HUMAN RIGHTS WATCH/ASIA HONG KONG HUMAN RIGHTS MONITOR

June 1997 Vol. 9, No. 5 (C)

HONG KONG

PRISON CONDITIONS IN 1997

PREFACE 2

I. SUMMARY AND RECOMMENDATIONS 6

II. AN OVERVIEW OF THE PRISON SYSTEM 9

III. PHYSICAL CIRCUMSTANCES 15

IV. "GOOD ORDER," DISCIPLINE, AND PUNISHMENT 22

V. CONTACTS WITH THE OUTSIDE 30

VI. WORK AND OTHER ACTIVITIES 37

VII. SPECIAL CATEGORIES OF PRISONERS 39

VIII. MONITORING OF TREATMENT AND CONDITIONS 44

ACKNOWLEDGMENTS 48

APPENDIX 50

Human Rights Watch/Asia Hong Kong Human Rights Monitor

485 Fifth Avenue Room 104, 3 Jupiter Street, Corn Yan Centre

New York, NY 10017-6104 North Point, Hong Kong

Tel: (212) 972-8400 Tel: (852) 2811-4488

Fax: (212) 972-0905 Fax: (852) 2802-6012

E-mail: hrwnyc@hrw.org E-mail: hkhrm@hknet.com

PREFACE

Sometime before July 1, 1997, the framed portraits of Queen Elizabeth II that decorate the administrative offices of Hong Kong's prisons will be taken down. A small but symbolic change, like the removal of the crown insignia from prison guards' uniforms, it represents the end of British colonial rule and the beginning of Hong Kong's administration as a Special Administrative Region (SAR) of the People's Republic of China.

How Hong Kong will function under Chinese sovereignty and, in particular, how the territory's prisons will be administered, is not yet clear. Few if any groups are more vulnerable to the impact of political change than prisoners. Given China's notoriously poor prison conditions and its frequent use of capital punishment, it comes as no surprise that Hong Kong prisoners have already expressed grave apprehensions regarding their treatment under Chinese rule.1

Because of these considerations, Human Rights Watch and the Hong Kong Human Rights Monitor decided in 1996 to investigate the human rights conditions of the territory's prisons. The purpose of the investigation was to establish a benchmark of prison conditions prior to the changeover. It was also meant to establish a precedent of independent monitoring of Hong Kong's prison conditions, to encourage future monitoring. Indeed, our inspections of the territory's prisons, which took place in March and April 1997, are to our knowledge the first full inspections of the facilities ever conducted by independent nongovernmental organizations.

This report, which is based primarily on information gathered during these inspections, describes and evaluates the treatment of prisoners confined in Hong Kong prisons under the authority of the Hong Kong Correctional Services Department (CSD). It does not address conditions in police holding cells, where prisoners are generally held after arrest and prior to transfer into the prison system. As in other reports published by Human Rights Watch and the Hong Kong Human Rights Monitor, this report assesses the government's practices with reference to the relevant provisions of international human rights treaties binding on the territory, and to other authoritative international standards, in particular the United Nations Standard Minimum Rules for the Treatment of Prisoners.

Context

Endowed with a healthy economy, high per capita incomes, and a substantial proportion of the world's trade, Hong Kong has long been renowned for its prosperity and its status as an international financial center. Although colonial rule did not, for many years, permit the development of democratic processes or guarantee sufficient protection for the human rights of the territory's residents, Britain's last-gasp effort to remedy these defects has been in large part successful.2 At present, Hong Kong residents enjoy a lively if imperfect legislature and a comprehensive Bill of Rights.3 Moreover, to an enviable degree, the territory is free of the social and fiscal pressures that tend toencourage poor prison conditions: it has a low rate of violent crime, a large government budget surplus, and substantial fiscal reserves.

It is far from clear, however, to what extent Hong Kong's reversion to Chinese sovereignty will alter the territory's economic, social and political landscape. On paper, the protections against undue Chinese interference are substantial. The 1984 Joint Declaration, a legally binding bilateral treaty registered at the United Nations, declares that the Chinese government will grant Hong Kong "a high degree of autonomy" and that the territory's "capitalist system and way of life shall remain unchanged for 50 years."4 The Basic Law, promulgated by China in 1990 to set out the basic policies governing the territory, codifies the principle of "one country, two systems" and provides that, with the exception of laws relating to defense and foreign affairs, China's national laws will not apply in Hong Kong.5 Instead, as both documents affirm, the laws in force in Hong Kong prior to its reversion to China will be preserved, subject to later amendment by the territorial legislature, and the "rights and freedoms" enjoyed by Hong Kong's inhabitants will be maintained.

Besides these formal legal guarantees, observers have speculated that Hong Kong's economic success provides another, perhaps more potent form of protection against inappropriate Chinese intervention. According to this view, because China's own economic development is to a large extent dependent on the continued infusion of knowledge, expertise and investment from Hong Kong, China would be reluctant to tamper with Hong Kong's recipe for success.

Yet recent developments suggest that China believes it can intervene in Hong Kong's legal and political affairs without affecting its economic prosperity. The Chinese government has decided to disband the elected legislature and replace it with a provisional appointed body, which is expected to tighten controls over political parties and demonstrations, and introduce laws on secession and subversion. Shipping magnate Tung Chee-hwa, the chief executive-designate appointed by China, has already initiated an inauspicious series of legislative proposals that would, among other things, restrict peaceful public demonstrations in post-reversion Hong Kong.

These developments raise questions as to the autonomy from China of the future Hong Kong government and whether Hong Kong residents will continue to enjoy the rights and freedoms they do currently. It goes without saying that the territory's prisons may not be immune from future changes.

Of course, the legal and political ramifications of Hong Kong's reversion to China are not the only variables that may have an impact on the territory's prisons. Other important factors include the widening poverty gap and the continuing increase in immigration from mainland Chinese. Although average incomes are high in Hong Kong, the territory's affluence is unevenly distributed. A 1995 World Bank study showed that while the wealthiest 20 percent of the Hong Kong population enjoy over 50 percent of the territory's total income, the poorest 20 percent make do with only 4.3 percent of it.6 The poverty gap continues to widen, but the government continues to resistallocating more funds to social welfare programs to benefit the territory's poor and needy. The growth of an impoverished underclass may, at some point, jeopardize Hong Kong's low rate of crime.

Increases in illegal Chinese immigration are also particularly relevant, since in 1988 Hong Kong began relying on incarceration as a deterrent for immigration offenses. In 1995, Hong Kong increased the number of Chinese immigrants allowed in the territory from 105 to 150 arrivals per day; however, this increase has been far from sufficient to meet the demand. Despite vigilant police patrols and a high steel fence to mark the border with China, undocumented immigrants arrive daily. Many who are discovered working illegally end up in the prison system. The possibility that such immigration will swell after July 1997, as some observers contend, may have severe consequences for prison overcrowding.

Methodology

This report is based on inspections of twelve of Hong Kong's twenty-two penal facilities (excluding police lock-ups and half-way houses) as well as its largest closed detention camp for screened-out Vietnamese migrants. Included among the facilities visited, all of which are operated by the Correctional Services Department (CSD), were two women's prisons, a psychiatric center, a drug addiction treatment center, and a detention center for juveniles.7 The Human Rights Watch/Hong Kong Human Rights Monitor delegation spent a full day at nearly every prison we visited, viewing the entire facility, including disciplinary segregation units and other segregation areas, the infirmary, the kitchen, the recreation areas, the bathrooms, and, of course, the prisoners' living quarters. Besides inspecting the facilities, members of the delegation also met Gov. Chris Patten, then in his last hundred days in office, and representatives of nongovernmental organizations, lawyers, former prisoners, prison chaplains, the deputy ombudsman, representatives of unions of prison employees, and numerous high-level CSD staff, including the commissioner of the CSD.

Human Rights Watch normally undertakes prison visits only when its investigators, not the authorities, can choose the institutions to be visited; when the investigators can gain access to the entire facility to be examined; and when the investigators can be confident that they will be allowed to talk privately with inmates of their choice. The purpose of these rules is to avoid being shown model institutions or their most presentable areas, and to avoid speaking to "model prisoners" or prisoners who feel constrained in discussing their treatment. In Hong Kong, however, we were unable to gain access in accordance with the last of these terms: the authorities refused to allow us private conversations with prisoners. Even though this limitation constituted a departure from our usual policy, the delegation decided that inspections of the prisons would still provide us with valuable information that could be supplemented from other sources, and that the importance of conducting as full an investigation as possible at this time weighed in favor of accepting these terms.

Except for this one significant limitation, Hong Kong officials and, in particular, CSD staff, greatly facilitated our investigation. They granted us full and free access to each of the prisons we wished to visit, provided us with helpful documentary and statistical information, and made themselves available for extended meetings. On the whole, it should be emphasized, the investigation benefitted from the cooperation, assistance and responsiveness of the Hong Kong correctional authorities.

International Human Rights Standards Governing the Treatment of Prisoners

The chief international human rights documents applicable in Hong Kong clearly protect the human rights of prisoners. The International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Tortureand Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter, the Torture Convention) both prohibit torture and cruel, inhuman, or degrading treatment or punishment, without exception or derogation.8 Article 10 of the ICCPR, in addition, mandates that "[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."9 It also requires that "the reform and social readaptation of prisoners" be an "essential aim" of imprisonment.10

Several additional international documents flesh out the human rights of persons deprived of liberty, providing guidance as to how governments may comply with their international legal obligations. The most comprehensive such guidelines are the United Nations Standard Minimum Rules for the Treatment of Prisoners (hereinafter, Standard Minimum Rules), adopted by the Economic and Social Council in 1957. It should be noted that although the Standard Minimum Rules are not a treaty, they constitute an authoritative guide to binding treaty standards. Indeed, recognizing the authority of these guidelines with regard to compliance with Article 10 of the ICCPR, the Hong Kong government specifically noted in its fourth periodic report under the ICCPR that the territory's prison rules "take full account" of the Standard Minimum Rules.11

Other documents relevant to an evaluation of prison conditions include the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, the Basic Principles for the Treatment of Prisoners, and, with regard to juvenile prisoners, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (known as the "Beijing Rules"). Like the SMRs, these instruments are binding on governments to the extent that the norms set out in them explicate the broader standards contained in human rights treaties.

These documents clearly reaffirm the tenet that prisoners retain fundamental human rights. As the most recent of these documents, the Basic Principles for the Treatment of Prisoners, declares:

Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.12

Endorsing this philosophy in 1992, the United Nations Human Rights Committee explained that states have "a positive obligation toward persons who are particularly vulnerable because of their status as persons deprived of liberty" and stated:

[N]ot only may persons deprived of their liberty not be subjected to [torture or other cruel, inhuman or degrading treatment or punishment], including medical or scientific experimentation, but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions asfor that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the [ICCPR], subject to the restrictions that are unavoidable in a closed environment.13

It should be noted, however, that on ratifying the ICCPR the United Kingdom entered a reservation stating that prisoners would still be subject to those laws and procedures deemed necessary for "the preservation of . . . custodial discipline." This reservation was later echoed in the Hong Kong's 1991 Bill of Rights Ordinance, the legislation which incorporated the protections of the ICCPR into Hong Kong's local law.14 Notably, no such reservation was entered with respect to the Torture Convention.

The application of the ICCPR in Hong Kong after its reversion to China is complicated by the fact that China is not a party to the treaty.15 Nonetheless, the Sino-British Joint Declaration states that the provisions of ICCPR will remain in force in Hong Kong after the territory's reversion to China.16 The U.N. Human Rights Committee, commenting on the treaty's future application in the territory, has stated that human rights treaties devolve with territory and that, in particular, the people of Hong Kong will continue to be protected under the ICCPR after July 1, 1997.17