Briefing Paper
for the Committee on the Rights of the Child

(For Hearing on 2nd and 3rd October 1996 at the Palais Des Nations, Geneva, Switzerland, in respect of the Initial Report submitted by the United Kingdom of Great Britain and Northern Ireland in respect of Hong Kong under Article 44 of the Convention on the Rights of the Child)


List of Issues

General Note

Transfer of Sovereignty

  • Issues: Continued Application of the Convention after 1997
  • Extent of Application of the Convention after 1997
  • Domestic Implementation

  • Issues: Incorporation of the Convention into domestic law (Art 4)
  • Taking the Convention into Account (Arts 3, 4)
  • Decision-making in the Best Interest of the Child (Art 3)
  • Hong Kong Bill of Rights Ordinance (Cap 383)

  • Issues: Effective Remedies
  • Children of Vietnamese Asylum-seekers

  • Issues: Conditions of Detention (Arts 2, 22, 27, 37)
  • Secondary Education (Arts 2, 22, 28, 29, 30)
  • Separation from Parents (Arts 2, 9, 22, 37)
  • Nationality and Right of Abode

  • Issues: Indian Minority (Arts 7, 8)
  • Returning Residents (Arts 7, 8)
  • BDTC by Descent and the Cut-off Date (Art 8)
  • Immigration from the People's Republic of China for Reunion

  • Issues: Separation from Parents (Arts 2, 9, 10)
  • Education and Integration into Society (Arts 2, 28, 29)
  • Deportation

  • Issues: Interests of Innocent Third Parties (Arts 3, 9, 10)
  • Child Suicides

  • Issues: Incidence of Suicides and Reasons (Art 6)
  • Abuse and Exploitation of Children

  • Issues: Incidence of Cases of Abuse (Arts 19, 34)
  • Protection of Child Witnesses (Art 19)
  • Detention of Juveniles as Prosecution Witnesses

  • Issues: Section 32(4) of the Immigration Ordinance (Cap 115) (Art 37)
  • Youth Policy

  • Issues: Charter of Youth (Art 4)
  • List of Enclosures

    Discussion

    Prepared by P. Y. Lo.
    The author is grateful for the assistance of Andrew Byrnes and Wing-kay Po in the preparation of this briefing paper and for Mr Byrnes' comments on a draft of this briefing paper.

    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 children's rights. 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 children's rights. 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 (including children amongst them) in Hong Kong. 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.In March 1996, the Committee on the Elimination of Racial Discrimination considered the 13th periodic report of the United Kingdom in respect of Hong Kong concerning the implementation of the provisions of the Convention on the Elimination of All Forms of Racial Discrimination. The Committee on the Elimination of Racial Discrimination identified as a matter of principal concern the absence of secondary education facilities for children in detention camps for Vietnamese asylum-seekers. However, the Hong Kong Government has so far not taken any positive step in addressing this matter of principal concern. See Concluding Observations of the Committee on the Elimination of Racial Discrimination [4].

    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") with the quotation above in Article 153 thereof [5].

    4.Although the Basic Law contains a chapter on the rights and responsibilities of residents of the Hong Kong Special Administrative Region ("HKSAR"), there is no provision therein on children's rights or for the protection of children. We ask the Committee to inquire of the United Kingdom and Hong Kong Governments as to their understanding of the implications of this omission and of the means by which children's rights are to be guaranteed under the Hong Kong Special Administrative Region.

    5.Both the People's Republic of China and the United Kingdom are state parties to the Convention. However, it is understood that while the United Kingdom did enter a number of reservations when she extended the Convention to Hong Kong, the People's Republic of China entered reservations when she ratified the Convention in 1992 in areas different to that of the United Kingdom. It is not known if the People's Republic of China intends to extend the Convention to Hong Kong and if so, subject to what reservations.

    6.The Initial Report does not contain a section relating to 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 Initial Report did 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 understand there have been discussions at the Joint Liaison Group level between the two governments on this topic and agreement was reached on the continued application of the Convention to Hong Kong. We ask the Committee to question the United Kingdom Government as to the discussions and arrangements with the People's Republic of China Government on the continued application of the Convention to Hong Kong, particularly in relation to the submission of reports under Article 44 of the Convention.

    7.In view of the reservations entered by the People's Republic of China during her ratification of 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. We subscribe to these views of the United Nations Human Rights Committee [6] and consider that the obligations assumed by the People's Republic of China after 1997 should be identical to those at present assumed by the United Kingdom. We ask the Committee to adopt similar views. Further we ask the Committee to question the United Kingdom Government as to the discussion 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 [7].

    8.One of the reservations entered by the People's Republic of China upon ratification of the Convention seeks to restrict fulfilment of Article 6 of the Convention to the extent that is consistent with Article 25 of the Constitution of the People's Republic of China, which enshrines family planning as a state policy. It is not known if the People's Republic of China intends to apply this reservation in respect of the HKSAR. Article 37 of the Basic Law states that the right of Hong Kong residents to raise a family freely shall be protected by law. As the application of this reservation may have the effect of depriving Article 37 of the Basic Law of its force, we ask the Committee to question the United Kingdom Government as to whether the application of this reservation has been raised in discussions with the People's Republic of China Government at the Joint Liaison Group level and the response or explanation from the People's Republic of China Government. If the United Kingdom Government indicates that no such discussion has taken place, we urge the Committee to adopt and convey our concerns and urge the United Kingdom Government to conduct such discussions.

    9.In any event, we urge the Committee to state its views on any possible mechanisms for compliance with future reporting requirements.

    10.Further, we urge the Committee to require the People's Republic of China to provide information on all of the above matters in relation to the HKSAR in her coming report, in a special report on Hong Kong, or by way of further information pursuant to Article 44(4) of the Convention.

    Domestic Implementation of the Convention

    1.The Convention is not incorporated into domestic law, which is a necessity under the Hong Kong legal system before the Convention becomes enforceable in domestic law. Nor is it mandatory for courts of law, or administrative authorities to have regard to the Convention, particularly Article 3 thereof, in making decisions affecting the interest of a child. We urge the Committee to recommend that considerations be given to incorporate the Convention into domestic law and/or to enact a statutory requirement that the Convention be taken into account when decisions, be it administrative or judicial, are made concerning, or affecting the interest of a child in Hong Kong.

    2.Paragraph 53 of the Initial Report asserts barely that, in relation to Article 3 of the Convention, "the interests of the child are given prima consideration in all policies that affect children". Although paragraphs 54 to 63 set out a number of policies touching on the interests of the child, the Initial Report does not adumbrate how the best interest of the child is to be given primary consideration in the formulation and implementation of such policies. Further, the Initial Report does not describe how best interest of the child is to be given primary consideration in the legislative process, both in relation to primary legislation considered by the Legislative Council and in relation to subsidiary legislation considered by various executive bodies given rule-making powers by the Legislative Council (eg Urban Council in relation to children's playgrounds). We ask the Committee to elicit such information from the Hong Kong Government.

    The Hong Kong Bill of Rights Ordinance (Cap 383)

    1.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.

    2.Article 20 of the Hong Kong Bill of Rights contains guarantees on the rights of children. The text of Article 20 of the Hong Kong Bill of Rights is a reproduction of Article 24 of the ICCPR. The Initial Report also mentions provisions of the Hong Kong Bill of Rights at paragraphs 45, 92, 118, 121, 125 and 162.

    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 4 of the Convention for its implementation. 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. An Equal Opportunities Commission was, however, established to assist the implementation of sex discrimination and disability discrimination legislation. We are of the view that the establishment of a Human Rights Commission in terms of the proposal would go a long way to ensure the effective 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 one year 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. 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 [10]. 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, custody and guardianship of children, 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. One of these exceptions concerns juveniles under detention and excuses the Government from the requirement of separate accommodation of juveniles under detention from adults in two circumstances (section 10). This exception mirrors a reservation entered by the United Kingdom in respect of Hong Kong when she extended the Convention to Hong Kong. The exception appears to be inconsistent with Article 37(c) of the Convention, which stipulates that separation as a norm should only be departed upon consideration of, and only of, the best interest of the child. We have called for the withdrawal of a number of these reservations and the repeal of section 10 in our briefing paper for the United Nations Human Rights Committee. We now make a similar call in relation to the reservation entered against Article 37(c) of the Convention and the exception under section 10.

    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 4 of the Convention.

    11.The compatibility of the Hong Kong Bill of Rights Ordinance with the Basic Law [5] 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 [11]. 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 [12]. 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 protection of children's rights.

    Children of Vietnamese Asylum-seekers

    1.The enclosed paper by Paul Harris [13] deals with grounds for detention and the conditions of detention of Vietnamese asylum seekers, including children. 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, 22, 27, 28 and 37 of the Convention.

    2.The Economic Committee 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 expressed concern and made recommendations on the matters raised in the paper by Paul Harris [2]. The Committee Against Torture identified as a subject of concern the standards of detention of Vietnamese boatpeople in Hong Kong [3]. The Committee on the Elimination of Racial Discrimination identified as a matter of principal concern the absence of education facilities for children in detention camps for Vietnamese asylum-seekers [4].

    3.The paper by Paul Harris makes it clear that the conditions of detention in which asylum seekers are held are inconsistent with Articles 22, 27, 37(b) and (c) of the Convention, as well as with Article 10 of the ICCPR (in particular the right to humane treatment and respect for the inherent dignity of the human person); Article 16 of the Convention Against Torture; and Article 5(e)(iii) of the Convention on the Elimination of All Forms of Racial Discrimination.

    4.The paper by Paul Harris also raises the propriety of the length of detention of many Vietnamese asylum seekers in Hong Kong. Such lengthy detention may not be compatible with Articles 22 and 37(b) of the Convention, as well as Article 5(b) of the Convention for the Elimination of All Forms of Racial Discrimination.

    5.There are children who have spent most or even all of their lives in a detention camp, which raises a serious question of compatibility with Articles 22, 37(a), (b) and (c) of the Convention, in addition to the adequacy in protecting children's rights under Article 5(e) of the Convention for the Elimination of All Forms of Racial Discrimination. We particularly questions whether the account has been taken of the needs of such children, in accordance with Article 37(c) of the Convention.

    6.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 Articles 22 and 28 of the Convention, as well as Article 5(e)(v) of the Convention for the Elimination of All Forms of Racial Discrimination. The Hong Kong Government has refused to request funds from the Legislative Council to provide secondary education in the detention centres, despite indication of willingness by Legislative Councillors to approve such a request; 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 their children.

    7.A number of transfer operations were mounted by the security forces in Vietnamese detention centres in Hong Kong. During one incident on 7th April 1994, 500 canisters of tear gas were fired on a crowd of Vietnamese asylum seekers within a confined space, causing injuries including burns to young children. Many commentators have considered this operation an act of torture on the Vietnamese asylum seekers concerned and have called for prosecution under the Crimes (Torture) Ordinance (Cap 472). The Hong Kong Government instead appointed two non-official Justices of the Peace to conduct an inquiry which found that there was excessive use of tear gas and widespread assaults by Correctional Service officers.

    8.On 20th May 1995, another transfer operation allegedly resulted in the firing of 3,250 canisters of tear gas and the application of tear smoke into a detention centre whose occupants included children.

    9.On 10th May 1996, a riot broke out in a detention centre during a transfer operation. Seven Vietnamese children (aged three to 15) were then separated from their parents and detained at Victoria Prison, a holding centre normally for Vietnamese asylum-seekers pending repatriation. It was not known if the children were held separate from adults. One of the children, a girl of three, was separated from her parents for 18 days before being re-united with them. These separations were clearly in violation of Articles 9 and 37 of the Convention. An investigation into the matter apparently revealed that two Correctional Services officers withheld complaints by parents from higher authorities. See relevant press reports [14].

    10.In March 1996, the Judicial Committee of the Privy Council (Hong Kong's highest court) held that the lengthy and continuing detention for repatriation of a number of Vietnamese asylum-seekers, who would in fact be treated as non-nationals by the Vietnamese Government under its stated policy, and not accepted back, was illegal, as the legal purpose of the detention could not be carried out. The Hong Kong Government responded by introducing a Bill to prevent other asylum-seekers in similar situations from challenging the legality of their detention under this route. No special consideration was given to children applicants by the Hong Kong Government. We produced a position paper setting out our arguments in opposition to this Bill. The Hong Kong Government subsequently modified its proposals. They were then passed into law in a confusing and ambiguous form which awaits further interpretation in the courts. See judgment of the Judicial Committee of the Privy Council in Tan Te Lam & Ors v Superintendent of Tai A Chau Detention Centre (1996) 6 HKPLR 13; Immigration (Amendment) Bill 1996; Position Paper of the Hong Kong Human Rights Monitor on the Immigration (Amendment) Bill 1996; Immigration (Amendment) Ordinance 1996 (33 of 1996) [15].

    11.We note that the United Kingdom Government has entered a reservation in respect of Hong Kong that the Convention would be applied to the fullest extent to children seeking asylum in Hong Kong except in so far as conditions and resources make full implementation impracticable. The United Kingdom also reserves the right to continue to apply any legislation in Hong Kong governing the detention of children seeking refugee status, the determination of their status and their entry into, stay in and departure from Hong Kong. However, we are of the view that the present conditions and resources in Hong Kong do not present an excuse for the Hong Kong Government to state that full implementation of the Convention to children seeking asylum is impracticable and so the Hong Kong Government may not reasonably rely on the former reservation to justify its actions. Further, we consider that the latter reservation is incompatible with the object and purpose of the Convention and should not be relied upon as justification of any action taken by the Hong Kong Government. See United Nations Human Rights Committee, General Comment No 24(52) [16].

    12.Many Vietnamese children are abandoned in the detention camps or even immediately after birth by their parents at the maternity wards. The Hong Kong Government is now drawing up rules for the adoption of these children. See the enclosed press report [17]. We ask the Committee to indicate to the Hong Kong Government that such rules must take the best interest of the child as a primary consideration.

    13.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. Immediate improvement in the conditions of Vietnamese children should be made.

    Nationality and Right of Abode

    Ethnic Minority

    1.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 People's Republic of China 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 and cannot be passed on to the next generation; or of British Overseas Citizenship in order to reduce statelessness. The number of persons who may become stateless after 1st July 1997 is estimated to be about 8,000. 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 in order to ensure that Hong Kong's ethnic minorities have a meaningful, effective, and inheritable nationality after 1997. Such a plea has been endorsed by organizations such as the Advisory Commission of the Commonwealth Human Rights Initiative. We enclose the submissions and materials obtained from the Indian Resources Group [18].

    2.In March 1996, the British Prime Minister indicated that any member of the ethnic minority community, being solely a British national, who came under pressure to leave Hong Kong would be guaranteed admission to the United Kingdom. However, no indication was given that this assurance of the Prime Minister would be legislatively guaranteed.

    3.Moreover, we note that such an assurance by the British Prime Minister does not present a solution to the satisfaction of the right of children of the ethnic minority to acquire a nationality under Article 7(1) of the Convention.

    Returning Residents

    1.The Preparatory Committee for the Hong Kong Special Administrative Region has adopted an opinion on the implementation of Article 24, 2nd paragraph of the Basic Law [5]. In relation to persons who are presently Hong Kong permanent residents and have since emigrated to another country and thereby obtained the nationality of that country, the Preparatory Committee's position is that such persons should upon their return to the HKSAR after 1st July 1997 decide whether to declare their foreign nationality. If they decide to declare their foreign nationality, they would lose their permanent resident status. If they decide not to declare their foreign nationality, they would be considered as People's Republic of China nationals and would not be entitled to consular protection by their country of nationality.

    2.Questions have been raised as to whether children of these returning residents can decide which nationality to take. See the enclosed press article [19].

    3.We consider that this issue impinges upon the right of the child to preserve his or her identity under Article 8 of the Convention. Such identity includes, in our view, not only nationality, but also the status of permanent resident, which is an entitlement to the right of abode and the right not to be deported, expelled or removed from Hong Kong. We ask the Committee to require the United Kingdom Government to clarify this issue with the People's Republic of China Government.

    BDTC by Descent and the Cut-off Date

    1.According to the British Nationality Act 1981, children one of whose parents is a British Dependent Territory Citizen having a connection with Hong Kong may acquire the British Dependent Territory Citizenship of that parent by way of descent.

    2.On average, the Hong Kong Government receives about 3,000 such applications a year from children of British Dependent Territory Citizens born in the People's Republic of China.

    3.The Hong Kong Government has indicated that it will not entertain applications by such children after 1st July 1997 since the category of British Dependent Territory Citizens having a connection with Hong Kong will cease to exist after that date. See the enclosed press report [20].

    4.We are concerned that this arrangement may have the effect of depriving children of British Dependent Territory Citizens having a connection with Hong Kong the status of British Dependent Territory Citizenship by descent, a status which they acquired at birth, merely by reason of the fact that their parents lodged their applications for registration after 1st July 1997 even though they were born before that date. As the British Dependent Territory Citizenship is a pre-requisite for the status of British National (Overseas) and paragraph 85 of the Initial Report indicates that applications for registration of children as British National (Overseas) can still be made after 1st July 1997 but before 30th September 1997, we regard this arrangement as unduly harsh. We ask the Committee to raise our concerns and indicate to the United Kingdom Government that such an arrangement has the effect of depriving children of their entitlement to British nationality status and should be modified.

    Immigration from People's Republic of China for Reunion

    Separation of Families

    1.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. (It was reported that the number of families split between Hong Kong and the People's Republic of China is as high as 100,000.) In 1994, a child born of parents one of whom was a Hong Kong permanent resident but who was 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 [1] as being incompatible with Article 10 of the ICESCR. The relevant portion in the Initial Report are paragraphs 163 to 167. We consider such removals of persons from Hong Kong which cause a split in the family to amount to a violation of Article 9 of the Convention and ask the Committee to examine the rationale for removal and to express a similar view. 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.

    2.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 (CA No 163 of 1993, unreported) [21]. 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. (Note: A points system is under consideration.) Further, there is a lack of co-ordination in the system to take into account together separate applications by children and their mother to cater for the particular pattern of Hong Kong men marrying Chinese women in the People's Republic of China; to preserve the unity of the nuclear family; and to ensure that the children will be properly cared for in Hong Kong. (For the plight of families suffering from such lack of co-ordination, see the enclosed press report [22].) In any event, the maintenance of such a policy absolves the Hong Kong Government from treating any application in a positive, humane and expeditious manner since the Hong Kong Government entertains no application at all. 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, did not follow up to provide this information. In paragraph 5 of its General Comment 19(39), the United Nations Human Rights Committee stated 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 violation of Articles 9 and 10 of the Convention.

    3.The immigration policy with respect to family reunion from the People's Republic of China compares unfavourably with the immigration policy with respect to family reunion from other countries, such as Indonesia or Thailand, where applications can be approved by the Hong Kong Immigration Department in a matter of months. We believe that in these circumstances, the maintenance of the immigration policy with respect to family reunion from the People's Republic of China amounts to a violation of Article 2 of the Convention, ie discrimination on the basis of national origin.

    Education and Integration into Society

    4.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 Articles 27 and 28. 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.

    5.On 31st January 1996, the Hong Kong Legislative Council passed a motion calling for a new migrant policy from the Hong Kong Government to cater for the possibility that thousands of children may enter the HKSAR within a short period of time after 1st July 1997 on the basis of their status as HKSAR permanent residents, pursuant to Art 24 of the Basic Law. Particular concerns are in the fields of education, housing, information, and social services, as identified in the enclosed press report [23]. Weask the Committee to request from the Hong Kong Government information on the availability of resources to cater for these specific and special needs of new migrants.

    6.In the field of education, according to a survey by the Boys and Girls Clubs Association of Hong Kong, 62% of new migrant students were able to find a school to continue their studies within a month of landing in Hong Kong but about 40% of new migrant students took more than two months to find a school place. Sixteen per cent of new migrant students took more than four months to do so. Less than 30% of the new migrant students received help from the Education Department. Further, 43% of the new migrant students had to re-take the same grade and 31% had to suffer a reduction in grade. We ask the Committee to question the Hong Kong Government on its effort in ensuring that all new migrant students will be able to continue their education upon arrival and at a grade commensurate to their abilities, and in helping such students to overcome their initial language difficulties and on the utilization of the services mentioned in paragraphs 327 and 328 of the Initial Report.

    7.The same survey also indicates that 41% of the new migrant students were dissatisfied with the living environment. The typical housing environment for new migrants is either a rented room in a private flat or a unit in a temporary housing area. Particular objections were overcrowding and noise. We ask the Committee to question the Hong Kong Government on its effort in ensuring that all new migrant children are able to develop in an environment no less advantageous than that for locally born children.

    Deportation

    1.The High Court in Hong Kong recently acknowledged the relevance of hardship to innocent third parties as a consideration as to whether a deportation order ought to be made under section 20 of the Immigration Ordinance (Cap 115). See Singh & Ors v Secretary for Security & Anor (HCMP 269 of 1996, unreported) [24].

    2.However, the position regarding Articles 3 and 9 of the Convention could not be fully affirmed in view of the reservation entered by the United Kingdom in respect of Hong Kong to the effect that the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from Hong Kong of those who do not have the right under the law of Hong Kong to enter and remain in Hong Kong, and to the acquisition and possession of citizenship, as it may deem necessary from time to time, is reserved.

    3.We ask the Committee to state its opinion as to whether the said reservation is compatible with the object and purpose of the Convention. We further ask the Committee to affirm the importance of the best interest of the child as a primary consideration in deportation proceedings where a child is a relation of and innocent third party affected by the proposed deportation of the proposed deportee.

    Child Suicides

    Incidence and Reasons for Suicides

    1.Child suicides have been troubling parents, teachers and social workers for last few years. Such suicides often happen around examination times. See the enclosed press report [25].

    2.The Initial Report does not deal with this issue under Article 6 of the Convention, but rather under mental health. See paragraphs 218 to 227, and 272 to 273. We urge the Committee to ask the Hong Kong Government for information of its concrete proposals to address this problem in the fields of education and social welfare.

    Abuse and Exploitation of Children

    Incidence of Cases of Abuse

    1.According to press reports, the Social Welfare Department handled 352 cases of child abuse in 1994, of which 22 were cases of sexual abuse. In 1995, 355 cases of child abuse were dealt with, of which 62 were cases of sexual abuse. The extent of the sexual abuse reported has also become more and more serious.

    2.Certain districts of Hong Kong were identified as having a high incidence of physical abuse of children requiring hospital treatment. The rate of incidence could be as high as 40 in 100,000 children. Further, 85% of the abusers were parents of the subject child. Characteristics of these families include economic difficulties, lack of support, and strained relationships.

    3.The Child Protection Policy Unit, joint operation by the police and the Social Welfare Department, has published its statistics recently. Of the 152 children it handled during the first eight months of its operation, 102 of them were victims of sexual abuse and the rest physical abuse. The majority of those who were sexually abused were victims of incest. See relevant press report [26].

    4.We ask the Committee to express its concern at the high incidence of child abuse in Hong Kong (both physical and sexual), particularly at the high incidence of incest. We further urge the Committee to ask the Hong Kong Government to identify the reasons for such a high incidence of abuse and the measures taken to curb such abuses.

    Protection of Child Witnesses

    5.The Initial Report indicates at paragraph 35 that the Criminal Procedure Ordinance (Cap 221) provides for testimony of a child witness to be given via a live video link. This measure is applicable to cases involving an "offence of sexual abuse".

    6.However, the definition of an "offence of sexual abuse" omitted reference to the offence of incest. This error of the draftsman and oversight by legislators have caused a High Court trial of an incest case to be halted on 31st May 1996. Remedial emergency legislation was then enacted. See enclosed press reports and amendment to Criminal Procedure Ordinance (Cap 221) [27].

    Detention of Juveniles as Prosecution Witnesses

    Section 32(4) of the Immigration Ordinance (Cap 115)

    1.Section 32(4) of the Immigration Ordinance (Cap 115) [28] 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.

    2.The Initial Report does not contain any reference to this section of the Immigration Ordinance (Cap 115).

    3.We are of the opinion that this provision authorises arbitrary detention and is contrary to Articles 2 and 37(a) and (b) of the Convention; Article 9 of the ICCPR; Article 16 of the Convention Against Torture; and Article 2(1)(a) of the Convention on the Elimination of All Forms of Racial Discrimination. 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 Articles 2 and 37(a) and (b) of the Convention.

    Youth Policy

    Charter for Youth

    1.Paragraph 10 of the Initial Report describes the Commission on Youth enunciating important principles and ideals on youth development through the Charter for Youth, which is open for subscriptions by organizations.

    2.The enclosed press reports [29] indicate that the Charter for Youth was under-publicised amongst youths. Further, youth organizations lack money and staff to implement the recommendations made in the Charter for Youth.

    3.We urge the Committee to ask the Hong Kong Government to review its youth policy (if any) and to inject more resources into youth organizations to make the goals set out in the Charter for Youth closer to reality.

    Dated 5th September 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. Committee on Elimination of Racial Discrimination, Concluding Observations
    5. Basic Law of the Hong Kong Special Administrative Region
    6. "JLG breakthrough on laws", Eastern Express, 09/02/96; Press Statement, Hugh Davies, British Delegation Leader, Joint Liaison Group, 08/02/95
    7. Dr Nihal Jayawickrama, Human Rights in Hong Kong: The Continued Applicability of the International Covenants (1995) 25 HKLJ 171
    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. Tam Hing Yee v Wu Tai Wai (1991) 1 HKPLR 261
    11. 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
    12. Hong Kong Bar Association's Views on the Status and Effect of the Bill of Rights Ordinance (Cap 383), Laws of Hong Kong
    13. Paul Harris, The ICCPR and Vietnamese Migrants in Hong Kong; South China Morning Post, 29/8/96
    14. South China Morning Post, 6/6/96, 7/6/96 and 22/6/96
    15. Tan Te Lam & Ors v Superintendent of Tai A Chau Detention Centre (1996) 6 HKPLR 13; Immigration (Amendment) Bill 1996; Position Paper of the Hong Kong Human Rights Monitor on the Immigration (Amendment) Bill 1996; Immigration (Amendment) Ordinance 1996 (33 of 1996)
    16. United Nations Human Rights Committee, General Comment No 24(52)
    17. South China Morning Post, 1/8/96 and 20/8/96
    18. Indian Resources Group, Submissions and Clippings
    19. South China Morning Post, 27/8/96
    20. South China Morning Post, 27/7/96
    21. Chan Tong Kit & Ors v Director of Immigration (Civ App No 163 of 1993, unreported)
    22. South China Morning Post, 20/7/96
    23. Eastern Express, 13/11/95; South China Morning Post, 22/2/96, 21/7/96 and 9/8/96
    24. Singh & Ors v Secretary for Security & Anor (HCMP 269 of 1996, unreported)
      Eastern Express articles, 29/12/94 - 05/01/95
    25. South China Morning Post, 21/10/95
    26. South China Morning Post, 27/8/96
    27. South China Morning Post, 1/6/96, 5/6/96, 9/7/96; Criminal Procedure (Amendment) Ordinance 1996, s 5
    28. Immigration Ordinance (Cap 115) section 32(4)
    29. South China Morning Post, 21/10/95


    1996/1997 (c) Hong Kong Human Rights Monitor