The Rights of the Individual

Report on the Hong Kong Special Administrative Region
Under the Convention Against Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment Updating report

Introduction

1. The purpose of the document is to inform the Committee Against Torture of developments that have occurred since 30 September 1998, which was the cut-off day for the Report that was submitted in May 1999. It addresses only those articles of the Convention in respect of which there have been material changes. Most of the updated information reflects the position on 31 December 1999. But - in a few cases - it reflects that on 31 March 2000, the end of the Hong Kong fiscal year. We have taken the opportunity to include - at Annex 1- a copy of the Crimes (Torture) Ordinance (Chapter 427) which we referred to - but did not include - in the main report.

Article 2: legislative, administrative, judicial or other measuresto prevent acts of torture

Instances of the alleged use of torture

2. In paragraph 13 of the report, we explained that there had beenno reports of torture as defined in the Crimes (Torture) Ordinanceinvolving the Correctional Services Department, the Customs and ExciseDepartment and the ICAC. And, with the special exception of the casediscussed in paragraph 3 below, there had been none concerning thePolice. There had been 21 allegations involving the Immigration Departmentsince the Ordinance: none were substantiated on investigation. Sincethen, there have been no new complaints against any of those Services.

Alleged use of torture by Police officers

3. In paragraph 14 of the report, we said that, in April 1998, fourPolice officers (an Inspector, a Sergeant, and two Constables) werefound guilty of assaulting a drug addict to force a confession. Theywere charged and convicted for assault occasioning actual bodilyharm under the Offences against the Person Ordinance (Chapter 212).The complainant alleged that the Police beat him up, poured waterinto his ears and nose, and stuffed a shoe into his mouth. On conviction,the Inspector and Sergeant were each sentenced to six-months' imprisonmentand the two Constables to four months. Their subsequent appeals weredismissed in November 1998. The Inspector's application for leaveto appeal to the Court of Final Appeal was dismissed in April 1999.

Article 3: torture as a ground for refusal to expel, return or extradite

Extradition

4. In paragraph 20 of the report, we said that there had been manyextraditions of fugitive criminals from the HKSAR to other countries.But there had been no cases of the Chief Executive having to refusethe surrender of persons on the ground that they would be in dangerof being subjected to torture. That remains the case.

5. In the footnote to paragraph 19 of the report, we said that,as at 30 September 1998, eleven bilateral agreements (listed in Annex5) had been signed, eight of which had come into operation. Sincethen, one more has been signed (with Sri Lanka) - bringing the totalto 12 - and one more (the agreement with New Zealand) has come intooperation, bringing the sub-total to nine. The full current listis at Annex 2.

Removal and deportation

6. In paragraph 27 of the report, we said that - should potentialremovees or deportees claim that they would be subjected to torturein the country to which they were to be returned - the claim wouldbe carefully assessed, by both the Director of Immigration and theSecretary for Security or, where the subject had appealed to theChief Executive, by the Chief Executive in Council1. Where such aclaim was considered to be well founded, the subject's return wouldnot be ordered. In considering such a claim, the Government wouldtake into account all relevant considerations, including the humanrights situation in the state concerned, as required by Article 3.2of the Convention. However, there had been no cases so far wherethe question of torture has been an issue. The Secretary for Securityhas since received one appeal against deportation on the ground thatthe deportee fears that he will be subject to torture on return tohis country of origin. The appeal procedures are currently in process.

Mainland children: the Certificate of Entitlement Scheme: The casesof Cheung Lai-wah and Chan Kam-nga

7. These cases entailed complex issues and have been the subjectof much controversy. We informed the Human Rights Committee of thebackground and developments, first in our report under the ICCPR(paragraphs 230 to 238, in relation to Article 12 of that Covenant)and in the supplementary information that we provided to the Committeeimmediately before its hearing of that report on 1 and 2 November1999. Because the facts are complex, we have reproduced that information- with some necessary adaptation - at Annex3.

Vietnamese migrants

8. In paragraphs 33 to 37 of the report, we described the positionof the Vietnamese migrants remaining in Hong Kong as at 30 September1998. There were about 1,060 refugees awaiting resettlement overseas.They were housed in an open centre at Pillar Point (in the WesternNew Territories), operated by the United Nations High Commissionerfor Refugees (UNHCR). There was no restriction on their movement.These persons either had no family connections overseas, or had criminalrecords and/or problems of drug addiction. Those factors - and 'compassionfatigue' in the main resettlement countries - had rendered difficulttheir acceptance for resettlement elsewhere. Additionally, therewere 640 who had been determined to be non-refugees under the ComprehensivePlan of Action. The latter comprised 390 'non-nationals' (personswhom the Vietnamese Government was refusing to recognise as its nationals)and 250 whose repatriation had, for various reasons, been delayed.There were also 370 Vietnamese illegal immigrants, and 300 so called'ex-China Vietnamese'.

9. There are now 973 refugees and about 560 'non-refugees'. Thelatter include 327 'non-nationals' and their 108 family members.Most of the non-refugees have been released on recognisance and liveat the Pillar Point Centre. Another 132 have yet to be repatriatedfor reasons such as ill health, serving prison sentences, involvementin court proceedings, or because they are missing. Additionally,there remain approximately 350 'ex-China Vietnamese'. Their removalto Mainland China has been delayed pending judicial review of thedecision to so remove them. Those proceedings are still in progressand all concerned have been released on recognisance.

10. By early 2000, it had become clear that the chances of securingthe resettlement of the remaining refugees were remote. Having exhaustedall other options, we decided that the only effective and durablesolution lay in the integration into Hong Kong society of all theremaining refugees, 'non-nationals', and the latters' family members.Those whose repatriation has been delayed for the reasons in paragraph8 will be repatriated once those impediments are removed. The positionof the remaining Ex-China Vietnamese remains as explained in paragraph9.

11. A consequence of the decision will be the closure, by the endof May 2000, of the Pillar Point Refugee Centre. Its population -comprising approximately 580 refugees, 430 Vietnamese migrants and60 Ex-China Vietnamese - will have to move. Caritas Hong Kong, which- since 1998 - has run the Centre on behalf of the UNHCR, will assistthem to find new accommodation. Those who experience hardship mayapply for Comprehensive Social Security Assistance and may be consideredfor compassionate rehousing. The decision to close the Centre hasbeen welcomed by all concerned, including NGOs. Physical conditionsthere have deteriorated as the Centre approaches the end of its designedlife. Maintenance, structural problems and fire safety have becomemajor concerns.

12. Vietnamese illegal immigrants continue to come to Hong Kongillegally in search of employment: a total of 953 arrived in 1999.Like other illegal immigrants, they are detained when intercepted,and arrangements are made for their prompt repatriation to Vietnam.

Article 8: extradition arrangements

13. In paragraph 47 of the report, we explained that the FugitiveOffenders (Torture) Order applied the procedures in the FugitiveOffenders Ordinance to requests for extradition - by jurisdictionsto which the Convention applied - for offences created by the Convention.This enabled the Government to extradite such offenders to all suchjurisdictions. Extradition might be granted even if the jurisdictionrequesting it was exercising extra-territorial jurisdiction in respectof the offence. At the time of drafting the report, there had beenno such requests. That remains the case.

Article 9: mutual assistance in relation to crimes of torture

14. In paragraph 50 of the report, we explained that as at 30 September1998, Mutual Legal Assistance Agreements had been signed with Australia,France, New Zealand, the UK, and the US. Those with Australia, France,New Zealand and the US are now in force. So too is an agreement sincereached with South Korea. Agreements have also been signed with Italyand Switzerland. We are preparing subsidiary legislation to bringthem - and the agreement with the UK - into force.

Article 11: review of interrogation rules, instructions, methodsand practices for custody and treatment of persons arrested or detained

Law Enforcement Agencies

15. In paragraph 59 of the report, we explained that, in 1997 -following public consultations - the Government had initiated a three-yearprogramme of improvements in relation to the powers of law enforcementagencies including stop and search, entry, search and seizure, arrestand detention. In June 1999, in the course of that programme, weintroduced the Dangerous Drugs, Independent Commission Against Corruptionand Police Force (Amendment) Bill into the Legislative Council. Thepurpose of the Bill is to provide statutory controls over the takingof intimate and non-intimate samples for the purposes of criminalinvestigation.

Measures to detect signs of physical abuse/torture

16. In paragraph 64 of the report, we explained that the visitingJustices of the Peace (JPs) were required by law to visit prisonson a regular basis and report abuses to the Commissioner of CorrectionalServices. The Commissioner, in turn, was required to consider theirviews and suggestions and to take such action as may be appropriate.We take this opportunity to inform the Committee that, in 1999, wereviewed the JP system in consultation with the Non-official JPs.On the basis of our findings, we are taking measures to improve thesystem. One is to permit JPs to visit particular institution(s) (ortypes of institutions) of their choice on a more regular basis toenable them to monitor progress and to follow-up complaints and othermatters raised during previous visits. Other measures will enhancethe 'surprise' element of JP visits.

Suicides in custody

17. In paragraph 66 of the report, we explained that, in 1997, fourprisoners had committed suicide while in custody. Inquests into afurther three deaths were still in progress. The Coroner had madecertain recommendations to prevent similar fatalities in future.Some of them had been implemented while the others were being pursued.And a standing instruction has been issued giving control room staffthe discretion to call for an ambulance without waiting for the adviceof designated medical staff.

18. There were a total of seven deaths by suicide for the wholeof 1998, and four in 1999. The Coroner has investigated nine of thosecases (that is, from both years), finding no misconduct on the partof staff of Correctional Services Department. The remaining two casesare pending Coroner's hearings.

Immigration Department

19. In paragraph 68 of the report, we explained that we were progressivelyintroducing tape and video-recording of interviews as the necessaryequipment was installed. Two rooms with the necessary equipment havebeen operational in the Immigration Headquarters since July 1998.By the end of 2000, there will be one more at Chek Lap Kok (HongKong's international airport2), two at the Immigration Task Forceoffice at Ma Tau Kok (Kowloon) and two more at Immigration Headquarters.

Customs and Excise Department

20. In paragraph 69 of the report, we explained that it was thepractice of the Customs and Excise Department to video-record itsinterviews of suspects subject to their agreement and to the availabilityof facilities. Additional facilities for that purpose would be readyfor use by the end of 1998. Since then, two more video interviewrooms have become operational, bringing the total to five. Additionalones will be installed in new offices now under commissioning.

Application of electro-convulsive therapy

21. The following updates the table in paragraph 84 of the report-

Article 12: prompt and impartial investigation of acts of torture

22. In Annex 9 of the report, we provided statistics relating to cases handled by the CAPO and endorsed3 by the IPCC. In paragraph 88, we said that those statistics demonstrated that the number of complaints alleging assault had been decreasing. Only seven of the 1,324 allegations of assault in 1997 had been substantiated. None had been found to amount to acts of torture. That trend has continued. In 1998, there were 941 such allegations of which seven were substantiated. And in 1999, there were 1,275 allegations of which two were substantiated.

23. In paragraph 89 of the report, we explained that, in July 1996, the Government had introduced a Bill into the then Legislative Council with the aim of making the Independent Police Complaints Committee (IPCC) a statutory body. The Bill was withdrawn in June 1997 after Legislators moved major amendments which - if implemented - would have disrupted the effective operation of the Police complaints system, fundamentally changing the main principles of the Bill. In paragraph 90, we said that we were reviewing the provisions of the Bill and considering the way forward. We are pleased to advise the Committee that the Secretary for Security has pledged to introduce a new Bill to that purpose in the next legislative session.

24. Meanwhile, we are continuing to improve the Police complaints system and to make it increasingly transparent. In September 1999, for example, the IPCC expanded its 'observers scheme'4 by appointing its retired members and other community leaders as 'lay observers' of CAPO's investigations.

Correctional Services Department

25. In paragraph 92 of the report, we explained that, on average,the Complaints Investigation Unit of the Correctional ServicesDepartment needed about eight weeks to complete an investigation.We regret to inform the Committee that the increasing caseloadhas rendered that target impractical. Now, the target responsetime is ten weeks for simple cases and 18 weeks for complex ones.There were a total of 204 cases in 1997, 303 in 1998, and 447 in1999.

Immigration Department

26. In paragraph 94 of the report, we explained that complaints concerning the attitude, behaviour, or working efficiency of Immigration Departmentstaff were handled by the Department's Complaint Unit. The Unitnormally completed an investigation within two months. That remainsthe case.

Customs and Excise Department

27. In paragraph 95 of the report, we explained that complaints referred to the Deputy Commissioner for Customs and Excise must be handled within six weeks. This remains the case.

Independent Commission Against Corruption

28. In paragraph 96 of the report, we stated that the Independent Commission Against Corruption Complaints Committee (ICAC) was chaired by the convenor of the Executive Council. The then Chairman has since retired. But his successor is also a member of the Executive Council. In paragraph 98 of the report, we said that, in 1997, there were 30 complaints against the ICAC and its officers; 19 of those contained more than one allegation, there being a total of 76 allegations. Most (47%) alleged misconduct on the part of ICAC officers. Another 33% alleged neglect of duties. The remaining 20% alleged abuse of power or related to ICAC procedures.

29. In 1998, there were 25 complaints against the ICAC and its officers. Of those, 14 contained more than one allegation, making a total of 54 allegations. The majority (56%) alleged misconduct on the part of ICAC officers. The rest alleged abuse of power (20%), or neglect of duties (18%) or related to ICAC procedures (6%). In 1999, there were 37 complaints containing a total of 110 allegations against the ICAC and its officers. Some 56% of those were allegations of misconduct. The rest alleged abuse of power (23%) or neglect of duties (21%).

30. In paragraph 99 of the report, we explained that nine of the 32 complaints5 considered by the ICAC Complaints Committee in 1997 contained allegations that were found to be either substantiated or partially substantiated. Examples included a delay in providing a receipt for seized property and failure to explain to a detainee the reason for his extended detention.

31. In 1998, six of the 26 complaints5 considered by the Complaints Committee contained allegations that were found to be either substantiated or partially substantiated. Examples included officers being impolite or indiscreet in their dealings with dissatisfied members of the public; failing to update investigation records; causing inconvenience to a complainant; and failing to respond satisfactorily to enquiries raised by a person being interviewed in ICAC offices. In 1999, seven of the 30 complaints5 considered included allegations that were found to be either substantiated or partially substantiated. These related to impoliteness; failure to inform a complainant of the result of an investigation; and failure to produce identification.

Article 13: right of complaint

Correctional Services Department

32. In paragraph 106 of the report, we said that, in 1997, inmates made a total of 204 complaints to the Department's Complaints Investigation Unit. Regrettably, that statement was incorrect: the figure 204 included complaints from staff and the general public as well as those from inmates which numbered just 161, ten being substantiated. We apologise to the Committee for our mistake. In 1998 inmates lodged 236 complaints; 352 in 1999. Seven were substantiated.

Complaints to the Ombudsman

33. In paragraphs 111 and 112 of the report, we explained that inJuly 1998, the Ombudsman published a report that included suggestionsfor improving the Correctional Services Department's complainthandling system. The Government was actively pursuing those thatwere practicable. Improvements made since then include increasedpublicity of the system and improved staff training in complainthandling skills.

Incident at Ma Po Ping Prison: Lantau Island

34. In paragraph 113 of the report, we explained that on 27 July 1998, staff at Ma Po Ping Prison took action to prevent a disturbance between two groups of prisoners. A Board of Enquiry investigated the incident and made recommendations for strengthening the management of the prison. The Correctional Services Department has acted on the Board's recommendations. And the prison management has given the most serious attention to the inadequacies revealed by the enquiry in regard to the handling of the incident and the need for effective improvements. There has been greater emphasis on the training of frontline supervisory staff, particularly in regard to alertness, conflict management, and the management of problematic inmates. Works are in hand to improve the environment and facilities at the prison and so to improve prisoners' living conditions. These include refurbishing the dormitories and other utilities. And efforts are being made to foster a harmonious relationship between the prisoners. The Ombudsman also investigated complaints concerning the incident brought by ten prisoners. All were found to be unsubstantiated.

35. In paragraph 117 of the report, we said that the members of staff whose conduct had been called into question by the Board of Enquiry might face disciplinary action. Proceedings against them had been deferred pending the outcome of a separate and independent Police investigation into the prisoners' complaints, which included allegations of assault. On the basis of the investigation's findings - and of legal advice in relation to those findings - it was concluded that no criminal charges should be laid against prison staff in relation to the incident.

Customs and Excise Department

36. In paragraph 121 of the report, we explained that, in 1997, the Department had received ten complaints of assault. All were found unsubstantiated. In 1998, there were seven complaints. After thorough investigation, they were found either unsubstantiated or not pursuable. In 1999, there were 11 complaints. Eight are still under investigation; three were found not pursuable.

Independent Commission Against Corruption

37. The following updates the table in paragraph 124 of the report -

Avenues for complaint by mental patients

38. The following updates the table in paragraph 128 of the report -

Article 14: legal redress for victims of torture and an enforceable right to fair and adequate compensation

Criminal and Law Enforcement Injuries Compensation Scheme

39. In paragraph 134 of the report, we explained that, compensation rates paid in relation to criminal injuries then ranged from HK$1,692 to HK$139,825. They currently range between HK$1,620 and HK$ 143,225.

Article 15: statements made as a result of torture shall not be invoked as evidence

40. In paragraph 137 of the report, we explained that, like the Customs and Immigration services whose current position in this regard is explained in paragraphs 21 and 22 above, the Police were progressively expanding the use of video interviewing. By the end of 1998, every major divisional Police station would have its own video-interviewing facility. As at the end of February 2000, a total of 66 video interview rooms were operational: at least one in every major divisional Police Station.

Review of the 'voir dire' procedure

41. In paragraph 139 of the report, we explained that the independent Law Reform Commission had been examining the voir dire procedure to establish whether there were ways of streamlining the process without compromising the safeguards provided by the existing system. The Commission published its findings in November 1998, in its 'Consultation Paper on The Procedure Governing the Admissibility of Confession of Statements in Criminal Proceedings'. Public consultations lasted three months, in the course of which 52 submissions were received. The Commission is now preparing its final report for publication in the third quarter of 2000.

Article 16: prevention of other acts of cruel, inhuman or degrading treatment or punishment

Ill-treatment of children

42. In paragraphs 146 and 147 of the report, we explained that care and protection orders are issued by the Magistrates Courts. We were considering whether the system could be improved. Since then, separate waiting rooms have been set aside for the use of children awaiting care and protection hearings. The rooms are located closest to the juvenile courts of the five magistracies concerned so that they will not meet either adult or juvenile defendants in criminal cases. New magistracy buildings now being built in Kowloon City, West Kowloon and Hong Kong Island will have separate juvenile criminal courts, care and protection courts, and waiting rooms with separate access.

The Ombudsman

43. In paragraph 157 of the report, we explained that, in 1997-98, the Ombudsman investigated a total of 355 complaints. None had entailed torture and other cruel, inhuman or degrading treatment or punishment. In 1998-99, the Ombudsman investigated a total of 309 complaints. Again, none entailed torture or other cruel, inhuman, or degrading treatment of punishment.

Government of the Hong Kong Special Administrative Region

April 2000

1. Should a removee make such a claim to the Immigration Tribunal, the Tribunal would normally give directions to refer the claim to the Secretary for Security for assessment.
   
   
2. Subject to the availability of space, we propose to install two further video-recording rooms at the Airport.
   
   
3. In this context, 'endorsed' means that, having examined the findings of CAPO investigations, the IPCC agrees with them. If it does not, the Council can ask CAPO to clarify areas of doubt or to reinvestigate the complaint.
   
   
4. As explained in paragraph 12(b) of the United Kingdom's Supplementary Report under the ICCPR (examined by the Human Rights Committee on 23 October 1996), IPCC Members have been able to observe the CAPO investigation process since April 1996. They have also been able to conduct ono-site investigations and to interview witnesses.
   
   
5. Some of these were 'overspills' from previous year.