Submissions to the Legislative Council Panel on Home Affairs
On the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT)
13 March 2000
The Hong Kong Human Rights Monitor commends the HKSAR Government on its informative report to the United Nations. The HKSAR Government Report is however inadequate in many aspects. It also needs updating to include information about attempts to undermine the Public Complaints Committee (PCC) of the Hospital Authority and recent court cases on the running of juvenile homes. It chooses to withhold many important facts like the acts of torture as found by the court in its judgment in HKSAR v. Chuen Lai Sze. It tries to defend its efforts to shield some elements in the police force from independent investigation by giving a slanted description of the nature of amendments to the Independent Police Complaints Council Bill (passed by the Legislative Council in June 1999) which provided for independent investigation power to be conferred on the Council. The Government report depicts the amendments as "if implemented -- would have disrupted the effective operation of the Police complaints system" (para. 89, HKSAR Report)
Human Rights Monitor has for many years criticized the lack of independent mechanisms to handle complaints against disciplined forces especially the police. It has criticized the light punishment police officers whose complaints against them had been found to be substantiated. We do not want to repeat them here but we urge Members of the Legislative Council to refer to our previous submissions to your Council and to various UN treaty bodies for these comments.
This written brief concentrates on the application of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to Hong Kong and the problems of the Crimes (Torture) Ordinance.
The Reunification has unfortunately led to the reduction in applicable mechanisms of protection in the enforcement of the Convention.
First, a declaration was made by the British Government that under Article 21 of the Convention that it recognized the competence of the Committee Against Torture to receive and consider communications submitted by another State Party. In June of 1997, the Central People's Government of the People's Republic of China notified the Secretary General of the United Nations that the CAT would continue to apply to the Hong Kong Special Administrative Region (HKSAR). In that notification, China has not made such a declaration in respect of Hong Kong. China therefore effectively excludes this communication mechanism previously applicable to Hong Kong.
Secondly, the Central Government has made the following declaration in the same notification, "the reservations made by the Government of the People's Republic of China to article 20 1 and paragraph 1 of article 30 2 of the Convention will also apply to the Hong Kong Special Administrative Region." The reservations are:
The Chinese Government does not recognize the competence of the Committee against Torture as provided for in article 20 of the Convention.
The Chinese Government does not consider itself bound by article 30, paragraph 1, of the Convention.
The British Government did not opt out of Articles 20 and 30 of the Convention when it extended the application of the Convention to Hong Kong.
The Human Rights Monitor asks the Legislative Council to urge the Administration to discuss with the Government of the People's Republic of China, (1). to seek an explanation of why it has removed the HKSAR from coverage under Articles 20 and 30 and why it has not recognized the competence of the Committee under Article 21 in respect of Hong Kong, whilst under British rule, these articles were fully applicable to Hong Kong; (2) to report these reasons to the Committee in a by way of supplement to the Hong Kong Government's report to UN; and (3) to restore as soon as possible the application of Articles 20, 21 and 30 of the Convention to Hong Kong.
We also ask the Legislative Council to urge the Administration to discuss with the Government of the People's Republic of China apply the individual complaints procedure established by the Convention to Hong Kong thereby, but lodging a declaration with the United Nations . under Article 22 that in respect of Hong Kong "that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention". Such declaration has not been made by either the British Government or the Chinese Government in respect of Hong Kong and, as a result, no communication in respect of Hong Kong may be considered by the Committee against Torture.
The Crimes (Torture) Ordinance (CTO) was introduced in 1993 and is the Administration's legislative attempt to fulfill its obligations and responsibilities under the CAT. However, the CTO is inadequate in many aspects when it comes to complying with the standards set forth in the CAT.
The combined effects of sections 3(4) and (5) of the CTO is a wider defence provision than what is allowed for in Article 1.1 of the CAT, which only excludes from its definition, pain or suffering "arising only from, inherent in or incidental to lawful sanctions." (Emphasis added).
Section 3(4) provides that:
[I]t shall be a defence for a person charged with the offense of torture to prove that he had lawful authority, justification or excuse for that conduct.
Section 3(5) further provides that:
For the purposes of this section "lawful authority, justification or excuse" means:
in relation to pain or suffering inflicted in Hong Kong, lawful authority, justification or excuse under the law of Hong Kong;
in relation to pain or suffering inflicted outside Hong Kong-
Under section 3(4) and 3(5) of the CTO, if a foreign official committed acts of torture within the definition of the CAT outside Hong Kong where the domestic law of the place falls below international law standards in the sense that such law justifies, authorizes or excuses such acts of torture within the definition of the Convention, he may avoid legal sanction in a Hong Kong court by invoking the defence that he was acting under lawful authority, justification or excuse of that law. Such impunity is totally inconsistent with the quasi-universal jurisdiction approach to prevent and criminalize acts of torture required by the Convention.
Canada and Australia have similar torture legislation the language of which is almost identical to its Hong Kong equivalent, but which do not contain a similar defence provision. The Administration argues in para. 6 of its report that these sections are consistent with Article 1 3 ; and is not intended to authorize "conduct intrinsically equivalent to torture." We therefore urge the Administration or the Legislative Council to introduce amendments for the avoidance of doubt by stating this intention expressly in the Ordinance or to repeal the two subsections altogether.
The Convention prohibits the surrender by the Hong Kong Government of fugitive offenders to jurisdictions "where there are substantial grounds for believing that he would be in danger of being subjected to torture."
The Fugitive Offenders Ordinance does not apply to arrangements with Mainland China. The Human Rights Monitor therefore urges the Hong Kong Government to ensure that no fugitive offender will be surrendered to Mainland China if he would be in danger of being subjected to torture.
Section 4 of the CTO requires that "proceedings for an offence under section 3 shall not be instituted except with the consent of the Secretary for Justice." However, this provision may become an obstacle in the enforcement of the CTO by private individuals in that it may prevent any private prosecution of alleged perpetrators and acts as a restriction on the possible channels for redress. There are no strong reasons for justifying the government's veto power over an individuals' ability to charge under the CTO. Civilians should have the opportunity to bring charges under the CTO by way of private prosecution without hindrance. The court is well equipped to dismiss unfounded cases while the power of the Secretary for Justice to take over a case of private prosecution is still an available option for she to intervene in appropriate cases. Human Rights Monitor asks the Legislative Council to urge the Administration to remove this provision from the CTO as a display of its commitment to the prevention and prosecution of acts of torture.
Article 18 of the Basic Law states that "[i]n the event that the Standing Committee of the National People's Congress decides to declare a state of war or, by reason of turmoil . . . which endangers national unity of security and is beyond the control of the government of the Region, decides that the Region is in a state of emergency, the Central People's Government may issue an order applying the relevant national laws in the Region." However, there has been no clarification of what "relevant national laws" may be made applicable to the HKSAR and whether such laws involve the sanctioning of or provide for the justification of acts of torture and other cruel, inhuman or degrading treatment or punishment.
Furthermore, section 2(1) of the Emergency Regulations Ordinance of the HKSAR which empowers the Chief Executive on any "occasion of emergency or public danger" to "make any regulations whatsoever which he may consider desirable in the public interest" is too vague compared with the corresponding term in Article 2(2) of the CAT which is "a state of war or a threat of war, internal political instability or any other public emergency." The Government's Third Report to the United Nations Human Rights Committee admitted that there were in fact no defined criteria for invoking the powers of the Ordinance. Such regulation may allow the Administration to justify acts of torture or other types of cruel, inhuman or degrading treatment or punishment under the terms provided by section 3(4) and 3(5) of the CTO in times where a "state of emergency" or "state or war" has been declared. This Ordinance is particularly unsatisfactory because it provides for tremendous powers and allows for derogatory measures restricting human rights while it does not include safeguards like providing that the right to be free from acts of torture is non-derogatable.
Article 18 4 of the Basic Law and the Emergency Regulation Ordinance does not meet the requirements of Article 2.2 of the CAT, which states that "[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." The Government's argument that the Ordinance should be read in conjunction with Article 39 of the Basic Law has failed to appreciate the fact that it is extremely undesirable to omit such important safeguards in a legislation dealing with true or alleged emergency. This is why the UN Human Rights Committee in its 1995 Concluding Observations on Hong Kong was critical of the fact that Article 18 of the Basic Law fails to correspond with the International Covenant on Civil and Political Rights (ICCPR).
In order to comply with Article 2.2 of the CAT and Article 7 of the ICCPR, the Human Rights Monitor asks the Legislative Council (1). to urge the Administration to clarify what are the "relevant national laws," (2). ensure that such "national law" and the Emergency Regulation Ordinance conforms with international standards, by building in procedural and substantive safeguards like declaring both in the Basic Law and Ordinance that the right to be free from torture and other cruel, inhuman or degrading treatment or punishment is non-derogatable under all circumstances, including a state emergency declared by either the HKSAR or the Standing Committee of the National People's Congress.
The Government has defended in its report its non-enforcement of the CTO in HKSAR v. Chuen Lai Sze for "no reasonable prospect of securing a conviction" (para. 16, HKSAR Report).
We believe the Administration's justification for not charging the officers in the case under the CTO is without merit. Reading the judgment, it is in our view indisputable that what the officers were proven beyond reasonable doubt to have done to the victim showed an intention to inflict severe pain. It is an understatement to say that the officers' actions were extreme. In an effort to extract a confession from him and to force him to borrow money from others, the following steps, as found by the court in the judgment, were taken over a period of approximately 4 hours:
With reference to the Government's Report at paragraph 16, this conduct shows, by any remotely reasonable standard, an intention to inflict pain "above that which is normal". If it does not, how severe does the alleged torture have to be before the Administration will prosecute under the CTO?
The Administration's decision to charge the officers only with assault occasioning actual bodily harm and to prosecute them in the Magistrate's Court resulted in officers receiving extremely light sentences; two officers receiving 4 months, and the other 2 officers, 6 months. The length of these sentences combined (20 months) is considerably less than what the victim would have received if he had been convicted on a charge of possessing 56 grams of heroin after his confession to the same was extracted by these officers using these torture techniques. Had the officers been charged under the CTO, they would have been liable to a sentence of life imprisonment. This is very unfair to the victims. The decision is also not in the public interest as the prospect of a 4 to 6 month sentence for committing torture is nothing comparable to a potential life sentence as a disincentive.
The Administration's decision not to charge the officers under the CTO sets a precedent for future cases. The message it has sent to our disciplined services is that the Administration will not prosecute its officers under the CTO when they torture persons unless the torture is of such a heinous type that it is worse than the torture inflicted on the victim in this case.
The Human Rights Monitor takes the view that no reasonable person would deny that what the officers did to this victim constituted torture, including for the purposes of the definition in the CTO. Accordingly, they should have been prosecuted under the CTO. Even if -- and this appears to us to be unlikely in the extreme -- a jury had accepted that the alleged acts were proven but that the intention to inflict severe pain had not been proven, the jury could have convicted the officers for assault occasioning actual bodily harm which charge could have been offered in the alternative.
In view of the fact that that no police officers have been charged with torture and that the Administration has refused to charge the officers under the CTO even in the clear case as HKSAR v. Chuen Lai Sze, Human Rights Monitor questions the sincerity of the Government to enforce the CTO.
The Human Rights Monitor urges the Administration to reconsider its unwarranted reluctance in enforcing the CTO. We believe it is appropriate for the Administration to state publicly -- and in particular to inform the disciplined services -- that the test it has previously applied for prosecutions under the CTO has been reconsidered and that in future, cases of a similar nature will be prosecuted under the CTO.
The decision of the House of Lords in the Pinochet case made it clear that extraterritorial criminal jurisdiction in relation to torture must be exercised over all alleged torturers who are apprehended within the territory of a State party. This would include, in the view of the House of Lords, a former head of state, and in the view of some commentators, a serving head of state as well.
The Human Rights Monitor calls on the government to clarify whether under the existing law of Hong Kong (including applicable national laws and regulations) a former head of state or serving head of state accused of torture who came to Hong Kong would be able to claim immunity from prosecution or extradition proceedings and, if so, what steps the government proposes to take to bring the law into line with the applicable international obligations.
Article 20 of the CAT provides:
Paragraph 1 of Article 30 of the CAT provides:
Convention which cannot be settled through negotiations shall, at the request of one of them, be submitted to arbitration. Of within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.
Article 1 of the CAT provides:
The laws in force in the Hong Kong Special Administrative Region shall be this Law, the laws previously in force in Hong Kong as provided for in Article 8 of this Law, and the laws enacted by the legislature of the Region.
National laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to this Law. The laws listed therein shall be applied locally by way of promulgation or legislation by the Region.
The Standing Committee of the National People's Congress may add to or delete from the list of laws in Annex III after consulting its Committee for the Basic law of the Hong Kong Special Administrative Region and the government of the Region. Laws listed in Annex II to this Law shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law.
In the event that the Standing Committee of the National People's Congress decides to declare a state of war or, by reason of turmoil within he Hong Kong Special Administrative Region which endangers national unity or security and is beyond the control of the government of the People's Government may issue an order applying the relevant national laws in the Region.
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