129 Session (29 Jun 2020 – 24 Jul 2020)
ICCPR – International Covenant on Civil and Political Rights
- This is a joint submission of civil society organisations in Hong Kong based on consultations with and the contributions of more than 25 NGOs dedicated to or with an interest in human rights issues in Hong Kong. The contributors and co-signatories to this joint submission are listed in the Annex.
- The format of this submission mirrors the State’s Report for the Committee’s easy reference. It aims at offering a full picture of the situation in Hong Kong with respect to issues of particular importance according to the contributing NGOs. It includes article-specific questions and recommendations we suggest the Committee to take up. These have been put into boxes for ease of identification.
- We will submit a more detailed report prior to the Committee’s review.
Implementation of “one country, two systems” (para 4-6 of State Report)
- The Fourth Periodic Report submitted by Hong Kong (HK), China under article 40 of the Covenant provides a simplistic, one-sided statement of the “One Country, Two Systems” (OCTS) principle (para. 4-6, p. 11) enshrined under the HK Basic Law and as set out in the 1984 Sino-British Joint Declaration. This core governing framework guarantees HK a high degree of autonomy in all matters other than defence and foreign affairs, matters concerning the relationship between HK and China or those which are the responsibility of the Central Authorities. This includes the retention of the common law legal system, judicial independence, the right of universal suffrage to elect the Chief Executive and all members of the legislature, and to develop policies within the remit of HK’s autonomy on its own. However, OCTS and these core institutional guarantees have been increasingly under threat during the review period. Contrary to the assertions in the State’s Report, longitudinal public opinion surveys show that the deficit of public trust in OCTS has reached an alarmingly high level (net trust recorded was a mere +15.2% in September 2013 and has deteriorated further to -40.9% in February 2019).
- Since 2013, HK has continued to witness the blurring of the legal and political boundaries between the Chinese and HKSAR’s distinct legal systems. On 10 June 2014, the State Council of the People’s Republic of China published a White Paper on The Practice of the “One Country, Two Systems” Policy in the HK Special Administrative Region, which says: “The Central Leadership directly exercises jurisdiction over the HKSAR in accordance with the law … As prescribed in the Constitution of the People’s Republic of China and the Basic Law of the HKSAR, the organs of power by which the central leadership directly exercises jurisdiction over the HKSAR are the NPC and its Standing Committee, the president of the state, the Central People’s Government, and the Central Military Commission.”
- The 2014 White Paper is widely regarded by HK as a blatant violation of Articles 5 and 22 of the HK Basic Law and the OCTS policy. Art 5 stipulates that the socialist system and policies shall not be practised in HK while Art 22 stipulates that no mainland authorities may interfere in the affairs which HK administers on its own. There was no consultation and no deliberation in HK before the release of the White Paper. The Government of HK has not been able to uphold OCTS in accordance with the Basic Law and the people’s expectations. For example, Patrick Nip, the Former Secretary for Constitutional & Mainland Affairs of Hong Kong, failed to elaborate on his comment in 2018 that the Chinese constitution applied when the Basic Law was silent on certain matters (“residual powers doctrine”). (SCMP, 17 May 2018). For his part, Wang Zhimin, Former Head of the Liaison Office of the Central People’s Government in HK, called on the city’s legislature to follow the central government’s lead on issues. “To protect state sovereignty, national security and the country’s development interest … there should only be a responsibility as one country, and no differences in the two systems,” he said. (SCMP, 20 February 2019),
- The independence of the judiciary in HK has been under enormous pressure. Article 158 of the Basic Law grants the National People’s Congress Standing Committee (NPCSC) the power to interpret the law—but subject to three criteria: First, the interpretation must only concern affairs that are the responsibility of the Central Government or the relationship between the Central Government and Hong Kong. Second, when the HK Court of Final Appeal (CFA) refers an article falling within the criterion above to the NPCSC prior to making its final adjudication in a case. Third, “the interpretation is an interpretation rather than an amendment of the law.” Among a total of six interpretations and decisions made by the NPCSC for HK, only one of them meets all three criteria stipulated in Article 158. The most recent incidents concerned the ouster of six lawmakers who were duly elected in the 2016 Legislative Council elections but lost their mandate for failing to “take the oath for office “in manners required by the Central Authorities (not a legal criterion for taking up office) and the 2017 “Co-location” decision (which permitted Chinese law to be applied and enforced in Hong Kong’s West Kowloon Express Rail Terminus). The NPCSC’s acts in this regard have threatened judicial independence, effectively preventing the judiciary in HK from performing its constitutional roles independently and autonomously (Hong Kong’s judges voice fears over China influence in judiciary, Reuters 15 March 2018.). The 2016 Interpretation of Article 104 of the HK Basic Law which requires senior ranking public officials to swear to uphold the HK Basic Law and swear allegiance to HK in accordance with law when assuming office, saw the NPCSC take the unprecedented step of interpreting section 19 of the Oaths and Declarations Ordinance (Cap. 11), a locally enacted law. In this instance, the interpretation of Art 104 was made without a request from HK courts, and did not fulfill any of the Art 158 criteria which would have triggered such an interpretation by the NPCSC. Moreover, it further interpreted legislation which is not within the powers of the NPCSC to interpret under the HK Basic Law. This pre-empted the courts from interpreting the law on their own in respect of a judicial review challenging the validity of oaths taken by duly elected legislative councillors and in a matter that was pending before the court. In the circumstances, the NPCSC’s interpretation, which went well beyond the relevant Article of the Basic Law and was issued before the court had made its final determination in respect of the matter, interfered with judicial independence in violation of OCTS and the rule of law.
- Of grave concern is the NPC’s recent Decision, passed on 28th May 2020 at the third session of the thirteenth National People’s Congress, “to establish and improve a legal framework and enforcement mechanism for safeguarding national security for HKSAR”. The Decision proposes that the NPCSC be authorised to enact national security legislation to be directly promulgated in HK and that the NPCSC would draft the bill, thereby bypassing HK’s legislature and any opportunities for public consultation. According to the motion, the proposed national security bill will be incorporated into Annex III of the Basic Law as one of the national laws applicable to Hong Kong, in accordance with Article 18 of the Basic Law. However, the remit of national laws listed under Annex III pursuant to Article 18 is restricted to laws pertaining to matters not devolved to the HK government. Article 23 of the Basic Law expressly requires HK to enact on its own, laws to prohibit any act of treason, secession or sedition, with regard to national security. As such, these are matters within Hong Kong’s autonomy.
- The Department of Justice in HK however, has stated that this does not preclude the Central Government’s authority to legislate the same while the latter has insisted HK still has the obligation to enact national security law pursuant to Art 23. This overlapping jurisdiction gravely threatens the OCTS framework given the proposed enactment of this law in a manner outside the purview of Art 18 of the HK Basic Law and the imposition of legal apparatus and law enforcement agencies within the jurisdiction of HK for the first time. This is contrary to the principle of non-interference under Art 22 of the Basic Law. It also raises questions about the accountability of Chinese public security agents for acts carried out in HK.
- Recent comments made by the Liaison Office of the Central People’s Government in Hong Kong, the Macau Affairs Office (HKMAO) and the Chinese government’s representative for the Foreign Affairs Ministry in respect of the functioning of the HK Legislative Council and targeted attacks on members of the opposition camp reflect reason to be concerned that Mainland Chinese entities and their operatives do not consider themselves to be subject to Art 22 of the Basic Law which stipulates that Mainland authorities in HK shall be bound by the laws of Hong Kong and shall not interfere in the affairs which HK administers on its own.
- On 28th May 2020, NPC passed a Resolution authorising the NPCSC to draft and enact such a law, emphasising the State’s responsibility to ‘prevent, frustrate and punish’ behaviours and activities that harm national security, including treason, secession, sedition against the Central People’s Government, or theft of state secrets, to prohibit foreign political organizations or bodies from conducting political activities in the Region, and to prohibit political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies.’ The Resolution defined ‘foreign forces’ ambiguously and decided that the Central Authorities would set up national security institutions and implementation mechanisms in HK to enforce the new law. This would enable Mainland law enforcement agents to operate in HK for the purposes of national security law, contrary to OCTS, particularly Art 22 of the Basic Law.
- These developments are extremely concerning given the threats they pose to the sustainability of OCTS and more importantly, to the rule of law and the protections afforded to HK people through the human rights guarantees, especially those protected under the ICCPR, which are enshrined under the HK Basic Law, especially given that these encroachments come against the backdrop of the use of equivalent national security measures in the PRC to clamp down on civil society organisations, lawyers, human rights defenders and labour rights activists as well as others seen as political dissidents but increasingly, similar tactics being used in HK by the government in policing the recent protests in response to the proposed laws that would enable the extradition of suspects of certain crimes to the Mainland.
- These incidents have caused great public distrust and anxiety about the future of human rights protections in HK, severely undermined the workings of OCTS and pose critical threats to the rule of law as well as judicial independence as it has been proposed by one member of the NPCSC that the new national security measures may preclude foreign judges in HK from hearing cases involving national security, and Chinese public security branches and law enforcement agents may perform their duties in HK in relation to these matters.
- The growing number of violations of the basic premises and institutional guarantees under OCTS and the Joint Declaration pose a serious threat to the context within which the Basic Law-entrenched ICCPR human rights guarantees are safeguarded.
|The Committee may consider asking the HK government to enlighten its members on the operative impacts of the 2014 White Paper on HK and Mr. Patrick Nip’s comment on the delineation of powers between Hong Kong and the Central Government. The only justification needed to respond to the growing number of violations of the basic premises and institutional guarantees of OCTS appear to be that China has sovereignty over autonomous HK. Please explain which provisions of Art. 158 of the HK Basic Law empower the NPCSC to interpret HK legislation enacted by the local legislature, in particular, in relation to s. 19 of the Oaths and Declarations Ordinance (Cap. 11). Please also advise how this instance of interpretation, made without a request from HK courts and pre-empting the courts’ judgment in the case, is consistent with judicial independence, the rule of law and OCTS. Please advise what measures will be taken by the HK Government and the Central Government of PRC to ensure that the proposed national security law is in line with Hong Kong’s ICCPR obligations and the Committee’s recommendations in the 2013 Concluding Observations. Specifically, please stipulate the measures taken to ensure that the scope of the offences of ‘treason’, ‘sedition’ and the definition of ‘foreign forces’ are appropriately and narrowly defined and exclude the exercise of rights to freedom of speech, freedom of press, freedom of association, freedom of assembly and freedom of religious belief, all of which clearly defined and accepted under international human rights law, in particular the ICCPR and the general comments.Please explain how the “one country two systems” arrangement under the Joint Declaration and the Basic Law is maintained when Mainland law enforcements agents are allowed to operate in HK for the purposes of national security laws. Please specify whether there are measures being implemented to bar foreign judges from hearing cases involving national security and if so, how can this be reconciled with the right to a fair trial which does not permit selection of judicial panels on the basis of nationality, race or ethnicity. Please advise what apparatus will be put into place to enable monitoring mechanisms to oversee the exercise of powers under the proposed national security laws, in particular, to ensure the availability of suitable independent mechanisms to monitor complaints, oversee and ensure accountability for the exercise of powers by Mainland Chinese national security agencies and law enforcement officers performing duties in HK to enforce national security laws.|
Article 2 Ensuring to all individuals the rights recognised in the Covenant
Human rights institutions – paras 8-9 of the State Report
|Para 7 of the Concluding Observations on the Third Periodic Report of HK urged HK “to consider establishing a human rights institution, in accordance with … the Paris Principles … with a broad mandate covering all international human rights standards accepted by Hong Kong, China, and with competence to consider and act on individual complaints of human rights violations by public authorities and to enforce the HK Bill of Rights Ordinance.” In view of the comments provided by HK in paras 8 and 9 of its Fourth Periodic Report that “existing mechanism of protecting human rights has worked well and that there is no need to establish another human rights institution to duplicate the functions of or supersede the existing mechanism”, please list the organizations under the existing institutional framework that safeguard human rights guaranteed by each of the articles of the Covenant.|
Independent Police Complaints Council
- With reference to para 10 of the State Report, under the two-tier system, the Independent Police Complaints Council (IPCC) has no power to investigate any complaint filed against the HK Police Force (HKPF). Instead, the HKPF’s own department, the Complaints Against Police Office (CAPO) receives and investigates complaints. The monitoring functions of the IPCC are limited by statute. Moreover, the membership to the Independent Police Complaints Council is by appointment by the Chief Executive. The IPCC has repeatedly been criticised for its actual or apparently biased investigations in relation to police misconduct, complaints dating back to the Umbrella movement of 2014. The IPCC should be a fully independent body that is mandated to receive and investigate complaints against all officials in the HKPF to ensure transparency and full accountability for the exercise of police powers and to prevent abuse of power. To this end, the mandate and composition of the IPCC should be compliant with the Paris Principles to ensure the participation of stakeholders from across the political spectrum and involve people with relevant expertise.
- A journalist was beaten by a group of uniformed police officers with shields and batons when he was covering a protest in 2016. The incident was recorded on video by another journalist. He then made complaints against the police officers for misconduct and assault but the allegations were found to be not fully substantiated and not pursuable because the CAPO could not identify the officers involved. Similarly, in 2019, many complaints could not be pursued despite video evidence due to the failure of police officers to wear any form of identification on their uniform, a strategy purportedly deployed deliberately in efforts to evade accountability for abuse of power.
- In 2018/19, 630 allegations against police conduct required full investigation by CAPO, of which just 72 cases (11.4%) were found to be substantiated, 219 cases (34.8%) were found to be without fault, while 33 cases were considered as false complaints. It should be noted that an overwhelming 306 cases (48.5%) were found unsubstantiated, or not fully substantiated. These trends do not inspire public confidence in the mechanism or the police force. Public distrust of the police is at an all-time low. It is highly undesirable if a significant number of complaints cannot be resolved with clear outcomes about the allegations. Questions have also been raised about the police complaints mechanism where select details have been leaked about complainants, even those of a victim subject to a court anonymity order due to the sensitive nature of the sexual assault complaint, resulting in online doxxing and other attacks, compromising confidence in the mechanism. Based on the flaws pertaining to the appointment of members, the limited mandate and the two-tiered process which entails government-appointed personnel and police monitoring their own, it may be inferred that investigative mechanism and collection of evidence are ineffective and not impartial.
- Despite the widespread public protests and mass discontent over the policing of the protests, public calls for an independent inquiry led by an impartial tribunal have been dismissed with the Chief Executive asking the IPCC to conduct a review of the Anti-Extradition protests. The IPCC’s final report, published in May 2020, has been widely criticised for demonstrating the limited scope of the review given the lack of investigative powers, including the inability to summon witnesses and the outcomes as being lenient or even favourable towards the Police. The IPCC report gave no consideration to the international human rights standards on the right to peaceful assembly and the principle of the use of proportionate force in policing protests. The IPCC has emphasized that the report “does not deal with specific complaints or the conduct of individual officers”. However, many victims choose not to lodge a complaint because they have no trust in the current system.
- There is also a lack of confidence in police recently due to the widespread involvement of a number of police officers in criminal activities or the breach of various laws. Police acting with impunity with regard to the law in this manner reflects a systemic problem in the accountability and oversight mechanisms and as such, must be overhauled in order to earn back the confidence of the public and ensure that the police do not continue to act with impunity. A failure to address these systemic issues runs the risk of police abuse of power.
|Please explain the consistently low number of cases substantiated by CAPO and IPCC and report on the progress made by the IPCC in handling the large number of complaints against HKPF officers during the 2019-2020 Protests. Please also provide the number of HKPF officers being charged and investigated by CAPO for misconduct related to the 2014 Umbrella Movement and the 2019-2020 Protests.The IPCC and CAPO do not have powers to provide legal protection for complainants or any persons providing evidence for the complaint. Invariably, complainants may hesitate over lodging complaints because of the concerns against self-incrimination or police retaliation. Would the HK government explain what, if any measures, are implemented by CAPO and IPCC to protect the complaint against self-incrimination and victimisation?Please provide the number of active complaints against HKPF officers, the number of police officers being reprimanded by their commanding officers but not charged for misconduct during the 2014 Umbrella Movement and the policing of the 2019 Anti-Extradition Bill Protests and provide the details of the cases.Please provide the number of instances where HKPF officers performed duties during assemblies and other protest activities without showing their police warrant cards. Please explain the failure to show their police warrant cards and the obligations police officers are under to do so according to the Police General Orders.Please explain why the HK government refused to conduct an independent inquiry into the police use of force and other issues related to the Anti-Extradition protests.Please explain if the HK government has plans to reform the current police complaints mechanism to enhance its independence, impartiality and effectiveness, outline the measures being contemplated and the proposed plan for their implementation.|
Article 3 Equal rights of men and women
- The status of women in Hong Kong has not achieved parity with men despite HK’s obligations of gender equality under various treaties and despite its own Art 25 Equality before the Law guarantee under the HK Basic Law. HK Women in Figures published by the Women’s Commission delineates the many areas where women trail behind men. In particular, the figures denote the feminisation of poverty, the high proportion of single mothers and the plateau in the curve of working women above child-bearing age and the high rates of female attrition from the workforce after women have their first and second child. The HK EOC has commissioned various studies that reveals the high rates of discrimination experienced by women across various sectors across workplaces and in both large companies but more so, in small and medium enterprises.
- Particularly egregious are the high rates of pregnancy and family status discrimination but also, the disproportionately high rates of sexual harassment which is rampant across industries but most acutely, in the services and hospitality sectors. The gender pay gap remains a major obstacle to the advancement of equality in society where women are persistently undervalued for work of a similar nature, relative to men but also due to the lack of value placed on the work of care, which continues to be performed disproportionately by women. Poor redress mechanisms and poor public awareness and high levels of discrimination on the basis of prohibited grounds create conditions which exacerbate inequalities and reinforce unequal power relations.
- These inequalities remain intact despite the enactment of anti-discrimination laws to prohibit sex, family status and pregnancy discrimination 25 years ago. Studies evaluating the mechanism for the enforcement of anti-discrimination laws as well as a process review of the EOC’s powers and its mechanisms have revealed many shortcomings in the system which place victims of discrimination at a disadvantage and do little to empower them or advance equality in the manner anticipated by international legal frameworks which enshrine the right to equality on the basis of gender.
- To this end, the EOC carried out a Discrimination Law Review exercise reviewing all aspects of the existing anti-discrimination laws and put forward 73 recommendations on reforms to the four existing anti-discrimination ordinances to the HK Government. Out of these, the EOC identified 27 higher priority issues for legislative reform or other actions for urgent implementation. Thus far, the Government identified 8 out of the 27 high priority recommendations and has advised that it would follow up with the 19 priority amendments recommended by EOC after the amendment bill was passed. It remains unclear how and when and which recommendations the Government will take up next.
- Apart from a failure to address systemic and deep-rooted discrimination, there is a complete lack of proactive approaches to raise public awareness and enhance educational measures to propel a cultural shift in public attitudes towards gender-based discrimination. Sexism, misogyny and other forms of sex discrimination and patriarchy remain intact in HK.
- The HK #metoo movement was instigated by Vera Lui Lai-yiu, an Olympic gold medallist hurdler who had been sexually assaulted when she was 13 by her sports coach. While she brought HK into the #metoo era and is credited with freeing other victims to share their stories, unfortunately, when Lui’s case was brought before the courts, the magistrate concerned used various rape myths as the benchmark against which to test the veracity of her testimony against the accused. The judge found that Lui‘s claims could not pass the burden of proof required given that she did not stop the assault, did not tell anyone after it happened and she continued to maintain contact with her coach on her birthdays. This was used to undermine her claims and the perpetrator was found not guilty. Such rape myths continue to pervade social discourse but also, the attitudes of frontline responders who are tasked with assisting victims of gender-based violence and were reinforced in the judgement.
- Research continues to show that HK has high rates of sexual and domestic violence with 1 in 3 women likely to experience such violence in the course of her lifetime. Recent figures on the rates of domestic violence reveals a number that has been steadily rising over the years. Of the close to 7000 reports of domestic violence, the majority are disproportionately female victims. Despite this, however, HK has only five shelters with only 268 beds across the territory. The facilitates and personnel to assist victims are grossly under-resourced and many victims find themselves returning to the perpetrator for lack of other options. Many victims have complained that the police tend to lack gender sensitivity, often playing down complaints, the severity of the violence and encouraging victims to drop the complaint. HK has the highest female homicide rate in the world according to a 2014 Report of the UN Office on Drugs and Crime. The situation is even more acute for minority victims of domestic and intimate partner abuse, including ethnic, racial, sexual minorities and persons with disabilities. A range of barriers prevent timely assistance and a lack of resources to deliver responsive measures to tackle domestic violence within these marginalised groups on account of discrimination, lack of sensitivity or suitable training or expertise to tackle these issues, language barriers, patriarchal attitudes and a lack of awareness of rights as well as inconsistent definitions of what counts as domestic or gender based violence that is actionable, all contribute to the exacerbated circumstances of abuse faced by such communities.
- These figures and the general lack of female representation in positions of leadership across HK overall suggests that gender inequality remains deeply entrenched in society.
- This contexts creates acute vulnerabilities in times of crisis such as during the height of the anti-extradition bill protests in 2019 with allegations rife against police brutality towards female protesters and journalists including the use of gendered and targeted tactics that were calculated to sexualise, humiliate and in many cases, tantamount to sexual assault.
- The impact of witnessing police brutality against protestors, their absence at the scene of vicious attacks by suspected triads against people inside a subway station in Yuen Long despite numerous calls to the police station for assistance, has led many victims of domestic abuse to refuse to call the police for help. In the wake of Vera Lui’s attacker walking free and more recently, the selective release of personal data and the identity of a complainant (whose anonymity was protected under court order) against the police for a gang rape that allegedly occurred while she was being held in custody after being arrested for involvement in protest activities, women have stated that they would not call the police for assistance even in situations of domestic abuse.
|Please advise the timetable for the implementation of the 19 priority recommendations outlined under the DLR and the next steps and time frame for implementing the remainder of the recommendations issued. Government should advise its strategies and plans to introduce gender budgeting and gender mainstreaming and policies which go beyond a gender mainstreaming checklist, which appears to be of limited use and of little meaningful value given its lack of influence on policy or decision-making.Please advise which unit(s), organisation(s) and department(s) within the government have the responsibility for taking a gender-responsive approach to policy-making and its implementation, in particular in relation to law reform and the development and implementation of various policies. The HRC’s 2013 Concluding Observations expressed concern at the high incidence of domestic violence in Hong Kong, including domestic violence against women and girls with disabilities and recommended that the Government increase its efforts to combat domestic violence by, inter alia, ensuring effective implementation of the Domestic and Cohabitation Relationships Violence Ordinance (DCRVO). In particular, it was recommended that the Government should ensure the provision of assistance and protection to victims, the criminal prosecution of perpetrators of such violence, and the sensitization of society as a whole to this matter.Please provide data on the number and nature of claims brought under the DCRVO for the past 10 years, gender of claimants, and outcomes of those cases. Please also specify for the past 10 years, the number of applicants applying for the protection order under the DCRVO, the number of successful applications and the number of cases in respect of which batterers were referred to a batterers’ intervention programme or other similar measures.The Government is advised to provide information on how many government personnel undergo gender sensitivity training including officials working on government policy-making and their implementation, social workers, social welfare officers and others, and in particular, frontline responders who handle the needs of victims of gender-based violence, including police officers, healthcare personnel, social workers, judges, lawyers, teachers, etc. Please provide information on reports or complaints concerning the use of excessive (physical, mental, verbal or sexual) force against women by police officers in the course of policing, arrest or dispersal operations in the context of the 2019 anti-extradition bill law protests and their detention in respect of protest related activities. Please state the age, nature and gender of the complainant as well as how the complaint was resolved, the officers found accountable where such complaints were substantiated and what measures were taken to reprimand or otherwise, sanction the officers concerned. Where the complaints were unsubstantiated, please state the reasons therefor.|
Legislation against sex discrimination
- Please refer to submissions under Article 26.
Article 4 Public emergencies
- The Emergency Regulations Ordinance (ERO) empowers the Chief Executive in Council to make emergency regulations on an occasion of emergency or public danger. The ERO does not define public danger or delimit what emergency regulations can be made, while criminal penalties of up to life imprisonment may be imposed for breach of the regulations. The emergency regulations come into effect once gazetted, and continue in force until repealed by order of the Chief Executive in Council. The Legislative Council only has a negative vetting power within 28 days, while it appears to have no power to repeal such regulations.
- This law was not invoked for decades until 2019, when the HKSAR Government enacted the Prohibition on Face Covering Regulationwhich made wearing face coverings at public assemblies and processions unlawful and empowered police officers to stop anyone wearing face coverings at a public place and demand them to take off such face coverings. This was seen to have a chilling effect on citizens’ exercise of their freedoms of speech and assembly in the face of increasing police brutality and government clampdown against protestors, even where they participated in a lawful assembly.
- In a judicial review case against the emergency mask ban, the HK Court of First Instance held the emergency mask ban to be unconstitutional. The court ruled that “The [ERO], insofar as it empowers the [Chief Executive in Council] to make regulations on any occasion of public danger, is incompatible with the Basic Law” and the emergency mask ban “exceeds what is reasonably necessary to achieve the aim of law enforcement, investigation and prosecution of violent protesters”.
- On 9 April 2020, the HKSAR Court of Appeal allowed partial appeal by the HKSAR Government against the aforementioned judgment.The case is currently pending final appeal.
|The terms “public danger” and “emergencies” under the ERO are overly broad; and the Chief Executive enjoys an unfettered power to make regulations under the ERO without any effective negative vetting procedures through the legislature. In order to ensure accountability, to preclude disproportionate restrictions of human rights in circumstances defined as instances of ‘public danger’ or ‘emergencies’ under the ERO, the Government should advise the measures it is taking to provide safeguards against this, for example, by defining or establishing criteria for what amount to “public danger” and “emergencies”, devising the scope of permissible regulations that can be enacted pursuant to the ERO, and to reserve the maximum sentence (life imprisonment) only for the severest situations and offences. What measures are being taken to ensure that human rights remain adequately protected in times of emergencies and public danger?Please provide detailed information on the number of individuals charged for violations under the regulations since their recent enactment, the acts for which they were charged to date and the penalties imposed on them for such breaches.|
Article 6 Right to life
- The data provided in the State Report (Annex 6A) cover the period 2010-2017 only. In fact, during the reporting period, there was one death in police custody caused by unlawful killing according to the Coroner’s finding in 2018. The deceased was a taxi driver. involved in a fare dispute with some passengers, who then told police officers that the deceased attacked them. The police officers attempted to apprehend the deceased as he refused to get into a police van. An officer then grabbed him by his neck as he was lifted from the ground into the van. He was sent to Queen Elizabeth Hospital that night but an X-ray examination did not find any issue with his neck. Two days after the arrest, he was diagnosed with a cervical vertebra dislocation. He died of bronchitis a month later on December 12, 2012, a complication relating to the neck injury. While the coroner’s inquest was concluded in 2018, jurors in the case found the death to be an unlawful killing.
- The coroner in the 2018 case recommended installing CCTV on police vehicles as a preventive measure to avoid future incidents of this nature and to enable a proper account of the incident with the assistance of the footage. The HKPF has not followed up on this recommendation. Instead, police vehicles recently purchased are with tinted glass, making it impossible to observe the situation inside the vehicle from the outside.
- In May 2017, a detainee in a police station under police custody committed suicide by using a computer network cable he allegedly obtained by reaching out of his cell. The Coroner’s Court ruled that he died of suicide, and referred the case to the police and the Department of Justice to investigate whether someone used false documents in the case, as during the hearing, the Coroner’s Court was told that the records of police officers checking Lam’s cell did not match with the records of the surveillance camera. In total, there were 17 suspected falsified logs suggesting that officers had checked the holding cell, when evidence suggests they did not.
- The jurors in this case made 11 suggestions, such as urging the police to improve counter-suicide facilities in police station holding cells; the installation of surveillance cameras in cells; as well as the use of biometric key card systems to prevent falsified record entry. They also suggested that a warning about the potential criminal liability of falsifying records should be added to log books.
- In May 2020, a South Asian man died in police custody. The man was detained and apprehended by the police in what eye witnesses reported to be a struggle given the arrestee’s resistance to the arrest. He was restrained and taken into a police vehicle. According to eye witness accounts, the deceased was lucid when being put into the vehicle and was still struggling vehemently. However, a few minutes after, when the police vehicle’s door opened, the deceased seemed very subdued and quiet and his eyes appeared dazed. He was taken on to hospital in an ambulance and was pronounced dead shortly after. Whilst there are conflicting accounts emerging as to what happened, for example, the officers concerned reported that the deceased appeared intoxicated and that they spoke to him in English, toxicology reports initially show no alcohol or drugs in his system while an eye witness reported that the deceased was swearing in Cantonese when he was first confronted, which conflicts with the account of the police officers. It is believed that this death could be the result of the use of unlawful force against the suspect while he was in custody and already handcuffed. An autopsy report has not been made publicly available, thus further details are yet to emerge. However, the incident once again sheds light on the importance of training as to the proper use of force by all law enforcement personnel, the need for CCTV footage to ascertain the precise circumstances around death and police handling of the deceased in the lead-up to death.
- The Police Force has yet to announce any improvement measures to date.
|Please provide the work plan and progress of the HKPF to implement the recommendations made by the Coroner’s Court regarding the installation of CCTV in police vehicles and detention areas as well as a mechanism to guard against the logging of false entries by officers on duty at the detention centres. Given the deaths of detainees in police custody, the government is asked to indicate measures taken to ensure adequate police training in respect of the use of appropriate force only to the extent necessary in apprehending suspects and to protect the right to life of detainees and prisoners.|
Article 7 No torture or inhuman treatment and no experimentation without consent
Training of disciplined forces and the ICAC
Ill-treatment and torture of arrested persons
- The Civil Rights Observer, an HK-based civil society organization, interviewed 45 persons who have been arrested or have otherwise come under the control of the HK Police Force (HKPF) at protest sites between July to November 2019. They had all suffered or witnessed unreasonable treatment before being and/or while under the control of the police, including severe assault, excessive use of force, sexual harassment or sexual assault (such as forcefully grabbing the penis of the victim), verbal humiliation, threat of use of force to enforce compliance (such as threatening arrested person to unlock his phone or take a statement), body searches which did not follow established protocols (such as body searches involving removal of clothing or underwear with no reason proffered), delayed access to medical care, legal assistance or contact with family. Many of them happened when the victims were under the de facto control of the police. Two cases are identified as prima facie case of torture, in which beatings happened while the police were asking questions or taking statements from the arrested protestors. In one of these two cases, apart from beating the victim, the police officer used a torch to shine light closely into the victim’s eye when he refused to answer questions. These two cases would constitute the purpose element of torture – to obtain information or a confession.
- For part of the unrest period in Hong Kong in 2019, between August and September 2019, there were reports that arrestees were being taken to a remote prison facility in San Uk Ling, in Sheung Shui, close to the border with Mainland China. It has previously been used to hold mainland Chinese stowaways. According to Amnesty International, which conducted interviews with 21 people arrested but later released, detainees alleged that officers punched or severely beat them, while they put up no resistance, prevented them from calling a lawyer, for lack of a phone which often meant a wait of up to 12 hours before seeing a legal representative. According to a news report, of 54 detainees brought to the station after mass arrests on 11 August 2019, 31 were hospitalised, 6 of them for bone fractures. The facility was severely under-resourced and lacked even modern technological resources to ensure that detainees could have their basic rights met. This also posed challenges in terms of facilitating the timely access of lawyers or a phone call to the family, all of which suffered severe delays due to the availability of just one landline. The use of this facility was considered deliberate and by design, to raise alarm and to create conditions where certain deprivations would ensue. Although the detainees raised many alarms given the harsh treatment they experienced there, Justices of the Peace and lawmakers were denied access to these facilities and could not respond to stakeholder’s requests to access the prison and evaluate the claims made.
- It was reported that a 62-year-old male was tortured by three police officers when he was held in a public hospital after being arrested for assaulting police on the early morning of 26 June 2019. Police officers beat the victim, slapping his face, pressing his eyes, shining the torch into his eyes, and used the victim’s urine-soaked clothes to cover the victim’s mouth and nose. The victim’s sons have filed a complaint to the Complaints Against Police Office but the complaint was not effectively investigated. Three police officers were arrested and prosecuted for “misconduct in public office” and “assault occasioning actual bodily harm” only after the victim disclosed the CCTV records he obtained from the hospital.
- Another Amnesty International study based on interviews with 35 arrestees found that the HKPF had used reckless, indiscriminate and retaliatory force designed to deprive inmates of their basic rights, threaten them and humiliate them using degrading treatment and tactics. The report concluded, “Given the pervasiveness of the abuses we found, it is clear that the Hong Kong Police Force is no longer in a position to investigate itself and remedy the widespread unlawful suppression of protesters. Amnesty International is urgently calling for an independent, impartial investigation aimed at delivering prosecutions, justice and reparation, as there is little trust in existing internal mechanisms such as the Independent Police Complaints Commission.”
|Please provide information on police protocol and measures in place to prevent inhuman and degrading treatment? Are all of the facilities involving the handling detainees and arrestees monitored by CCTV? What are the procedures in place for investigating such serious complaints filed against police officers? Please provide information about the application of Crimes (Torture) Ordinance (Cap. 427), including the number of cases prosecuted for the offence of torture and relevant prosecution policy. How many cases involving police officers using excessive force or inflicting torture or cruel, inhuman and degrading treatment or punishment in the execution of their duties have been investigated? How many police officers were prosecuted; how many were found guilty and what were the penalties imposed? Would the HK government consider providing legal protection against self-incrimination for complainants of police misconduct such that the statement and evidence collected from the complaint should not be admissible in court as evidence against the complainant?Given the recent report issued by the IPCC covers the investigation into police handling with respect to six dates involving protests and police action and does not focus on individual complaints against police officers, and given the persistent calls by all relevant stakeholders for an independent investigation into police misconduct and use of force in respect of policing the anti-extradition law protests, please indicate what measures are being taken to put such an inquiry into place, the proposed appointees and their independence, the mandate and powers of the committee of inquiry and the timeframe for the investigation.|
Screening of claims for non-refoulement protection
Problematic amendments to the legal regime of the screening mechanism for non-refoulement claims
- The Government is considering a number of proposals to amend the Immigration Ordinance (Cap. 115), which are draconian, unnecessary and will impinge of the rights of non-refoulement claimants in Hong Kong. For example,
(a) decreasing the statutory timeframe for the submission of claim forms from 28 days to 14 days;
(b) removing the requirement for interviews and/or hearings to be conducted in the language the claimant is most proficient in and potentially using “the official languages of their country of origin”, which may disproportionately affect claimants from African countries;
(c) adding a provision that non-refoulement claims must be lodged within 3 months of a person becoming liable to removal, failing which the person will be barred from lodging a claim;
(d) proposing that removal may be effected notwithstanding that a person has applied for judicial review and/or Legal Aid to challenge the decision rejecting their non-refoulement claim(s);
(e) expanding detention powers to detain non-refoulement claimants including taking into account wholly irrelevant factors and/or factors beyond the claimant’s control, such as “whether there are a large number of claims or appeals pending screening by ImmD or TCAB”, “whether any procedures were hindered directly or indirectly by the person being detained”, and “whether there are other situations beyond the control of ImmD”
|The Government is considering amending the Immigration Ordinance (Cap. 115) further on procedures for the screening of non-refoulement claims and handling appeals. Please provide reasons for the proposal for amendment and the impact on non-refoulement claimants and in particular, how the potentially negative impact on their claims will be ameliorated to ensure the right to non-refoulement remains protected.What is the average timeframe for processing non-refoulement claims (with and without appeals) since the Unified Screening Mechanism was put into place in 2014?|
Insufficient legal assistance to claimants
- We note that the latest publicly available statistics indicate a declining number of cases being granted Legal Aid for judicial review applications, including non-refoulement JRs, and indeed the statistics available from 2017 show that only approximately 2.7% of legal aid applications for judicial review (including 841 applications by non-refoulement claimants) were approved in 2017. The increased capacity of the Immigration Department and Torture Claim Appeal Board (TCAB) means that decisions pertaining to non-refoulement claims are issued more quickly and usually find against the claimant, as the low success rate of less than 1% continues, and as a consequence, appears to be generating a greater number of applications for Legal Aid in recent years. The practical consequence is that most claimants seeking to challenge the decision(s) rejecting their non-refoulement claims are unrepresented in the High Court. Given that these cases involve matters of life and limb and that failed claimants are often highly vulnerable and/or unsophisticated as well as facing language barriers and lack of financial means in Hong Kong, the consequences of not being afforded Legal Aid are extremely severe.
|Please comment on the reasons behind the significant decline in the number of non-ethnic Chinese illegal immigrants and non-refoulement claimants. Please provide statistics on Legal Aid applications and those being granted Legal Aid in respect of non-refoulement claims since 2014.|
Failed to publish decisions of the appeal board
- The Committee Against Torture (CAT) has repeatedly raised concerns about the difficulties claimants face in accessing the decisions of the Torture Claims Appeal Board, which are not published, thereby impeding the effective preparation of their cases and right to a fair hearing. This is of utmost consequence given that such claimants often face risks of torture and persecution impacting their lives and a range of other human rights.
- The CAT has also criticised the legal requirement for asylum seekers to make claims only after they are subjected to deportation. This effectively criminalizes the claimants, and delays their access to redress. The CAT recommended ensuring unhindered access to the unified screening mechanism to all individuals wishing to claim protection, irrespective of their immigration status; and developing mechanisms for the early identification of victims of torture, their priority access to the unified screening mechanism and their immediate access to redress.
|Please explain why the Government refuses to publish redacted versions of the decisions of the Torture Claims Appeal Board. What redress mechanisms are available for claims of asylum seekers?Please specify the timeframe for the implementation of the CAT committee’s recommendations as stated above. If these measures are not being implemented in the near future, please explain why not.|
Asylum-seekers have no legal right to work in Hong Kong, forced to live in poor conditions
- Non-refoulement claimants are not allowed to work in HK (Immigration Ordinance Article 38AA) and can only rely on the minimal allowances from the Government, which the Government has repeatedly justified that it is “to ensure that such humanitarian assistance does not become an incentive which would create a magnet effect in attracting more illegal immigrants to seek unlawful entry into and remain illegally in Hong Kong.
- Only substantiated claimants are allowed to apply for permission to take employment, but even then, s.37ZX of the Immigration Ordinance states that permission must not be given unless the Director of Immigration is satisfied that there are exceptional circumstances to justify it. Claimants whose claims are still being processed have no right to apply for work permission, whether paid or unpaid or establish or join in any business. According to the study conducted by the Education University of HK (EdUHK), among 47 non-refoulement claimants that were recruited for a study on mental health issues, 76.1% of the respondents were classified as psychiatric cases and 87.2% of participants indicated that one of the top living difficulties after moving to HK was the prohibition of work. Another EdUHK study in 2020 shows that the local population supports allowing asylum-seekers to work legally as a solution to the Government’s handling of the number of claimants in Hong Kong.
|The CAT recommended in its 2015 Concluding Observations granting an alternative immigration status to refugees and substantiated unified screening mechanism claimants to allow them to remain legally in Hong Kong until the end of the process and facilitate their access to legal work in order to avoid destitution and degrading treatment. Please provide details on the progress of the recommendation since 2016.|
Rights of abode for asylum seekers and refugee children born in Hong Kong
|Under the current law, asylum seekers’ children born in HK do not have the right of abode in HK, and will not have the right to work in HK when they grow up in HK in case their case review takes a long time. Due to imposed poverty, they will not be able to afford tertiary education after the 12-year compulsory education scheme. Does the Government provide or plan to provide assistance or support for children of asylum seekers to pursue tertiary education in Hong Kong, especially in terms of tuition? If the Government currently provides such support, please provide data disaggregated by country of origin, gender, length of stay in Hong Kong and age of claimant.|
Article 8 No slavery or servitude; no forced or compulsory labour
- “Foreign domestic helpers (FDHs)” are referred to as migrant domestic workers in this submission.
- Collectively, the immigration, employment and the regulatory regime imposed on MDWs as distinct from those other workers in Hong Kong are subjected to, create conditions of particular vulnerability for MDWs, leaving them at a grave risk of living in conditions of modern slavery, exploitation for prostitution or vulnerable to human trafficking.
“Two-week rule” and “mandatory live-in requirement”
|With respect to paras 61-63 of State Report: In the previous Concluding Observations (para 21), HK Government was recommended to consider repealing the “two-weeks rule”. In the 2018 CERD Concluding Observations, the Committee again called for repeal of the “two-weeks rule” and the “mandatory live-in requirement”. Please explain the measures in place and steps that have been taken since September 2013 and September 2018 to abolish these discriminatory policies.As regards. paras 64-66 of the State Report, MDWs are residents of Hong Kong, yet their period of employment does not count towards the accumulation of years of residence in Hong Kong to enable them to acquire permanent residence status, unlike other persons who come to HK on a working visa. This fundamentally deprives MDWs of the opportunity to participate and integrate fully into HK society. Please explain the basis for singling out MDWs, the majority of whom are overwhelmingly women and EM, for such discriminatory treatment with respect to the acquisition of permanent residence in HK.Please explain why MDWs are forced to reside in their place of work (the mandatory live-in requirement), which puts them in a critically vulnerable position, opens them up to exploitation given that HK does not have a maximum hours of work under the domestic worker contractual arrangements and most workers live in conditions that do not protect their dignity or privacy rights. As a result, MDWs are also at a disproportionate risk of abuse, sexual harassment and other forms of gender-based violence due to their weak position which is entrenched by the exploitative regulatory regime that governs their stay in HK.|
Minimum Allowable Wage for MDWs
|With regard to para 56 of the Fourth report, “foreign domestic helpers enjoy the same rights and protection as local workers under the labour laws, regardless of their race or country of origin”. Please explain why migrant domestic workers (MDW) are excluded from protection under the Statutory Minimum Wage Ordinance in HK?|
Physical abuse and passport confiscation
|The 2018 CERD was concerned by reports that many MDWs experience physical abuse and passport confiscation by their employers. Please provide statistics on complaints, self-initiated and other investigations, nature of complaints, number of prosecutions, sanctions and remedies to protect MDWs against such exploitation. Please describe preventive measures that are being taken to protect the rights of MDW and to ensure they do not get ensnared into conditions of modern slavery, human trafficking or become prey to financial debts imposed by unscrupulous employment agencies.|
Overall regime on combating trafficking in person and victim protection
- The Committee on the Elimination of Racial Discrimination (CERD) commented in the review of the 14th to 17th periodic reports of China (including Hong Kong) that HK “does not have a comprehensive law criminalizing all forms of human trafficking. It is also concerned with the absence of statistics from the State Party on investigations, prosecutions and sanctions for criminal offences involving human trafficking. The Committee is further concerned by the low number of prosecutions and convictions for trafficking in persons to or from Hong Kong…” CERD recommended that HK should adopt comprehensive anti-human trafficking laws that prohibit all forms of human trafficking, intensify efforts to prevent, detect and combat trafficking in persons; consistently apply standard operating procedures for proactively identifying, assisting and rehabilitating victims of trafficking; and provide data, disaggregated by the nationality or ethnicity of the victims, on the number of acts of trafficking and enslavement identified, investigated, prosecuted and sanctioned, and on remedies and assistance provided to victims.
- A judicial review with regard to the lack of specific legislation targeting human trafficking was brought forward by a victim of human trafficking, Zn (a pseudonym given by the Court to protect his identity), a Pakistani national who came to HK in 2007 to work, but ended up working 15 hours a day without pay for four years, up to 2010, during which time he was also subjected to constant threats and beatings before his employer tricked him into returning to his home country. On the question of whether HK Government was obliged by human rights treaties to introduce specific legislation targeting human trafficking, the judges of the Court of Final Appeal found that it has no such obligation, because China specifically excluded HK from the application of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (the Palermo Protocol) when it signed the Protocol. And while the HK Bill of Rights Ordinance, (the local legislation which implements the ICCPR in Hong Kong), prohibits human trafficking for the purposes of slavery, it does not prohibit human trafficking generally for the purposes of exploitation or for the purposes of servitude or forced or compulsory labour.
- Meanwhile the HK Government refuses to improve legislation to address the problem of human trafficking. While it claims in para 70 of the State Report that it addresses TIP through various pieces of local legislation, in many cases, the only offences that have been prosecuted were generally accompanied by insufficient sentences, such as fines. Often, prosecutions cannot proceed because they are time barred summary offences or the form of exploitation underlying the purpose of trafficking is outside the scope of the current law. These highly undesirable circumstances leave open many potential avenues for abuse of children, women, and migrant workers, particularly those of minority background.
|The government is recommended to:(1) Extension of The Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (the Palermo Protocol) to apply to the HKSAR.(2) Develop specific legislation adopting the definition of human trafficking contained in the Palermo Protocol and criminalising human trafficking in all its forms as well as forced labour.(3) Step up efforts to protect and support victims including allowing them immunity from prosecution and facilitating their access to justice which includes their continued right to remain in Hong Kong; as well as to enhance interdepartmental coordination, collaboration with civil society and international cooperation to combat trafficking and forced labour, including but not limited to full implementation of the Action Plan to Combat Trafficking in Persons.We suggest the Committee to request HK Government to:(1) Provide information on the number of complaints, investigations and prosecutions (specifying the offences), convictions, and sentences handed down for trafficking and related offences over the last 5 years, disaggregated by year and by the victims’ sex, age, and ethnic origin or nationality, as well as the types of protection and compensation/support provided to victims during the period in question.(2) Indicate the number of persons who underwent the TIP screening mechanism; what measures taken since March 2018 to improve the screening mechanism to identify victims of trafficking and forced labour, especially child victims and victims of domestic or internal trafficking; and details of each stage/process of the screening mechanism as outlined in the Action Plan.(3) Indicate what measures are in place to ensure that prison labour is undertaken with the free consent of the prisoners without threat of menace or penalty.|
Article 9 Liberty and security of person
- There have been widespread complaints, media coverage and videos of arbitrary arrests during the protests of 2019 and these trends continue into recent unrest in 2020 in protests against the proposed national security legislation. Complainants have alleged that officers have arbitrary arrested non-violent protesters, human rights observers, first aid and medical personnel, onlookers and passers-by. Among the more than 8,000 people arrested thus far, nearly one third (around 2,600 or more) are children.
|Please provide the number of arrested and charged during large-scale peaceful assemblies and comment on reports about the large discrepancy between the number of arrested and charged. Also, please comment on reports about HKPF officers arbitrarily arresting non-violent protesters, reporters, human rights observers, rescue and medical personnel, onlookers, and passer-by.Please comment on reports that the HKPF adopted arbitrary stop and search procedures in respect of non-ethnic Chinese, who were disproportionately targeted for such measures. Please provide data disaggregated by ethnicity, gender and age before, during, and after large-scale peaceful protests of 2019 and early 2020.Please comment on reports concerning extended detention of reporters, human rights workers, medical personnel, and observers during the Protests and the delays of access to legal advice that detainees were subjected to. What was the average time for processing of arrested persons and to provide them with timely access to their lawyers?|
Article 10 Right of persons deprived of their liberty
The rights of persons in custody
- Hong Kong’s Correctional Services Department (CSD) has become one of the top ten most-complained about departments, according to the Ombudsman’s report in 2018. In an interview by HK01 with 50 former young prisoners, young inmates were subject to various forms of inhuman treatment and torture as well as psychological abuse by correctional services officers. The acts of abuse included being forced to drink urine and eating excrement, physical abuses, verbal intimidation and solitary confinement. Those detained for participating in human rights movements, labour unions and political activities, especially protesters during the anti-Extradition movement, are particularly vulnerable to such abuse with exacerbated discrimination and degrading treatment meted out by correctional officers against them.
- Furthermore, the interviews of young prisoners conducted by Reclaiming Social Work Movement in 2017 show that young inmates from ethnic minority backgrounds were also vulnerable. A case recorded shows that an ethnic minority youth was beaten up every single day, sometimes up to six times a day, because he could not recite the set of rules in the institution, as they were only provided in Chinese.
- The Chairman of the Hong Kong Legislative Council’s Subcommittee on Children’s Rights expressed that he was extremely concerned about the rights of the young prisoners not being adequately protected by the correctional institutions. At a public hearing on the matter, a young former prisoner testified how he was physically tortured by officers in juvenile detention centers. The existing complaint handling mechanism of the CSD has been heavily criticised for its complete lack of effectiveness. It has produced a near-zero substantiation rate for young prisoners’ complaints in the past ten years. In 2018 alone, the department fielded 340 complaints, with only 23.8% (81 cases) investigated, while a mere 0.6% (2 cases) were substantiated. Correctional services institutions lack transparency and its Complaints Handling Manual has never been publicized. Demosisto, a youth advocacy group in Hong Kong, collected and reported accounts from multiple detainees who said they were warned not to file complaints to lawmakers or lawyers or they risked retaliation.
- The lack of an independent body to monitor procedures for handling of prisoners and their needs and to receive complaints from inmates puts these groups at a critical risk of deprivation of their most basic human rights by the government. This body should also be empowered to investigate complaints and protect complainants against retaliation through victimisation. The office of the Ombudsman in Hong Kong lacks such powers whereas inmates also lack access to the Ombudsman.
- Persons arrested are in Police custody. Currently the HKPF guidelines on the handling of arrested persons are in the form of administrative guidelines only, with no criminal liability for breaching the guidelines. Aggrieved detainees can file complain to the Complaint Against Police Office. Limitations of the complaint mechanism have been discussed under Article 2 above. Police should have a statutory duty to provide detainees with access to medication and medical care on a needs-basis and in a timely manner; provide vulnerable persons, such as persons with disabilities or persons having different communication needs, necessary assistance during their detention at the police station after arrest and to follow especially stringently, the protocols related to the handling of minors to ensure their rights and best interests are adequately protected in these circumstances. This is of utmost importance given that that nearly one third of the arrestees since June 2019 in relation to the anti-extradition law bill protests are minors. Numerous accounts have emerged of the failure to fulfil children’s rights obligations under the CRC as a result of the breach of the protocols on handling arrestees. These violations have even more grave consequences for minors whose best interests are critically at risk in cases where excessive use of force (such as the use of handcuffs to detail minors) or unreasonable deprivation of their rights (delays in contacting parents) have been alleged.
|Under the existing complaints mechanism, lease state what measures are taken to ensure the due process rights of complainants and an independent review of the complaints to monitor and guard against such abuse and to ensure the effectiveness of the complaints process as a meaningful system for redress against such harms.The government should be asked to explain the discrepancy between the reports of widespread physical and psychological abuse at detention facilities and police stations.The government should explain the reasons why barely a quarter of the complaints were investigated in 2018 as well as the near-zero rates of substantiation of complaints handled by the Complaints Investigation Unit of the CSD (0.6% in 2018), the measures it has taken to reassure prisoners that they will not face retaliation for complaints and.Please provide the following:(1) Information on the internal complaints mechanism adopted within juvenile detention facilities to handle complaints from juveniles. Is torture through physical and psychological abuse deployed against inmates in juvenile detention facilities? (2) Data on complaints filed against officers of the CSD or police force for the past 5 years, disaggregated by nature of complaint, age of complainant, the number of cases being investigated, the number of complaints substantiated or found unsubstantiated or withdrawn or dropped.(3) For those complaints that were found substantiated, the number of officers that are warned and punished under the current disciplinary proceedings and any other consequences for the officers concerned?(4) Figures on the number of people placed in solitary confinement and the length of such confinement, with a breakdown on the number of juveniles, and mentally ill who have been placed in solitary confinement. (5) The government should explain whether it conducts regular reviews of the use of solitary confinement of people in custody.(6) Statistics on the number of work injuries in prison, the number of people who have been granted payments under the ex-gratia scheme and explain why prisoners who work are not covered by relevant labour law protections in respect of work injuries.The Government should advise the steps it plans to take to ensure the equal protection of the rights of prison workers in respect of injuries, occupational diseases, temporary incapacity, or death caused by accidents arising out of and in the course of employment within the prison.The Government should explain whether it has any plans to set up an independent body to investigate and monitor complaints with adequate investigative powers to ensure that the human rights of persons in custody are protected. The 2013 Concluding Observations of the HRC advised the government to strengthen the mandate and independence of the Ombudsman. Please explain whether there are plans to amend the Ombudsman Ordinance, so that the IPCC, CAPO and the HKPF are included within the purview of the Ordinance. Please explain whether there are plans to empower the Justices of Peace to monitor and visit institutions under the control of the Police, by amending the Justices of the Peace Ordinance Chap 510 so that all institutions under the control of the Police, including all custodial institutions, are within the remit of the Ordinance.The Government should advise:(1) What measures it takes to ensure the protection of the human rights of prisoners who are foreign nationals who are the subject of transfer when entering into bilateral agreements with countries for the transfer of prisoners.(2) Whether the Government has any plans to ratify the European Convention on the Transfer of Sentenced Persons.(3) Whether it plans to ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT).|
Article 12 & 13 Liberty of movement, and Restrictions on expulsion from HK
- Paras 88, 90-91 of State Report referred.
- The constitutionally required independence of Hong Kong’s system of immigration (Basic Law Art. 154.2) has been called into question. The HK Immigration Department has at times appeared to make decisions based on political considerations, especially with regard to issues related to Mainland China, at the expense of Hong Kong’s freedom, especially of movement and expression.
- Several prominent persons have been barred entry into Hong Kong, some despite having never been refused entry in the past: Kenneth Roth, executive director of Human Rights Watch, apparently as a retaliation measure against the USA; Benedict Rogers, British human rights activist, who testified in and lobbied the British Parliament for human rights issues in Hong Kong; U.S. academic Dan Garrett who testified at the US Congressional-Executive Commission on China; Chinese human rights activists in exile from China Zhou Fengsuo and Wang Xizhe, and others. Each of these persons were denied entry into HK with no reason given.
- There were at least two notable cases where foreigners in HK with working visas were forced by the HK Government to leave HK after they expressed opinions or allowed others a forum to express opinions in support of dissidents or protests.
- Victor Mallet, a British national, was the Asia news editor of the Financial Times based in Hong Kong, and vice-president of the Foreign Correspondent’s Club (FCC). After chairing a talk by Andy Chan, convenor of the HK National Party, a political group advocating for independence of Hong Kong (which has been declared unlawful and been banned in HK), Mallet was denied renewal of his working visa. No reasons were given. He was later denied entry into HK even as a tourist. As British citizens are typically allowed to visit without a visa for business or pleasure for up to 180 days, the government’s decision was heavily criticised as retribution for his role in chairing Chan’s talk, which the FCC refused to call off.
- Yuli Riswati, an Indonesian migrant worker who had worked in HK for 10 years, also wrote as a citizen journalist for the Hong Kong-based Indonesian newspaper Suara, as well as online media outlet Migran Pos. She reported on Hong Kong’s pro-democracy protests last year. Shortly after she gave an interview with the Chinese-language newspaper, Ming Pao, about covering the protests, she was arrested for overstaying her work visa and later deported.
- Yuli was arrested at her residence on September 23 for overstaying her work visa which expired on July 27, though the Immigration Department later decided not to present evidence against her in court. She was then detained on the grounds that she had nowhere to stay – a claim denied by the support group and her employer.
- Yuli had indeed neglected to renew her work visa (a common occurrence among migrant workers), but still had a valid employment contract with the same employer, who also asked the department to extend Yuli’s visa as they would continue to hire her under the contract. It has been the usual practice for the Immigration Department to allow visa renewals when the employer explains the situation, according to the International Domestic Workers Federation.
- What is problematic here is the absence of a clear explanation for these denials of entry or renewal of work visas, or in other cases, impositions of unreasonably short stays, which invariably lead to a reasonable suspicion that most, if not all, of these persons were denied entry or work visas or had limited stays imposed because they have said or done something the Chinese or HK authorities do not approve of politically. This has appeared to run counter to the requirements under Articles 12 and 13, and the commitments made and as outlined under para 88 of the State Report.
- As a point of interest, it should be noted that several HK journalists, activists, academics and prodemocracy politicians have been denied entry into Mainland China and the Macau SAR. The government of HK has done little to assist these persons in support of their right to freedom of movement, freedom of expression and journalistic freedoms, etc..
- Notably, one recent occurrence was the expulsion in March from the PRC of several journalists who are citizens of the United States of America, a retaliatory move, and the declaration that those journalists will also be prohibited from performing journalistic duties within the HKSAR. Such a decision should be the sole responsibility of the HK Immigration Department as specified in the Basic Law. Such a declaration seems to verify suspicions as stated above that China is indeed directing the Hong Kong government with regards to immigration matters, for political reasons that may not permitted under ICCPR. Fundamentally, these restrictions undermine press freedom in Hong Kong and indirectly serve to constrain or limit international coverage of Hong Kong matters by alternative media voices.
|The Government should understand denying entry or refusing to respect the travel rights of non-residents based on the expression of political opinion is a violation of the obligations under ICCPR, both Articles 12 and 19.Please explain the decisions not to extend the visa renewal of Victor Mallet and Yuli Riswati.Please provide the number of people denied working visa renewals in the past three years and specify the basis for the refusal to renew.|
Article 14 Equality before courts and right to fair and public hearing
- Currently, there is no duty lawyer service at police stations to provide legal assistance to a person arrested. While it is the right of an arrested person to have access to lawyers, in Hong Kong, it is rather common that arrested persons’ request to contact a lawyer is delayed or denied.
|How many cases of police delaying or refusing arrested person’s access to lawyers have the Administration investigated for each of the years since the last review? Has the Government considered extending duty lawyer service at police stations to offer legal assistance to persons arrested?|
Impact of the interpretation of the Basic Law by the Standing Committee of the National People’s Congress (NPCSC) on the rule of law and independence of judiciary in HKSAR
- Paras 96, 100-104 of the State Report referred.
- In paragraph 5 of the previous Concluding Observations, the Committee expressed concerns that the interpretations of the Basic Law by the NPCSC may weaken and undermine the rule of law and the independence of the judiciary.
- The Interpretation of Article 104 of the Basic Law in 2016 (the 5th BL Interpretation) discussed in the State Report paras 100-104 omits the fact that the interpretation was made during the period when the court was writing up the judgment.
- On 18 October 2016, the Chief Executive mounted a judicial challenge against the validity of the oath taken by two localist lawmakers lawfully returned by the LegCo elections in September 2016. The two lawmakers deviated from the prescribed content of the oath and promoted their own political beliefs. According to Article 104 of the Basic Law, a lawmaker is mandated to take an oath of office upon assuming office, the terms of which are prescribed in the Oaths and Declarations Ordinance. The substantive hearing of the case was scheduled for 3 November. Before the judgment was handed down on 15 November, the NPCSC issued an interpretation of Article 104 on 7 November, which was binding on all HK courts, stating that “oath-taking must comply with the legal requirements in respect of its form and content” and “no public office shall be assumed by anyone who fails to lawfully and validly take the oath”. Although the court made clear that its ruling was independent of the interpretation in ruling that the oath of office taken by the two lawmakers was invalid, thereby disqualifying the elected legislators from assuming office, the interpretation effectively pre-empted the court from ruling otherwise.
NPCSC Decision not mentioned in the State Report:
- The Co-location Arrangement: The joint immigration checkpoint in Kowloon for the Guangzhou-Shenzhen-HK Express Rail Link (“the Co-location Arrangement”) enables the enforcement of the full array of Mainland laws in designated parts of HK, including the “Mainland Port Area” of the railway network. This contravenes the BL which explicitly requires national laws applicable within HK territory to be listed in BL Annex III. The result is that HKSAR laws, including those implementing the HKSARG’s obligations under the ICCPR, are excluded from application in those areas. In September 2017, the Co-location Arrangement was challenged in court with regard to its compatibility with the BL but the court refused to proceed considering the constitutionality issue because there was not sufficient certainty on how the Co-location Arrangement would be implemented. On 27 December 2017, the NPCSC made a decision declaring that the Co-location Arrangement is consistent with the BL (“the NPCSC Decision”) without stating how this is so. A piece of HK legislation was enacted to implement the NPCSC Decision. In late 2018, the legislation came under judicial challenge. Although the court did not rule on the legal effect of the NPCSC Decision on HK courts, it found the NPCSC Decision to have “high persuasive value” and ruled that the Co-location Arrangement is consistent with the BL. What the court did to limit the damage of the NPCSC Decision in bringing arbitrariness to the BL was to highlight that its own decision has no bearing on any future measure in ruling any other areas in the HKSAR subject to the laws of the Mainland.
|Please explain the impact of the interpretation of Basic Law and any Decisions of the NPCSC on the rule of law, right to a fair and public hearing and the independence of the judiciary in HK.|
Article 17 Protection of privacy, family, home, correspondence, honour and reputation
- The HKPF has been criticized for violating the privacy of protesters, journalists and others related to the Anti-Extradition Bill protests, including taking close-up pictures of protesters, showing identification cards of reporters to various live video feeds during the protests (leading to online doxxing of the individuals concerned) and accessing private data contained on the smartphones of the arrested without warrants.
|Please comment on the allegations and evidence in news reports which reflects the breach of privacy of protesters, journalists and other individuals by the HKPF during the Protests.|
Article 19 Freedom of opinion and expression
Press freedom (re: para 112 of the State Report)
Media self-censorship & ownership
- Press freedom in HK has been shrinking for a long time since the handover in 1997. According to the Index of the Reporters Without Borders(RSF), Hong Kong’s ranking in the Press Freedom Index has been dropping by 1.4 points annually and was down to 73 in 2019. The survey looked further into the reasons of the worsening situation and found that self-censorship has always be the main reason.
- It was also found in different surveys conducted by the HK Journalists Association (HKJA) that self-censorship was the main reason for the worsening situation. In particular, the survey conducted in 2019 showed that self-censorship and pressure from the Central Government in Beijing are the top factors in reporters’ assessment of the worsening press freedom situation in Hong Kong.
- In fact, the two factors are interwoven and the influence of Beijing has been channelled or amplified by the fact that the Chinese government or mainland corporations have direct control or stakes in nine out of twenty-six mainstream media outlets, representing 35 percent of the total. Moreover, owners or news heads of more than 80 percent of mainstream media outlets have been incorporated by Chinese government’s appointments or rewarded by the HK government. Unavoidably, the diversity of viewpoints within the local media has been dropping gradually. According to consecutive surveys conducted by the HKJA, with 10 as the maximum, the diversity dropped from 6 in year 2013 to 5.4 in 2018.
- As a result, self-censorship has been on the rise. According to HKJA’s survey conducted in early 2019, 112 journalists, or 22% of the 516 respondents, said their superiors had exerted pressure on them to drop or minimize reporting on HK independence. The figure carries more weight when it boils down to the fact that almost every media outlet has 2 to 3 reporters feeling the heat. Also, 69 percent of the respondents said the increasing emphasis of one country over two systems by the Central Government officials had made them uncomfortable in reporting dissenting voices. This is an increase of six percentage points compared to last year’s corresponding finding.
- The worsening situation in mainstream media has been “off-set” a bit by the blossoming online media. Having said that, it must be pointed out that while a number of them are critical, some are founded by pro-china or the establishment camp. Yet viewership of HK people reading international media and critical news outlets outweighed that of the pro-establishment media.
- Online media is a check in the shrinking of press freedom but it cannot serve as a balance. It needs the local government to stand up for HK people and ask the central government to respect the rights and freedoms, including the freedom of expression as well as press freedom, which are enshrined in the Basic Law. At a minimum, HK government should enact laws on access to information and archives to safeguard the people’s right to know.
Public Service Broadcasting (PSB)
- Radio Television Hong Kong (RTHK), the public broadcaster in Hong Kong, is facing unprecedented political pressure. In early April 2020, RTHK was accused by the HK government of violating the “one-China principle” for asking a WHO senior officer whether WHO would consider Taiwan’s membership to the WHO. The reporter who asked the question has come under great pressure from government supporters. RTHK suspended its satirical show Headliner after the Communications Authority (CA) ruled that the complaints that the show had deviated from regulations “in respect of [the] accuracy of factual contents, denigration of and insult to the Police, and expression of a sufficiently broad range of views in personal view programmes” were substantiated. Such a ruling, which imposed subjective standards on a satirical show to determine whether the content had fallen foul of the aforementioned regulations, is a limitation of free speech on the basis of political expression and a restriction of artistic license to convey ideas using satire. Such a ruling would undermine the diversity of media programmes. The board of advisers of RTHK has been criticised by its trade union for intervening in its operation, including with regard to human resources matters. On 28 May, the government announced that a dedicated team would be established to review the governance and management of RTHK, which could be a step closer for RTHK to become a mouthpiece of the government, rather than an independent body as per its charter.
|The government must be urged to recognise RTHK’s role as public service broadcasting service, and to take measures to ensure its independence and not to interfere by penalty or reduction of budget for any political reasons, and to review the Charter’s clause regarding One Country Two Systems, which is overly broad and has been used against the public’s interest in having access to a wide range of media and perspectives.|
Prevention and protection against intimidation and harassment of legislators, media personnel and academics
- Under Article 19 of ICCPR, everyone shall have the right to hold opinions without interference. The government’s handling of the Extradition Law Amendments Bill has resulted not only in endless confrontations between the police and protesters, but also chronic division between candidates and their supporters during the 2019 District Council elections. The offices of incumbent pro-government District Councillors and lawmakers were the prime targets of vandalism; and there were close to 20 incidents of personal assaults and intimidation directed mostly at the opposition, pro-democracy camp.
- To name but a few of those incidents, in late September, Stanley Ho Wai-hong, then member of the opposition Labour Party, was attacked by four men carrying metal rods. He suffered severe head injuries and several fractures to both of his hands. On October 16, Jimmy Sham, the Convenor of the Civil Human Rights Front (CHRF) and a candidate for the Lek Yuen constituency, was attacked by at least four men wielding hammers and spanners. Pro-democracy candidates Jocelyn Chau Hui-yan and Jannelle Rosalynne Leung were intimidated and physically assaulted. On November 3, during a protest at Cityplaza, Andrew Chiu, District Councillor and a member of the Democratic Party, defending his seat on the District Board, was stabbed with a knife. His left ear was partially bitten off by the attacker who attempted to flee following the attack.
- What is important to note here is not merely the personal safety of candidates and their supporters during an exceptionally tense and contentious election period in 2019, but the fact that over the years, the Central People’s Government and the HK Government have created and fomented conditions described as an increasingly inhospitable political environment for the exercise of civil liberties and political rights in general, in particular, for the expression of ideas and opinions that are different from the Government.
|The Committee may recommend measures that the HK Government is required to undertake to uphold electoral integrity in accordance with the ICCPR, especially the full and unfettered enjoyment of civil liberties and political rights of citizens who disagree with the government and the Central People’s Government, to stand for office in a free and fair election.|
The offences of treason and sedition
- The HK Government has recently invoked a colonial era law on sedition to arrest dissidents, and has vowed to use an equally historical anti-terrorism law against so-called local terrorism.
- In March 2020, about six decades since the last application of this law, the Police arrested the chairwoman of the Central and Western District Council, Cheng Lai-king, 61, for sedition, claiming that she shared a post on her social media, which was a widely-shared Facebook post, purportedly containing information about the police officer responsible for firing a projectile into the face of an Indonesian journalist during protests in October 2019. Cheng shared it on her Facebook calling for the police officer to turn himself in, with no mention of violence at all. It is reported that there was at least one other arrest made based on sedition, in a different case scenario.
- In fact, in recent years, pro-government figures and Beijing’s media mouthpiece have been advocating for the use of this and other archaic draconian laws against pro-democracy protestors, lawmakers, associations, pro-independence activists etc.
- In May 2020, the HK Government issued a policy paper formally claiming that there is a rise of “local terrorism” in Hong Kong, citing that the Police seized explosives from “rioters”, which refers to protestors involved in the Anti-Extradition Bill Movement. In fact, both the Chinese and Hong Kong government commenced to characterise protests in HK as terrorist acts, and paved the way to deploy anti-terrorism law to regulate protests and individual citizens. On 12th August 2019, the Hong Kong and Macau Affairs Office of the State Council of PRC stated that terrorism was a rising trend in the protests occurring in Hong Kong. On 2nd October 2019, Xinhua News Agency, the official state-run press agency of PRC, declared that the ‘black bloc’ protestors, though un-identifiable, served as the greatest threat of terrorism against Hong Kong. On 16th April 2020, the Commissioner of Police in HK told a local newspaper that the police would study whether anti-terrorism law should be used against ‘local terrorism’ Two weeks later, the Secretary for Security in Hong Kong further commented that the authority is considering freezing assets of suspects and raising the terrorism threat level in accordance with the United Nations Ordinance. Finally, the ‘Thematic Study’ of Hong Kong’s anti-extradition protests by the Independent Police Complaints Council, which was released on 15th May 2020, supported the police description of the HK protests as moving towards the path of terrorism.
- In response to the increased notions by the government on deploying the existing colonial era anti-terrorism law against protestors, and abuse of the sedition law, six of the UN Special Rapporteurs wrote an open letter to the HK Government, expressing their concerns over the compatibility of the respective laws with international human rights standards, and urged the HK government to respond.
- The overly inclusive definitions of ‘terrorism acts’ and ‘national security threats’ under these colonial era laws have raised our concerns, as certain actions protected by international human rights law such as peaceful assembly or exercise of freedom of speech and of association, would possibly be judged as constituting acts of terrorism and seditious speech under these existing laws.
|The HK Government should explain whether and how the definition of terrorism under the existing Anti-Terrorism law of HK complies with the UN Security Council Resolution 1566, alongside the definition of terrorism adopted in multi-lateral treaties governing terrorism.The HK Government should offer an explanation as to which of the Anti-Terrorism Law and Sedition Laws are compatible with the obligations of the HK Government under Articles 2, 19, 21, and 22 of the ICCPR. The HK Government elaborate why the ideas and legislation on sedition and terrorism are used in relation to demonstrations and protests in HKSAR, and how this complies with Hong Kong SAR’s international human rights obligations, in particular with regard to the ICCPR and the measures it will take to preclude a chilling effect on the exercise of civil and political freedoms in the territory.The HK Government should conduct a comprehensive review and revision of the legislations of anti-terrorism law and sedition law, in compliance with the ICCPR and the Third, Second, and First Reviews of HKSAR’s periodic reports to the HRC.|
- Re paras 117-120 of the State Report: As the Chinese government is stepping up its efforts to impose its authoritarian controls across different sectors of Hong Kong’s society, academic freedom in HK has been diminished alongside the overall erosion of Hong Kong’s autonomy under the One Country Two Systems (OCTS) model.
- In recent years, the influencing mechanisms of the Chinese government on the higher education sector include:
(1) Appointing pro-China elites as chairmen and members of university councils through the Chief Executive controlled by the Chinese government (e.g., the Chief Executive appointed Mr. Andrew Yao, a member of China’s National People’s Congress, as Chairman of the Council of the Lingnan University in December 2019);
(2) Appointing a scholar from China unfamiliar with Hong Kong and with little or no knowledge of the Cantonese language as a university president (e.g., Teng Jin-Guang, a Chinese scholar who previously served as Vice President of Southern University of Science and Technology in China, was appointed as the President of the HK Polytechnic University in March 2019);
(3) Pressuring university management with funding allocations and policies through the Secretary for Education appointed by the Chinese government (e.g., After the siege of CUHK and PolyU by the police in the Anti- extradition bill movement, the government withdrew the funding proposal of HK$59.7 million and HK$340 million for development of a teaching-research complex at the Chinese University of HK (CUHK) and the library expansion and revitalization project of the HK Polytechnic University (PolyU) respectively in November 2019.)
(4) Attacking university management and scholars through pro-China elites and organizations (e.g. In April 2019, Vice Chancellor of HKU, Zhang Xiang, was under pressure to dismiss Prof. Benny Tai by a group of 29 pro-China alumni, including legislator Junius Ho Kwan-yiu and local National People’s Congress deputies Choy So-yuk and Maggie Chan Man-ki.)
Controversy over HKDSE History examination question— politics overriding the education profession
- In May 2020, the Education Bureau pressured the HK Examinations and Assessment Authority (HKEAA) into cancelling a HK Diploma of Secondary Education History examination question for political reasons. The question asks whether candidates agreed with the statement “Japan did more good than harm to China in the period of 1900-45.” Examination candidates had to answer the question using their own knowledge and reference to two sources provided, which mentioned Chinese students studying in Japan and Japan’s loan to the republican government at the time. The Education Bureau learned of the question when the exam took place, and immediately issued a statement to criticize the question for “leading candidates to possibly arrive at biased conclusions while seriously hurting the feelings and dignity of the Chinese people who endured great suffering during Japan’s invasion of China”, and demanded that the HKEAA scrap the question at issue, and vowed to investigate into the working method of the HKEAA. On May 18, the Education Bureau said the Chief Executive was empowered to issue instructions to the HKEAA on “matters appearing to the Chief Executive to affect public interest”. Chief Executive Carrie Lam later said that while she had not yet invoked the power of the CE under the HK Examinations and Assessment Authority Ordinance, she “would not shun from it” if it was to safeguard the objectives and quality of education. The Office of the Commissioner of the Ministry of Foreign Affairs in the HKSAR and the Xinhua News Agency both publicly criticised the question.
- The question was formally cancelled by the HKEAA on 22 May 2020, resulting in the complete dismissal of the academically relevant and often intellectually taxing responses of examination candidates.
- Many education professionals were enraged by this decision as they find it to be blatant political repression. In past public examinations there were questions of equal so-called moral controversy, which were nevertheless regarded as valid exam questions. They regard this as the beginning of increased political intervention into the public education system.
|The Government should guarantee the independence and autonomy of university management by, for example, reviewing or removing the chairmanship of Chief Executive as Chancellor of all publicly funded universities in Hong Kong.An independent monitoring mechanism, such as an NHRI, be set up to review and monitor violations of academic freedom in the territory.Review and replace the CE-appointment system of council members of universities with a more inclusive, stakeholder-based system.The Government should provide information about the steps it will take to set up a mechanism to insulate the education system, including the drafting of school curricula, school management, and public examinations, etc., from political interference, and the extent of and restrictions on the Chief Executive’s power to issue instructions to the HKEAA.|
Undue restrictions of children’s (students under 18) rights to expression in school campuses
- The Education Bureau ordered students not to organize or participate in any activities that aim at expressing political stance at schools, including in peaceful manners, such as singing songs, or forming human chains. Also, after the government introduced the Prohibition on Face Covering Regulation on 4 October 2019, which only applies to public meetings and processions regulated under the Public Order Ordinance, the Education Bureau told students not to wear masks at schools except for health or religious reasons.
- The HKPF has been using violence against children, mostly secondary school students, who participate in peaceful demonstrators such as school strikes.
|The government should respect students’ right to freedom of expressions. They should not impose excessive restrictions on student’s freedom of expressions in or outside schools, especially when students exercise their rights in a peaceful manner.|
Access to Government-held information
- The Code on Access to Information does not apply to many statutory bodies, such as the EOC and Duty Lawyer Service. Information is often refused on the grounds that it is not maintained, which is allowed under the code. There is no archives law and a large amount of records have been destroyed by the Administration.
|HK should adopt a Freedom of Information Ordinance with adequate disclosure requirements as well as an Archives Law with penalties for non-compliance within one year.|
Expressing political opinions
|There were cases where citizens were arrested when they were posting on “Lennon Walls”, which are walls in public places all over HK where citizens post messages related to the social movement. Please provide the number of arrests made for putting up posters or other material on “Lennon Walls”, the number of arrested who are charged, and the charges concerned. Please comment on the arrest of non-violent protesters posting on Lennon Walls and please provide information on any steps taken to protect the people who peacefully express their views on Lennon Walls. Please contrast to the lack of any arrests of persons posting notices or posters in support of the government or police in exactly the same manner. Please comment on the HKPF ‘s announcement of the arrests followed by the release of the arrested persons without charges.|
Censorship of social media in HK (by the authorities / by business operators)
- The HK police arrested a social media user who managed a protest-related channel on the Telegram messaging app and forced him to hand over its membership list. Similar channels were shut down as a result.
- The government applied and was granted a court order to ban posting or spreading online messages ‘inciting violence’. Operators of Internet platforms actively block content that could violate the order.
- The HKPF made formal requests to demand that the HK office of Facebook remove ‘defamatory’ posts and to surrender relevant private user and content information for investigation. Facebook has been criticized for removing posts and accounts that express political views.
- YouTube has also been accused of barring political commentary videos from reaching advertisers. Users of WeChat and Weibo have also reported censored content related to anti-government protests.
|The HK government should stop using arrests, court orders and political pressure on social network operators to inhibit freedom of speech online.|
Article 21 Right of peaceful assembly and the operation of the Public Order Ordinance
- Re: paras 125-138 of State Report
- Organizers and participants of peaceful assembly in HK are under imminent threats and suppression in exercising their right to freedom of assembly. The operation of the Public Order Ordinance (POO) is problematic and not compatible with international human rights law.
- The Public Order Ordinance continues to require prior approval from the Police to hold any demonstrations larger than certain sizes, contrary to the Committee’s concerns raised in its Concluding Observation of the 1st report from Hong Kong, para 19. Upon failure to obtain required approval, organisers and participants are subject to criminal charges, punishable by a fine and a maximum 5 years’ prison sentence. In 2019, Police prohibited 47 public assemblies and processions, all of which were related to protests against the HK government’s legislative proposal to amend the extradition law in Hong Kong.
- Hong Kong government recently prosecuted 15 high-profile democracy activists in April 2020 on charges of organizing or taking part in unauthorized assemblies under the POO. Cases relating to unauthorized assembly are usually heard at the Magistrate level and any penalty for convicted cases usually can be settled with fines. However, these 15 activists were prosecuted through criminal indictment and their cases will be heard at the District Court level, which has the power to impose up to a 7 years custodial sentence.
- Furthermore, the offence of rioting under the POO is too broad and imposes excessive criminal liability against participants of an assembly. The Committee already raised its concerns in its Concluding Observation of the 3rd report of HK about “the application in practice of certain terms contained in the Public Order Ordinance, inter alia, ‘disorder in public places’ or ‘unlawful assembly’, which may facilitate excessive restriction to the Covenant rights”. For the charge of “riot”, the acts of peaceful participants and non-peaceful participants are not required to be differentiated in accordance with the offence. A person merely chanting slogans, or occupying on the street peacefully during an illegal assembly, may be liable for rioting if any individual who is present commits a non-peaceful act which by statute turns the entirety of the assembly into a “riot”. From June 2019 to 14 May 2020, 1448 persons were arrested for rioting, and 595 have been prosecuted. Overall, the Police arrested 8337 persons from June 2019 to 14 May 2020 in relation to the Anti-Extradition Bill protests, and 1617 persons have thus far been prosecuted, with the others liable to future prosecution. Many of them were arrested or prosecuted for offences under Public Order Ordinance.
- It has been well documented that the police have used a heavy-handed approach with regard to policing public assemblies. Patterns of human rights violations have been repeatedly observed: (1) Excessive and indiscriminate use of force has been used in the course of dispersing and arresting protestors, for example using batons striking protestors’ heads, excessive use of tear gas, and excessive and improper use of impact rounds (e.g. aiming at or striking individuals above the waist or neck). Between June 2019 and February 2020, the police used 16,191 tear gas canisters, 1,880 sponge rounds, 10,100 rubber bullets and 2,033 bean bag rounds during the operations while handling protests; (2) Police have applied kettling tactics on certain occasions, including on university campuses, in shopping malls, and on public streets, which resulted in vigorous confrontations between protestors and police; (3) Police conducted mass arrests of up to hundreds of persons during single events, and have executed stop and search operations specifically targeting youngsters near places where public assemblies took place or were predicted to take place; (4) Police arrested first-aiders, journalists, and human rights observers; (5) Police arrested protestors who were the victims of ill treatment or malicious acts which could be considered acts of torture during police custody (please refer to Articles 7 and 10 for details).
- Figures regarding public assemblies provided by police to the Legislative Council were as follows:
|Year||Public assembly appli-cations||Public assembly applications that were denied||Public procession applications||Public procession appli-cations that were denied||Public assemblies/ processions organised without giving prior notice to the Police as required||Number of persons arrested in relation to public assemblies/ processions||Number of persons prosecuted in relation to public assemblies/ processions|
|Will the Administration ensure the HKPF and its leadership understand that isolated acts of violence do not make an assembly violent and is not an excuse to disperse an assembly?Please provide information on the measures taken by the HKPF to facilitate peaceful assemblies, including measures taken to protect organisers and participants against attacks by people holding different political views.Please comment on reports of pro-government and pro-HKPF thugs attacking non-violent protesters. Please report on the progress of the investigation into the 21 July attack and the arrest and prosecution of the perpetrators. Also, please explain the role of the HKPF in the event and the failure of the HKPF to deter or prevent the attack.Please explain the use of excessive force by the HKPF to disperse peaceful assemblies from 12th June 2019 onwards.Please report on the number of arrests and prosecution of human rights observers, medical workers, journalists, social workers and other third parties who are monitoring assemblies or providing humanitarian assistance at assemblies, and the results of any criminal or disciplinary investigation or prosecution for those police officers who arbitrarily arrested such persons. Will the Administration introduce any law or policy to protect human rights observers, medical workers, journalists and social workers from arrests in assemblies, where they are not participating in the assemblies?Please comment on reports of disproportionate use of lethal weapons by police officers during the 2019-2020 Protests. The term “disproportionate use” here includes display and discharge of lethal weapons, as well as making threats of using it for situations that cannot be handled without using lethal force. Please comment on reports about HKPF officers arbitrarily using force on non-violent protesters, reporters, human rights watchers, rescue and medical personnel, onlookers, and passers-by. Please provide the number of HKPF officers being investigated/charged/reprimanded for using excessive force during the Protests and provide the details of the cases. Please comment on reports concerning improper use of less-lethal weapons by police officers during the 2019-2020 Protests, including the use of baton, shield, less-lethal firearms, pepper spray, laser or high-power light beam device, sound device, water cannon on violent protesters, non-violent protesters, reporters, human rights watchers, rescue and medical personnel, onlookers, and passers-by. In particular, comment and provide information concerning the use of less-lethal firearms, tear gas, and pepper spray against journalists. Please provide HKPF guidelines concerning the use of lethal and less-lethal weapons and changes made with regard to the specifications of such devices or their usage since September 2014. Please comment on the widespread use of the term “cockroach” by HKPF officers (including the Chairman of the Junior Police Officer Association and a senior Community Communication Officer) to describe protesters. Please provide relevant HKPF guidelines on police conduct and communication with citizens, and the number (if any) of police officers punished/charged for calling protesters (and anyone at the scene during protests) cockroaches.Please suggest that the Administration educate HKPF officers with regard to the latest human rights standards in policing, especially ways to facilitate an assembly and communicate with organizers and participants.Please ask for an explanation for the allegations of police’s beatings, with video evidence, of passengers in the Prince Edward MTR station on 31 August 2019, as well as the containment of the Polytechnic University of HK in November 2019.|
Article 22: The right to freedom of association
- The right to freedom of association in Hong Kong has been deteriorating in the reporting period, as reflected in a series of apparent acts of government suppression of and hindrances to pro-democracy societies and trade unions.
The Societies Ordinance
- The formation, operation, dissolution and lawfulness of most societies are governed by the Societies Ordinance. Since its inception, the Ordinance has attempted to regulate political and other ordinary societies together with ones alleged to be associated with organized crime, subjecting them to similar if not exactly the same control regime. Although some differentiation has gradually been made, mostly on penalties, between triad and ordinary groups were made in the Ordinance after many amendments, the common treatment of such totally different groups in one law is still a real threat to the freedom of lawful association.
De facto application system in registration
- This approach basically assumes that a society is not lawful to operate in a month’s time after its formation unless it seeks approval from the authority. It is a crime for any person continues to be, or claims to be, office-bearers of the society if its notification, basically a form of application, for registration is refused. The processing of the registration is by the police. The police may also cancel the registration of a society after consulting the Secretary for Security.
- The Secretary for Security may, at the proposal of the police and after receiving representation of the society affected, prohibit the operation of a society, rendering the society “an unlawful society”, a term also applies to triad (mafia) society in Hong Kong. Any person, who thereafter assists in the operation of an unlawful society, fund it or provide space or other resources to it, commits a crime punishable by imprisonment.
Little check and balance
- As far as a society is concerned, no penalties or injunction with adverse effects less than demise of the society are available in the Ordinance. Any refusal or cancellation of registration, or prohibition, of a society does not need the approval of a court of law or any independent tribunal but simply by the police or the Secretary for Security.
- Appeals can be made to the Chief Executive in Council (Executive Council, the Chief Executive’s own cabinet). Judicial control is basically by way of judicial review, i.e. on whether the process was proper, not the merit of the decision unless the decision was so unreasonable that no reasonable decision maker would have made it.
- Even after successfully registering, a society is still subject to the stringent regime of control under the Ordinance, with police officers empowered to enter its office or venue of meeting at any reasonable time to discharge their functions under the Ordinance.
Broad Grounds inappropriate for empowering legislation
- The refusal or cancellation of a society registration or prohibition of a society can be made if the responsible public office holder reasonably believes that the cancellation is necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others. (Any society can also be banned if it is a political organization whose primary objective is to field candidates in election.)
- Unlike a constitutional document like a Bill of Rights, in an empowering legislation like the Ordinance such broad terms as “national security” and “protection of the rights and freedoms of others” lack precision and guidance to the police in their exercise of powers and discharge of functions on derogation and even deprivation of a constitutional right is totally unacceptable.
Safeguards against abusing the grounds of national security
- The Siracusa Principles states that national security “cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order.” It may only be invoked “to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force.” Its inclusion in the Societies Ordinance (and the Public Order Ordinance) is therefore unwarranted, as it is difficult to suggest that a society, or a demonstration held by it, in Hong Kong will threaten the existence of China. If there is any local and isolated threat to law and order, it can be dealt with under the heads of public order and public safety.
- The Johannesburg Principles, which are concerned more with the freedom of expression, also stress the importance of the requirement of force in imposing restrictions on the grounds of national security. The Principles state that the freedom of expression may be restricted as a threat to national security only if a government can demonstrate that the expression is intended to incite violence, that such violence is likely to be incited, and that there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.
Requirement of violence or force
- However, the ground of “national security” was introduced in the Ordinance without any qualification with regards to the requirement of violence or force, despite local and international criticisms. A concession was made by the Chief Executive in respect of the definition of “national security” in that it was defined as “safeguarding of the territorial integrity and the independence of the People’s Republic of China” while linking its meaning to that in the ICCPR. It is difficult to understand how the HKSAR’s intention to exclude the requirement of force could be reconciled with the ICCPR’s meaning of “national security” as outlined in the definition.
Prodemocracy organizations being “punished”
- Unfortunately, the Hong Kong National Party (HKNP), a localist political party in Hong Kong which campaigned for independence of Hong Kong, have been prohibited by the Secretary for Security under the Societies Ordinance (even though it has only applied for company registration under the Companies Ordinance) on the grounds of national security and public safety, in a way totally incompatible with the Siracusa Principles, the Johannesburg Principles and the ICCPR.
- HKNP and its convenor and even people inviting its convenor have been “punished” by other means. Before the formal prohibition of the HKNP, HKNP’s application for public gathering in Tsim Sha Tsui has been refused; its application for registration under the Companies Ordinance has been dragged on and finally refused; its stall in a new year eve market was terminated, its convenor Chan Ho-tin disqualified from running in the Legislative Council General Elections, Victor Mallet who invited Chan to an FCC forum denied renewal of visa to work as a journalist.
- Demosisto, a local political group led mainly by former student leaders, has also had their society registration application processing dragged on by the authorities. It and its members have also been “punished” by various means. Their application for registration under the Companies Ordinance been stalled for a long time and finally refused for including “democratic self-determination” which was deemed as an “unlawful purpose” (Demosisto has now replaced the said purpose); the mailing of their election materials blocked; their candidate running for the LegCo By-election in 2018 was disqualified; their application for opening bank accounts were denied; and their elected representative to the Legislative Council was stripped of their seat.
- The freedom of association of people holding political views very different from the authorities has been eroded for largely political reasons. Further deterioration is expected if the new national laws on national security are imposed on HK.
- The Spark Alliance is an organization that provides financial assistance to political arrestees. In December 2019, four of its leaders were arrested, with the charge of money laundering. Its bank account, which contained around 70 million HKD of crowdfunding donations, was frozen by HSBC, apparently at the request of the police without any court order.
Intentional delay in union registration
- The Hong Kong government has been intentionally slowing down the trade union registration process. By April 2020, there were more than 1,600 pending applications, while the Registry of Trade Unions of the Labour Department (LD) could only complete around 60 applications in a month. The Secretary for Labour and Welfare, Dr. Law Chi-kwong even pointed out that the LD may need 50 years to finish the remaining applications. Facing the lack of manpower to handle the skyrocketing amount of outstanding applications, Law refused to deploy additional manpower to speed up the registration process. It is possible that the government deliberately slowed down the process to limit the number of prodemocracy trade unions to be properly registered and thereby eligible to participate in the upcoming Legislative Council Elections.
- According to the International Labor Organization, the union registration process should not be delayed without any appropriate justification by the authorities. The normal duration of the whole process should be within three months. The delay may cause the infringement of Article 2 of Convention No. 87. Also, Article 22 of ICCPR enshrines the rights to freedom of association without government restriction. The lengthy registration process can be already seen as a hindrance to this right and that of participation in elections.
The enactment of National Security Law that poses a threat to union activities
- The imposition of the National Security Law by Mainland China on Hong Kong aimed at bringing HK under control will further diminish the freedom of association of Hong Kong people. It is expected that the level of suppression of political parties and trade unions will be further escalated after the imposition on National Security Law. Although the details of the law have not been announced, the new law covers the four key areas: secession, subversion, terrorism, and foreign intervened activities. The vagueness of the terms leaves much room for interpretation. The law will directly affect the connection between the local trade unions and the international unions. The authorities may criminalize union activities for “colluding with foreign associations”. International Trade Union Confederation (ITUC) also fears the new law will destroy the trade union rights to associate and liaise with international organizations in the name of national security. National Security Law will endanger the fundamental rights of HK people.
- In spite of the imposition of such national law, HK continues to be required to enact “on its own” national security legislation under Article 23 of the Basic Law and reaffirmed with great urgency in the recent decision by the National Peoples’ Congress, making the future of freedom of association and other rights even bleaker.
- Important note: Freedom of association related to trade unions can be found in the shadow report on HK submitted by the HK Confederation of Trade Unions.
Article 23 The family – a vital component of society
- There are still approximately 100,000 split families comprising single-parent, mostly women, separated from their children by the Hong Kong-Mainland China border as a result of problematic and long-standing immigration policy.
- For situations where a non-refoulement claimant has a child with a HK citizen, the child is a HK citizen. There is no guarantee they can stay together as a family after the case is decided and the non-refoulement member of the family has to return to country of origin, or to resettle. It is depriving the children’s right to be taken care of by their parents. Thus, the government should grant the right of abode to the non-refoulement claiming parents of these single families whose children are HK citizens.
|Please comment if the HK government has any plan to reform the mechanism to expedite the re-union of split families to allow parents to settle in HK to care for their children. Whether the current legal regime and policy facilitate families to stay or resettle together?Please see further questions in art 26 &27.|
Article 24 Rights of children
Violation of children’s rights in the context of policing of protests
- Please refer to Article 21.
Representation of children in care or protection cases
- Paragraph 166 of the State Report referred. During the anti-government protests in 2014 and 2019, several children (as young as 13) were detained by police for periods for as long as 27 days pending applications to the juvenile courts for care or protection orders under the Protection of Children and Juvenile Ordinance (Cap. 213). These detention powers were arbitrarily employed due to the lower threshold of proof and in the absence of evidence of arrestable offences. In almost all of these cases, care or protection orders were ultimately refused by the courts and the children released without charge or the charges filed were ultimately withdrawn. In such circumstances, the police are not subject to an express statutory duty to act in the best interests of the child.
- This practice is a systematic abuse of process, calculated for unjustified deprivation of liberty (art 10) of children that has contributed to reduced confidence of parents and children in the legal regime for child protection (art 24). In the context of the 2014 and 2019 protests, this practice also has the effect of deterring and denying children their lawful right to peaceful assembly (art 21). The arbitrary detention of children under such circumstances is contrary to the best interests of children under the Convention on the Rights of the Child and the principle that children should only be detained as a last resort, as set out in the guidance given by the Committee on the Rights of their Child.
|The HKSAR should review and strengthen policy guidance for its police force in the use of child protection powers in accordance with the Covenant and with principles governing the rule of law. The HKSAR should take steps to fully incorporate into domestic legislation the protections under the Convention on the Rights of the Child with respect to the best interests of the child and detention of children.|
Article 25 Right to participate in public life
Constitutional Development (para. 168-184 of State Report)
- The Committee’s Concluding Observations in the last cycle (April 29, 2013, para 6) and the series of follow-up letters sent to the State party referred. Regarding the proposed political reform in accordance to the NPCSC’s decision on 31 August 2014, the Special Rapporteur on the Follow-up to Concluding Observations rightly questioned how it could provide for universal suffrage for the elections. In her letter dated 16 August 2016, the Human Rights Committee “regrets that Hong Kong, China has not yet made arrangements for elections by universal suffrage in 2017” and “reiterates its recommendation that Hong Kong, China withdraws its reservation to article 25(b) of the Covenant”.
- The Government’s political reform proposal based on the NPCSC’s decision failed to pass eventually. No reform proposal was raised as to the election of the LegCo when the NPCSC announced its decision for the CE election in 2015. To this day, the election of legislators returned by traditional functional constituencies, which account for 30 out of 70 seats in the LegCo, remains exclusive to only a portion of the population. Since Carrie LAM-CHENG Yuet-ngor assumed office as the Chief Executive of Hong Kong on 1 July 2017 by the 1200-member Election Committee returned by a selected electorate comprising of 246,440 voters (or 0.00034% of the 3.5 million registered voters for electing half of the 70 LegCo seats), she has repeatedly refused to launch a new round of constitutional reform to implement universal suffrage.
|The Committee should continue to urge the HKSAR Government to implement universal and equal suffrage in all elections in HK in conformity with the ICCPR, and demand an explanation where the HKSAR Government has failed to make progress according to the Basic Law.The Committee is advised to express concern about the lack of a clear plan to institute universal suffrage and to ensure the right of all persons to vote and to stand for election without unreasonable limitations for both CE and LegCo elections. The Committee may wish to learn from the Government whether it has undertaken to introduce a new proposal in accordance to the so-called “5-step procedure” and the rationale of the NPCSC for refusing to revise its 2014 Decision which had been rejected in Hong Kong. The Committee is advised to ask the HKSAR Government if it has planned to withdraw its reservation to article 25(b) of the Covenant. If not, why?Political representation in the election of the Chief Executive is reserved for the religious sector under Annex I of the Basic Law. However, the Legislative Council and the Chief Executive under the Chief Executive Election Ordinance (Cap 569) have restricted representation to 6 religious groups. Please explain why large and significant religious minority groups namely, Jewish, Hindus, Sikhs and Parsees are entirely absent from representation.|
Political Screening, Disqualification of Opposition Lawmakers & Candidates and Censorship of Campaign Materials
- The anti-China oath-taking in 2016 of two localist lawmakers triggered an interpretation of the Basic Law which requires public officials to take their oaths “sincerely” and “solemnly” or face disqualification. This Basic Law interpretation eventually made the local judiciary disqualify the two localist lawmakers and another four pan-democrat lawmakers for failing to take the oath of office solemnly, sincerely, and in its entirety. Since then, candidates who wish to participate in elections at any level will have their background, past and current activities as well as the manifesto vetted by the Returning Officers (ROs) before they could formally participate in the elections.
- Up to this point, the ROs have disqualified a total of 6 prospective candidates: 3 candidates at the 2018 LegCo By-elections (March), 1 candidate at the 2018 LegCo By-election (November), 1 candidate at 2019 Village Representative Election, and 1 candidate at the 2019 District Council Election. The ROs responsible for these cases had gone at length to question the candidates’ background, past and current activities as well as the manifesto to rationalize their decisions. All of them were disqualified because they were accused of expressing opinions supporting Hong Kong independence or self-determination.
- In addition, the Electoral Affair Commission (EAC) and its Registration and Electoral Office (REO) had denied some candidates access to free-of-charge distribution of election pamphlets as the list of “unconstitutional” thoughts and items included “self-determination”, “civil referendum” and “democratically amend the Basic Law”.
- As a result, the chilling effects were clearly felt during the LegCo by-elections, held in March and November 2018. Extensive self-censorship by candidates for fear of being disqualified or sanctioned.
|The Committee is invited to put forward a recommendation to end the ROs’ power to vet and disqualify candidates which amounts to unreasonable restriction of citizens’ right to participate in public affairs due to their political beliefs.The Committee should inquire into the pervasive and arbitrary nature of censorship and sanctions against opposition candidates in elections of all levels in Hong Kong, particularly, the Committee should evaluate whether such practice violates Article 19 and 25 of ICCPR.|
- The appointment, powers, roles and resources of the EAC, which is Hong Kong’s statutory electoral management body, are ultimately dependent on the government. Its reluctance to take a stance towards a growing number of “disqualification” cases, namely the rejection of nominated candidates to enter the elections by the ROs who are civil servants, is increasingly criticised.
- In the 2019 District Council Elections, there was a record number of incidents election-related violence against candidates and their offices. Moreover, there were growing number of complaints lodged regarding every aspect of the electoral process, such as voter registration, impartiality of government departments, loss of voters’ data, conduct of candidates and their campaigns and polling stations (see, for example, Appendix 6-8 of the 2019 District Council Election Report by the Electoral Affair Commission).
- On the other hand, an unprecedented number of pro-democracy candidates and their supporters were being intimidated or arrested by the police in related to various protests.
|The Committee may consider asking the Government what measures it plans to introduce to support the EAC’s independence and invite the Government to invite and facilitate local and international election observation and monitoring missions and to encourage citizens’ involvement in upholding international standards and norms for free and fair elections.|
|Currently, the HKSARG does not arrange for people with disabilities who are staying in hospitals and hostels long-term to participate in the voting. What are the measures by the HKSARG to assist the people with disabilities who are staying in hospitals and hostels to participate in voting?|
- The District Councils rely on the Home Affairs Department for secretariat support and implementation of resolutions passed in the councils. It is alleged that the Home Affairs Department interfered in the work of district councillors, who take up most of the seats in 17 of a total of 18 districts, because of the political view of council members in office, who are elected representatives of residents of respective districts. For example, when councils moved and passed resolutions to form working groups to follow up on police brutality and handling of the Anti-Extradition Bill protests, the Home Affairs Department would obstruct by claiming that these are out of scope of the powers and functions of the district council, refusing to provide meeting venue and secretariat support, and amending meeting minutes without consulting the chairperson, etc.
|The Committee should ask the Government to respond to allegations of discrimination of district council members based on political opinion or affiliation in assisting or obstructing their discharge of function as elected representatives.|
Articles 26 & 27 Right to equal protection before the law and Right of ethnic minorities
Discrimination Law Review (also relevant to Article 3)
Legislation against racial discrimination
|With reference to the information provided in paras 188 to 196 of the fourth periodic report of Hong Kong, please inform the concrete measures taken to ensure that all Government functions and powers are brought within the scope of the Race Discrimination Ordinance as recommended in the Concluding Observations on the third periodic report of HK (para 19). Please explain why the Government would not take this amendment of the RDO as immediate priority despite the joint communications sent by two special rapporteurs on 11 February 2020. The joint communications from two rapporteurs (see footnote 17) indicate that the “Administrative Guidelines on Promotion of Racial Equality” have an unclear or negligible effect on advancing racial equality or influencing Government policy. Why are the Guidelines not made statutory when racial equity is of utmost importance in the formulation, implementation and review of policies and measures?Although the Race Discrimination Ordinance attempts to address racial problems, flaws such as the exception of language, nationality, immigration, citizenship and resident status not considered as protected characteristics seriously affecting Chinese from the mainland (including new immigrants), migrant domestic workers as well as ethnic residents in Hong Kong. Please explain the attempts made by the Government to address these issues.The Government has not yet enacted any legislation to prohibit discrimination from private persons on the grounds of language, age, criminal record, sexual orientation and religion, and this has resulted in unfair treatment before the law. Please indicate the legislative or administrative measures, including plans to introduce comprehensive anti-discrimination laws (concluding observations on third report para 19) relating to the protection against discrimination on the grounds of language, religion, sexual orientation, criminal record and age. Please provide information on the measures taken to ensure adequate political representation and participation of racial minorities at public elections and at all levels of government.The 2018 CERD in its Concluding Observations requested that HK provide in its next periodic report statistics or administrative records, disaggregated by ethnic origin and national origin of the victims, on investigations, prosecutions, convictions, sentences, sanctions and remedies for racist hate crimes. Please provide information on the progress since September 2018 and share existing data with Committee.What are the measures taken by the Government to ensure religious minority’s right to equal protection in areas such as employment and couples who are lawfully married in countries that allow polygamy?With regard to paragraphs 212 to 220 of the fourth periodic report, please clarify what progress has been made with regard to ensuring adequate opportunities for racial minority children to learn the Chinese language. Since the implementation of the “Chinese Language Curriculum Second Language Learning Framework” in primary and secondary schools in 2014/15 school year (para 214), how many non-Chinese speaking students have bridged over to and remained in mainstream Chinese language classes?Women and girls of South Asia ethnic groups are exposed to higher risks of GBV than Chinese and often cannot and do not receive equal protection. What measures are implemented to ensure GBV victims receive equitable assistance from frontline responders?On 20 October 2019, the Kowloon Mosque, a sacred place of workshop for the Muslims since 1896, was doused with blue dye fired by a water cannon operated by the HKPF to disperse protesters despite there being no rioters or crowds in front of the Mosque. The HKPF claimed that it deployed the water cannon truck “to disperse the rioters” and “during the operation, coloured water was accidentally sprayed at the Kowloon Mosque”. Four individuals were hit by the blue dye when they were gathering and chatting outside the mosque. Please explain why the Kowloon Mosque, a sacred place of workshop for the Muslims was the target of attack of the HKPF on 20th October 2019 despite the visible absence of any rioters or crowds in front of the Mosque. Please advise what measures are being taken to enhance police training to avoid reckless, gratuitous or excessive use of force in the dispensation of its crowd control weaponry and sensitivity to religious sentiment in ensuring that venerable places of workshop are not subjected to direct or collateral attacks or intrusion.Please explain the Government’s position with regard to whether (new) immigrants from mainland China would be protected against discrimination in the Race Discrimination Ordinance, and if not, what plans does the Government have in place to protect these residents from racial discrimination.|
Discrimination on the grounds of sexual orientation and gender identity
- Please refer to the Joint Submission by 12 Hong Kong LGBTIQ+ Organisations.
- Executive summary of the abovementioned joint submission points out that:
(a) The Hong Kong Government refused to take legislative steps to protect the human rights of LGBTI people. LGBTI rights are often ignored by the HKSAR government, despite widespread public support for equality, as evidenced by a report issued by the Centre for Comparative and Public Law, University of Hong Kong, which found that in 2017, nearly 70% of people said that Hong Kong should have a law to protect against sexual orientation discrimination. However, the Hong Kong Government has made no progress on or plans for such legislation.
(b) Transgender persons in Hong Kong need to submit evidences of the completion of gender affirming surgery (GRS) for changing their legal gender on Identity Cards. The surgery must specifically include the removal of reproductive organs and genital reconstruction.
(c) Intersex infants and children in Hong Kong are subjected to unnecessary and irreversible medical procedures at their early age without their consent, only the agreement of parents is considered. Hong Kong Government still has no plan to set up measures making the consent of the intersex child be taken into consideration, and no measures are taken to guarantee that non-urgent and irreversible medical interventions shall be postponed until the intersex child is sufficiently mature to participate in decision-making process.
(d) The Committee Against Torture expressed concerns in its 2016 concluding observation and recommended the government to remove abusive preconditions for the legal recognition of the gender identity of transgender persons, such as sterilization. Though an Inter-departmental Working Group was established in 2014 for the work of gender recognition, no more progress and no news has been released since 2017.
|In light of the Committee’s previous concluding observations (CCPR/C/CHN-HKG/CO/3, para. 23), please indicate what steps have been taken to adopt comprehensive anti-discrimination legislation explicitly prohibiting discrimination on the basis of sexual orientation, gender identity, gender expression, and sex characteristics, inter alia, (a) addressing discrimination in the private sphere; (b) prohibiting all direct and indirect discrimination and multiple forms of discrimination; and (c) providing for effective remedies in judicial and administrative proceedings.Please provide statistics on the number of intersex children, including the number of births annually, and how many of them were subjected to irreversible medical treatment, including genital correction surgeries, before they were able to give fully informed and free consent, and the total number of intersex persons in Hong Kong.Please provide any action plans and updates on the measures taken to reform medical procedures on intersex infants so to guarantee that non-urgent, irreversible medical interventions are postponed until a child is sufficiently mature to participate in decision-making and to give full, free and informed consent.|
- Given that several Recommendations issued by various committees in respect of Hong Kong’s performance under the respective treaty obligations remain unaddressed, we strongly urge the Committee to follow all past recommendations from Concluding Observations issued under various treaty bodies in respect of the issues outlined in this Joint Submission so that the Government may give a full and proper reply.
List of Contributors to the Joint Submission
- 18 District Councils Liaison
- Azan Marwah, Barrister at Law
- Blessed Ministry Community Church
- Canadian Friends of Hong Kong (CFHK)
- Chosen Power (People First Hong Kong)
- Civil Human Rights Front
- Civil Rights Observer
- Covenant of the Rainbow
- Election Observation Project
- Equality Project
- Hong Kong Association for the Advancement of Feminism
- Hong Kong Confederation of Trade Unions
- Hong Kong Human Rights Monitor
- Hong Kong Unison
- Justice and Peace Commission of the HK Catholic Diocese
- Labour Party
- Law Lay Dream
- Les Corner Empowerment Association
- Mission For Migrant Workers
- Planet Ally
- Progressive Lawyers Group
- Progressive Scholars Group
- Society for Community Organization
- Stop Trafficking of People (STOP)
- The Hong Kong Coalition for the Rights of Persons with Disabilities
- The Hong Kong Society for Asylum-seekers and Refugees
- Torontonian HongKongers Action Group
- Women’s Studies Research Centre, University of Hong Kong
List of Co-Signatories (as at 5 June 2020)
- 18 District Councils Liaison
- 2047 HK Monitor
- 617 Citizen Charter
- Asian Migrants’ Coordinating Body (AMCB)
- Australia Hong Kong Link
- Beyond the Boundary-Knowing and Concerns Intersex
- BigLove Alliance
- Blessed Ministry Community Church
- Canada-Hong Kong Link
- Canadian Friends of Hong Kong
- Canberra Hong Kong Concern Group
- Chosen Power (People First Hong Kong)
- Civic Act-up
- Civil Human Rights Front
- Civil Rights Observer
- Covenant of the Rainbow
- CSD (Civil Society Development Resources Center)
- Equality Project
- Fernando Chiu Hung Cheung Legislative Councillor’s Office
- Filipino Migrant Workers’ Union (FMWU)
- Forthright Caucus
- Frankfurt stands with Hong Kong
- Friends of Conscience
- Grassroot Cultural Centre
- Hong Kong Christian Institute
- Hong Kong Civil Hub
- Hong Kong Committee in Norway
- Hong Kong Confederation of Trade Unions
- Hong Kong Deaf Empowerment
- Hong Kong Election Observation Project
- Hong Kong Forum, Los Angeles
- Hong Kong Human Rights Monitor
- Hong Kong Outlanders in Taiwan
- Hong Kong Unison
- Kwai Chung Estate Christian Basic Community
- Labour Party
- League in Defense of Hong Kong’s Freedoms
- League of Social Democrats
- Les Corner Empowerment Association
- Mission For Migrant Workers
- Neo Democrats
- Netherlands for Hong Kong
- New Yorkers Supporting Hong Kong
- Northern California Hong Kong Club
- People Power
- Perth-HK Students’ Anti-ELAB Concern Group
- Phong Trào Dù Vàng – Hồng Hông
- Planet Ally
- Power for Democracy
- Progressive Lawyers Group
- Progressive Scholars Group
- Queer Theology Academy
- Rainbow Action
- Right of Abode University
- Save Hong Kong Through Universal Suffrage
- Scholars’ Alliance for Academic Freedom
- Stop Trafficking of People (STOP)
- The Association for the Advancement of Feminism
- The Association for the Defense of Human Rights and Religious Freedom (ADHRRF)
- The Hong Kong Coalition for the Rights of Persons with Disabilities
- The Hong Kong Society for Asylum-seekers and refugees
- The Human Commons
- The Professional Commons
- Torontonian HongKongers Action Group
- United Filipinos in Hong Kong (UNIFIL-MIGRANTE-HK)
- Vancouver Society in Support of Democratic Movement
- Victoria Hongkongers Association (Australia)
- Women’s Studies Research Centre, University of Hong Kong
 Prohibition of Face Covering Regulation (Cap. 241K) https://www.elegislation.gov.hk/hk/cap241K; HKSAR Information Services Department, “Gov’t introduces anti-mask law”. (4 October 2019) https://www.news.gov.hk/eng/2019/10/20191004/20191004_165505_551.html
 LEUNG KWOK HUNG v. SECRETARY FOR JUSTICE AND ANOTHER 2020 HKCA 192 (CACV 541/2019)(9 April 2020) https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=127372&QS=%2B&TP=JU
 Case number: CCDI 477/2013. Please refer to a news report of this case by Kris Cheng, “Taxi driver who died after police grabbed him by the neck was unlawfully killed, jurors rule” Hong Kong Free Press, 25 October, 2018, available at https://hongkongfp.com/2018/10/25/taxi-driver-died-police-grabbed-neck-unlawfully-killed-jurors-rule/
 Civil Rights Observer, Policing Protests in Hong Kong: Torture and Cruel, Inhuman or Degrading Treatment or Punishment,https://www.hkcro.org/wp-content/uploads/2020/05/cidtp_final.pdf
 Elson Tong, Thousands rally to support Hong Kong protesters who allege police torture at controversial detention near China border, Hong Kong Free Press, 28 September 2019, https://hongkongfp.com/2019/09/28/thousands-rally-support-hong-kong-protesters-allege-police-torture-controversial-detention-near-china-border/
 Surveillance footage shows drunk man repeatedly hit by two police officers while in custody, https://www.scmp.com/video/hong-kong/3023542/surveillance-footage-shows-drunk-man-repeatedly-hit-two-police-officers
 Jennifer Creery, Broken bones, internal bleeding: Hong Kong police used ‘reckless, indiscriminate’ tactics during protests, says Amnesty, Hong Kong Free Press, 20 September 2019, https://hongkongfp.com/2019/09/20/broken-bones-internal-bleeding-hong-kong-police-used-reckless-indiscriminate-tactics-protests-says-amnesty/
 LCQ17: Statistical information on judicial review cases, Annex C (Statistics on the number of legal aid applications in respect of judicial review (JR) cases and the legal expenditure for legally-aid JR cases), p. 1.
 John Lee, Secretary for Security, HKSAR, “LCQ9: Non-refoulement claims”, 20 May 2020, available at https://www.info.gov.hk/gia/general/202005/20/P2020052000659.htm
 United Nations Human Rights Committee: “Concluding observations on the third periodic report of Hong Kong, China, adopted by the Committee at its 107th session (11-28 March 2013)” Paragraph 7 (CCPR/C/CHN-HKG/CO/3)
 Victor Mallet visa controversy, Wikipedia, available at https://en.wikipedia.org/wiki/Victor_Mallet_visa_controversy (accessed on 29 May 2020)
 Kris Cheng, “Indonesian woman who covered Hong Kong protests as a citizen journalist deported over visa issue”, Hong Kong Free Press, 2 December 2019, available at https://hongkongfp.com/2019/12/02/indonesian-woman-covered-hong-kong-protests-citizen-journalist-deported-visa-issue/
 Security Bureau of HKSAR, “Legislative Council Panel on Security – Strengthening the Prevention and Tackling of Terrorist Activities”, HKSAR, May 2020, available at https://www.legco.gov.hk/yr19-20/english/panels/se/papers/se20200602cb2-1081-5-e.pdf
 Mandates of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; the Special Rapporteur on extrajudicial, summary or arbitrary executions; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and of association; the Special Rapporteur on the situation of human rights defenders; and the Special Rapporteur on minority issues, “Communications to China”, 23 Apr 2020, available at https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25196
 KF/sup-117, 16 August 2016. https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/HKG/INT_CCPR_FUL_HKG_24975_E.pdf
In October 2018:
 South China Morning Post, “Electoral Commission accused of ‘political screening’ and double standards in approval process for leaflets by Legco candidates” (3 August 2016): https://www.scmp.com/news/hong-kong/politics/article/1998333/electoral-commission-accused-political-screening-and-double
 Mandates of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance and the Special Rapporteur on minority issues. 11 February 2020. https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25045
 Joint Submission by 12 HK LGBTIQ+ Organisations: The Situation of Lesbian, Gay, Bisexual, Transgender and Intersex Persons in Hong Kong, For the List of Issues Submitted to the Human Rights Committee in relation to the consideration of the fourth ICCPR periodic report submitted by Hong Kong, China, 30 April 2020, https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/HKG/INT_CCPR_ICO_HKG_42056_E.pdf.
 CAT/C/CHN-HKG/CO/5, para 28, 29