 1997 after Legislators moved major amendments which -- if implemented -- would have disrupted the effective operation of the Police complaints system, fundamentally changing the main principles of the Bill. (69)
The Committee may need more information to understand the meaning of that paragraph. The "major amendments" refer to those amendments which empower the IPCC to investigate any complaints against police officers if it thinks fit. Such amendments addressed the concern expressed by the UN Human Rights Committee about the lack of "independence and credibility" in the mechanism handling complaints against police in Hong Kong. (70) The amendments were intended to implement the recommendation by the UN Human Rights Committee in its 1995 Concluding Observations on Hong Kong "that the State party adopt the proposal of the Independent Police Complaints Council to incorporate non-police members in the investigation of all complaints against the police." (71) The Bill was withdrawn by the Government and therefore never completed the legislation process.
It is unfortunate that the HKSAR Government still considers that the implementation of such amendments "would have disrupted the effective operation of the Police complaints system". The HKSAR Government has failed to reintroduce the Bill after the Reunification of Hong Kong with China despite pressure from Members of the IPCC and the public. It has stated publicly that it intends to introduce the Bill after the September 2000 Legislative Council election but without any commitment not to shield the police independent investigation.
The HKSAR Government report has failed to note important information such as that the current IPCC is not empowered to conduct investigations on its own, nor does CAPO have to comply with its suggestions/recommendations. Also, the IPCC can only rely very heavily on the reports prepared by CAPO in order to pass judgement on the cases investigated. The HKSAR Government's description of the system has not acknowledged the enormous handicaps faced by the IPCC which members have done their best.
The HKSAR Government has vaunted the creation of a special panel which could monitor selected serious complaints and allow the panel to raise queries about the reports or interviews without having to await the conclusion of CAPO investigation. It will only be possible to evaluate the effectiveness of this panel in time. However, no matter how closely the panel can monitor those cases it takes up, it is still only permitted to make suggestions regarding the process and conclusion of the investigation. It has not been armed with any independent powers such as the ability to conduct a parallel independent investigation. The very limited resources of the panel and the IPCC secretariat inevitably limit cases that can be handled this way to a small number (72).
When the IPCC disagrees with the way a complaint is investigated or the conclusion of a CAPO investigation, it can only recommend further investigation or reclassification. The decision of whether to entertain any suggestions ultimately lie with CAPO in its complete discretion.
Currently, when the IPCC completes its review of CAPO's investigation report and disagrees with the classification given by CAPO, it can only suggest a re-classification or document its disagreement. CAPO may use its discretion to adopt or reject such recommendations. The IPCC's powerlessness to act in situations where it disagrees with CAPO is clearly shown in a 1997 case, in which a complainant alleged that a senior police officer had abused his authority by authorizing the broadcast of music near a designated demonstration area to drown out his address to the general public and media. (73) The complainant felt that the police act had infringed his freedom of expression. CAPO's initial classification was "no fault". After interviews with CAPO officers and the complainee to gather facts, clarifying ambiguities, ascertaining the complainee's motive to broadcast the music in the heat of the demonstration, and due deliberations, the majority of the IPCC had reservations on the "no fault" classification. The IPCC felt that the allegation of "unnecessary use of authority" against the complainee should be classified as "substantiated". Apart from the classification, the IPCC felt that the incident provided valuable lessons for the future handling of demonstrations. After studying the existing guidelines and practices, the IPCC made four recommendations to the Commissioner of Police to ensure that members of the public were able to exercise their freedom of expression without disrupting public order and peace. The Commissioner of Police, however, maintained that the complainee was justified in broadcasting the music during this incident although he accepted the general tenets of the IPCC's recommendations. The IPCC maintained its stance and made a report of the case to the Chief Executive. The Chief Executive did not intervene and therefore the Commissioner's classification was in effect upheld. This was a case in which no consensus could be reached between the IPCC and CAPO on classification of the complaint. The complainant was informed by the IPCC of its views on the case, notwithstanding its disagreement with CAPO.
Recommendations:
Human Rights Monitor urges the Committee to express concern that: (1) the IPCC can only rely heavily on CAPO reports of cases and has no independent investigative powers; (2) the IPCC has no statutory basis; (3) the former Government has withdrawn the IPCC Bill without proper reasons and that the HKSAR Government has failed to re-introduce the IPCC Bill so far; and (4) the IPCC is unable to make determinations binding in any way on the police.
We ask the Committee to recommend that the IPCC should be give a statutory basis and entrusted with the power of investigation into complaints against the police by enacting a Bill to the effect.
The unwarranted opposition of an independent mechanism for investigating complaints
Police advocates offer two main arguments for opposing an independent mechanism for investigating complaints against police officers. The primary argument is that only the police are properly trained to investigate complaints against the police. The subsidiary argument is that an independent monitoring mechanism would lower the morale of the police force. Human Rights Monitor believes that both of these arguments are not only invalid, but also seriously flawed.
First, the training program in its present form is inadequate for training competent CAPO officers. The adequacy of the current training program for CAPO staff is ill conceived and seriously deficient. The training program consists of a two-day induction course for police officers posted to its Regional Offices. Not only does the two-day induction course attempt to explain all the operational and procedural matters of the complaints system, but it also attempts to fully explain the role and relationship of the IPCC. The inadequacy of the training program is further intensified by the fact that only half of CAPO's officers have attended the Standard Criminal Investigation Course (SCIC) -- indicating that officers who have been insufficiently trained carry out CAPO's investigative work.
Second, if general police morale would be affected in a negative manner by a fair and independent system of investigation of complaints against officers, this only serves to underline the need for such a system. Conscientious and law abiding officers would have no reason to be concerned about such a system. Indeed, their morale would be boosted as officers breaching guidelines, rules and the law were brought to account.
The weakness of both arguments against an independent investigation mechanism are further highlighted by the fact that similar arguments were offered by the Commissioner of the Royal Hong Kong Police Force in 1973 for opposing plans to set up the Independent Commission Against Corruption (ICAC). The ICAC, however, has proven to be very successful as an independent monitoring mechanism investigating allegations of corruption, including police corruption, despite those reservations. As such, there is no reason why the problem of police misconduct and abuse of power should not be tackled equally effectively.
Recommendations:
Human Rights Monitor urges the Committee to express regret at the Government's unwarranted opposition to the establishment of an independent police complaints mechanism.
V. IMMIGRATION DEPARTMENT
Introduction
The Immigration Department shares a lot of the problems identified in the previous analysis of the police force.
Though there are many immigration officers who are reasonable and helpful, there are officers who are responsible for abuses and improprieties like the police. Their delinquent acts are not often reported in the public domain. However, their victims are often more vulnerable than those who suffer wrongdoing at the hands of the police. Their victims are, by definition, people who are not permanent residents and who are subject to immigration control. Their entry into, stay in and departure from Hong Kong are at the discretion of the Director of Immigration and the legislation which empowers him and his officers to make decisions is not subject to the Hong Kong Bill of Rights Ordinance, (74) nor the International Covenant on Civil and Political Rights on account of a reservation (75). The effect is that immigration laws are not subject to Article 39 of the Basic Law which is supposed to entrench the minimum standards enshrined in the ICCPR. An adverse decision by the Director of Immigration against a person requiring permission to stay in Hong Kong will not include detailed grounds for refusal. The single avenue of appeal against most immigration decisions not involving removal or deportation is not told to the persons affected. There is no right of appeal to an independent tribunal against the exercise of a discretion by the Director of Immigration. These people are usually not familiar with the laws of Hong Kong, their rights and channels for assistance. Those who do not have families and friends in Hong Kong normally suffer greatly from a weak support structure to appeal for help. They may have a language problem and sometimes even have to face discrimination on the ground of race, national origin, etc. Worst of all, they are detained and kept isolated from the outside community and are vulnerable to removal or deportation before they have the chance to call for help.
Most allegations of abuse which come to the attention of Human Rights Monitor are in the form of verbal abuse, threats, duress, improper pressure, unlawful isolation, denial of access to the telephone, misrepresentation of the options available, extraction of signatures by lies or mental pressure, having papers signed without letting the victims know the nature or content of the document, denial of bail and unnecessary and unjustified lengthy detention, discrimination towards certain minorities or nationals.
There is little protection against detainees and persons under their investigation. Many of the recommendations of the Law Reform Commission on Arrest made over seven years ago have not been implemented. Although in theory there are a number of measures to safeguard persons in their detention on paper like access to telephone, to refreshment and food at reasonable time, to personal security, to personal dignity, to complaints, these rights are not always respected especially when a person is in a racial minority. The Immigration Department is even less transparent than other government departments in terms of policies. There is no independent complaints handling mechanism except the Ombudsman who is meant to deal with maladministration in the whole of the Hong Kong Government. Most complaints are handled internally and the investigations are monitored and reviewed by a working party headed by an Assistant Director as described in the HKSAR Government's report. (76) Inevitably such a system suffers from conflict of interest and lacks independence and credibility. Worst of all, as there is no civilian body to monitor and oversee the investigation, information on the complaint procedures, burden of proof, classification of results, resulting punishment are not readily available to the public. The Immigration's Annual Report contains little useful information on the operation of the system.
Torture as a ground for refusal to expel, return or extradite
Protection qualified by reservation
Paragraphs 20 to 23, and 31 to 34 of the HKSAR Report attempt to set out the situation relating to removal and deportation of persons under Hong Kong law. However, we consider these paragraphs do not reflect a full and accurate picture of the matters at hand.
The right to appeal to the Immigration Tribunal is limited. It is confined to a number of factual matters only such as whether an individual had the right of abode in Hong Kong or had the permission of the Director of Immigration to remain in Hong Kong at the date when the removal order was made. Danger of being subject to torture upon return is not a ground of appeal.
Article 9 of the Hong Kong Bill of Rights is much circumscribed by section 12 of the Hong Kong Bill of Rights Ordinance (Cap 383). There is no right of review or a right to representation for this purpose if the person involved is not a permanent resident of Hong Kong. The Solicitor-General of Hong Kong, when questioned upon this matter by a member of the United Nations Human Rights Committee in October 1995, was reported to have said that Article 9 of the Hong Kong Bill of Rights in the circumstances guaranteed the application of the due process. That is a procedural right only.
The HKSAR Report does not indicate whether in consideration of any case where a ground of danger of being subject to torture upon return, the Director of Immigration, or any other relevant authorities have considered the matters set out in Article 3(2) of the Convention.
The UN Human Rights Committee expressed its concern in its Concluding Observations on Hong Kong issued in November 1999 that,
"In the light of the fact that the Covenant is applied in HKSAR subject to a reservation that seriously affects the application of article 13 in relation to decision-making procedures in deportation cases, the Committee remains concerned that persons facing a risk of imposition of the death penalty or of torture, or inhuman, cruel or degrading treatment as a consequence of their deportation from HKSAR may not enjoy effective protection." (77)
The reservation referred to provides,
"The Government of the United Kingdom reserve the right not to apply Article 13 in Hong Kong in so far it confers a right of review of a decision to deport an alien and a right to be represented for the for this purpose before the competent authority." (78)
Although the United Kingdom is no longer responsible for the administration of Hong Kong, the reservation survives the Reunification with China substituting the United Kingdom.
The Refugee Convention has not been extended to the HKSAR. There is a local United Nation High Commissioner for Refugee (UNHCR) official presence but this does not provide adequate safeguards for refugees and for those facing torture if removed or deported due to the reservation as highlighted by the UN Human Rights Committee. Despite this concern (with due respect to the UN Human Rights Committee), it is submitted that non-permanent residents, refugees and other vulnerable persons in Hong Kong do not enjoy effective protections and the situation is getting worse, not better.
A recent case (79) involving the removal of a right of abode claimant, an illegal immigrant from the Government point of view, highlighted that a person can be removed for any reason even if legal proceedings are due to start or even going on. In the case, the counsel acting for the HKSAR Government told the court that it was the policy of the Government "not to wait" even if the Director of Immigration knew that the court was hearing the case on an injunction to stop a removal order from being enforced against the claimant. The claimant was being removed when the court was hearing the case and he was removed to Mainland China 17 minutes before the injunction was granted. Human Rights Monitor finds such a policy particularly objectionable as it seeks to remove a party in the trial from the jurisdiction of the court and deprive the court a chance to review a government removal order while there is a pending trial due to start immediately or is going on.
Denial of Assessment
A Hong Kong SAR statement of particular concern is paragraph 27 of the Hong Kong SAR report which states inter alia that:
"Should potential removees or deportees claim that they would be subjected to torture in the country to which they are to be returned, the claim would be carefully assessed, by both the Director of Immigration and the Secretary for Security or, where the subject has appealed to the Chief Executive, by the Chief Executive in Council .... In considering such a claim, the Government would take into account all relevant considerations, including the human rights situation in the state concerned, as required by Article 3.2 of the Convention. However, there have been no cases so far where the question of torture has been an issue ..."
In reality there may be no assessment by the Hong Kong SAR authorities of a torture claim as is the case with a refugee claim. At best the case may be referred to the UNHCR or the person concerned may be able to contact a non-governmental organisation (NGO) which may be able to lobby on behalf of the person concerned before the deportation or removal has taken place. It is feared that often the person concerned would be deported or removed before they could obtain assistance from NGOs including the UNHCR.
Denial of Access
Even prior to "making it" to these completely inadequate procedures credible reports indicate that those claiming asylum at entry points may be refouled and are denied the opportunity to contact an NGO or the UNHCR office. One office that is often contacted which assists refugees and torture victims is the local Amnesty office and it has found there to be a five fold decrease in the number of refugees or those fleeing torture approaching the office for assistance in 1998 compared with 1997. It is feared that this may be reflective of the aforementioned denial of "access" to assistance for potential victims. The UNHCR have been informed but we are not aware of any follow-up. (80)
A recent example illustrates some of the serious problems. An asylum seeker and torture victim (the person concerned had undergone a variety of suffocation techniques, hanging upside down and beatings) who managed to contact the UNHCR office was rejected for refugee status on basis of a very brief half hour interview. (82) This initial refusal of refugee status appeared to figure prominently in deportation proceedings and without any assessment of the risk of torture to the person concerned the HK authorities upheld the deportation order. Only by chance did the person concerned obtain the assistance of a lawyer whereupon evidence, including a medical report by a local doctor, was put before the Hong Kong Secretary for Security. The decision to deport was nevertheless upheld. It was only upon the threat of judicial review proceedings (82) (and perhaps media attention) that the person concerned was suddenly granted refugee status by the UNHCR two days before the expiry of a deadline provided to the Chief Executive to rescind the deportation order by lawyers for the person concerned. At present the Hong Kong authorities will not rescind the deportation order despite the granting of refugee status by the UNHCR. This puts the refugee in limbo for, though recognized as such, he may not work or settle in Hong Kong. This is not an isolated incident and indicates not only that there are inadequate safeguards for those fleeing and under threat of torture but that the Hong Kong SAR may be making efforts to make it more difficult for those fleeing torture to find safety.
Government statistics show that between July 1997 and June 1998 there were 759 deportation orders issued and only 26 petitions against the deportation orders were issued. This statistics alone makes one wonder whether the persons concerned are aware of their rights (even if such rights are limited) in these matters. Of these petitions, none have been allowed (in fact as far back as 1991 none of the petitions against deportation orders have been allowed).
Lengthy Detention
Paragraph 29 of the Hong Kong SAR Report deserves some comment. Periods of detention are too long and in most cases of removal and deportation the person concerned is kept in the deplorable, cramped and antiquated conditions of Victoria Prison (a historical site). The UNHCR Guidelines on the Detention of Asylum Seekers are routinely ignored (83) as are the Bill of Rights Ordinance and the ICCPR because of Hong Kong's reservations. While the remedy of habeas corpus is theoretically possible, the judiciary feels itself bound by precedents in this area relating to the Vietnamese where periods of detention were so shockingly long that anything less seems mild. The judiciary's approach towards these cases is therefore extremely pro-administration in nature with little regard to the rights of the victims and the international standards laid down in the relevant United Nations instruments. Unlike in the UK, where those fleeing persecution could perhaps rely on Article 31(1) of the Refugee Convention to avoid incarceration and obtain the necessary assistance, there is no such protection in Hong Kong. (84)
It is hoped that the Committee will find these observations useful in determining the reality of the implementation of the Convention in Hong Kong and that they will help to show that without safeguards provided by a fully implemented ICCPR, Statutory Refugee Status Determination procedures and a robust and human rights sensitive independent judiciary, there will be grave consequences for vulnerable persons concerned.
Recommendations:
Human Rights Monitor urges the Committee to express concern over the deprivation of assessment in some asylum cases, the denial of some asylum seekers' access for assistance, the lengthy detention of them during refugee status determination, and the Hong Kong judiciary's insufficient attention to international standards in reviewing such detentions. We ask the Committee to question the Hong Kong Government on what it understands to be the relevant considerations under Article 3(2) of the Convention and further inquire on the sources from which the Hong Kong Government obtains information relating to human rights violations in other states. Further, we ask the Committee to question the Hong Kong Government as to whether it has applied the relevant considerations set out in Article 3(2) in a particular case and whether it has reached any conclusion as to the states in which there exist a consistent pattern of gross, flagrant or mass violations of human rights, and to provide a list of such states.
Human Rights Monitor asks the Committee: (1) to reiterate the UN Human Rights Committee's concern; (2) to urge the HKSAR Government to provide effective protection to persons facing a risk of imposition of the death penalty or of torture, or inhuman, cruel or degrading treatment as a consequence of their deportation from HKSAR; and (3) to urge the HKSAR Government to ensure the rights of asylum seekers; and (4) to highlight to the Hong Kong judiciary the need to defend the rights of asylum seekers.
Violations of Rights without Proper Investigations and Remedies
The problems in the Immigration Department's defective complaints handling system, its interrogation practices, its other acts of cruel, inhuman or degrading treatment of detainees, can be highlighted in a number of cases.
Lin Qiaoyin's case (85)
Lin Qiaoyin, a then 16-year-old Chinese emigrant from Fuzhou in China to the U.S.A. where she had lived for several years, was charged by the Immigration Department last year for using a forged passport, while she was on her way from the mainland back to America via Hong Kong. Lin was convicted for using a fake passport and sentenced to imprisonment on the evidence of her confession statement. In her "cautioned statement", she "admitted" that she was another person and that she has used a fake passport which was in fact wholly genuine. She "confessed" that she has purchased the "fake passport" in Fuzhou from a man for US$20,000. The "confession" included many details which are in fact false and must be the result of fabrication.
After her successful appeal, she complained about her treatment: She was initially interrogated by several immigration officers, first without an interpreter and subsequently in the presence of one. She spoke very little Cantonese, a dialect widely spoken in Hong Kong and by the officers. She tried to explain in vain in Fuzhou and Mandarin. She was detained and isolated. She was denied access to telephone and was refused food (although the rules on interrogation provide for such rights to persons in detention) because she was seen to be uncooperative as she insisted in telling what was the truth. She was shown a lunchbox and was told that she would be allowed to have it if she confessed to the fact that she was a using a fake passport. The lunch box was thrown into a litterbin after she continued to refuse to confess. An immigration officer then made as if to hit her and forced her head into the bin. He stopped when the Fuzhou interpreter arrived. She was then threatened by the interpreter in the presence of the officers. She was told by the interpreter that unless she confessed she would be imprisoned for life in Hong Kong or sent back to the mainland for execution. She was also encouraged to trust him as someone from the same place, Fuzhou. She was induced to confess by his misrepresentation that she would soon be released after signing her confession. Another officer threatened her with a stick during the interrogation. Under tremendous pressure and terrified, she finally yielded to the demand of the interpreter and officers and endorsed the "details of the case" that she was told and signed the confession statement in the name of another person. She was then charged without her passport being examined by anyone to see if it was in fact false.
Her rights to food and reasonable refreshment, to security, to due process, to contact her family and access to telephone were denied. There was supposed to be a custody officer to ensure her safe custody and well-being, and make sure that she did not undergo oppressive interrogation and to whom she could complain. There should also have been a reviewing officer to review the necessity of her continued detention. There should be a number of channels where she could have lodged her complaints including the officer-in-charge, the Immigration Headquarters, her legal representatives, friends, relatives, Legislative Councillors, the Ombudsman, the Chief Executive, visiting Justice of the Peace, or to the courts as set out in the HKSAR Government's Report. (86)
Two days later, on her way to the trial in a government vehicle, she was accompanied by the same interpreter who urged her to confess in the court. She followed the "advice" and was sentenced to four months' imprisonment. Her passport has never been subjected to verification even after her conviction.
She was imprisoned. Although she has tried to explaine that her passport was genuine and about her ordeal, no correctional services officers and inmates believed her. Unfortunately, the Correctional Services Department failed to inform her family of her imprisonment and whereabouts in spite of the fact she was still a child. Had the prison officers attempted to do so, her family would have come to her assistance much earlier.
Her complaints were reportedly found not to be substantiated by the Police nor the Immigration although the Police have criticized the interrogation as "unprofessional". The non-substantiation was by no means a surprise as few safeguards were actually in place to protect a suspect in custody like Lin. The guidelines on interrogation, the notice on rights of person under detention on display, the custody officers and review officers who are supposed to be taking care of Lin and the supervisor of the officers were and are often just safeguards that exist on paper. Most of the interrogation was not videotaped as the Immigration have only one room equipped for it. There were no independent witnesses who could testify for the girl in the custody of the Immigration. Moreover, the investigation by the Immigration was purely internal. The case has highlighted the failure the system to afford the much needed protection to suspects and to ensure the fair administration of justice in the Immigration Department.
Children of Hong Kong Permanent Residents Born in Mainland China Abused
Meanwhile, whether those children born in the mainland of Hong Kong permanent residents should have the right of abode in Hong Kong is still being argued in the court, there has been occasional reports that some of the right of abode claimants were being detained for days or weeks pending removal. Human Rights Monitor sometimes received reports that officers of the Immigration Department would use any means to threaten or seduce the right of abode claimants to sign papers, which turn out to be agreements on "voluntary repatriation". Hong Kong Human Rights Monitor has received complains from the right of abode claimants last March and have conducted a survey, which revealed that detainees were being treated badly, such as being strip searched, being woken up during the middle of the night to ask them to sign unknown papers, etc. The HKSAR Government has also done a report on the complaint save for accepting that there was shortage of toothpaste, denied everything.
Many claimants said they were intimidated to sign various documents. According to their letters of complaints, the main documents were 'voluntary repatriation letters' and the 'command of repatriation & appeal'. They stated having been threatened that they would be "black-listed" in mainland unless they signed the 'voluntary repatriation letter', and having been 'cheated' by the officers telling them that they would have no rights to appeal unless they sign the 'command of repatriation & appeal'. But this complaint also was not substantiated simply because "Neither the department nor any officer would have any gain to compel the detainees to sign such documents. It is very unlikely that the officers concerned would have threatened/intimidated the detainees to sign such documents"(The Report of Immigration Department).
The detainees have the right to call family members according to Principle 16 (1) of the Body of Principles for the Protection of All Persons under Any Forms of Detention or Imprisonment (87), and especially when they were arrested suddenly, it was natural to call family to let them know. But their complaint that they were not permitted to call family was not substantiated only because "it is unlikely that they were not permitted to make telephone calls"(Report of Immigration Department).
Regarding the complaint of being handcuffed with another one even whilst consuming lunch box, it was not substantiated because it was "necessary action". But we are very much suspicious about whether it is 'necessary' action to handcuff two men together and then leave them to eat from a lunch box, which is almost impossible.
They say in the report that many complaints were due to the misunderstanding of the detainees. But even if so, there is no evidence that the detainees were provided with enough information in order to be prevented from such 'misunderstandings'. Rule 35(1) of the Standard Minimum Rules for the Treatment of Prisoners provides that information should be given to every prisoner (88).
Recommendations:
Human Rights Monitor therefore asks the Committee to express concern about (1) the cruel, inhumane and degrading treatments, if not also psychological torture, in such cases; (2) the lack of protection and respect for the rights of these complainants; (3) the biased investigation by the internal investigation in these cases; and (4) the apparent lack of effective remedies to these victims.
We also ask the Committee to say that there is evidence that suggests that the HKSAR Government has violated articles 11, 12, 13 and 16 of the Convention.
We urge the Committee to recommend to the HKASR Government (1) to compensate Lin; (2) to adopt effective measures, including the installation of videotaping facilities, to ensure the due respect of the rights of individuals being detained, interrogated or repatriated by the Immigration, especially those of children, juvenile, elderly, minority and other vulnerable detainee. (3) to establish an independent complaints handling mechanisms to handle complains effectively against the Immigration; and (4) to ensure that remedies are available to victims of violations of rights of these individuals including punishment of those officers responsible for their wrongdoings.
VI. CORRECTIONAL SERVICES DEPARTMENT
The prisons in Hong Kong, though in relatively good shape by world standard, have a lot of important problems which need urgent improvement or reform.
Overcrowded Prisons
The prisons in Hong Kong are overcrowded. They hold a population of prisoners beyond their designed capability:
Table 5 : Average Prison Population and Occupancy Rate in the Years 1997, 1998 and 1999 (89)
| Year | Average Prison Population | Prison Occupancy Rate |
| 1997 | 10,452 | 122 % |
| 1998 | 10,066 | 115 % |
| 1999 | 10,364 | 119 % |
Overcrowding will continue to be problem for the foreseeable future. It has stretched the system's resources. Cells that were designed for one prisoner often hold two, and, during times of particularly high congestion in the past, even three prisoners.
Overcrowding means that activities are fewer and less meaningful. Cotton ball and envelope-making, for example, tasks that we observed in several facilities, hardly equip inmates with the skills necessary to find employment upon release. The combination of greater overcrowding and less meaningful ways of passing the time also aggravates the tensions which result in outbursts of inmate-on-inmate violence.
These strains are particularly evident with regard to unconvicted prisoners-prisoners who are presumed innocent and are supposed to be treated as such. In particular, the unremitting idleness of such prisoners, a problem that Human Rights Monitor observed in every facility that houses them, is of serious concern.
Recommendations:
Human Rights Monitor asks the Committee to urge the HKSAR Government to take steps to ease overcrowding throughout the prison system.
Disciplinary Offences and Punishments
The Prison Rules include a comprehensive list of disciplinary offences and punishments. (90) The enumerated acts range from assault, which falls within the realm of the criminal law, to many offences that are extremely prison-specific, and some which are quite vague. (91) A prisoner who "in any way offends good order and discipline," for example, is guilty of a disciplinary offence. (92)
A wide range of potential punishments is available, including disciplinary segregation (called "separate confinement") of up to twenty-eight days, forfeiture of remission of up to one month, forfeiture of privileges (such as ability to buy items from the prison canteen) (93) for up to three months, and deprivation of prison earnings. (94)
Hong Kong prison authorities used the full array of punishments at their disposal, although loss of remission was the most frequently applied. (95)
Inmates placed in disciplinary segregation are normally transferred to individual cells in the facility's "special unit." They are held in their cells approximately twenty-three hours per day, leaving the cells only for exercise and for showers. Because disciplinary segregation is invariably accompanied by a loss of privileges, inmates temporarily lose their radios, cassette players, and non-academic reading materials. They are also not allowed to smoke. While in segregation, nonetheless, they continue to enjoy visiting rights. Convicted prisoners, in addition, are still required to work. (96)
When accused of disciplinary offences, prisoners are given hearings and have the right to appeal adverse decisions to the commissioner. The vast majority of disciplinary reports result in punishment, however, and few appeals are granted. (97) Although Human Rights Monitor was unable confidently to gauge the value of the due process guarantees accorded in prison disciplinary proceedings, the high "conviction" rates, combined with the vagueness of the offences and the seriousness of the potential penalties, do raise concerns. Imposing forfeiture of remission is essentially equivalent to imposing a longer criminal sentence; accordingly, due process concerns are paramount.
An examination of the 563 breach of discipline cases reported at Shek Pik during 1996, as an example of actual prison practice, reinforces these concerns. A full 170 of these cases-the largest number adjudicated under any single subsection of Prison Rule 61-involved prisoners who in some way "offend[ed] good order and discipline." The most liberally used punishment was loss of remission: a total of 4,747 days forfeited, compared to a total of 2,146 days of separate confinement and loss of privileges, and a total of 2,814 days of lost earnings. (98)
In many prison systems, of course, abuses occur not in the application of legitimate penalties but in use of unauthorized punishments-most frequently, brute force. While Human Rights Monitor did receive a few allegations of unjustified beatings by CSD officers, we were unable to confirm their validity. (99) In the Ma Po Ping Incident, officers allegedly beaten prisoners up were investigated internally by the CSD. Their conclusion was that their use of force was necessary and justifiable. Human Rights Monitor has reviewed the investigation report. We doubted the assessment of the CSD as it has placed too little weight to those statements by the local prisoners some of whom were complainants. The findings that the complainants' evidence were not corroborated was dubious.
Complaints of verbal abuse were much more frequent: prisoners stated that lower-ranking CSD officers constantly swore at and insulted them.
Administrative Segregation
The "special units" of Hong Kong's prisons, besides housing prisoners assigned to disciplinary segregation, also house prisoners placed in administrative segregation. Prison Rule 68B authorizes such segregation "for the maintenance of good order or discipline" or for prisoners' own protection.
Rule 68B provides in relevant part that:
(1) Where the Superintendent has reasonable grounds for believing it is desirable, for the maintenance of good order or discipline or in the interests of a prisoner, that such prisoner should not associate with other prisoners, either generally, or for particular purposes, he may order the removal of such prisoner from association for a period of not more than 72 hours.
It further states, in subsection (5), that the commissioner may, for the same reasons, order the further removal of the prisoner for a month, and that he may continue to extend the prisoners' term of removal from association on a month-to-month basis. Each time that the commissioner decides to prolong the prisoner's segregation, the prisoner has to be told the reasons for his continued segregation, and he must be permitted to write something in his own defense. The commissioner must review the prisoner's submission, as well as other relevant materials, in making the decision as to further segregation. (100)
Prisoners in Rule 68B administrative segregation are subject to essentially the same conditions as prisoners in disciplinary segregation-twenty-three hours a day of cell time, deprivation of privileges-but with an important difference: many of them endure these conditions for much longer lengths of time. Human Rights Monitor met many prisoners who had spent several months in administrative segregation, and some who had spent years there. (101) Separate confinement of this length is always a matter of concern. (102)
There are, to be precise, three distinct types of Rule 68B segregation. The type of Rule 68B segregation-that which covers prisoners deemed to be "violent and influential characters"-is the most problematic. 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. Often, prisoners who have been placed in disciplinary confinement for a set amount of time will subsequently be placed in Rule 68B administrative confinement for an indefinite period of time. Although this type of Rule 68B confinement is technically not punishment, it is no different from punishment when viewed from the prisoner's perspective. The fact that it is technically not punishment, however, means that the prisoner is deprived of the right of a disciplinary hearing and that the segregation can be extended over and again for an indefinite period.
The following were among the Rule 68B cases observed by us during our 1997 prison study:
- A Vietnamese prisoner who had been in segregation at Shek Pik since June 1996 was "removed from association [because] he assaulted staff in Victoria Prison." (103)
- Another prisoner at Shek Pik was placed in segregation nearly three months prior to our 1997 visit because he "actively instigated other local/I.I. prisoners to launch a group assault against Vietnamese prisoners."
- A prisoner at Stanley who had violently attacked another prisoner served ten days of disciplinary segregation and was then placed in administrative segregation, where he had stayed for two months by the date of our 1997 visit.
- At Pik Uk Correctional Institution, the maximum security institution for male juveniles, a nineteen-year-old was held in segregation for two months "in view of his manipulative and violent [sic] prone character."
As the above cases illustrate, there is considerable overlap between reasons for disciplinary segregation and those for Rule 68B administrative segregation. Given the lesser due process protections with regard to the application of Rule 68B, and thus the greater possibility that prisoners will be wrongly accused of disorderly or violent acts-and, equally important, given the much longer periods of segregation available under Rule 68B-this phenomenon is troubling. Of course, prison officials have a legitimate interest in maintaining order in their facilities and, in some instances, temporary segregation of a dangerous prisoner may be a reasonable way to protect that interest. Human Rights Monitor believes, nonetheless, that it would be much preferable to allow the prisoner to defend himself at a hearing any time segregation of this magnitude is possible. Also, as should be clear, the use of such segregation should be strictly limited to exigent circumstances, and the affected prisoner should be returned back to his normal housing unit as quickly as is reasonably possible.
Recommendations:
Human Rights Monitor asks the Committee to express concern over the lack of effective measures and institutions to prevent retaliation against complainants and abusive use of "administrative segregation".
Human Rights Monitor urges the Committee to recommend to the HKSAR Government (1) to ensure that administrative segregation under Prison Rule 68B is not employed as a punitive measure; and (2) to install effective due process safeguards in the application of Rule 68B, particularly in cases of long-term involuntary segregation.
Transfer to Other Facilities
From what we observed, the use of Rule 68B segregation is much less frequent in lower security facilities. In fact, Ma Po Ping Prison and Tong Fuk Centre, the medium and minimum security men's facilities that we visited in 1997, held no prisoners under Rule 68B. (104)
Lower security prisons do, however, have another quasi-punitive technique for handling difficult inmates, which is transfer to a higher security institution. Particularly given the overcrowding prevalent in the Hong Kong prison system, many Category B and C prisoners are held at Shek Pik, where conditions are notably more restrictive than in lower security institutions. As the superintendent of that facility explained to us, it is the "troublemakers" who are transferred there. (105)
In our 1997 prison study, Human Rights Monitor learned of one prisoner who was transferred from Ma Po Ping Prison to Shek Pik in what appears to be a likely case of retaliation for complaining. We learned of the case by reading the log kept at Ma Po Ping by visiting justices of the peace (JPs). The log's first relevant entry was in mid-December 1996; it stated that the inmate, a Pakistani, was in administrative segregation but complained to the JP that he was being wrongly punished. The CSD response to the entry, also included in the log, was that the Pakistani had been removed from association under Rule 68B because "he had intimidated fellow prisoners to jointly sign on a letter in order to protest against the allegedly poor quality of food provided to prisoners of other nationalities." (106)
On each subsequent JP visit from December 1996 through February 1997, the prisoner reiterated his complaint of unfair treatment. During this time, his placement in Rule 68B segregation was extended twice. Finally, in late February, the CSD transferred him to maximum security Shek Pik Prison. When Human Rights Monitor inquired into the reasons for this transfer, the superintendent of Ma Po Ping stated bluntly that the inmate "had been making frequent requests to see the VJs [visiting justices of the peace] and the ombudsman." (107)
The ultimate transfer possibility for difficult inmates is assignment to the Behavior Adjustment Unit (BAU) at Siu Lam Psychiatric Centre. Inmates who have had "behavioral problems" in other institutions are placed in this unit, although, as the superintendent at Siu Lam acknowledged, none of these prisoners are mentally ill. (108) Prisoners who are involuntarily transferred to Siu Lam for behavioral reasons typically spend six months in the BAU program; they may receive psychological counseling but no psychiatric treatment. One such prisoner told members of Human Rights Monitor that he was transferred to Siu Lam because he had filed a complaint with the police regarding a serious beating he had received from a guard. (109) A Siu Lam staff member stated, similarly, that prisoners who "make a lot of complaints" and are "not cooperative" end up getting transferred to the facility because officers "want to adjust their behavior." (110)
Recommendations:
Human Rights Monitor urges the Committee to ask the HKSAR to investigate into whether there is any abuse in the use of transfer as a means of punishment.
Monitoring of Treatment and Conditions
In Hong Kong, there is a superficial profusion of prison monitoring bodies. Prisoners' grievances may, in principle, be aired before a variety of audiences, including the CSD's internal bodies, visiting justices of the peace, the office of the ombudsman, and the courts. Human Rights Monitor found, however, that for a number of reasons the protection provided by these bodies is incomplete.
An important innovation is the rule by which all correspondence between prisoners and "specified persons"-which include legislators, justices of the peace, the ombudsman, and various other governmental authorities-cannot be read by CSD staff, and cannot even be opened to check for contraband except in the presence of the prisoner. (111)
Internal Monitoring
The CSD has two monitoring bodies within its Inspectorate and Management Services Division. The Inspection Unit (IU) is responsible for monitoring departmental compliance with the relevant ordinances, rules and departmental policies; it conducts regular and ad hoc inspections of penal facilities. In 1995, it conducted a total of forty-six inspections. (112) The Complaints Investigation Unit (CIU), which consists of nine investigators and two supervisory staff, is responsible, among other things, for investigating prisoners' complaints of abuse or mistreatment. It received 181 complaints from prisoners in 1996, but found only four to have merit. (113) Although without more information it is impossible for Human Rights Monitor to reach any conclusions about the validity of the particular cases that were dismissed, we note that four out of 181 cases is a very low substantiation rate. The record from earlier years is comparable. (114)
Regardless of the seriousness with which these bodies approach their responsibilities, our experience convinces us that internal departmental monitoring of prison conditions is inherently insufficient. First, fearing retaliation, prisoners often hesitate to complain to internal bodies of mistreatment by prison staff. Given the adversarial atmosphere that tends to reign in the prison context, they assume that such bodies are biased in favor of departmental staff. Second, whether the problems found are serious or relatively trivial, outside bodies are freer to criticize and, if necessary, to draw public attention to abuses. The pressing need for transparency and accountability in the operation of prisons militates in favor of outside oversight. (115)
Recommendations
Human Rights Monitor urges the Committee to express concern over the lack of fairness in the internal investigation of complaints by the Correctional Services Department.
Human Rights Monitor asks the Committee to urge the HKSAR Government to establish an independent prisons inspectorate with a broad mandate to investigate conditions in the territory's penal facilities; report its findings to the responsible governmental authorities, to the legislature, and to the public; and make recommendations for reform.
Justices of the Peace
Justices of the peace (JPs) are counted as the primary mechanism for outside monitoring of Hong Kong's prisons. Appointed by the Governor, JPs enjoy an array of formal powers, although their main practical function is to visit prisons and other institutions. (116) The job of JP is not a full-time occupation, but rather more of an honorary post. JPs include both government officials, known as official JPs, and members of the public, known as unofficial JPs.
According to the Prison Rules, each prison is to be visited by two justices of the peace (one official and one unofficial) every fifteen days. (117) Training centers, detention centers, and drug addiction treatment centers, in contrast, receive JP visits once a month. Within this prescribed period, JPs have considerable flexibility to choose the date and time of their visits, and they can arrive without giving prior notice. JPs normally receive a fifteen-minute to half-hour orientation from the facility's superintendent, then they tour the facility in the company of the superintendent or a high-ranking officer. Although the amount of time spent at the facility varies according to its size and the JPs' preferences, they normally spend between one and a half to three hours per visit.
Human Rights Monitor found serious defects in the approach and methodology of Hong Kong's system of JP visits. To begin with, because JPs have no specific training or experience in prison matters, they are ill-prepared to delve beneath the surface in investigating conditions. In addition, their visits are largely overseen by the prison authorities. One knowledgeable observer, commenting on this problem, described the JPs' prison tours as "staged visits." (118) Indeed, the Prison Rules specifically mandate that a high-ranking officer accompany the JPs around the prison and "bring before them" any prisoners wishing to speak to them. (119) Although a few prison officials stated, when pressed on this point, that the JPs might if they preferred speak with prisoners privately, it is quite clear that the normal practice is for JPs to speak with prisoners in the presence of prison officials. (120)
The lack of confidential communications between prisoners and JPs flies in the face of the requirements of the Standard Minimum Rules, which state that during prison inspections, "[t]he prisoner shall have the opportunity to talk to the inspector or to any other inspecting officer without the director [of the prison] or other members of the [prison] staff being present." (121) While many prison officials seem not to have contemplated the possibility that prisoners and JPs might speak to each other privately, others are openly hostile to the idea. One superintendent, when asked why this is not the normal practice, stated bluntly that "it has to do with who is running the prison. The VJ [visiting justice of the peace] is not running the prison." (122)
At the close of their visit, the JPs write up their comments in a log book, describing their impressions of the prison and any complaints made to them. Human Rights Monitor viewed these comments at every facility that we visited. We found them to be brief and almost uniformly uncritical. At High Island Detention Centre, for example, a facility that we found to be in serious need of improvement, we read with surprise the JPs' comments of only one month earlier. In what, to us, was an enormous understatement, the JP noted: "The sanitary conditions were not entirely satisfactory . . . [but] overall, the centre was in good order." (123)
Finally, the JP system suffers from a serious lack of continuity and follow-through. Instead of repeat visits by the same inspector over a period of time, which would permit that person to evaluate whether conditions were improving and recommended improvements were being implemented, every fifteen days a different set of JPs visits.
Recommendations
Human Rights Monitor asks the Committee to urge the HKSAR Government (1) to allow Justices of the Peace and qualified independent monitors, including academics, members of the media, and representatives of human rights organizations to inspect the prisons and (2) to interview prisoners out of the earshot of guards.
Human Rights Monitor asks the Committee to recommend to the HKSAR Government to provide Justices of the Peace more training on international standards, etc.; (2) to ensure that visits by JPs are unannounced as far as possible; and (3) to adopt measures to ensure that there are follow through in JP visits to offer reasonable protection to prisoners and to monitor the implementation of measures for improvement in a longer term.
Office of the Ombudsman
The Office of the Ombudsman is charged with "redressing grievances and addressing issues arising from mal-administration in the public sector." (124) This monitoring and investigative body has existed for some time, but it only quite recently became active in the prisons. While the ombudsman had received scattered complaints from prisoners in the past-from July 1995 to June 1996, for example, he received sixty-six prisoners' complaints-the number of complaints received rose significantly after July 1996, when he initiated a campaign to increase inmates' awareness and access to the office. At that time the CSD, acting on the ombudsman's suggestion, began posting announcements in the prisons informing inmates of their right to lodge complaints with the ombudsman, and making confidential aerograms available to them for this purpose. (125)
At our meeting with the deputy ombudsman, Human Rights Monitor was informed that the ombudsman's office had received some 200 complaints from prisoners since July 1996. (126) With a prison team of five investigators, the ombudsman has the power of direct investigation, and can even demand official statements under oath. The ombudsman has a limited mandate to hear complaints: most notably, they cannot involve a crime (thus no cases of excessive force by guards), and they must be submitted by the prisoners themselves, not by relatives.
The deputy ombudsman was unable to give us any details regarding the 200 cases received, but he did describe the procedures for handling cases. (127) After ascertaining whether the complaint falls within the office's jurisdiction, it is normally referred to the CSD through an internal complaint handling procedure. Attempts are made-usually successfully-to resolve the complaint at this level. (128) If, however, the complaint cannot be satisfactorily resolved and it appears that an injustice has occurred, then the ombudsman's office undertakes an in-depth investigation that culminates in a judgment and recommendations. If these recommendations are not acted upon, the ombudsman may submit a report to the governor.
Human Rights Monitor welcomes the ombudsman's increased prison activity. We note, nonetheless, that most of the complaints lodged to them were not investigated by Ombudsman itself but were referred back to the prison authorities. In addition, although a few representative cases are described to the public in the ombudsman's monthly reports, and a summary of the ombudsman's work is provided in his annual reports, neither the focus nor the effect of the ombudsman's work is to inform the public about prison conditions.
Recommendations:
Human Rights Monitor asks the Committee to urge the HKSAR Government (1) to recommend to the Ombudsman to disclose statistics with detail breakdowns on the large number of complaints by prisoners it has referred back to the prison authorities; and (2) to remind the Ombudsman of the need to conduct investigations unless a complaint is confirmed to be of trivial nature.
Footnotes
The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.
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2000 (c) Hong Kong Human Rights Monitor
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