Briefing Paper for the United Nations Committee Against Torture

(For Hearing on 17th November 1995 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 19 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment)

List of Issues

Transfer of Sovereignty

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

Prohibition of Torture

Issues:
Hong Kong Bill of Rights Ordinance (Cap 383) -- Article 2(1)
Emergency Regulations -- Article 2(2)
Deportation and Removal of Persons -- Article 3
Crimes (Torture) Ordinance (Cap 427) -- Articles 4, 7, 12
Extradition -- Article 8Police Powers and Complaints Against Police -- Articles 12, 13
Complaints Against Other Disciplined Services -- Article 12, 13
Criminal and Law Enforcement Injuries
Compensation Scheme -- Article 14
Confessions -- Article 15
Vietnamese Asylum Seekers

Prevention of Cruel, Inhuman or Degrading Treatment or Punishment

Issues:
Vietnamese Asylum Seekers
Immigration from People's Republic of China for Family Reunion
Detention of Illegal Immigrants as Prosecution Witnesses

Article 22

Issues:
Extension to Hong Kong of Right to Individual Communication

Discussion

Prepared by Andrew Byrnes and P. Y. Lo

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 PRC 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 [1] (Enclosure Number).

4.Torture is expressly prohibited under Article 28 of the Basic Law. However, there is no mention of cruel, inhuman or degrading treatment or punishment in the Basic Law. We ask the Committee to make enquiries with the United Kingdom and Hong Kong Governments as to their understanding of the implications of the said omission and of the means by which cruel, inhuman or degrading treatment or punishment is to be prohibited or prevented under the Hong Kong Special Administrative Region ("the HKSAR").

5.Both the People's Republic of China and the United Kingdom are state parties to the Convention. However, it is understood that whereas the United Kingdom did not enter any reservation when she extended the Convention to Hong Kong, the People's Republic of China entered a number of reservations when she ratified the Convention in 1988, including one in terms of Article 28(1). Further, whereas the United Kingdom has made a declaration in terms of Article 21 to recognize the competence of the Committee regarding inter-state complaints, the People's Republic of China has not done so.

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 ask the Committee to question with the United Kingdom Government as to the discussions and arrangements (if any) with the People's Republic of China Government on the continued application of the Convention to Hong Kong.

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. We understand that 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 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 [2].

8.Where the answers of the United Kingdom Government on the continued application of the Convention to Hong Kong after 1997 prove to be unsatisfactory, we ask the Committee to give serious consideration to ask 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 provide information and assistance in relation to the said issues.

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

Prohibition of Torture

The Hong Kong Bill of Rights Ordinance (Cap 383)
1.The enactment of the Hong Kong Bill of Rights Ordinance (Cap 383) [3] in 1991 is a welcome step in the implementation of the United Kingdom's undertakings in Articles 2 and 16 of the Convention. However, the format and contents of the Hong Kong Bill of Rights Ordinance still leave much to be desired.

2.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 14 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 [4].

3.A proposal for a comprehensive Human Rights Commission was stillborn as a result of active opposition on the part of the Hong Kong Government. We expect the Human Rights Committee to receive a full account of this matter.

4.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 on the Director of Legal Aid in these cases but such a discretion is rarely exercised in favour of the applicant and only after strenuous lobbying.

5.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 [5]. 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.

6.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 in 1976. We wish to take issue with respect to sections 9 to 12.. These exceptions circumscribed 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 3 thereof, which reproduces Article 7 of the ICCPR. We have called for the withdrawal of a number of these reservations and hence the repeal of the corresponding exempting provision in our briefing paper for the United Nations Human Rights Committee. In view of the absence of any reservation to the Convention in respect of Hong Kong, we invite the Committee to underline the negative effects of these exceptions; and to ask the United Kingdom Government for information on actions taken to review, reconsider or withdraw these reservations.

7.The Hong Kong Government did conduct reviews into pre-existing legislation to determine whether they were 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 a review of police interrogation procedures, 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.

8.The courts in Hong Kong have been interpreting Article 5 of the Hong Kong Bill of Rights, which prohibits arbitrary arrest or detention, as conferring a right to procedural review only. This is contrary to international jurisprudence and the views taken by the United Kingdom Government during the drafting of the ICCPR. As a violation of the human right guaranteed in this Article is often a precursor to a violation of the Articles of the Convention, we ask the Committee to underline the purposive interpretation adopted in domestic human rights legislation to give effect to the object and purpose of human rights treaties; to urge the Hong Kong courts to be more receptive to international jurisprudence; and to urge the Hong Kong Government to bear in mind international jurisprudence when making submissions before the courts while attempting to justify legislation or administrative acts as being consistent with the Hong Kong Bill of Rights.

9.The compatibility of the Hong Kong Bill of Rights Ordinance with the Basic Law [1] 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; a statement of the Hong Kong Bar Association; and press clippings as to recommendations by the said Legal Sub-group to repeal certain provisions of the said Ordinance [6]. 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 HKSAR, 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 ask the Committee to express concern as to the implications of the said recommendations, which are to reduce the effectiveness of domestic legislation in protecting human rights and remedying human rights violations, including the prohibition of torture and other cruel, inhuman, or degrading treatment or punishment.

Emergency Regulations
1.The Initial Report does not contain any information relating to emergency regulations and their compatibility with the provisions of the Convention.

2.The repeal by the Hong Kong Government in June 1995 of all regulations presently made under the Emergency Regulations Ordinance (Cap 241) is to be applauded.

3.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 [7]. There is much to be desired in terms of compatibility with Article 4 of the ICCPR and also with Article 2(2) of the Convention.

4.The definition of the occasion for which section 2(1) can be invoked, namely "an occasion of emergency or public danger", is too vague compared with the corresponding term in Article 2(2), which is "a state of war or a threat of war, internal political instability or any other public emergency".

5.The rule-making power contained in section 2 includes the amending of any enactment, suspending the operation of any enactment, and applying of any enactment with or without modification. This general and sweeping power, when read with section 2(4) and 4, does not take into account Article 2(2) and may be used to sanction or justify acts of torture and other cruel, inhuman or degrading treatment or punishment.

6.We urge the Committee to request that the rule-making provisions of the Emergency Regulations Ordinance be amended to bring them into conformity with Article 2(2).

7.Article 18 of the Basic Law [1] 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". It is questionable whether this reason is compatible with the test under Article 2(2).

8.Article 18 of the Basic Law also states that whenever the Standing Committee of the National People's Congress decides that the HKSAR is in a state of emergency, the Central People's Government may issue an order applying "relevant national laws" in the HKSAR. It is questionable what these "relevant national laws" are 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.

9.We urge the Committee to seek clarification of the meaning of Article 18 of the Basic Law and whether it is consistent with Article 2(2).

Deportation and Removal of Persons
1.Paragraphs 20 to 23, and 31 to 34 of the Initial Report attempt to set out the situation relating to removal and deportation of persons under Hong Kong law. However, we consider these paragraphs fail to reflect a full and accurate picture of the matters at hand.

2.The right to appeal to the Immigration Tribunal is limited to a number of factual matters only such as that he had the right of abode in Hong Kong or had the permission of the Director of Immigration to remain in Hong Kong at the date when the removal order was made. Danger of being subject to torture upon return is not a ground of appeal.

3.Article 9 of the Hong Kong Bill of Rights is much circumscribed by section 12 of the Hong Kong Bill of Rights Ordinance (Cap 383). There is no right of review or a right to representation for this purpose. The Solicitor-General of Hong Kong, when questioned upon this matter by a member of the United Nations Human Rights Committee in October 1995, was reported to have said that Article 9 of the Hong Kong Bill of Rights in the circumstances guaranteed the application of the due process.

4.The Initial Report does not inform the Committee whether a potential deportee or removee will be informed of the right to make representations against deportation or removal on the ground of danger of being subject to torture upon return. We ask the Committee to question the Hong Kong Government as to whether and by what means deportees and removees are informed of this right; and to obtain information from the Hong Kong Government as to the number of instances whereby a deportee or removee raised such a ground against the deportation or removal, as the case may be, the decision of the Director of Immigration or any other relevant authorities, and the treatment of that person, so far as the Hong Kong Government is aware, upon his return to the other state.

5.The Initial Report does not indicate whether in consideration of any case where a ground of danger of being subject to torture upon return, the Director of Immigration, or any other relevant authorities have considered the matters set out in Article 3(2). We ask the Committee to question the Hong Kong Government on what it understands to be the relevant considerations under Article 3(2) and further inquire on the sources from which the Hong Kong Government obtains information relating to human rights violations in other states. Further, we ask the Committee to question the Hong Kong Government as to whether it has applied the relevant considerations set out in Article 3(2) on a particular case and whether it has reached any conclusion as to the states in which there exist a consistent pattern of gross, flagrant or mass violations of human rights, and to provide a list of such states.

Crimes (Torture) Ordinance (Cap 427)
1.The enactment of the Crimes (Torture) Ordinance (Cap 427) [8] in January 1993 implementing the provisions of the Torture Convention is welcome.

2.Paragraph 16 of the Initial Report indicated that there was no reported case of torture.

3.We have come to know of incidents of improper means of obtaining confessions and of unjustified use of violence by public officials in Hong Kong which in our opinion come within the definition of torture under the Torture Convention.

4.An example is described in the judgment of R v Cheung Kin Tak & Ors (MA No 416 of 1994, unreported) enclosed [9]. In this case, six police officers were convicted of common assault or assault occasioning actual bodily harm for an incident on 17th February 1993. In our opinion, this case involved acts of public officials by which severe physical pain or suffering was intentionally inflicted on persons for the purpose of punishing him for an act he or a third person had committed. This was therefore a suitable case for a prosecution for the offence of torture.

5.Under Hong Kong law, a judge being satisfied on a voir dire that a statement of the accused is not voluntary by reason of violence inflicted upon him by police officers conducting the interview must exclude the evidence so obtained. Experience of members of the Hong Kong Bar in criminal practice indicates that this occurs fairly frequently in the Hong Kong courts. Such cases are often reported in the press. However, we have not known of any case in which the police officers or law enforcement officers involved have been prosecuted for torture.

6.We urge the Committee to call on the Hong Kong Government to explain the prosecution policy in respect of the offence of torture; to provide information as to the number of cases where the Attorney General's consent to prosecution for torture was sought and whether the consent was granted; and to examine whether suitable cases of torture have been suppressed or dealt with differently by those in charge of investigating the public officials concerned.

7.Article 1(1) defines torture in association with the act, consent, or acquiescence of a public official or other person acting in an official capacity. Section 2(1) of the Crimes (Torture) Ordinance defines a public official who is liable to prosecution for acts of torture to include any person holding in Hong Kong an office described in the Schedule. On the other hand, section 2(3) of the same Ordinance declared that the definition in section 2(1) cannot be extended to mean "any person holding an office of emolument under the Crown in the right of the Government of Hong Kong, whether such office be permanent or temporary" as per section 3 of the Interpretation and General Clauses Ordinance (Cap 1). We believe that section 2(3) illustrates the legislative intention to confine the categories of public officials to those specified under the Schedule and query whether such a measure is capable of giving full effect to Article 1(1). We ask the Committee to clarify with the Hong Kong Government on the meaning of the term "public official" and on the liability of those public officer or public servant not specified under the Schedule for acts of torture.

8.Section 3(4) and (5) of the Crimes (Torture) Ordinance provides for a defence of "lawful authority, justification or excuse". This provision is apparently wider than the last sentence of Article 1(1) which relates only to lawful sanctions. We ask the Committee to clarify with the Hong Kong Government on the breadth of the section 3(4) and (5) defence and its compatibility with Article 1(1).

Extradition
1.Sections 5 and 6 of the Crimes (Torture) Ordinance (Cap 372) attempt to made torture, attempt to torture and complicity to torture extradition offences under the two regimes of extraditions applicable to Hong Kong. However, it is questionable whether section 5(2)(a) has the effect of extending the Schedule of the Extradition Act 1989 to all the state parties of the Convention without there being corresponding Orders in Council to that effect.

2.However, we believe that there is no provision in the Crimes (Torture) Ordinance or in any other ordinance to give effect to Article 8(4).

3.The Initial Report at paragraph 42 fails to indicate the terms of the question raised about sections 5 and 6 of the Crimes (Torture) Ordinance. Further, it fails to indicate whether the United Kingdom and Hong Kong Governments accept the proposition set out in Article 8(2) for extradition to another state party of the Convention where there is no extradition treaty between the United Kingdom and that state party.

4.We ask the Committee to clarify with the United Kingdom and Hong Kong Governments the means by which Article 8(4) is implemented; the terms of the question raised as to the effectiveness of sections 5 and 7 of the Crimes (Torture) Ordinance; and the position in relation to Article 8(2).

Police Powers and Complaints Against Police

Use of Force by Security Forces
1.In recent months, there have been a number of incidents involving the use of firearms by the police resulting in the death or injury to civilians. These include an incident where a South Korean tourist held hostage in a taxi was shot dead together with his captor when the taxi was ambushed in Shum Wan, Hong Kong Island. Another incident involved a police constable shooting an old man twice in the chest, when the latter was resisting eviction from a building at Hong Lok Street, Kowloon, causing his death. This has caused one commentator to wonder whether the police are trained to reduce crimes only, but not to reduce sufferings.

2.We wish to express concern as to the adequacy of training in the security forces of Hong Kong, particularly on the reasonable and proportionate use of force and the handling of firearms.

Complaint Against Police
3.Paragraphs 74 to 79 of the Initial Report describe the police complaint procedure. The Police Complaints Committee has now been reconstituted as the Independent Police Complaints Council.

4.However, the present police complaint procedure remains the subject of criticism for the lack of any independent mechanism to investigate complaints. The Complaints Against Police Office ("CAPO") is part of the police force and officers of CAPO are serving police officers assigned to investigation against fellow police officers. A proposal by the Police Complaints Committee to introduce a non-police investigator in investigations of serious complaints in 1993 was turned down by the Hong Kong Government for fear of harming of police morale. We believe that the lack of any independent mechanism to investigate complaints harms the credibility of the police complaint procedure and is inconsistent with the requirement of impartiality in investigations of complaints of torture under Article 12. We urge the Committee to make a recommendation to the Hong Kong Government for the setting up of an independent police complaints body. Where the Committee considers that the setting up of such a body may not be immediately feasible, we urge the Committee to make a recommendation to the Hong Kong Government to adopt at least the proposition of the Police Complaints Committee in 1993 to introduce non-police investigators in investigations of serious complaints.

Complaint Against Other Disciplined Services
1.Paragraphs 80 to 93 of the Initial Report describe the complaint procedures for the Correctional Services Department, the Immigration Department, the Customs and Excise Service, the Independent Commission Against Corruption, and the Hospital Authority.

2.As can be gleaned from these paragraphs, these complaints procedures are all internal mechanisms of investigation. This raise concern as to impartiality and compliance with Article 12. We ask the Committee to question the Hong Kong Government as to each of the complaint procedures, particularly as to safeguards available to ensure impartiality.

Criminal and Law Enforcement Injuries Compensation Scheme
1.Paragraphs 96 to 100 of the Initial Report describe the Criminal and Law Enforcement Injuries Compensation Scheme which provides for ex-gratia payment to victims of crimes of violence or law enforcement.

2.We take issue as to the qualification of residency sets out in paragraph 98 of the 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 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 14(1).

Confessions
1.We urge the Committee to ask the Hong Kong Government to explain in detail what safeguards are in place to prevent abuse of power by police interrogators and why the provisions of the English Police and Criminal Evidence Act 1984, which regulates police interrogation practices, has not been extended to Hong Kong, despite the recommendation to that effect of Hong Kong's own Law Reform Commission.

Vietnamese Asylum Seekers
1.A paper by Paul Harris on the basis by which Vietnamese Asylum Seekers are put under detention and the conditions of detention is enclosed [10].

2.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.

3.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.

4.We urge the Committee to assess the facts relating to these incidents and comment on the susceptibility of such operations to qualify as acts of torture within the meaning of Article 1(1).

Prevention of Cruel, Inhuman or Degrading Treatment or Punishment

Vietnamese Asylum Seekers
1.We refer to the paper of Paul Harris on the conditions of detention of Vietnamese asylum seekers in Hong Kong [10]. It is 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. Hence, we are of the view that the Hong Kong Government has failed its obligation under Article 16 of the Convention in providing humane conditions of detention for Vietnamese asylum seekers in Hong Kong.

2.The Initial Report only deals with the treatment of Vietnamese asylum seekers in Hong Kong under paragraph 70. It fails to address the contention that the conditions of detention of Vietnamese asylum seekers in Hong Kong may amount to cruel, inhuman or degrading treatment.

3.We urge the Human Rights Committee to call on the Hong Kong Government to take immediate steps to remedy these breaches of Article 16 committed by the Hong Kong Government in relation to Vietnamese asylum seekers and to request a detailed statement of the steps it will take to end these abuses. We also request the Committee to ask for full information in relation to all of the above matters and to explain their absence from the Initial Report.

4.The paper by Paul Harris [10] 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 16. In particular, there are children who have spent most or even all of their lives in a detention camp. We urge the Committee to call on the Hong Kong Government to examine alternatives to detention for those Vietnamese asylum seekers who have been detained for a lengthy period. Further, we urge the Committee to call for the immediate improvement in the conditions of Vietnamese children described in the said paper.

Immigration from People's Republic of China for Family Reunion
1.While the policy of the Hong Kong Government was stated as not to separate families, the policy regarding immigration from the PRC for family reunion in fact causes separation. A child born of parents one of which 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 [11] as being incompatible with Article 10 of the ICESCR. We consider instances of such removals of persons from Hong Kong causing a split in the family to amount to inhuman or degrading treatment and ask the Committee to examine the rationale for removal and to express a similar view.

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) [12]. 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, did not follow up to provide this information. In paragraph 5 of General Comment 19(39), it is said 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 inhuman and degrading treatment. We invite the Committee to express a similar view.

Detention of Illegal Immigrants as Prosecution Witnesses
1.Section 32(4) of the Immigration Ordinance (Cap 115) [13] 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.

2.The Initial Report, while mentioning persons detained pending removal or deportation, fails to give an account as to those who are detained under section 32(4) of the Immigration Ordinance.

3.We are of the opinion that this provision authorises arbitrary detention and is contrary to Article 9 of the ICCPR and also amount to inhuman and degrading treatment. 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 subject to detention because the prosecution sees some value in his evidence. We call on the Committee to condemn this provision as a violation of Article 16.

Article 22

1.Unlike other British Dependent Territories, Hong Kong is not subject to any regional human rights treaty which provides for an individual complaint mechanism.

2.It is therefore imperative in our opinion, that the United Kingdom Government should recognize the competence of the Committee to receive and consider individual communications under Article 22 for Hong Kong. We ask the Human Rights Committee to call on the United Kingdom Government to implement this suggestion and to set a deadline for doing so.

Dated 30th October, 1995.

Andrew Byrnes,
Member,
Hong Kong Human Rights Monitor

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

List of Enclosures

  1. Basic Law of the Hong Kong Special Administrative Region
  2. Dr Nihal Jayawickrama, Human Rights in Hong Kong: The Continued Applicability of the International Covenants (1995) 25 HKLJ 171
  3. Hong Kong Bill of Rights Ordinance (Cap 383)
  4. Andrew Byrnes, Killing It Softly? The Hong Kong Courts and the Slow Demise of the Hong Kong Bill of Rights
  5. R v William Hung (1993) 3 HKPLR 328
  6. 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
  7. Emergency Regulations Ordinance, sections 2, 4
  8. Crimes (Torture) Ordinance (Cap 427)
  9. R v Cheung Kin Tak & Ors (MA No 416 of 1994, unreported)
  10. Paul Harris, The ICCPR and Vietnamese Migrants in Hong Kong
  11. Committee on Economic, Social and Cultural Rights, Concluding Observations (UN Doc. E/C/12/1994/19)
  12. Chan Tong Kit & Ors v Director of Immigration (CA No 163 of 1993, unreported)
  13. Immigration Ordinance (Cap 115) section 32(4)