A spokesperson for the Hong Kong Special Administrative Region (HKSAR) Government said today (December 9) that the United Nations Committee against Torture (the Committee) had issued its concluding observations on the third report of the HKSAR under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
"We are pleased that the Committee appreciated the constructive dialogue it had with the HKSAR Government delegation which provided replies and detailed additional information to written and oral questions formulated by the Committee," the spokesperson said.
The concluding observations were published on December 9 (Geneva time), after the Committee's hearing of the report from November 17 to November 18. The HKSAR delegation led by the Permanent Secretary for Security, Mr Joshua Law, attended the hearing in Geneva.
"In the concluding observations, the Committee commended Hong Kong in a number of important areas, including the establishment of a statutory mechanism for screening torture non-refoulement claims under the Immigration (Amendment) Ordinance 2012 and the commencement of the unified screening mechanism in March 2014 to screen non-refoulement claims under the same statutory procedures on other applicable grounds including cruel, inhuman, or degrading treatment or punishment and persecution; the amendment of the Prosecution Code in 2013 providing guidelines for prosecutors to handle cases relating to forced labour; amendments to the Domestic Violence Ordinance in 2008 and 2010; and the setting up of an Inter-departmental Working Group on Gender Recognition," the spokesperson said.
The concluding observations also included the Committee's concerns and recommendations in certain areas, which the spokesperson said should be viewed in the proper context.
"We appreciate the Committee's goodwill in making those recommendations. The HKSAR Government respects the Committee's views. We will make suitable judgements according to the prevailing circumstances and implement the Committee's feasible and practicable recommendations in the light of Hong Kong's unique circumstances," the spokesperson added.
The Committee reiterated its recommendation that consideration should be given to extending the 1951 Refugee Convention and its 1967 Protocols (Refugee Convention) to Hong Kong.
In response, the spokesperson stressed that, "the Refugee Convention has never applied to Hong Kong. We maintain a firm and long-established policy of not determining refugee status and not granting asylum.
"The situation of Hong Kong is unique comparing to many other countries or places in the world. Being a small city with a very dense population, a relatively long coastline, well-developed transportation network, a good economy with ample job opportunities, and a need to maintain a liberal visa regime to facilitate genuine visitors, Hong Kong is particularly vulnerable to the ill-effects of illegal immigrants who purport to come and stay here for economic reasons.
"There are plenty past and current examples that human smuggling syndicates will take advantage of any sign, however tenuous, of potential relaxation in the HKSAR's attitude towards illegal immigrants to mislead would-be migrants into believing that they may seek to enter and remain here. We do not see any change to the circumstances of Hong Kong that justify a departure from our position of not applying the Refugee Convention to Hong Kong."
Unified Screening Mechanism for non-refoulement claims
Whilst welcoming commencement of a statutory mechanism for torture claims in 2012 and the introduction of a unified screening mechanism for non-refoulement claims (USM) on other applicable grounds in 2014, the Committee also expressed concern over a few aspects of the operation of USM.
In response, the spokesperson said that, "the Government commenced USM in 2014 to screen non-refoulement claims lodged by foreigners subject to be removed from Hong Kong to another country, on all applicable grounds including torture (as defined under Part VIIC of the Immigration Ordinance and consistent with the definition in Article 1 of CAT), torture or cruel, inhuman or degrading treatment or punishment (under Article 3 of the Hong Kong Bill of Rights as construed by the Court of Final Appeal (CFA) in Ubamaka Edward Wilson v Secretary for Security (2012) 15 HKCFAR 743), and risk of persecution with reference to the non-refoulement principle under Article 33 of Refugee Convention as decided by the CFA in C & Others v Director of Immigration (2013) 16 HKCFAR 280.
"Procedures under USM follow the statutory mechanism for torture claims enacted by the Legislative Council in 2012 to ensure that they meet the high standards of fairness required by law. All non-refoulement claims are thoroughly and individually assessed. As before, claimants are provided with publicly-funded legal assistance and interpretation throughout the screening process, and may lodge an appeal to the statutory and independent Torture Claims Appeal Board (TCAB) if their claim is rejected by the Immigration Department (ImmD). All decision-makers and legal and medical professionals assisting the claimants have received training from qualified authorities (e.g. experts from the United Nations High Commissioner for Refugees' Office and member of the Committee) to ensure that they have a proper understanding of relevant and updated international and local jurisprudence, guidelines, and best practices. Unsuccessful claimants may seek to review the decisions of ImmD and decision of TCAB through judicial review, with legal aid at public funds, if qualified.
"Since March 2014, ImmD received over 8 200 non-refoulement claims under USM, i.e. about 430 claims per month, representing a sharp three-fold increase as compared to the previous few years. The number of claims pending screening now is almost 11 000, which is a record high in recent years. In view of this drastic increase in the number of claims, our priority is to ensure that non-refoulement claims are processed within a reasonable timeframe, such that genuine claimants' case would be handled without delay.
"We will conduct a holistic research on different measures to address and tackle our present problem, including intercepting illegal immigrants at the source, improving the screening procedures for non-refoulement claims, expediting the screening process to minimise abuses, and reducing incentive for foreigners to take up unlawful employment in Hong Kong. We will also consider whether the relevant legislation needs to be amended, within the high standards of fairness required by law, to plug various loopholes. We will continue to engage various stakeholders, including the legal professional bodies, in the review exercise, and will take into account comments of the Committee in the process as well."
Hong Kong attaches great importance to combating trafficking in persons (TIP).
Our local legislation provides a solid and proven framework to combat human trafficking. Conducts referred to as "human trafficking" in the Palermo Protocol are prohibited by various pieces of domestic legislation, encompassing offences such as physical abuse, false imprisonment, criminal intimidation, unlawful custody of personal valuables, child abduction, child pornography and exploitation of children, various trafficking activities for the purposes of sexual exploitation and other sexual offences, illegal employment, withholding of wages, rest days, statutory holidays, etc. The prescribed penalties range from 10-year to life imprisonment.
Through inter-departmental collaboration, the Government's efforts in tackling human trafficking include victim identification, enforcement and prosecution, victim protection, and international co-operation. Hundreds of our law-enforcing officers are trained with specialised victim identification skills and TIP knowledge yearly.
"We provide diversified assistance and protection to human trafficking victims, including shelter, food, counselling, medical services, and other material assistance. We also facilitate victims to participate in legal proceedings by granting witness protection, extension of stay, waiver of visa fee, or immunity from prosecution for criminal offences committed by the victims."
Rights of foreign domestic helpers
The Government is committed to protecting the rights of foreign domestic helpers (FDHs) in Hong Kong. As far as the "two-week rule" is concerned, the main purpose is to allow sufficient time for FDHs to prepare for the departure; it is not to facilitate them to find new employers. In fact, where there is evidence that an FDH has been abused or exploited, discretion would be given to allow him/her to change employer in Hong Kong without being required to return to his/her place of origin first. Each year, there are some 5 000 applications for change of employer after pre-mature termination of contract for various reasons. Less than 20 (0.4 per cent) of these cases involved FDHs who had been abused or exploited by their ex-employers.
The live-in requirement for FDHs is the cornerstone of the Government's FDH policy. Any change to the "live-in requirement" that FDHs must reside in employers' residence will go against the rationale for allowing the importation of FDHs to meet the acute and long-standing shortage of local live-in domestic helpers and the fundamental policy that local employees (including local domestic helpers) should enjoy priority in employment. The Government has been stepping up its efforts and working closely with relevant consulates in Hong Kong in raising the FDHs' awareness of their rights through various channels and encouraging them to report cases of abuse or exploitation to relevant authorities as soon as possible.
"We wish to clarify that it is in fact not the Government's requirement that FDHs must be recruited through employment agencies. The Government will continue to strengthen its monitoring over employment agencies and work closely with the relevant governments to protect the well-being of FDHs," said the spokesperson.
Monitoring and Inspection of Places of Detention
There has already been an independent system in place for visiting Justices of Peace (JPs) to inspect correctional institutions run by the Correctional Services Department (CSD) on a fortnightly and unannounced basis, as set out in Rules 222 to 235 of the Prison Rules (Cap. 234A). The comments and observations made by the visiting JPs will be followed up by CSD. JPs may also request to pay additional visits to specific correctional institutions outside their tour of duty to follow-up or look into specific complaints. Besides, an "Annual Report on Justices of the Peace Visits" is also published to summarise the follow-up actions taken in respect of complaints, requests and enquiries made by persons in custody (PICs) to the JPs.
Any PIC to be put under separate confinement under Rule 63(1)(b) or removal from association under Rule 68B of the Prison Rules will be assessed by the Medical Officer to confirm their fitness beforehand. As regards the Committee's concern on the measure of the removal of PICs from association with other PICs, it is worth noting that a Board of Review consisting of Head of Institution, Medical Officer, Clinical Psychologist and other suitable staff will assess the specific circumstances of each and every case of separate confinement under Rule 68B of the Prison Rules before making a recommendation to the Commissioner of Correctional Services for extending the removal after 72 hours and the Commissioner may order further removal for a period of not more than one month on each occasion under the Prison Rules. If further removal for a period of over one month is required, the Board of Review has to review the case and confirm the suitability for further removal every month before making recommendations to the Commissioner of Correctional Services.
There is also already an appeal mechanism in place for PICs to appeal to the Commissioner of Correctional Services with regard to their being put under separate confinement and removal from association. Besides, PICs can lodge their complaints or air their grievances through various administrative channels, such as making complaints to the Complaints Investigation Unit of CSD Headquarters or external organisations such as the Office of The Ombudsman, or apply for judicial review. In addition, details of each and every case of PICs under separate confinement and removal will be presented to the JPs during their inspection to correctional institutions and arrangement will be made for the JPs to visit and hear the views and complaints of the PICs about their cases.
Use of Restraints
There are clear provisions in the legislation governing the use of mechanical restraints in correctional institutions and the supervision by JPs. Rule 67 of the Prison Rules stipulates that such restraints shall not be used as a punishment or for any purpose except for one of the purposes specified in the law, such as preventing a PIC from injuring himself or others or damaging property (in which case notice must be given to one of the JPs of the period and the Medical Officer who may make recommendations as to how the PIC should be treated). Under Rule 67(4) of the Prison Rules, no prisoner may be kept under mechanical restraint longer than is necessary, or for a period longer than 24 hours unless upon the written order of a JP of the period and the Commissioner of Correctional Services.
Public Order Events
Hong Kong residents enjoy the right and freedom of assembly, procession and demonstration under the Basic Law. In 2014, over 6 800 public meetings and processions took place in Hong Kong. The Police have always strived to facilitate the smooth conduct of lawful and peaceful public meetings and processions, while at the same time reducing the impact of these events on other members of the public and ensuring public order and public safety. If there is any illegal act, the Police have a duty to take enforcement action to maintain law and order. The Police have strict guidelines on the use of force and stringent training courses. The force to be used by police officers shall be the minimum force necessary according to the circumstances at the time and for achieving a lawful purpose.
Police Complaint Handling Mechanism
There is a well-established police complaint handling mechanism in Hong Kong. The Independent Police Complaints Council (IPCC) Ordinance came into effect on June 1, 2009 and has transformed the IPCC into an independent statutory body. The IPCC possesses statutory power to monitor the Police's handling and investigation of complaints so as to ensure that any dissatisfaction of members of the public towards police officers can be handled fairly and impartially. In accordance with its statutory function, the IPCC has been monitoring the handling of police complaints and made recommendations to the Police with a view to improving its work procedures. In recent years, the Police have also implemented various measures to enhance public understanding of police work so as to reduce complaints arising from misunderstandings.
Persons under Police Custody
The Police always respect the rights of persons under custody and endeavour to improve the treatment of detainees. Detainees can meet with their lawyers in private. The Police will also provide them with meals and personal hygiene packs, and arrange washing or shower for them. In 2008, the Police reviewed the custody management policy and have since improved their detention facilities. Such improvement works included installation of shower cubicle doors to protect privacy, improvement of ventilation and provision of directional signs to meet detainees' religious needs, etc. To strengthen the protection of the rights of detainees, the Police have also updated the custody search guidelines and translated forms and notices for persons in custody into 15 ethnic minority languages.
Inter-departmental Working Group on Gender Recognition
The remit of the Inter-departmental Working Group on Gender Recognition (IWG) covers a consideration of both recognition and post-recognition issues. As regards recognition issues, the IWG is reviewing issues such as various options for a gender recognition scheme, the qualification criteria and the application procedure. The IWG is currently focusing on the completion of a first-stage consultation paper to seek the views of the Hong Kong public on recognition issues. As for post-recognition issues, the IWG is reviewing all the existing legislative provisions and administrative measures in Hong Kong which may be affected by legal gender recognition, so that any required legislative or procedural reform can be followed up by the Government.
HKSAR's next report under the CAT is due in 2019. It will contain the Government's detailed response to the Committee's recommendations.
Ends/Wednesday, December 9, 2015
Issued at HKT 22:13