22 June 1999

The High Court's judgment of Emily Lau's case against Xinhua came with no surprise. Ms. Lau's loss of the lawsuit signifies nothing about the substance of her charge against Xinhua under the Personal Data (Privacy) Ordinance. It only shows the difficulty of bringing Xinhua, the embodiment of the Chinese Communist Party in Hong Kong which registered itself as an agency of the Central Government, to justice.

It is disgraceful that the Department of Justice did not prosecute Xinhua, necessitating Ms. Lau's private prosecution. The Government's decision not to prosecute means that there is no equality before the law. It also renders Basic Law Article 22 (3), "all offices set up in the Hong Kong Special Administrative Region by íK the Central Government íK shall abide by the laws of the Region," inoperative. The Basic Law's aim of protecting the Hong Kong public against injustice by Central Government bodies has been frustrated.

We demand that the Government promptly clarify the legal status of Xinhua. Almost two years have elapsed since the transfer of sovereignty, and the ambiguous legal personality of Xinhua remains a burning issue which causes much unease. In Emily Lau's case, Xinhua had broken the law, but it could not be brought before the court because it has no legality personality. This agency is an unincorporated body which has not been registered under the Societies Ordinance. Xinhua can commit any offence against the law, and be immune to judicial procedure.

As recently reported in newspapers, the Government has decided to list Xinhua without qualification as a "state organ." According to Interpretation and General Clauses Ordinance (Cap 1) Section 3, an organization which exercises commercial functions cannot be regarded as a state organ. Clearly, then, Xinhua should not be treated as a state organ since it is involved in commercial activities and carries out functions of the Chinese Communist Party, besides fulfilling less controversial mandates like liaison with the Hong Kong public and Taiwan authorities. We urge Legco to block the Government's attempt to list Xinhua as a state organ.

In Report of the Hong Kong Special Administrative Region in the light of the International Covenant of Civil and Political Rights (email readers, please note that this is an italicized formal title), the Government argued that its non-prosecution of Xinhua was in public interest. We invite the Government to explain how public interest considerations applied to Xinhua in this instance. So far, the Department of Justice is reported to have said that any elaboration would generate public debate and so be "unfair to Xinhua." (SCMP Feb 28) We disagree with the government's own unfair "protection" of Xinhua from justice. We call on the Government to explain its attitude to state publicly that Xinhua should not be above the law.

1999 (c) Hong Kong Human Rights Monitor