Hong Kong Human Rights Monitor

Briefing Paper for the Committee on the Elimination of Racial Discrimination

in respect of the Thirteenth Periodic Report
submitted by the United Kingdom in respect of Hong Kong
under the Convention on the Elimination of All Forms of Racial Discrimination

(For Hearing on 4th and 5th March 1996 at the Palais Des Nations, Geneva, Switzerland)

List of Issues

General Note

Transfer of Sovereignty

Issues:
Continued Application of the Convention after 1997
Extent of Application of the Convention after 1997
Progress Report

Ethnic Characteristics of Hong Kong

Issues:
Paragraphs 14-16 of the Thirteenth Periodic Report

Policy of Eliminating Racial Discrimination (Article 2(1))

Issues:
Hong Kong Bill of Rights Ordinance (Cap 383)
-- Format and Drafting
-- Government review of constitutionality of legislations; Law Reform
-- Effective Remedy: Human Rights Commission; Comprehensive Human Rights Legislation; Legal Aid; Inter-citizen disputes
-- Exceptions and Reservations
-- Compatibility with Basic Law and Recommendations of the Legal Sub-group of the Preliminary Working Committee of the Preparatory Committee
Emergency Regulations Ordinance (Cap 241)
-- Rule-making powers
Immigration Law
-- Status of Permanent Resident: Immigration Ordinance (Cap 115) Sch 1
-- Deportation: Classes of Deportees; Limited Appeal
-- Accession to residency: Filipino domestic workers vs PRC migrant workers
-- Children born in PRC of Hong Kong permanent resident
-- Detention of Illegal Immigrants as Witnesses
Incorporation of the Convention in Domestic Legislation
Comprehensive Race Relations Legislation
Review of Legislations
Vietnamese Asylum Seekers
-- Detention
-- Conditions of Detention

Development and Protection of Racial Groups (Article 2(2))

Issues:
Education New Migrants
-- Access to Public Benefits and Facilities
Migrant Workers
-- Employment, Family, Voting, Housing and Cultural Rights
Vietnamese Asylum Seekers
-- Detention
-- Conditions of Detention

Condemnation of Racist Propaganda and Incitement to Racial Hatred (Article 4)

Issue:
Paragraphs 30-32 of the Thirteenth Periodic Report

Prohibition of All Forms of Racial Discrimination and Guarantee of Equality before the Law without Distinction as to Race, Colour, National or Ethnic Origin (Article 5)

Issues:
Right to Equal Treatment before Tribunals and All Other Organs
Administering Justice (Article 5(a))
-- Provision of Interpreters
Right to Security of Person (Article 5(b))
-- Vietnamese Asylum Seekers
Right to Participate in Elections (Article 5(c))
-- Article VII(3), Letters Patent 1917-1993
-- Threat to Voting Rights of Foreign Domestic Helpers
Equal Access to Public Service (Article 5(c))
-- Civil Service: Distinction between Expatriate and Local Recruits and Localization Policy
Right to Nationality (Article 5(d)(iii))
-- Hong Kong's Indian/Ethnic Minority: Statelessness after 1997
Right to a Family (Article 5(e))
-- Split Families: Legal Immigration from People's Republic of China for Family Reunion; Foreign Domestic Helpers; Imported Skilled Workers
Children Rights (Article 5(e))
-- Vietnamese Asylum Seekers
Employment Rights (Article 5(e)(I))
-- Foreign Domestic Helpers
-- Imported Skilled Workers
Housing Rights (Article 5(e)(iii))
-- Foreign Domestic Helpers
-- New Migrants
-- New Territories Indigenous Population
Right to Education and Training (Article 5(e)(v))
-- Children of Vietnamese Asylum Seekers

Effective Protection and Remedies (Article 6)

Issues:
Hong Kong Bill of Rights Ordinance (Cap 383)
Criminal and Law Enforcement Injuries Compensation Scheme

Combatting Prejudices through Teaching, Education, Culture and Information (Article 7)

Issue:
Education


Discussion

Prepared by P. Y. Lo

General Note

  1. In November 1994, the Committee on Economic, Social and Cultural Rights considered the second periodic reports of the United Kingdom in respect of Hong Kong concerning the implementation of Articles 10 to 12 and Articles 13 to 15 of the ICESCR. Many of the principal subjects of concern identified by members of the Economic Committee in their concluding remarks, such as anti-discrimination legislation, Human Rights Commission, split families, treatment of Vietnamese asylum seekers, relate to racial discrimination. However, the Hong Kong Government's response to nearly all of the suggestions and recommendations of the Economic Committee has been, in essence, to reject them or brush them aside. See Concluding Observations of the Committee on Economic, Social and Cultural Rights (UN Doc E/C.12/1994/19) ; and Comment by Andrew Byrnes [1] (Enclosure Number).
  2. In October 1995, the United Nations Human Rights Committee considered the fourth periodic report of the United Kingdom in respect of Hong Kong concerning the implementation of the provisions of the ICCPR. Many of the principal subjects of concern identified by members of the United Nations Human Rights Committee in their concluding observations, such as Hong Kong Bill of Rights Ordinance, anti-discrimination legislation, Human Rights Commission, and treatment of Vietnamese asylum seekers, relate to racial discrimination. However, the Hong Kong Government's response to most of the suggestions and recommendations of the Human Rights Committee relating to such issues has been, essentially, to reject them. See Concluding Observations of the Human Rights Committee (UN Doc CCPR/C/79/Add.57) [2].
  3. In November 1995, the Committee Against Torture considered the initial and second periodic reports of the United Kingdom in respect of Hong Kong concerning the implementation of the provisions of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment. The Committee Against Torture identified as a subject of concern the treatment of Vietnamese asylum seekers in Hong Kong, which relates to racial discrimination. However, the Hong Kong Government's response to this expression of view by the Committee Against Torture has been steadfastly to maintain its existing policies. See Concluding Observations of the Committee Against Torture [3].
  4. On 13th January 1996, the Home Affairs Panel of the Hong Kong Legislative Council held a special meeting on racial discrimination, in which the Hong Kong Human Rights Monitor and other NGOs participated, making oral and written submissions.
Transfer of Sovereignty

  1. With effect from 1st July 1997, the People's Republic of China is to resume the exercise of sovereignty over Hong Kong. The existing administration of Hong Kong by the United Kingdom will cease from that date.
  2. The Joint Declaration between the United Kingdom and the People's Republic of China in 1984 on the future of Hong Kong contains the following provision under Annex I, Part XI:

    "The application to the Hong Kong Special Administrative Region of international agreements to which the People's Republic of China is or becomes a party shall be decided by the Central People's Government, in accordance with the circumstances and needs of the Hong Kong Special Administrative Region, and after seeking the views of the Hong Kong Special Administrative Region Government. ....... The Central People's Government shall, as necessary, authorize or assist the Hong Kong Special Administrative Region Government to make appropriate arrangements for the application to the Hong Kong Special Administrative Region of other relevant international agreements."

  3. Annex I to the Joint Declaration contains a statement of the basic policies of the People's Republic of China regarding Hong Kong. These basic policies have been stipulated in the Basic Law of the Hong Kong Special Administrative Region promulgated on 5th April 1990 ( the Basic Law") [4] with the quotation above in Article 153 thereof.
  4. In relation to racial discrimination, the Basic Law only stipulates in Article 25 that All Hong Kong residents shall be equal before the law".
  5. Both the People's Republic of China and the United Kingdom are state parties to the Convention. The United Kingdom extended the Convention to Hong Kong upon ratification in 1969.
  6. The Thirteenth Periodic Report does not contain any details of arrangements (if any) between the United Kingdom Government and the People's Republic of China Government for the continued application of the Convention to Hong Kong. In particular, the Thirteenth Periodic Report does not indicate whether the Central People's Government of the People's Republic of China has reached a decision, be it provisional or final, regarding the continued application of the Convention to Hong Kong. We learn recently that the Governments of the United Kingdom and the People's Republic of China have agreed at the Joint Liaison Group level on the mechanism by which 200 odd international treaties presently affecting Hong Kong may continue to apply to Hong Kong after the transfer of sovereignty in 1997"[5]. It was reported that this mechanism would allow the People's Republic of China to replace the United Kingdom as a State Party to a treaty presently affecting or made in respect of Hong Kong. It was also reported that this mechanism involved diplomatic and legal measures directed both at the United Nations and the State Parties of the relevant treaties. We ask the Committee to enquire with the United Kingdom Government as to whether the Convention is covered by the operation of the said mechanism and as to the details of the said mechanism.
  7. In view of the reservations/interpretive statements entered by the United Kingdom and the People's Republic of China during their respective ratification of and accession to the Convention, it is not known whether the extent of the application of the Convention (if agreed by the People's Republic of China Government to continue to be applicable to Hong Kong) will be identical to the present situation. The United Nations Human Rights Committee when it examined the Fourth Periodic Report of the United Kingdom in respect of Hong Kong in October 1995 took the view that human rights treaties devolved with the territory and conferred rights on the citizens of the territory. Thus, the successor state will bear the obligations of the predecessor state under human rights treaties [2]. We support the continued applications of human rights treaties to Hong Kong after 1997 on terms no less favourable to the people of Hong Kong than at present. However, we ask the Committee to seek clarification from the United Kingdom Government and (if possible) from the Government of the People's Republic of China as to whether the People's Republic of China will maintain the reservations to Articles 4, 5, 6 and 15 of the Convention made by the United Kingdom upon signature and maintained upon ratification, bearing in mind General Comment No 24(52) of the United Nations Human Rights Committee relating to reservations. We also ask the Committee to question the United Kingdom Government as to the discussions and arrangements (if any) with the People's Republic of China Government on the extent to which the Convention will apply to Hong Kong after 1997. We enclose an article by Dr Nihal Jayawickrama on the continued application of human rights treaties in Hong Kong through development of international law [6].
  8. If the United Kingdom Government is not in a position to provide a comprehensive response on these issues, we ask the Committee to give serious consideration to asking for a progress report from the United Kingdom on the further discussions and arrangements (if any) with the People's Republic of China on the issues set out under paragraphs 6 and 7 above for hearing before 1st July 1997 and to invite representatives of the People's Republic of China to appear before the Committee to submit a special report or to provide information and assistance in relation to these issues. Alternatively, the People's Republic of China should be asked to provide such information in her upcoming periodic report, if such a report is due before 1st July 1997.
  9. In any event, we urge the Committee to state its views on any possible mechanisms for compliance with future reporting requirements.
Ethnic Characteristics of Hong Kong

  1. The Hong Kong Government purports to state the ethnic characteristics of Hong Kong in paragraphs 14 to 16 of the Thirteenth Periodic Report. In paragraph 15, the Hong Kong Government states that it does not possess any information on the racial characteristics of Hong Kong. We enclose a press clipping on Hong Kong Immigration Department's data on foreign citizens in Hong Kong in supplement [7].
  2. The unsatisfactory state of available information leads to difficulty in gauging the size of racial or ethnic minorities in Hong Kong. Reference to place of birth as an indicator of racial or ethnic characteristic is ineffective in view of the geographical and historical underpinning of Hong Kong and the patterns of immigration, settlement and emigration engendered by such conditions.
  3. Particular difficulty is encountered in relation to the Indian minorities in Hong Kong since many such families have lived in Hong Kong for generations and so members of these families are going to state their place of birth as Hong Kong when asked during a population census. This difficulty applies in a lesser extent to the South East Asian minorities.
  4. The data supplied by the Hong Kong Government offers no assistance in determining the number of new legal immigrants into Hong Kong and the ethnic or national origin characteristics of these persons.
  5. The Hong Kong Government does not supply any data on the number of persons of foreign origin who are in Hong Kong for employment. No data is supplied on the number of persons so employed as foreign domestic helpers, as professional, technical or managerial staff, or as skilled workers.
  6. We ask the Committee to urge the Hong Kong Government to give serious consideration on including a question on race or ethnicity in the population census.
Policy of Eliminating Racial Discrimination (Article 2(1))

  1. Article 2(1) contains an undertaking by State Parties to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races. The Committee has often noted that the Convention obliges State Parties to enact legislation. For 22 years after extension of the Convention to Hong Kong, there was no legislation prohibiting racial discrimination. Now 26 years after the extension of the Convention to Hong Kong, although the State is obliged to prohibit and bring to an end racial discrimination by any persons, group or organization by all appropriate means, there is still no legislation in Hong Kong prohibiting racial discrimination by private parties.

    The Hong Kong Bill of Rights Ordinance (Cap 383)

  2. The enactment of the Hong Kong Bill of Rights Ordinance (Cap 383) [8] in 1991 is a welcome step in the implementation of the United Kingdom's undertakings in Article 2 of the ICCPR. However, the format and contents of the Hong Kong Bill of Rights Ordinance still leave much to be desired.
  3. The United Kingdom undertakes to ensure that any person whose rights or freedoms as recognised in the ICCPR are violated shall have an effective remedy (Article 2(3)(a) of ICCPR). A similar undertaking is made under Article 6 of the Convention. While violations of the articles of the Hong Kong Bill of Rights have been made justiciable, the effectiveness of the remedy can only be measured in the context of litigation, which in Hong Kong is the only avenue by which a legally binding remedy for human rights violation can be sought. The inadequacies in the approach of the courts are described in the enclosed briefing note by Andrew Byrnes [9].
  4. A proposal put forward during the 1994-95 legislative session for a comprehensive Human Rights Commission was blocked by the active opposition of the Hong Kong Government. We are of the view that the establishment of a Human Rights Commission in terms of the proposal would go a long way to fulfil the purposes highlighted in General Recommendation XVII of the Committee (42nd Session 1993) on the establishment of national institutions to facilitate the implementation of the Convention. We urge the Committee to call on the Hong Kong Government for the establishment of a Human Rights Commission as a means of more effective implementation of the Convention.
  5. A proposal for comprehensive human rights legislation to outlaw discrimination led to some significant, though piecemeal initiatives from the Hong Kong Government in the areas of sex and disability discrimination which were passed into law but have not yet been brought into force more than 6 months after their passage.
  6. Without a statutory Human Rights Commission, individual legal action against a violator of human rights has serious implications in time, effort and costs. The Hong Kong Government, despite many requests, has declined to adopt a policy of asking for no order for costs in a Bill of Rights challenge. Applications for legal aid in civil cases involving Bill of Rights issues (apart from immigration related cases) mostly failed on the merits test adopted by the Legal Aid Department in determining whether to grant legal aid. A discretion has now been vested in the Director of Legal Aid in these cases but in the few cases in which this discretion has been exercised in favour of applicants, this has only been after strenuous lobbying.
  7. Even where a legal action is launched and the human rights violation alleged established, section 6 of the Hong Kong Bill of Rights Ordinance presents two more hurdles for the person concerned. The remedy must be one the court has power to grant or make in the proceedings concerned. It must also be one that the court considers appropriate and just in the circumstances. Up to now, the courts have not developed any doctrine whereby the violation of a human right recognised in the Hong Kong Bill of Rights would serve as an independent ground for the award of remedies which a court may make in the proceedings before it. The failure of the courts to do so can be illustrated in the context of applications for stay of proceedings. See R v William Hung (1993) 3 HKPLR 328 [10]. It is highly unlikely in our view for the courts to order reinstatement in a racial discrimination case as a remedy, since such a remedy is not a known remedy under common law. We ask the Committee to underline the need for a State Party, and the particular responsibility of the judiciary in this regard, to grant effective remedies.
  8. Despite the stated intention of the Hong Kong Government when introducing the Hong Kong Bill of Rights, section 7 of the Hong Kong Bill of Rights Ordinance was interpreted as barring inter-citizen disputes from the operation of the Hong Kong Bill of Rights. See Tam Hing Yee v Wu Tai Wai (1991) 1 HKPLR 261 [11]. The Court of Appeal, in the same case, also considered that it was proper for a statutory provision to be repealed by operation of section 3(2) of the Hong Kong Bill of Rights Ordinance with respect to citizen-state disputes and not with respect to inter-citizen disputes. The effect of this judgment is that laws relating to civil litigation, family affairs, probate and administration of estates, and the regulation of inter-citizen matters are immune from challenge under the Hong Kong Bill of Rights. Further, as the Court of Appeal itself noted, is that the obligations under the ICCPR are not given effect to fully. The Hong Kong Government has rejected calls to introduce amending legislation and opposed private members' initiatives to bring about a situation in conformity with the ICCPR.
  9. Sections 9 to 13 of the Hong Kong Bill of Rights Ordinance contain exceptions. These exceptions are said to reflect the reservations the United Kingdom had entered into for Hong Kong when she extended the ICCPR to Hong Kong. These exceptions, a number of which have racial and ethnic dimensions as they concern immigration laws, circumscribes the competence of the courts in Hong Kong to question or review legislative provisions and administrative actions as to their compliance with human rights guarantees set down under the Hong Kong Bill of Rights, including Article 22 thereof, which reproduces Article 26 of the ICCPR. We have called for the withdrawal of a number of these reservations and the repeal of the corresponding exempting provisions (sections 11 to 13) in our briefing paper for the United Nations Human Rights Committee.
  10. The Hong Kong Government did conduct a review of pre-existing legislation to determine whether it was consistent with the Hong Kong Bill of Rights. However, once a provision has been identified as potentially inconsistent with the Hong Kong Bill of Rights, the response of the Hong Kong Government is mixed. For some provisions, amendments which are considered to be consistent with the Hong Kong Bill of Rights were introduced with little difficulty. For others, the decision was to allow the provision to stay on the statute book and let the citizen challenge it before the courts. The police in addition imposed a moratorium on the enforcement of a number of potentially inconsistent provisions thus effectively stifling any effort to remove the offending article through the courts. Further, some issues, such as interception of telecommunications, were referred to the Law Reform Commission for study, thus causing further and much greater delay in the removal of the offending article. We are of the view that this attitude is not consistent with the obligation of the United Kingdom and Hong Kong Governments under Article 2 of the ICCPR and Article 2 of the Convention.
  11. The compatibility of the Hong Kong Bill of Rights Ordinance with the Basic Law [4] has come under debate recently. See enclosed translation of a press release by the Legal Sub-group of the Preliminary Working Committee of the Preparatory Committee of the HKSAR ( the PWC"); a statement of the Hong Kong Bar Association; and press clippings as to the recommendations by the said Legal Sub-group to repeal certain provisions of the Hong Kong Bill of Rights Ordinance [12]. Since Article 39 of the Basic Law provides that the ICCPR as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region, we are of the view that the Hong Kong Bill of Rights Ordinance, which was enacted as an ordinary ordinance, is one of the laws envisaged under Article 39 and hence does not contravene the Basic Law. We enclose a copy of the Hong Kong Bar Association's views on the Status and Effect of the Hong Kong Bill of Rights Ordinance, to which we agree [13]. We ask the Committee to express concern as to the implications of the PWC's recommendations, which, if implemented, will reduce the effectiveness of domestic legislation in protecting human rights and remedying human rights violations, including the prohibition of racial discrimination.

    Emergency Regulations Ordinance (Cap 241)

  12. The repeal by the Hong Kong Government of all regulations presently made under the Emergency Regulations Ordinance (Cap 241) [14] is to be applauded.
  13. However, the next step should be the examination of the rule-making powers currently present in the Emergency Regulations Ordinance under sections 2 and 4.
  14. The Convention contains no provision permitting derogation from any of the obligations therein. In relation to compatibility with the ICCPR, we have raised our concerns before the United Nations Human Rights Committee, particularly on the loose definition of an occasion of emergency or public danger" under section 2(1) of the Ordinance; on the absence of a provision in the Ordinance requiring the Governor or Governor in Council to proclaim the existence of a public emergency before the rule-making powers can be invoked for derogation of human rights; and on the vagueness of the sole criterion for rule-making.
  15. The rule-making power contained in section 2 of the Ordinance includes the amending of any enactment, suspending the operation of any enactment, and applying of any enactment with or without modification. The Hong Kong Bill of Rights Ordinance (Cap 383) [8] is an enactment subject to this provision. This general and sweeping power, when read with section 2(4) and 4, does not take into account Article 4(2) of the ICCPR and may be used to derogate from the non-derogable obligations therein.
  16. The United Nations Human Rights Committee has voiced its concern over the Emergency Regulations Ordinance [2]. We ask the Committee to request that the rule-making provisions of the Emergency Regulations Ordinance be amended to bring them into conformity with Article 2(1) of the Convention, Article 4 of the ICCPR, and Article 2(2) of the Convention Against Torture, so as to ensure that no racial discrimination is permissible in time of emergency.
  17. Article 18 of the Basic Law [4] provides that the Standing Committee of the National People's Congress may decide whether the HKSAR is in a state of emergency. The stipulated reason for doing so is described to be turmoil within the HKSAR which endangers national unity or security and is beyond the control of the government of the HKSAR. The United Nations Human Rights Committee has expressed the view, shared by the Hong Kong Human Rights Monitor, that it is questionable whether this reason is compatible with the test under Article 4(1) of the ICCPR [2].

    Immigration Law

  18. Schedule 1 to the Immigration Ordinance (Cap 115) [15] sets out the categories of persons who are Hong Kong permanent residents. Hong Kong permanent residents enjoy the right of abode in Hong Kong under section 2A of the Immigration Ordinance. One of the classes of persons permitted permanent resident status are persons wholly or mainly of Chinese race", who have been in the territory for 7 years. Persons not of Chinese race only qualify for permanent resident status if they hold British Dependent Territory Citizenship (BDTC). Under the Hong Kong Bill of Rights, the right to participate in public life is guaranteed to permanent residents only. We are of the opinion that this provision constitutes a racially discriminatory practice as it indicates a preference on the ground of race. We call on the Committee to note that this provision gives special preference to a particular racial group; that this provision is racially discriminatory and is not excluded from the scope of the Convention by operation of the proviso to Article 3. We also call on the Committee to urge the United Kingdom and Hong Kong Governments to amend this provision.
  19. A practical effect of the distinction on the ground of race in Schedule 1 of the Immigration Ordinance (Cap 115) involves foreign domestic workers not of Chinese origin. They are only allowed into Hong Kong on discrete and fixed term 2 year contracts and never obtain indefinite right to remain however long they stay in Hong Kong, while migrant workers from the PRC obtain permanent residence status after 7 years of ordinary residence; and foreign professionals employed on contracts are also eligible to remain unconditionally after 7 years of ordinary residence.
  20. Section 20 of the Immigration Ordinance (Cap 115) [16] sets out the powers of the Governor to make deportation orders. Three classes of people, namely (1) immigrants other than a British citizen or a United Kingdom belonger; (2) British citizens other than a resident British citizen and United Kingdom belonger other than a resident United Kingdom belonger; and (3) resident British citizens and resident United Kingdom belonger, are identified and provided with separate criteria and procedure leading to the making a deportation order. We are of the opinion that the distinction among these 3 classes on the ground of national origin or nationality with effect on the criteria and procedure used with regard to deportation is an unjustified and racially discriminatory practice. We urge the Committee to seek an explanation from the United Kingdom and Hong Kong Governments as to how this can be reconciled with Article 2(1)(a) and to call on the two Governments to eliminate the discrimination involved in fulfilment of their obligation under Article 2(1)(c).
  21. While the policy of the Hong Kong Government was stated as not intended to separate families, the policy regarding immigration from the PRC for family reunion in fact causes separation. A child born of parents one of whom is a Hong Kong permanent resident but is found remaining in Hong Kong illegally was ordered to be removed from Hong Kong to the People's Republic of China where he had no relations to take care of him. This case was highlighted by the Economic Committee in its concluding observations as being incompatible with Article 10 of the ICESCR [1]. We consider instances of such removals of persons from Hong Kong causing a split in the family to amount to a breach of Article 5(e) of the Convention. We regret that by virtue of an excepting provision in the Hong Kong Bill of Rights Ordinance (section 11) [8], such separations cannot be challenged under the Hong Kong Bill of Rights. We invite the Committee to adopt a similar view.
  22. Another aspect of the policy regarding immigration from the PRC for family reunion is the reliance on the PRC authorities to issue one way exit permits for immigrants which is tantamount to a complete surrender of discretion to admit. Apparently the Hong Kong Court of Appeal did not accept the argument that this arrangement amounts to a delegation of discretion to a foreign country: Chan Tong Kit & Ors v Director of Immigration (Civ App No 163 of 1993, unreported) [17]. The efficacy of such reliance depends on the proper administration of the one way exit permit system by the PRC. Our understanding is that this system is inefficient, liable to corruption and fails to address the geographical distribution of applicants. In November 1994, the Economic Committee asked the Hong Kong Government to identify the criteria used in distributing one way exit permits. The Hong Kong Government, however, failed to do so, both at the hearing and subsequently. In paragraph 5 of its General Comment 19(39), the United Nations Human Rights Committee states that the right to found a family implies, in principle, the possibility to live together. And the possibility of living together implies the adoption of appropriate measures, both at the internal level and as the case may be, in co-operation with other States, to ensure the unity or reunification of families, particularly when their members are separated for political, economic or similar reasons." We believe that the maintenance of such a policy by the Hong Kong Government and its refusal to exercise discretion to entertain applications from lawful entrants using two way exit permits or passports with the consequence that families are to be split between Hong Kong and the People's Republic of China for considerable period of time amounts to a breach of Article 5(e) of the Convention. We invite the Committee to express its concerns on this issue.
  23. Section 32(4) of the Immigration Ordinance (Cap 115) [18] provides that a person who is otherwise to be removed from Hong Kong may be detained for no more than 28 days on the authority of the Secretary of Security and for further periods of not exceeding 21 days by order of a court upon application by the Attorney General, for the purpose of his giving evidence at the trial of any offence or suspected offence. It has been most commonly relied on to detain women (in some cases girls) who have entered Hong Kong illegally, or been trafficked, in ordered to facilitate the prosecution of snakeheads.
  24. We are of the opinion that this provision authorises arbitrary detention and is contrary to Article 9 of the ICCPR and Article 16 of the Convention Against Torture. The effect of this provision often leads to the absurd situation where the accused is free to move in Hong Kong having been granted bail, with the prosecution witness (who is invariably an illegal immigrant from a foreign country) subject to detention because the prosecution sees some value in his evidence. We call on the Committee to note that this provision and the practice that it generates has the effect of nullifying or impairing the liberty and security of person on the basis of a person's national origin; and that this provision is incompatible with Article 2(1)(a). We further call on the Committee to urge the Hong Kong Government to repeal this provision in fulfilment of its obligation under Article 2(1)(c).

    Incorporation of the Convention in Domestic Legislation

  25. The Committee recommended in its concluding remarks on the Twelfth Periodic Report of the United Kingdom in respect of Hong Kong that the Convention should be incorporated into the domestic legislation of Hong Kong.
  26. In paragraphs 3 to 5 of the Thirteenth Periodic Report, the United Kingdom Government responds to this recommendation of the Committee on the Elimination of Racial Discrimination and attempts to justify its failure in enacting specific legislation in Hong Kong to incorporate the Convention in domestic legislation. The United Kingdom Government, in particular, considers that the express incorporation of the provisions of the Convention into domestic law would therefore be an unnecessary departure from the United Kingdom's established practice in these matters". This response, however, sidesteps the central issue of the United Kingdom Government's willingness to carry out its obligations under the Convention, either by incorporating the Convention directly, or by enacting domestic legislation which gives effect to the Convention's provisions, in particular as they relate to discrimination by private or non-state actors.
  27. The United Kingdom has departed from its alleged established practice in respect of Hong Kong by enacting both the Hong Kong Bill of Rights Ordinance (Cap 383) [8] (which incorporates the ICCPR) and the Crimes (Torture) Ordinance (Cap 427) (which incorporates the Convention Against Torture). Therefore, it becomes difficult to sustain such an argument.
  28. We ask the Committee to urge the Hong Kong Government to enact specific legislation dealing with racial discrimination so that through such legislation, the provisions of the Convention can be given effect to in domestic law. In particular, we note particularly Articles 4(a) and (b) of the Convention, which the Committee under General Recommendation VII (32nd Session) in 1985 has recommended for their incorporation in domestic law by legislation. We are of the view the present state of the law in Hong Kong is inadequate to prohibit dissemination of ideas based on racial superiority or hatred and incitement to racial discrimination.

    Comprehensive Race Relations Legislation

  29. In 1995, a private member's bill entitled Equal Opportunities (Race) Bill [19] was presented to outlaw racial discrimination. The proposed legislation would have required the courts of Hong Kong to interpret anti-discrimination legislation to give effect to Hong Kong's international obligation stipulated in international instruments. (Note: Hong Kong still has no race discrimination legislation 26 years after the Convention was extended to the territory.) This private member's bill failed to become law due to the active opposition of the Hong Kong Government.
  30. The stance taken by the Hong Kong Government in relation to this private member's bill, plus its strenuous efforts of lobbying and disinformation, appear to be plainly inconsistent with its undertakings under Article 2(1)(b), (c), (d) and (e) and 5 of the Convention. We understand that the Bill will shortly be re-introduced before the Legislative Council. We request the Committee to seek from the Hong Kong Government an assurance of its support for such legislation.

    Review of Legislations

  31. A State Party to the Convention undertakes in Article 2(1)(c) to take effective measures to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.
  32. The reference to the Brewin Trust Fund Ordinance (Cap 1077) in paragraph 20 of the Thirteenth Periodic Report is the only instance where such an amendment was made.
  33. There are still numerous Ordinances in Hong Kong which provides for distinction, restriction or preference on the ground of race. A selection of these Ordinances [20] is listed below:
    We have discussed in detail the Immigration Ordinance (Cap 115) under a dedicated heading above. We ask the Committee to remind the Hong Kong Government of its obligation under Article 2(1)(c) and in particular to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetrating racial discrimination.

    Vietnamese Asylum Seekers

  34. The enclosed paper by Paul Harris [21] deals with grounds for detention and the conditions of detention of Vietnamese asylum seekers. The matters reviewed in this paper call into question the compatibility of Hong Kong's policy of screening and detention in closed camps with Articles 2(1)(a) and (c).
  35. The Economic Committee has expressed its deep concern about the treatment of Vietnamese asylum seekers in Hong Kong. Further, it regarded the situation experienced by children in the detention centres to be inconsistent with the provisions of the ICESCR, particularly in the field of education [1]. The United Nations Human Rights Committee has expressed concern and made recommendations on the matters raised in the said paper [2]. The Committee Against Torture has identified as a subject of concern the standards of detention of Vietnamese boatpeople in Hong Kong [3].
  36. The paper by Paul Harris makes it clear that the conditions of detention in which asylum seekers are held are inconsistent with Article 10 of the ICCPR and in particular the right to humane treatment and respect for the inherent dignity of the human person. Article 5(e)(iii) is apposite in this context. It also raises the propriety of the length of detention of many Vietnamese asylum seekers in Hong Kong. We wish to draw the Committee's attention as to the compatibility of such lengthy detention with Article 5(b) of the Convention. In particular, there are children who have spent most or even all of their lives in a detention camp, raising concern on the adequate protection of their children rights under Article 5(e). We also note that the UNHCR has recently withdrawn the provision of secondary education in the detention centres, causing concerns as to the adequate guarantee of the right to education and training under Article 5(e)(v). The Hong Kong Government has refused to request funds from the Legislative Council to provide secondary education in the detention centres; a proposal to remedy the situation put personally to the Governor of Hong Kong was not taken up; the Governor of Hong Kong did not demur when it was suggested that pressuring parents to return to Vietnam by depriving their children of education was visiting the sins of the parents on the children.
  37. We urge the Committee to call on the Hong Kong Government to take immediate steps to remedy these breaches of international human rights norms it has committed in relation to Vietnamese asylum seekers. A detailed statement of the steps to end these abuses should be provided. Alternatives to detention for those Vietnamese asylum seekers who have been detained for a lengthy period should be examined. In particular, immediate improvement in the conditions of Vietnamese children should be made.

Development and Protection of Racial Groups (Article 2(2))

Education

  1. We are concerned that the education policy in Hong Kong fails to take into account, in terms of language of instruction, the needs of ethnic minorities, particularly such needs to preserve their ethnic and cultural characteristics through the use of their languages. At present, Chinese and English are the languages of instruction in the majority of schools. Some secondary schools offer optional courses in European languages such as French and German. Some private international schools offer courses in Japanese, Korean, French or German for children of the respective expatriate group who can afford to pay for such education. However, public or government subvented schools do not provide language courses for children of ethnic minorities like Hindi, Punjabi, Urdu, Thai or Malay. This failure may amount to a breach of the obligation under Article 2(2) of the Convention to ensure adequate development and protection of racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. We ask the Committee to seek from the Hong Kong Government information on the availability of resources to cater the needs of ethnic minorities on language education so that their adequate development as a group can be enhanced.
  2. We note with regret the withdrawal of secondary schooling from Vietnamese students detained in detention camps in Hong Kong. Such a withdrawal amounts to a breach of the obligation under Article 2(2) of the Convention. We repeat our call under paragraph 37 of heading Policy of Eliminating Discrimination". We also urge the Committee to seek from the UNHCR an explanation of how this policy is consistent with the Convention, the UNHCR's mandate and the Children's Convention.

    New Migrants

  3. There appear to have been inadequate resources directed to the benefit of new migrants to Hong Kong, especially new migrants from the People's Republic of China, to enable them to integrate into Hong Kong society in fulfilment of the obligation under Article 2(1)(e). These new legal immigrants from the PRC number 150 per day and about 54,000 a year. A substantial number of these migrants are or will be children.
  4. Particular concerns are in the fields of education, housing, information, and social services, as identified in the enclosed press report [22]. We ask the Committee to request from the Hong Kong Government information on the availability of resources to cater these specific and special needs of new migrants.

    Migrant Workers

  5. Matters concerning the employment, family, voting, housing and cultural rights of migrant workers are specifically dealt with under the respective provision of Article 5 below.

    Vietnamese Asylum Seekers

  6. Matters concerning the detention and conditions of detention of Vietnamese asylum seekers in Hong Kong are dealt with above in paragraphs 34-37 under heading Policy of Eliminating Racial Discrimination".
Condemnation of Racist Propaganda and Incitement to Racial Hatred (Article 4)
  1. We repeat paragraphs 25-28 under heading Policy of Eliminating Racial Discrimination" above. We disagree with the approach taken by the Hong Kong Government as stated in paragraph 30 of the Thirteenth Periodic Report.
  2. In view of the enactment of the Hong Kong Bill of Rights Ordinance (Cap 383) [8], the interpretive statement of the United Kingdom Government in respect of Article 4, which is set out in paragraph 30 of its Thirteenth Periodic Report under the Convention in respect of the United Kingdom itself (ie the metropolitan territory), is difficult to justify in relation to Hong Kong. Although Article 22 of the Hong Kong Bill of Rights provides already in domestic law for equality before and equal protection of law to all persons and requires the law to prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on the ground of race, the prohibition only applies to state actors and the requirement regarding the content of law has not been carried out, particularly with respect to activities of non-state actors. We therefore consider that it is obligatory upon the Hong Kong Government to enact legislation to carry into effect the requirement under Article 22 of the Hong Kong Bill of Rights.
  3. We do not consider the reasons set out in paragraphs 31-36 of the United Kingdom's Thirteenth Periodic Report under the Convention in respect of the United Kingdom itself (ie the metropolitan territory) to be applicable to Hong Kong since the Public Order Act 1986 mentioned therein is not law in Hong Kong.
  4. There is no legislation in Hong Kong proscribing dissemination of ideas based on racial superiority or hatred and proscribing incitement to racial discrimination.
  5. There is no legislation in Hong Kong declaring illegal propaganda activities which promote and incite racial discrimination; proscribing participation in such activities; and proscribing provision of assistance to racist activities, including the financing thereof.
  6. Section 8 of the Societies Ordinance (Cap 151) [23] provides for a power to prohibit the operation of a society on the ground that its operation or continued operation may be prejudicial to the security of Hong Kong or to public safety or public order. We recognise the high threshold involved in establishing any one of these grounds and requests the Committee to consider whether section 8 per se fulfils the requirements under Article 4(b).
  7. We note that clause 33 of the ill-fated Equal Opportunities (Race) Bill 1995 [19] provides for an offence of serious racial vilification, which in our opinion satisfies the requirement of Article 4(a).
Prohibition of All Forms of Racial Discrimination and Guarantee of Equality before the Law without Distinction as to Race, Colour, National or Ethnic Origin (Article 5)

    Right to Equal Treatment before Tribunals and All Other Organs Administering Justice (Article 5(a)) -- Provision of Interpreters
  1. Paragraph 34 of the Thirteen Periodic Report states that ample interpretation facilities are provided to non-English speakers in the higher courts. We are however, concerned about the provision of interpretation facilities to non-Chinese or non-English speakers in the investigation process conducted by either the Immigration Department or the police. We are able to find instances in which the quality of the interpretation provided, being essential in assisting the investigating officers to determine whether statutory or administrative requirements are complied with or whether an offence has been committed, failed in achieving such a purpose and thereby caused injustice. In December, 1994, a local newspaper, the Eastern Express, launched a series of articles on this problem [24].

    Right to Security of Person (Article 5(b)) -- Vietnamese Asylum Seekers
    (Please refer to paragraphs 34-37 under the heading Policy of Eliminating Racial Discrimination".)

    Right to Participate in Elections (Article 5(c)) -- Article VII(3), Letters Patent 1917-1993

  2. A State Party to the Convention undertakes in Article 5 to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of, inter alia, political rights, in particular the right to participate in elections ---- to vote and to stand for elections ---- on the basis of universal and equal suffrage.
  3. Paragraph 12 of the Thirteenth Periodic Report sets out an amendment to the Letters Patent which is said to strengthen equal enjoyment or right and equal protection of the law regardless of one's race, colour or national or ethnic origin.
  4. However, the Letters Patent was further amended in 1993 [25] by adding the following provision:
    (3) Nothing in this Article shall be construed as precluding the making of laws which, as regards the election of Members of the Legislative Council, confer on persons generally or persons of a particular description any entitlement to vote which is in addition to a vote in respect of a geographical constituency."
    The provision mentioned in paragraph 12 of the Thirteenth Periodic Report was then re-numbered to (5).
  5. This 1993 amendment was held recently to confer, on persons of a particular description, an entitlement to vote which is in addition to a vote in respect of a geographical constituency and laws establishing such additional voting systems, known as functional constituencies, was held not to be unconstitutional. See Lee Miu Ling & Anor v Attorney General [1996] 1 HKC 124 [26].
  6. A description of person may include his race, colour or national or ethnic origin. Hence, it can be said that Article VII(3) of the Letters Patent sanctions an electoral system of functional constituencies which can be prescribed according to a person's race, colour, or national or ethnic origin.
  7. We therefore consider that the United Kingdom and Hong Kong Governments were in breach of Articles 2 and 5 of the Convention in enacting this 1993 amendment to the Letters Patent. We ask the Committee to consider this matter and come to a similar view.
  8. A person is entitled to be registered as an elector under the Electoral Provisions Ordinance (Cap 367) if he or she satisfies the residential qualification, the age qualification and the condition of being in possession of an identity card set out in ss 7 to 10 therein. Foreign domestic helpers who have ordinarily resided in Hong Kong for a continuous period of 7 years will satisfy the residential qualification. However, when this fact was reported in April 1995, a campaign was launched by their employers seeking to revoke the entitlement of the foreign domestic helpers [27]. We ask the Committee to request the Hong Kong Government to state its position on this issue.

    Equal Access to Public Service (Article 5(c)) -- Civil Service: Distinction between Expatriate and Local Recruits and Localization Policy

  9. Paragraphs 50 and 51 of the Thirteen Periodic Report concern the recruitment policy of the Hong Kong Government and in particular the terms and conditions of service.
  10. The localization policy of the Hong Kong Government is recently the subject of litigation at the High Court in Re Association of Expatriate Civil Servants of Hong Kong & Ors (HCMP No 3037 of 1994, unreported)[28]. A number of measures taken to implement the localization were subject to challenge by reason of their alleged incompatibility with Article 21 of the Hong Kong Bill of Rights [8]. The equivalent provision in the Convention is Article 5(c) regarding equal access to public service.
  11. Keith J held that 5 of the decisions complained of were contrary to Article 21(c) of the Hong Kong Bill of Rights as amounting to either an unreasonable restriction or a distinction prohibited by Article 1 of the Hong Kong Bill of Rights (in the present case, namely national or social origin). See p 51 of the enclosed summary of the judgment [28].
  12. On the other hand, Keith J held that 3 of the decisions complained of constituted a prima facie infringement of Article 21(c) of the Hong Kong Bill of Rights but were justifiable departures from the fundamental human right in question. Keith J held that these measures satisfied the test of rationality by reason of, inter alia, the need of the Hong Kong Government to maintain good industrial relations with local officers. This ruling was commented to be questionable since the Court appeared to have invoked the doctrine of margin of appreciation" originated from the supra-national context of the European Court of Human Rights and applied it in the municipal and domestic context of Hong Kong. Further, good industrial relations and the corollary need to placate opposition to a government policy may not be objective and legitimate grounds of justification. We enclose the relevant portion of the judgment for the Committee's attention [28]. We ask the Committee to comment on these issues.
  13. The litigation described above proceeded under the background of the Hong Kong Government's scheme of determining whether a new recruit to the civil service should be offered overseas conditions of service, which have increased benefits in terms of housing, passage and leave. This process of determination of a person's status is governed by Civil Service Regulation 115 [29]. We consider that the conditions under which overseas conditions of service are offered have the effect of excluding persons of genuine need in terms of housing and extra leave on the basis of race or national origin since persons who are habitually resident in Macau, China or Taiwan are predominantly ethnic Chinese. Hence it sanctions discrimination and creates two classes of employees based, in practice and to a large extent, on race. The criteria under Civil Service Regulations 115 have been adopted in tertiary institutions in Hong Kong regarding terms of employment. We ask the Committee to comment on the compatibility of these criteria with the Convention.

    Right to Nationality (Article 5(d)(iii)) -- Hong Kong's Indian/Ethnic Minority: Statelessness after 1997

  14. Members of Hong Kong's Indian Community face an uncertain future in terms of nationality during the changeover of sovereignty. Although most members of this community hold or are entitled to British Dependent Territory Citizenship (BDTC) under the British Nationality Act 1981 and Hong Kong (British Nationality) Order 1986, this entitlement will cease on 1st July 1997. It is uncertain whether members of this community may qualify for PRC nationality under the PRC Nationality Law, which is based on race generally. The United Kingdom so far is only ready to confer on eligible members of the community the status of British Nationals (Overseas), a status which does not provide for right of abode or entry to any place in the world; or of British Overseas Citizenship in order to reduce statelessness. As can be seen from the attached material, it is quite unclear what rights members of this community will have to a meaningful citizenship associated with Hong Kong after 1997, if any. The above comments apply also to other racial minorities in Hong Kong, such as Portuguese and Thais. Action from the United Kingdom Government in this respect is urged for in order to ensure that Hong Kong's ethnic minorities have a meaningful and effective nationality after 1997. We enclose the submissions and materials obtained from the Indian Resources Group [30].

    Right to a Family (Article 5(e)) -- Split Families: Legal Immigration from People's Republic of China for Family Reunion
    (Please refer to paragraphs 21-22 under the heading Policy of Eliminating Racial Discrimination".)
    -- Split Families: Foreign Domestic Helpers and Imported Skilled Workers
    (Please refer to paragraph 25 below.)

    Children's Rights (Article 5(e)) -- Vietnamese Asylum Seekers
    (Please refer to paragraphs 34-37 under the heading Policy of Eliminating Racial Discrimination".)

    Employment Rights (Article 5(e)(i))

  15. Paragraphs 47 and 48 of the Thirteenth Periodic Report concern the implementation of Article 5(e)(i) of the Convention in Hong Kong. General statements are made these paragraphs about the situation of Hong Kong.
  16. While these statements do not in terms misrepresent the situation, we are concerned that they may have concealed many problems encountered by migrant workers in Hong Kong.
  17. As paragraph 24 of the Thirteenth Periodic Report indicates, there are different categories of foreign workers in Hong Kong. A person who enters Hong Kong for employment is subject to the condition of stay that he shall only take such employment or establish or join in such business as may be approved by the Director of Immigration.
  18. Professionals and others with technical expertise or administrative and managerial skills are allowed into Hong Kong with few restrictions or conditions; the Director of Immigration is concerned with ascertaining the existence of a bona fide employment relationship. Such persons may extend their limit of stay in Hong Kong and can in time apply for change of status to that of resident (ie not subject to any condition of stay). They are also at liberty to sponsor their family members to enter and reside in Hong Kong as dependents.
  19. Others, such as foreign domestic helpers and imported skilled workers, are subject to a more restrictive policy regime.

    -- Foreign Domestic Helpers

  20. The importation of foreign domestic helpers is regulated by a policy administered by the Immigration Department since 1983. Persons subject to this policy are those who are not residents of Macau, China or Taiwan and are employed to perform domestic duties for an employer in Hong Kong. A standard two year employment contract applies to every foreign domestic helper. A description of the policy and its administration is set out in the enclosed extract of a report by the Commissioner for Administrative Complaints [31]. We ask the Committee to bear in mind in considering this topic the provisions of the ILO Convention Concerning Migration for Employment (No 97) (Revised 1949), which was extended to Hong Kong by the United Kingdom, a member of the ILO, and in particular, Articles 2 and 6 thereof.
  21. Although a foreign domestic helper is permitted to enter into a new employment contract with the same or a new employer upon completion of an employment contract, her visa application will be processed in the same way as an application for an initial entry visa. Multiple re-entry visas are not contemplated under the policy to be issued to foreign domestic helpers who are able to work in Hong Kong for an extended period, since they are expected to take home leave before starting their new contracts, even where the contracts are with the same employer. Therefore, it can be said that the policy does not contemplate and entertain the event where a foreign domestic helper applies for change of status to that of a resident on the basis of a period of ordinary residence in Hong Kong as a foreign domestic helper under the standard employment contract. We ask the Committee to require the Hong Kong Government to justify the rationale of this policy, which imposes an unwarranted restriction specifically upon foreign domestic helpers amongst foreign workers in Hong Kong.
  22. Where a foreign domestic helper's contract is terminated prematurely, she is generally required to leave Hong Kong within two weeks. A change of employment upon premature termination of contract is permitted on an exceptional basis, for example, circumstances where the employer has emigrated or has become insolvent or the foreign domestic helper has been abused or exploited by the employer. During those two weeks, the foreign domestic helper is prohibited from working. The Economic Committee recognised this issue as a matter of concern and recommended the abolition of this two-week rule" in its Concluding Observations in December 1994 [1] on the basis that such a rule caused serious impairment of the foreign domestic helper's economic, social and cultural rights. We ask the Committee to adopt a similar recommendation and to call on the Hong Kong Government to explain the reason for not adopting the recommendation of the Economic Committee. We also ask the Committee to consider whether this practice is consistent with paragraphs 30 and 31 of the ILO Recommendation Concerning Migrant Workers 1975 (No 151).
  23. A foreign domestic helper whose contract has been terminated prematurely and who is awaiting the resolution of a dispute with the employer will not be permitted to change employment but will be given an extension of stay as a visitor until an outcome of the dispute is known. A visitor is not permitted to take any employment during his stay in Hong Kong. Since a labour dispute may often lead to a claim before the Labour Tribunal to be conducted by the foreign domestic helper in person, such a period of stay as a visitor can be in terms of months. The implications for the foreign domestic helper's economic, social and cultural rights are simply grave. We therefore ask the Committee to call on the Hong Kong Government to explain the reason for adopting such a practice for foreign domestic helpers who have a justiciable claim against their employers and to request the Hong Kong Government to provide information as to the number of foreign domestic helpers affected by this practice.
  24. Foreign domestic helpers are subject to conditions endorsed in their visas regarding the identity of their employers and the nature of work. They are prosecuted for the offence of breach of condition of stay by taking up work of other nature with the same or a different employer; or of similar nature but with a different employer, in addition to domestic duties with the employer specified in the standard contract of employment. See the enclosed judgment of Duffy J in R v Javier (MA No 1021 of 1995, unreported) [32]. We ask the Committee whether such a condition of stay unduly restricts the choice of employment available to the foreign domestic helper and to call on the Hong Kong Government to explain the reasons for enforcing a strict prosecution policy regarding breaches of the nature described above, which often are either innocently motivated by a desire to earn additional income during spare time or committed at the behest of the employer specified in the standard employment contract. We also ask the Committee to request the Hong Kong Government to provide information as to the number of foreign domestic helpers and employers prosecuted for breach of condition of stay and employing an unemployable person respectively.
  25. Unlike professional migrant workers, foreign domestic helpers are not permitted under immigration policy to sponsor family members to enter and reside in Hong Kong as their dependents. The Economic Committee recognised this issue (being a discriminatory practice) as a matter of concern in its Concluding Observations in December 1994 and made a recommendation that the Hong Kong Government should review the employment conditions of foreign domestic helpers to provide the full enjoyment of the rights under the ICESCR [1]. We regret to report that the Hong Kong Government has so far failed to conduct the review recommended and ask the Committee to adopt a similar recommendation and call on the Hong Kong Government to explain this failure.
  26. We are disappointed to inform the Committee that on the pretext of controlling illegal immigration", the Hong Kong Government started to implement or preparations to implement, the following administrative measures since December 1995:

    We consider that these measures have the effect of distinguishing and stigmatising foreign domestic helpers within the Hong Kong society as a high risk group so far as overstaying is concerned. We ask the Committee to call on the Hong Kong Government to justify the need to impose such measures.
  27. While the standard employment contract of foreign domestic helpers [33] specifies certain conditions of work and living to be provided by the employer, such as level of salary, provision of suitable and furnished accommodation and food free of charge, and free medical treatment, such conditions are frequently breached by employers. However, there appears to be a lack of resources in combatting these breaches to ensure fair treatment to foreign domestic helpers. This situation is aggravated by the apparent unavailability of any translation of the standard employment contract and the accompanying explanatory notes to both the employer and the domestic helper in the languages which they are more familiar with [33].
  28. The standard employment contract of foreign domestic helpers merely states that the foreign domestic helper is to do domestic duties. The explanatory notes states that domestic duties include domestic cooking, household chores, baby-sitting and child minding [33]. Neither the employment contract nor the explanatory notes specifies or recommends a limit of working hours. The Economic Committee recognised this issue as a matter of concern in its Concluding Observations in December 1994 and made a recommendation that the Hong Kong Government should review the employment conditions of foreign domestic helpers to provide the full enjoyment of the rights under the ICESCR [1]. We regret to report that the Hong Kong Government has so far failed to conduct the review recommended and ask the Committee to adopt a similar recommendation and call on the Hong Kong Government to explain the said failure.
  29. Foreign domestic helpers are vulnerable to exploitation and abuse in Hong Kong because of language and communication barriers, unfamiliarity with local circumstances, and ignorance of means of recourse, redress or assistance. There are often cases involving female foreign domestic helpers being the subject of sexual or physical abuse [34]. Their human dignity has been insulted by property management companies banning them from using passenger lifts. Their cultural development both as individuals and as a group is often neglected. Proposals for the setting up of activities centres for foreign domestic helpers have been met with protests by elected representatives of the locality and residents' organization, often with a mildly racist undertone. We ask the Committee to question the Hong Kong Government as to the measures taken and the resources allocated to assist and inform foreign domestic helpers about Hong Kong and their legal rights in Hong Kong, bearing in mind the obligation of the Hong Kong Government under Article 2 of the ILO Convention Concerning Migration for Employment (No 97) (Revised 1949). -- Imported Skilled Workers
  30. Skilled workers are imported into Hong Kong either under the General Importation of Labour Scheme (GILS) or the Special Importation of Labour Scheme (Airport Core Programme). The authorised ceiling for imported workers under the GILS was set at 25,000 in January 1994.
  31. Our submissions under paragraphs 21, 23, 24 and 25 apply to imported skilled workers as well. We ask the Committee to make similar recommendations.
  32. Imported skilled workers are often recruited through employment agencies abroad and have work arranged for them through another employment agency or contractor in Hong Kong. This situation is prevalent in the construction industry. Such workers are often at risk of exploitation by employment agencies or contractors. There have been instances of suspected fraud or mistreatment in relation to pay, hours of work and conditions of living. We enclosed the relevant press clippings [35]. We ask the Committee to seek further information from the Hong Kong Government on the measures taken and the resources allocated to tackle this problem of fraud and exploitation, both in terms of prevention and enforcement, and the effectiveness of such measures.

    Housing Rights (Article 5(e)(iii))

  33. The situation regarding new migrants is dealt with under paragraphs 3-4 under the heading Development and Protection of Racial Groups".

    -- Foreign Domestic Helpers

  34. The Office of the Commissioner of Administrative Complaints (Hong Kong's Ombudsman) undertook an investigation into the accommodation for foreign domestic helpers in 1995. The report of this investigation was published in December 1995. The following are the pertinent observations of the Commissioner:
  35. The Commissioner went on to conclude that:

    -- New Territories Indigenous Population

  36. Paragraph 52 of the Thirteenth Periodic Report mentioned the small house policy and rent concessions for indigenous villagers of the New Territories.
  37. We find it dubious to suggest that the New Territories indigenous population, which is identified by descent along the male line from villagers of an established village in 1898, may qualify as a racial or ethnic group within the meaning of the Convention. We are not convinced that the argument is sound by reference to cultural, religious and linguistic distinction from the rest of the Hong Kong population. We ask the Committee to question the Hong Kong Government on the basis and reasoning for which paragraph 52 of the Thirteenth Periodic Report is drafted; and whether the Hong Kong Government is regarding the indigenous villagers of the New Territories as a racial or ethnic group within the meaning of the Convention and if so, for what reasons.

Right to Education and Training (Article 5(e)(v)) -- Vietnamese Asylum Seekers
(Please refer to paragraphs 34-37 under the heading Policy of Eliminating Racial Discrimination")

Effective Protection and Remedies (Article 6)

    Hong Kong Bill of Rights Ordinance (Cap 383)
  1. In relation to the effectiveness of the protection and remedies provided by the Hong Kong Bill of Rights Ordinance (Cap 383) [8], we repeat paragraphs 3-7 under the heading Policy of Eliminating Racial Discrimination".

    Criminal and Law Enforcement Injuries Compensation Scheme

  2. The Criminal and Law Enforcement Injuries Compensation Scheme provides for ex-gratia payment to victims of crimes of violence or law enforcement. The structure and operation of the scheme are described in paragraphs 96-100 of the United Kingdom Government's Initial Report in respect of Hong Kong submitted under Article 19 of the Convention Against Torture [37].
  3. We take issue as to the qualification of residency sets out in paragraph 98 of the said Initial Report. The Criminal Injuries Compensation Board was known to have decided that Vietnamese asylum seekers who are screened out did not qualify for compensation despite the fact that they may be detained in Hong Kong for a number of years pending repatriation. We consider that this restriction is unreasonable and racially discriminatory and urge the Committee to express a similar view and to declare this restriction to be inconsistent with the obligation of the Hong Kong Government under Article 6.

Combatting Prejudices through Teaching, Education, Culture and Information (Article 7)

  1. We are concerned that the efforts in the field of education as outlined in paragraphs 60 and 61 of the Thirteenth Periodic Report may not amount to effective measures as required under Article 7 of the Convention, bearing in mind recent privately commissioned opinion surveys showing a lack of awareness of human rights issues amongst the young people in Hong Kong. We ask the Committee to question the Hong Kong Government on the resources allocated to publicize the contents of the Convention and other human rights instruments applicable to Hong Kong; and on whether any survey has been conducted by the Hong Kong Government on the awareness of human rights by the general population of Hong Kong and if so, the results of such survey with full breakdown of figures by age, sex and education level.

Dated 15th February 1996.

P. Y. Lo, Member, Hong Kong
Human Rights Monitor


List of Enclosures

  1. Committee on Economic, Social and Cultural Rights, Concluding Observations (UN Doc. E/C/12/1994/19)
  2. United Nations Human Rights Committee, Concluding Observations (UN Doc.CCPR/C/79/Add.57)
  3. Committee Against Torture, Concluding Observations
  4. Basic Law of the Hong Kong Special Administrative Region
  5. JLG breakthrough on laws", Eastern Express, 09/02/96; Press Statement, Hugh Davies, British Delegation Leader, Joint Liaison Group, 08/02/95
  6. Dr Nihal Jayawickrama, Human Rights in Hong Kong: The Continued Applicability of the International Covenants (1995) 25 HKLJ 171
  7. Filipinos top league of expats", South China Morning Post, 03/09/95
  8. Hong Kong Bill of Rights Ordinance (Cap 383)
  9. Andrew Byrnes, Killing It Softly? The Hong Kong Courts and the Slow Demise of the Hong Kong Bill of Rights
  10. R v William Hung (1993) 3 HKPLR 328
  11. Tam Hing Yee v Wu Tai Wai (1991) 1 HKPLR 261
  12. Press release by the Legal Sub-group of the Preliminary Working Committee of the Preparatory Committee of the HKSAR (translation); Statement of the Hong Kong Bar Association; and Press Clippings
  13. Hong Kong Bar Association's Views on the Status and Effect of the Bill of Rights Ordinance (Cap 383), Laws of Hong Kong
  14. Emergency Regulations Ordinance, sections 2, 4
  15. Immigration Ordinance (Cap 115) s 2A, Sch 1; Racist law must change", South China Morning Post, 25/09/87
  16. Immigration Ordinance (Cap 115) s 20
  17. Chan Tong Kit & Ors v Director of Immigration (Civ App No 163of 1993, unreported)
  18. Immigration Ordinance (Cap 115) section 32(4)
  19. Equal Opportunities (Race) Bill 1995
  20. Various Ordinances of Hong Kong
  21. Paul Harris, The ICCPR and Vietnamese Migrants in Hong Kong
  22. Mainland immigrants want more", Eastern Express, 13/11/95
  23. Societies Ordinance (Cap 151) s 8
  24. Eastern Express articles, 29/12/94 - 05/01/95
  25. Hong Kong Letters Patent 1993 (LN 406 of 1994)
  26. Lee Miu Ling & Anor v Attorney General (Civ App No 145 of 1995, unreported)
  27. Electoral Provisions Ordinance (Cap 367) s 8; PWC objects to maids' votes", 20/04/95, South China Morning Post; Don't let foreign domestic helpers vote", South China Morning Post, 12/05/95
  28. Re Association of Expatriate Civil Servants of Hong Kong & Ors (HCMP No 3037 of 1994, unreported)
  29. Civil Service Regulations 115
  30. Indian Resources Group, Submissions and Clippings
  31. Office of the Commissioner for Administrative Complaints, Report of the Investigation on Accommodation for Foreign Domestic Helpers, December 1995 (Extract)
  32. R v Javier (MA No 1021 of 1995, unreported)
  33. Standard Employment Contract for a Foreign Domestic Helper; Explanatory Notes; Office of the Commissioner for Administrative Complaints, Report of the Investigation on Accommodation for Foreign Domestic Helpers, December 1995 (Extract)
  34. Eastern Express articles, 30/12/94, 25/10/95; South China Morning Post article, 27/11/95
  35. South China Morning Post articles, 24, 28, 29/11, 01/12/95
  36. Office of the Commissioner for Administrative Complaints, Report of the Investigation on Accommodation for Foreign Domestic Helpers, December 1995 (Extract)
  37. Initial Report submitted by the United Kingdom of Great Britain and Northern Ireland in respect of Hong Kong under Article 19 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Extract)


1996 (c) Hong Kong Human Rights Monitor