![]() ![]() |
HONG KONG By all accounts, the Hong Kong prison system of the early 1970s was out of control: violence was endemic; guard corruption was widespread; drug-trafficking
was rampant. The present system, in marked contrast, displays a high degree of
order and regimentation. Despite its large population of drug addicts, it is
apparently drug-free; despite the abundance of triad members, it is relatively
safe and secure. As knowledgeable observers have suggested, the system's
past lawlessness may to a large extent explain its current preoccupation with
discipline and control.(52) Having suffered prison riots and disruption in the
past, the Hong Kong correctional authorities are determined not to let things
fall apart again. The correctional authorities are to be particularly congratulated for the
low level of violence found in the Hong Kong prison system, both in terms of
staff-on-prisoner abuse and-what is an even more serious problem in many prison
systems-prisoner-on-prisoner abuse. Although overcrowding has taken its toll,
and staff shortages are a problem in some facilities, the prisons remain firmly
under CSD control. Overall, the Human Rights Watch/Hong Kong Human Rights Monitor delegation
was impressed with the discipline, professionalism-and even, it appears,
idealism-with which CSD staff approach their prison duties. Nonetheless, the
delegation is worried that in some instances the CSD's focus on discipline
and control is excessive. In particular, the lack of safeguards with regard to
placement in administrative segregation and with regard to the deprivation of
sentence remission is of concern. The CSD goes to extraordinary lengths to keep drugs out of the prison
system, relying on frequent searches, drug testing, sanctions for drug
possession, and closed visits. To a striking degree, these strategies appear to
be successful. Gambling, in contrast, is a vice that the prison authorities
seem unable to eradicate. A multitude of different sources-even those who
refused to acknowledge any other possible problem in the prisons-agreed that
gambling is endemic to the territory's penal facilities.(53) "The
inmates bet on everything," explained one CSD officer. "They'll
bet on whether the next person who walks into the dormitory has glasses or not.
But they especially love the horses."(54) The prevalence of gambling becomes evident when a visitor to the prisons
sees the large number of inmates who are held in segregation "for their own
protection" because of unpaid gambling debts. The Human Rights Watch/Hong
Kong Human Rights Monitor delegation met prisoners who owed HK $20,000, $30,000,
even $100,000 (approximately US $2,500 to $13,000).(55) Lacking the means to
pay these debts, and fearing retaliation, such prisoners confess to gambling and
request placement in segregation. In Shek Pik, Stanley, and Lai Chi Kok, the
delegation saw several unlucky gamblers who had lived in segregation for over a
year out of fear of returning to the general population of the prison. As these prisoners can attest, violence and intimidation are not entirely
alien to the prison system. Indeed, the delegation saw a number of prisoners
held in segregation for active involvement in fighting, some of which involved
weapons. At Stanley, for example, one prisoner had spent two months in
administrative segregation because he had "used a home-made sharpened
weapon to attack [another prisoner] in the Main Dining Hall on 19-1-97."(56)
Another prisoner "was suspected by other prisoners to have been involved
in an assault case [that] happened in the workshop on 8.8.96 and [was] thus
afraid of being retaliated [against]."(57) Members of the delegation spoke
to an inmate held at Lai Chi Kok who had been held in segregation for his own
protection for nearly a year; he had been attacked by a group of inmates at
Stanley Prison and hurt so badly that he had to go to an outside hospital,
followed by a week in the Stanley Prison hospital.(58) His attackers has used
sharpened steel rulers, chairs, and a pair of scissors. Former prisoners
described similar outbreaks of violence, including both gang fights and
one-on-one disputes, but said that serious incidents were relatively rare and
that CSD staff responded quickly to them.(59) Gambling is not, of course, the only cause of prison violence. More
mundane, but equally commonplace, are the tensions which arise from
overcrowding, particularly when two prisoners are held together in a cell
designed for one.(60) Understaffing, which tends to accompany overcrowding and
which is a problem in some Hong Kong facilities, begets lapses in supervision
that facilitate violence. Some prisoners, in addition -- particularly those who
have testified on behalf of the prosecution in a criminal trial or who have been
convicted of sex offenses -- are despised by the general prison population and thus
targeted for abuse. CSD officers said that disputes between prisoners are more
common in the summer, when the hot weather makes tempers fray. The most serious recent assault on a prisoner occurred in April 1996, when a
new inmate at Lai Chi Kok Reception Centre was beaten to death by a group of
longer-term inmates. The prisoner was found lying under his bed, dying of
internal injuries, when CSD staff unlocked the dormitory in the morning.(61) As
described in further detail in Section III, Lai Chi Kok is one of Hong Kong's
most overcrowded penal facilities. Severely aggravating the problems caused by overcrowding at Lai Chi Kok is
the serious understaffing of the facility. At the time that the delegation
visited Lai Chi Kok, it had only seventy-five custodial staff per day shift and
twenty-five per night shift-a number that, as the superintendent acknowledged,
is definitely insufficient for managing over 1,300 prisoners.(62) The
combination of overcrowding, understaffing and, as Section VII describes in more
detail, prisoner idleness, means that fights break out nearly every day at Lai
Chi Kok.(63) Ethnic tensions have also plagued Hong Kong's prisons, as local
prisoners become embroiled in violent disputes with the mainland Chinese and,
more frequently, with the Vietnamese. This is particularly true of Hong Kong's
maximum security prisons, which hold the territory's more dangerous
prisoners. On June 23, 1995, for example, "three separate groups of local
Chinese prisoners launched assaults simultaneously on some Vietnamese prisoners
at different locations of Shek Pik."(64) At Stanley, the delegation met
one prisoner accused of being "the instigator of a group fight between
local and Vietnamese prisoners" that took place in the dining hall in
February 1997.(65) Similar reports of ethnic violence have surfaced in the
press.(66) Assaults on staff, although they occasionally occur in maximum security
facilities, are much more infrequent. The authorities at Shek Pik reported that
three staff members had been assaulted by prisoners in the past year.(67)
Stanley Prison tends to be the most dangerous for staff. In June 1996, two
staff members there were stabbed with the sharpened handle of a toilet brush by
a mainland Chinese prisoner, the third such attack in less than a week.(68) It is well established that prison authorities' duty of care extends to
providing prisoners with reasonable protection against assaults from other
prisoners.(69) Despite occasional violent incidents, the Hong Kong prison
authorities appear generally to comply with this obligation. The overall level
of prison violence in Hong Kong is low, and the CSD takes effective measures to
respond to it. Particularly in lower security institutions, prisoners who do
not owe money or have another particular reason to be targeted are assured of
their safety, a state of affairs which, unfortunately, does not exist in many
prison systems. The Prison Rules include a comprehensive list of disciplinary offenses and
punishments.(70) In addition, since the booklet is only available in complex
Chinese characters (as opposed to the simplified characters prevalent in
mainland China) and in English, some prisoners cannot read it. The enumerated
acts range from assault, which falls within the realm of the criminal law, to
many offenses that are extremely prison-specific, and some which are quite
vague.(71) A prisoner who "in any way offends good order and discipline,"
for example, is guilty of a disciplinary offense.(72) A wide range of potential punishments is available, including disciplinary
segregation (called "separate confinement") of up to twenty-eight
days, forfeiture of remission of up to one month, forfeiture of privileges (such
as ability to buy items from the prison canteen)(73) for up to three months, and
deprivation of prison earnings.(74) Previously, correspondence was deemed a "privilege"
and, as a form of punishment, it could be terminated for up to three months.
With the goal of bringing the Prison Rules into consistency with the Bill of
Rights Ordinance, this rule was recently modified, and now even prisoners under
punishment have the right to send at least one letter per week and to receive
unlimited letters.(75) Corporal punishment is no longer permitted; it was
officially abolished in 1981. The Human Rights Watch/Hong Kong Human Rights Monitor delegation found that
Hong Kong prison authorities used the full array of punishments at their
disposal, although loss of remission was the most frequently applied.(76) Inmates placed in disciplinary segregation are normally transferred to
individual cells in the facility's "special unit." They are held
in their cells approximately twenty-three hours per day, leaving the cells only
for exercise and for showers (meals are taken in the cells). Because
disciplinary segregation is invariably accompanied by a loss of privileges,
inmates temporarily lose their radios, cassette players, and non-academic
reading materials. They are also not allowed to smoke. While in segregation,
nonetheless, they continue to enjoy visiting rights. Convicted prisoners, in
addition, are still required to work.(77) When accused of disciplinary offenses, prisoners are given hearings and have
the right to appeal adverse decisions to the commissioner. The vast majority of
disciplinary reports result in punishment, however, and few appeals are
granted.(78) Although the Human Rights Watch/Hong Kong Human Rights Monitor
delegation was unable confidently to gauge the value of the due process
guarantees accorded in prison disciplinary proceedings, the high "conviction"
rates, combined with the vagueness of the offenses and the seriousness of the
potential penalties, do raise concerns. Imposing forfeiture of remission is
essentially equivalent to imposing a longer criminal sentence; accordingly, due
process concerns are paramount. An examination of the 563 breach of discipline cases reported at Shek Pik
during 1996, as an example of actual prison practice, reinforces these concerns.
A full 170 of these cases -- the largest number adjudicated under any single
subsection of Prison Rule 61 -- involved prisoners who in some way "offend[ed]
good order and discipline." The most liberally used punishment was loss of
remission: a total of 4,747 days forfeited, compared to a total of 2,146 days of
separate confinement and loss of privileges, and a total of 2,814 days of lost
earnings.(79) In many prison systems, of course, abuses occur not in the application of
legitimate penalties but in use of unauthorized punishments-most frequently,
brute force. While the Human Rights Watch/Hong Kong Human Rights Monitor did
receive a few allegations of unjustified beatings by CSD officers, we were
unable to confirm their validity.(80) Complaints of verbal abuse were much more
frequent: prisoners stated that lower-ranking CSD officers constantly swore at
and insulted them. The "special units" of Hong Kong's prisons, besides housing
prisoners assigned to disciplinary segregation, also house prisoners placed in
administrative segregation. Prison Rule 68B, which is closely modeled on the
U.K.'s Prison Rule 43, authorizes such segregation "for the
maintenance of good order or discipline" or for prisoners' own
protection. Rule 68B provides in relevant part that: (1) Where the Superintendent has reasonable grounds for believing it is
desirable, for the maintenance of good order or discipline or in the interests
of a prisoner, that such prisoner should not associate with other prisoners,
either generally, or for particular purposes, he may order the removal of such
prisoner from association for a period of not more than 72 hours. It further states, in subsection (5), that the commissioner may, for the
same reasons, order the further removal of the prisoner for a month, and that he
may continue to extend the prisoners' term of removal from association on a
month-to-month basis. Each time that the commissioner decides to prolong the
prisoner's segregation, the prisoner has to be told the reasons for his
continued segregation, and he must be permitted to write something in his own
defense. The commissioner must review the prisoner's submission, as well
as other relevant materials, in making the decision as to further
segregation.(81) Prisoners in Rule 68B administrative segregation are subject to essentially
the same conditions as prisoners in disciplinary segregation-twenty-three hours
a day of cell time, deprivation of privileges-but with an important difference:
many of them endure these conditions for much longer lengths of time. The Human
Rights Watch/Hong Kong Human Rights Monitor delegation met many prisoners who
had spent several months in administrative segregation, and some who had spent
years there.(82) Separate confinement of this length is always a matter of
concern.(83) There are, to be precise, three distinct types of Rule 68B segregation. The
first type covers prisoners who require protection from other prisoners because
of who they are (normally, ex-policemen) or because they provided testimony for
the prosecution in a criminal proceeding. These prisoners, many of whom stay in
Rule 68B segregation during all or most of their time in prison, are not denied
privileges while in segregation. They are also often held two per cell, and
normally exercise in groups. The second type of Rule 68B segregation is for prisoners who request
protection for specific reasons, usually because they are in debt to other
prisoners or because they, for another such reason, believe that other prisoners
will try to hurt them. These prisoners are denied privileges unless they stay
in segregation for a year; after the first year has passed they are permitted
their radios, etc. The final type of Rule 68B segregation -- that which covers prisoners deemed to
be "violent and influential characters" -- is the most problematic.
Prisoners of this type are segregated from the general prison population because
prison officials fear that they would cause disruption, either through their own
actions or through influencing other prisoners. Often, prisoners who have been
placed in disciplinary confinement for a set amount of time will subsequently be
placed in Rule 68B administrative confinement for an indefinite period of time.
Although this type of Rule 68B confinement is technically not punishment, it is
no different from punishment when viewed from the prisoner's perspective.
The fact that it is technically not punishment, however, means that the prisoner
is deprived of the right of a disciplinary hearing and that the segregation can
be extended over and again for an indefinite period. Stanley Prison has the largest number of prisoners held in Rule 68B
segregation of any penal facility in Hong Kong. It has two separate special
units: one for Category A prisoners, and the other for Category B, C, and D
prisoners. On the day that the Human Rights Watch/Hong Kong Human Rights
Monitor visited, a total of 126 prisoners were being held under Rule 68B-far
outnumbering the fifteen inmates held in disciplinary segregation. Twenty-one
of these prisoners were "violent and influential characters" who,
according to the superintendent, were typically held in segregation for three to
four months.(84) The following were among the Rule 68B cases observed by the delegation: A Vietnamese prisoner who had been in segregation at Shek Pik since June
1996 was "removed from association [because] he assaulted staff in Victoria
Prison."(85) Another prisoner at Shek Pik was placed in segregation nearly three months
prior to the delegation's visit because he "actively instigated other
local/I.I. prisoners to launch a group assault against Vietnamese prisoners." A prisoner at Stanley who had violently attacked another prisoner served ten
days of disciplinary segregation and was then placed in administrative
segregation, where he had stayed for two months by the date of the delegation's
visit. At Pik Uk Correctional Institution, the maximum security institution for
male juveniles, a nineteen-year-old was held in segregation for two months "in
view of his manipulative and violent [sic] prone character." The prisoner seen by the delegation who had served the longest time in Rule
68B segregation was a "manufacturer and distributor" of gambling
items; he had been in separate confinement at Stanley Prison since October 1995. As the above cases illustrate, there is considerable overlap between reasons
for disciplinary segregation and those for Rule 68B administrative segregation.
Given the lesser due process protections with regard to the application of Rule
68B, and thus the greater possibility that prisoners will be wrongly accused of
disorderly or violent acts -- and, equally important, given the much longer periods
of segregation available under Rule 68B -- this phenomenon is troubling. Of
course, prison officials have a legitimate interest in maintaining order in
their facilities and, in some instances, temporary segregation of a dangerous
prisoner may be a reasonable way to protect that interest. The Human Rights
Watch/Hong Kong Human Rights Monitor delegation believes, nonetheless, that it
would be much preferable to allow the prisoner to defend himself at a hearing
any time segregation of this magnitude is possible. Also, as should be clear,
the use of such segregation should be strictly limited to exigent circumstances,
and the affected prisoner should be returned back to his normal housing unit as
quickly as is reasonably possible. From what the delegation observed, the use of Rule 68B segregation is much
less frequent in lower security facilities. In fact, Ma Po Ping Prison and Tong
Fuk Centre, the medium and minimum security men's facilities that the
delegation visited, held no prisoners under Rule 68B.(86) Lower security prisons do, however, have another quasi-punitive technique
for handling difficult inmates, which is transfer to a higher security
institution. Particularly given the overcrowding prevalent in the Hong Kong
prison system, many Category B and C prisoners are held at Shek Pik, where
conditions are notably more restrictive than in lower security institutions. As
the superintendent of that facility explained to the delegation, it is the "troublemakers"
who are transferred there.(87) The Human Rights Watch/Hong Kong Human Rights Monitor delegation learned of
one prisoner who was transferred from Ma Po Ping Prison to Shek Pik in what
appears to be a likely case of retaliation for complaining. The delegation
learned of the case by reading the log kept at Ma Po Ping by visiting justices
of the peace (JPs). The log's first relevant entry was in mid-December
1996; it stated that the inmate, a Pakistani, was in administrative segregation
but complained to the JP that he was being wrongly punished. The CSD response
to the entry, also included in the log, was that the Pakistani had been removed
from association under Rule 68B because "he had intimidated fellow
prisoners to jointly sign on a letter in order to protest against the allegedly
poor quality of food provided to prisoners of other nationalities."(88) On each subsequent JP visit from December 1996 through February 1997, the
prisoner reiterated his complaint of unfair treatment. During this time, his
placement in Rule 68B segregation was extended twice. Finally, in late
February, the CSD transferred him to maximum security Shek Pik Prison. When the
Human Rights Watch/Hong Kong Human Rights Monitor inquired into the reasons for
this transfer, the superintendent of Ma Po Ping stated bluntly that the inmate "had
been making frequent requests to see the VJs [visiting justices of the peace]
and the ombudsman."(89) The ultimate transfer possibility for difficult inmates is assignment to the
Behavior Adjustment Unit (BAU) at Siu Lam Psychiatric Centre. Inmates who have
had "behavioral problems" in other institutions are placed in this
unit, although, as the superintendent at Siu Lam acknowledged, none of these
prisoners are mentally ill.(90) Prisoners who are involuntarily transferred to
Siu Lam for behavioral reasons typically spend six months in the BAU program;
they may receive psychological counseling but no psychiatric treatment. One
such prisoner told members of the Human Rights Watch/Hong Kong Human Rights
Monitor delegation that he was transferred to Siu Lam because he had filed a
complaint with the police regarding a serious beating he had received from a
guard.(91) A Siu Lam staff member stated, similarly, that prisoners who "make
a lot of complaints" and are "not cooperative" end up getting
transferred to the facility because officers "want to adjust their
behavior."(92) |