VIII. MONITORING OF TREATMENT AND CONDITIONS

One of the tests of a good prison system is the extent to which it has effective mechanisms in place to monitor conditions and report abuses.179 In Hong Kong, there is a superficial profusion of prison monitoring bodies. Prisoners' grievances may, in principle, be aired before a variety of audiences, including the CSD's internal bodies, visiting justices of the peace, the office of the ombudsman, and the courts. Undoubtedly, the oversight provided by these bodies aids in preventing abuses and keeping the system in good shape. The Human Rights Watch/Hong Kong Human Rights Monitor delegation found, however, that for a number of reasons the protection provided by these bodies is incomplete.

Although the existing system with regard to monitoring falls short of the ideal, it does have some extremely praiseworthy aspects. Most notably, all of the territory's penal facilities are replete with announcements informing prisoners of their right to complain. These announcements are found in all areas of the prisons, including punishment cells, and are translated into languages spoken by almost all prisoners (English, Chinese, and Vietnamese).180 In the delegation's view, these announcements are a healthy reminder to both prisoners and staff that the prisons are not closed to outside scrutiny.

Another important innovation is the newly enacted rule by which all correspondence between prisoners and "specified persons"-which include legislators, justices of the peace, the ombudsman, and various other governmental authorities-cannot be read by CSD staff, and cannot even be opened to check for contraband except in the presence of the prisoner.181

Internal CSD Monitoring

The CSD has two monitoring bodies within its Inspectorate and Management Services Division. The Inspection Unit (IU) is responsible for monitoring departmental compliance with the relevant ordinances, rules and departmental policies; it conducts regular and ad hoc inspections of penal facilities. In 1995, it conducted a total of forty-six inspections.182 The Complaints Investigation Unit (CIU), which consists of nine investigators and two supervisory staff, is responsible, among other things, for investigating prisoners' complaints of abuse ormistreatment. It received 181 complaints from prisoners in 1996, but found only four to have merit.183 Although without more information it is impossible for the Human Rights Watch/Hong Kong Human Rights Monitor delegation to reach any conclusions about the validity of the particular cases that were dismissed, we note that four out of 181 cases is a very low substantiation rate. The record from past years is comparable.184

Regardless of the seriousness with which these bodies approach their responsibilities, our experience convinces us that internal departmental monitoring of prison conditions is inherently insufficient. First, fearing retaliation, prisoners often hesitate to complain to internal bodies of mistreatment by prison staff. Given the adversarial atmosphere that tends to reign in the prison context, they assume that such bodies are biased in favor of departmental staff. Second, whether the problems found are serious or relatively trivial, outside bodies are freer to criticize and, if necessary, to draw public attention to abuses. The pressing need for transparency and accountability in the operation of prisons militates in favor of outside oversight.185

Justices of the Peace

Justices of the peace (JPs) are counted as the primary mechanism for outside monitoring of Hong Kong's prisons. Appointed by the Governor, JPs enjoy an array of formal powers, although their main practical function is to visit prisons and other institutions.186 The job of JP is not a full-time occupation, but rather more of an honorary post. JPs include both government officials, known as official JPs, and members of the public, known as unofficial JPs.

According to the Prison Rules, each prison is to be visited by two justices of the peace (one official and one unofficial) every fifteen days.187 Training centers, detention centers, and drug addiction treatment centers, in contrast, receive JP visits once a month. Within this prescribed period, JPs have considerable flexibility to choose the date and time of their visits, and they can arrive without giving prior notice. JPs normally receive a fifteen-minute to half-hour orientation from the facility's superintendent, then they tour the facility in the company of the superintendent or a high-ranking officer. Although the amount of time spent at the facility varies according to its size and the JPs' preferences, they normally spend between one and a half to three hours per visit.

The Human Rights Watch/Hong Kong Human Rights Monitor delegation found serious defects in the approach and methodology of Hong Kong's system of JP visits. To begin with, because JPs have no specific training or experience in prison matters, they are ill-prepared to delve beneath the surface in investigating conditions. In addition, their visits are largely overseen by the prison authorities. One knowledgeable observer, commenting onthis problem, described the JPs' prison tours as "staged visits."188 Indeed, the Prison Rules specifically mandate that a high-ranking officer accompany the JPs around the prison and "bring before them" any prisoners wishing to speak to them.189 Although a few prison officials stated, when pressed on this point, that the JPs might if they preferred speak with prisoners privately, it is quite clear that the normal practice is for JPs to speak with prisoners in the presence of prison officials.190

The lack of confidential communications between prisoners and JPs flies in the face of the requirements of the Standard Minimum Rules, which state that during prison inspections, "[t]he prisoner shall have the opportunity to talk to the inspector or to any other inspecting officer without the director [of the prison] or other members of the [prison] staff being present."191 While many prison officials seem not to have contemplated the possibility that prisoners and JPs might speak to each other privately, others are openly hostile to the idea. One superintendent, when asked why this is not the normal practice, stated bluntly that "it has to do with who is running the prison. The VJ [visiting justice of the peace] is not running the prison."192

At the close of their visit, the JPs write up their comments in a log book, describing their impressions of the prison and any complaints made to them. The Human Rights Watch/Hong Kong Human Rights Monitor viewed these comments at every facility that we visited. We found them to be brief and almost uniformly uncritical. At High Island Detention Centre, for example, a facility that the delegation found to be in serious need of improvement, we read with surprise the JPs' comments of only one month earlier. In what, to the delegation, was an enormous understatement, the JP noted: "The sanitary conditions were not entirely satisfactory . . . [but] overall, the centre was in good order."193

Finally, the JP system suffers from a serious lack of continuity and follow-through. Instead of repeat visits by the same inspector over a period of time, which would permit that person to evaluate whether conditions were improving and recommended improvements were being implemented, every fifteen days a different set of JPs visits.

Office of the Ombudsman

The Office of the Ombudsman is charged with "redressing grievances and addressing issues arising from maladministration in the public sector."194 This monitoring and investigative body has existed for some time, but it only quite recently became active in the prisons. While the ombudsman had received scattered complaints from prisoners in the past-from July 1995 to June 1996, for example, he received sixty-six prisoners' complaints-the number of complaints received rose significantly after July 1996, when he initiated a campaign to increase inmates' awareness and access to the office. At that time the CSD, acting on the ombudsman's suggestion, began posting announcements in the prisons informing inmates of their right to lodge complaints with the ombudsman, and making confidential aerograms available to them for this purpose.195

At our meeting with the deputy ombudsman, the Human Rights Watch/Hong Kong Human Rights Monitor delegation was informed that the ombudsman's office had received some 200 complaints from prisoners since July 1996.196 With a prison team of five investigators, the ombudsman has the power of direct investigation, and can even demand official statements under oath. The ombudsman has a limited mandate to hear complaints: most notably, they cannot involve a crime (thus no cases of excessive force by guards), and they must be submitted by the prisoners themselves, not by relatives.

The deputy ombudsman was unable to give the delegation any details regarding the 200 cases received, but he did describe the procedures for handling cases.197 After ascertaining whether the complaint falls within the office's jurisdiction, it is normally referred to the CSD through an internal complaint handling procedure. Attempts are made-usually successfully-to resolve the complaint at this level.198 If, however, the complaint cannot be satisfactorily resolved and it appears that an injustice has occurred, then the ombudsman's office undertakes an in-depth investigation that culminates in a judgment and recommendations. If these recommendations are not acted upon, the ombudsman may submit a report to the governor.

The Human Rights Watch/Hong Kong Human Rights Monitor delegation welcomes the ombudsman's increased prison activity. We note, nonetheless, that the ombudsman's mandate is extremely complaint-specific and reactive: he does not conduct broad investigations or formulate broad recommendations for improving the prison system. In addition, although a few representative cases are described to the public in the ombudsman's monthly reports, and a summary of the ombudsman's work is provided in his annual reports, neither the focus nor the effect of the ombudsman's work is to inform the public about prison conditions.

Judicial Oversight

As evidenced by the legal cases described in previous chapters of this report, prisoners occasionally go to court to challenge their treatment. These cases are extremely important because of the judiciary's broad power to protect the rights of Hong Kong residents and, in particular, to enforce the protections contained in Bill of Rights. It should be emphasized, however, that few prisoners have the financial resources necessary to litigate cases involving prison abuses.199 In addition, the Court of Appeal's recent decision in Chim Shing Chung, discussed above, discourages hopes that the courts will take any kind of a leading role in protecting prisoners' rights.

If you have any complaint, you can approach the Superintendent or any staff on duty in the institution. Also, you may approach any Senior Officer visiting the institution or, if you wish, direct your complaint to the Complaints Investigation Unit of this department, the Office of the Ombudsman or the Office of Members of the Legislative Council.

The announcements posted in the prisons do mention the possibility of private interviews with JPs. They say, however, that such interviews "can be arranged by the Superintendent." To request the superintendent to arrange a private interview would, of course, draw great attention to the prisoner. Given this fact, it is unsurprising that public interviews are the standard procedure.