U.S. Department of State Country Report on Human Rights Practices 2000 - Hong Kong
|Publisher||United States Department of State|
|Publication Date||26 February 2001|
|Cite as||United States Department of State, U.S. Department of State Country Report on Human Rights Practices 2000 - Hong Kong , 26 February 2001, available at: http://www.refworld.org/docid/3ae6aa95e.html [accessed 13 October 2015]|
|Comments||This report is submitted to the Congress by the Department of State in compliance with sections 116(d) and 502(b) of the Foreign Assistance Act of 1961 (FAA), as amended, and section 504 of the Trade Act of 1974, as amended. The law provides that the Secretary of State shall transmit to the Speaker of the House of Representatives and the Committee on Foreign Relations of the Senate, by February 25 "a full and complete report regarding the status of internationally recognized human rights, within the meaning of subsection (A) in countries that receive assistance under this part, and (B) in all other foreign countries which are members of the United Nations and which are not otherwise the subject of a human rights report under this Act." We have also included reports on several countries that do not fall into the categories established by these statutes and that thus are not covered by the congressional requirement.|
Hong Kong reverted from British to Chinese sovereignty on July 1, 1997 (the handover). As a Special Administrative Region (SAR) of the People's Republic of China (PRC), Hong Kong enjoys a high degree of autonomy except in defense and foreign affairs and remains a free society with legally protected rights. The Basic Law, approved in 1990 by the PRC's National People's Congress (NPC), provides for fundamental rights and serves as a "mini-constitution." A chief executive, selected by a 400-person selection committee that was chosen by a China-appointed preparatory committee, wields executive power. The legislature (known as the Legislative Council) is composed of directly and indirectly elected members. On September 10, the second Legislative Council was elected, for a 4-year term. Twenty-four seats were elected on a geographic basis through universal suffrage, 30 seats through functional (occupational) constituencies, and 6 seats through indirect election. Human rights groups and democracy advocates complained that the elections for functional constituency and election committee seats are undemocratic since only 180,000 voters were eligible to elect the 30 legislators elected by functional constituencies and the 6 legislators elected indirectly, while over 3 million persons were eligible to vote for 24 legislators elected by geographical constituencies. However, no parties boycotted the elections.
Prodemocracy candidates won 17 of the 24 seats elected on a geographic basis (including one in a December by-election) and 22 seats overall. The power of the legislature is curtailed substantially by voting procedures that require separate majorities among both geographically and functionally elected legislators for bills introduced by individual legislators and by Basic Law prohibitions against the legislature's initiating legislation affecting public expenditures, political structure, or government operations. In addition the Basic Law stipulates that legislators only may initiate legislation affecting government policy with the prior approval of the Chief Executive. "Government policy" in practice is defined very broadly. By law and tradition, the judiciary is independent and the Basic Law vests Hong Kong's highest court with the power of final adjudication; however, under the Basic Law, the Standing Committee of the NPC has the power of final interpretation of the Basic Law. The Government's controversial 1999 request to the Chinese Government to seek such an interpretation resulted in an NPC Standing Committee interpretation which effectively overturned a ruling by the Court of Final Appeal, Hong Kong's highest court, raising questions about the potential future independence and ultimate authority of Hong Kong's judiciary.
A well-organized police force under the firm control of local civilian authorities maintains public order. Individual members of the police sometimes used excessive force. The 4,000 Chinese troops sent to Hong Kong in 1997 to replace the British military garrison have maintained a low profile and have not performed police functions.
Hong Kong is a major international trade and finance center. It is the principal gateway for trade and investment with China. A thriving free market economy operates with limited government interference. The economy, which provides residents a high standard of living, is in the midst of a strong recovery from the 1997-98 international financial crisis. Per capita gross domestic product is $23,523 (HK$183,483).
The Government generally respected the human rights of residents, and the law and judiciary generally provide effective means of dealing with individual instances of abuse. Human rights problems that existed both before and after the handover include: Limitations on residents' ability to change their government and limitations on the power of the legislature to affect government policies; reports of police use of excessive force; some degree of media self-censorship; violence and discrimination against women; discrimination against the disabled and ethnic minorities; intimidation of foreign domestic servants; and trafficking in persons for the purposes of forced labor and forced prostitution. Despite the ban on the Falun Gong in mainland China, the Falun Gong remained legally registered and generally free to continue its activities in Hong Kong.
RESPECT FOR HUMAN RIGHTS
1. Respect for the Integrity of the Person, Including Freedom From:
a. Political and Other Extrajudicial Killing
There were no reports of political or other extrajudicial killings.
There was one reported instance of death of a detainee in police custody during the year. It was certified as a death by natural causes. At the end of 1999, there were two investigations of deaths in police custody that remained outstanding. Inquests held during the year concluded that the deceased in one of the cases had committed suicide, and that the deceased in the other case died as a result of natural causes. b. Disappearance
There were no reports of politically motivated disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law forbids torture and other abuse by the police; however, there were reports that police at times used excessive force against persons in custody. The law stipulates punishment for those who violate these prohibitions, and disciplinary action can range from warnings to dismissal. Criminal proceedings may be undertaken independently of the disciplinary process. Allegations of excessive use of force are investigated by the Complaints against Police Office, whose work is monitored and reviewed by the Independent Police Complaints Council (IPCC), a body composed of public members appointed by the Chief Executive.
Although excessive use of force by police is not widespread, there are occasional complaints of force being used during interrogations to coerce information or confessions. In the first 8 months of the year, the Complaints against Police Office received 697 complaints of assault by the police. Of the 209 cases in which investigations were completed and endorsed by the IPCC, 175 were withdrawn, 27 were deemed "not pursuable," 5 were judged to be false, and 2 were judged "unsubstantiated." The remainder (488 cases) were pending investigation at year's end. In 1999 of the 1,098 assault allegations received, one was substantiated, and the incident was noted in the concerned officer's record. Human rights groups have called for a more independent monitoring body, noting long delays in hearing some allegations, the large difference between the number of complaints received and the few that are substantiated, the light punishment that police officers received when complaints are found to be substantiated, and the unwillingness of some witnesses to pursue complaints for fear of retribution. In May the U.N. Committee against Torture expressed concern over the "lawful authority" defense of, and the lack of prosecutions under, the Crimes (Torture) Ordinance. In 1999 the U.N. Human Rights Committee expressed concern that police responsibility for investigation of police misconduct undermines the credibility of IPCC investigations and called on the Government to reconsider its approach.
In a June protest against the Government's right of abode (see Section 1.e.) policies, the police were accused of using excessive force when they used pepper spray and hit demonstrators when removing them from the entrance to the main government office building. As recommended by the Complaints against Police Office, two police officers received verbal warnings for their actions.
During the year, two police officers were sentenced to 7 and 9 months' imprisonment respectively for accepting bribes to provide a journalist with information between mid-1997 and November 1999 (see Section 2.a.).
Although conditions vary among facilities, prison conditions conform to international standards.
In early June, 35 persons were injured during riots at a low-security drug treatment center for prisoners. After rioting broke out among the prisoners, more than 200 police and security officials were called in to restore order. Twenty-two inmates and 13 security officers were injured; some of them required hospitalization.
The Government permits prison visits by human rights monitors. Local justices of the peace regularly inspect prisons, but these visits rarely are unannounced, and justices of the peace speak with prisoners in the presence of Correctional Services Department staff. Human rights monitors have called for revisions to the inspection system.
d. Arbitrary Arrest, Detention, or Exile
Common law, precedents previously in force, and the Basic Law provide substantial and effective legal protection against arbitrary arrest or detention. Suspects must be charged within 48 hours or released. The average length of preconviction incarceration does not exceed 80 days.
The Government does not use forced exile.
e. Denial of Fair Public Trial
The judiciary has remained independent since the handover, underpinned by the Basic Law's provision that Hong Kong's common law tradition be maintained. Under the Basic Law, the courts may interpret on their own provisions of the Basic Law that are within the limits of the autonomy of the region. The courts may also interpret other provisions of the Basic Law that touch on Central Government responsibilities or on the relationship between the Central Authorities and the SAR, but before making final judgments on these matters, which are unappealable, the courts must seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress. (In the controversial 1999 "right of abode case," the Government, not the court, sought an interpretation from the Standing Committee.) When the Standing Committee makes an interpretation of the Basic Law provisions concerned, the courts, in applying those provisions, "shall follow the interpretation of the Standing Committee." Judgments previously rendered shall not be affected. The National People's Congress vehicle for interpretation is its Committee for the Basic Law, composed of six mainland and six Hong Kong members. The Hong Kong members are nominated by the Chief Executive, the President of the Legislative Council, and the Chief Justice. Human rights and lawyers' organizations long have expressed concern that these exceptions to the Court of Final Appeal's power of final adjudication and this interpretation mechanism could be used to limit the independence of the judiciary or could degrade the courts' authority. In the controversial 1999 right of abode case the Government, which had lost the case in the Court of Final Appeal, Hong Kong's highest court, asked the court to clarify its decision. After the clarification, which did not fundamentally alter the court's decision, the Government sought an interpretation of the Basic Law provisions at issue in the case from the NPC Standing Committee. The NPC's interpretation effectively overturned the ruling by the Court of Final Appeal, and raised questions about the potential future independence and ultimate authority of Hong Kong's judiciary. During the year, the Chief Justice called upon the Government to explain and defend the principle of judicial independence, and the head of the bar association called the Government's 1999 appeal to the NPC to reverse a court ruling "a Damocles sword" hanging over the court. Since the controversy, the Government has expressed its intention to make recourse to the NPC interpretation mechanism a rare and exceptional act.
The Court of Final Appeal is Hong Kong's supreme judicial body. An independent commission nominates judges; the Chief Executive is required to appoint those nominated, subject to endorsement by the legislature. Nomination procedures ensure that commission members nominated by the private bar have a virtual veto on the nominations. Legal experts complained that the commission's selection process is opaque. In November legislators requested that the process be made transparent. The Government responded that privacy concerns prevented opening the process to the public. The Basic Law provides that, with the exception of the Chief Justice and the Chief Judge of the High Court, who are prohibited from residing outside of Hong Kong, foreigners may serve on Hong Kong's courts. Approximately 40 percent of Hong Kong's judges are expatriates from other common law jurisdictions. Judges have security of tenure until retirement age (either 60 or 65, depending on date of appointment).
Beneath the Court of Final Appeal is the High Court, composed of the Court of Appeal and the Court of First Instance. Lower judicial bodies include the District Court (which has limited jurisdiction in civil and criminal matters), the magistrates courts (which exercise jurisdiction over a wide range of criminal offenses), the Coroner's Court, the Juvenile Court, the Lands Tribunal, the Labor Tribunal, the Small Claims Tribunal, and the Obscene Articles Tribunal.
The law provides for the right to a fair public trial, and this is respected in practice. Trials are by jury, and the judiciary provides citizens with a fair and efficient judicial process.
Human rights activists remain concerned that the legal system may favor those closely aligned with China or with powerful local institutions. In particular, concerns were raised by two 1998 Justice Department decisions, in which the Government decided not to prosecute the New China News Agency for alleged violations of the Privacy Ordinance (see Section 1.f.) or to prosecute a prominent newspaper editor with close ties to Beijing who was accused of fraud.
In 1998 the Provisional Legislature passed the controversial Adaptation of Laws (Interpretive Provisions) Ordinance, which replaced the word "Crown" in Hong Kong legislation with the word "State" in hundreds of existing laws. Critics expressed concern that this change would place the Chinese government organs above the law, since laws that previously did not apply to the Crown would now not apply to the (Chinese) State, including Central Government organs stationed in Hong Kong. Since 1998 51 laws have been amended to encompass the State specifically.
According to the Basic Law, English may be used as an official language by the executive, legislative, and judicial branches. For historical reasons and because of the courts' reliance on common law precedents, almost all civil cases and most criminal cases are heard in English. In recent years, however, the Government has developed a bilingual legal system. It has increased the number of officers in the Legal Aid Department proficient in Chinese and extended the use of bilingual prosecution documents and indictments. All laws are now bilingual, with the English and Chinese texts being equally authentic. All courts and tribunals may operate in either Chinese or English. Judges, witnesses, the parties themselves, and legal representatives each decide which language to use at any point in the proceedings. In May 55 percent of cases at the lowest level of the court system were conducted in Chinese.
Some human rights groups have expressed concern that the Government has not protected vigorously enough the interests of Hong Kong residents arrested in mainland China. The issue is complicated by the absence of an agreement allowing Hong Kong officials access to Hong Kong citizens arrested or detained in mainland China. To address this concern, public security authorities from Beijing and Hong Kong signed an agreement in October under which, beginning January 1, 2001, each side was to notify the other of certain categories of detentions of each other's residents.
There were no reports of political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The law provides for the right of privacy, and the Government generally respects this right in practice. Interception of communications is conducted under the Telecommunications Ordinance and the Post Office Ordinance, which require authorization for interception operations at the highest levels of government. For example, wiretaps continued to be approved by the Chief Executive's office; a court issued warrant is not required. According to a September 1999 press report, the Government eavesdropped on private telephone conversations of more than 100 persons daily. The Government has refused to reveal how often the Chief Executive uses his powers to authorize telephone wiretaps and interception of private mail.
For more than 20 years, the Independent Commission Against Corruption was vested with powers, including the right to authorize searches and detain suspects, which normally are exercised only by a judicial officer. Amendments to ordinances governing the Commission took effect in 1997, depriving the Commission of the independent authority to issue arrest or search warrants. However, the Commission still does not apply the presumption of innocence in corruption cases, and criminal convictions are obtained by regarding any excessive, unexplainable assets held by civil servants as ill-gotten until proven otherwise.
In 1996 the Government established the Office of the Privacy Commissioner for Personal Data (PCO) under the Personal Data (Privacy) Ordinance (PDPO) to prevent misuse and disclosure of data such as medical and credit records. The ordinance also prohibits matching sets of personal data without the consent of the subject individual or the commissioner, although some government departments were exempted in order to combat social welfare abuse and tax evasion. Some violations of the PDPO constitute criminal offenses. In other cases, an injured party may seek compensation through civil proceedings. If the PCO believes that violations may continue or be repeated, it may issue enforcement notices to direct remedial measures. From the end of 1996 when the PDPO took effect through the end of September, the PCO had received 1,628 complaints. Since 1996 of the 1,525 completed investigations, the PCO found violations of the PDPO in 116 cases, resulting in 13 cases referred to the Department of Justice and the police for prosecution consideration, the issuance of 22 enforcement notices and 81 warning notices. Of the 13 cases referred to the Department of Justice and the police, the Government as of October had decided to prosecute 1 case and not to prosecute in 10 cases. Investigation continues in the remaining 2 cases.
Under the Adaptation of Laws (Interpretive Provisions) Ordinance, passed in 1998 by the Provisional Legislature, the Personal Data Privacy Ordinance is not applicable to the PRC government organs in Hong Kong. The Government is still considering whether PDPO should apply to Chinese government organs. In June 1999, the High Court dismissed a legislator's civil suit over the failure of the then-New China News Agency (NCNA) to respond within the PDPO-specified time frame to the legislator's request for information about her in the agency's files, because the NCNA Director named in the suit was not in Hong Kong at the time the incident occurred. In October the Director of the NCNA, now known as the Liaison Office, Jiang Enzhu, served the legislator a writ requiring the legislator to pay his court costs, as is allowed under Hong Kong law. If unable to pay and forced to declare bankruptcy, the prodemocracy legislator – under the Basic Law – would lose her legislative seat.
In February the Hong Kong Telecommunications Authority issued guidelines requiring paging services to configure their systems so that Hong Kong-origin messages, including messages barred for transmission in places outside Hong Kong, including the mainland, could be transmitted in Hong Kong only. In October 1999, it was discovered that PRC censorship of Falun Gong-related information temporarily affected Hong Kong users of a major local paging service, China Motion Telecom, because the service used mainland-located transmission centers. The mainland-based employees of the company would not transmit messages regarding Falun Gong, even for Hong Kong customers, because of an alleged PRC instruction that any messages related to Falun Gong not be broadcast. Under scrutiny from the Government and pressure from the wider community, the company found a technical solution to the problem and as a result ended mainland-based censorship for customers whose service was limited to Hong Kong. However, the company insisted, and the Hong Kong Telecommunications Authority agreed, that the company must follow mainland laws (including censorship rules) for customers whose paging service extended to the mainland. Hong Kong customers with China-wide (rather than Hong-Kong-only) service remain unable to receive messages relating to Falun Gong when they are on the mainland.
In early June, He Zhiming, a deputy director of the Taiwan Affairs Department of the Central Government's Liaison Office, warned businessmen at the Chinese Chamber of Commerce not to do business with Taiwan firms that supported Taiwan independence. He noted that doing business with such firms posed a risk, and that those who violated the warning would suffer the consequences. The SAR Government quickly issued a statement rejecting the comments and reiterating its commitment to free trade. The SAR Government's statement noted that Chief Executive C.H.Tung had contacted the Director of the Liaison Office, Jiang Enzhu, after these comments were made, and he had indicated that the Liaison Office would continue to operate according to the Basic Law and would not interfere with the SAR's commercial activities. Nonetheless, many observers were deeply concerned by the incident, which followed soon after comments in April by Liaison Office officials to the press about how the media should report on Taiwan (see Section 2.a.).
2. Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Basic Law provides for freedom of speech, of the press, and of publication, and there was no apparent change in the tradition of respect for these freedoms by the Government after the handover; however, some journalists and news media continue to practice a degree of self-censorship, particularly in mainland-related reporting. Senior government officials regularly made statements in support of these freedoms. Overall, the media has been outspoken in defending civil liberties. Reporting on the September Legislative Council elections generally was regarded as fair and balanced. However, there are certain laws that potentially allow limits on some speech and press freedoms. The Telecommunications Ordinance grants the Government wide-ranging powers to ban messages whenever it "considers that the public interest so requires." The Public Order Ordinance enables the Government to ban a demonstration on national security grounds, including as a factor whether it advocates independence for Tibet or Taiwan. In practice this situation has not arisen and only 2 demonstrations – out of more than 7,000 since the handover – have been disallowed (see Section 2.b.). In November 1999, the U.N. Human Rights Committee expressed concern that the offenses of treason and sedition under the Crimes Ordinance are defined in overly broad terms, thus endangering freedom of expression. The Basic Law requires that the Government enact legislation prohibiting "treason, secession, sedition, subversion against the Central People's Government, or theft of state secrets," but no such legislation has yet been proposed.
Newspapers publish a wide variety of opinions, including opinions on Taiwan, Tibet, PRC leadership dynamics, Communist Party corruption, and human rights. Persons speak freely to the media, and many use the media to voice their views. Political debate is vigorous, and numerous viewpoints, including stories and opinions critical of the SAR and Chinese Governments and statements by leading Chinese dissidents and proindependence Taiwan activists, are provided in the mass media, in public forums, and by political groups. International media organizations operate freely. Sixteen major daily newspapers, 4 commercial television stations (broadcast and cable) and 2 commercial radio stations function with virtually no government control.
Foreign reporters need no special visas or government-issued press cards. Many local reporters continue to enter China to cover sensitive stories related to Hong Kong, Taiwan, or the mainland. China still requires journalists – both foreign and those from Hong Kong – to apply for permission to make reporting trips to the mainland. Those who bypass official channels – which many feel they must do to get the stories they want – risk violating Chinese regulations. At least one publication whose owner offended China's leadership several years ago subsequently has been unable to get official permission for its reporters to cover events on the mainland.
There is a widespread impression among both journalists and the public that it is prudent for the press to engage in a degree of self-censorship. The pressures on journalists to self-censor usually are subtle and indirect. There are no reports of direct orders to refrain from covering a certain issue, but there is a widely shared perception of a need for special care toward topics of particular sensitivity to China or Hong Kong's powerful business interests, such as leadership dynamics, military activity, Taiwanese or Tibetan independence, or powerful businessmen's relations with the mainland Government, although numerous articles on these subjects continue to appear in print and in the broadcast media. Chinese-language journalists report a pervasive, if tacit, understanding that editors expect those reporting on China to be particularly certain of their facts and careful in their wording. Another source of pressure comes from the belief by some publishers and editors that advertising revenues or their business interests in China could suffer if they were seen to be too antagonistic to China or powerful local interests. One publication that offended the leadership of the mainland government several years ago experienced an advertising slump from August to October 1999 when several property developers significantly reduced their advertisements in the newspaper. Executives at two companies reportedly acknowledged that they were wary at the time of advertising in that publication given perceived SAR administration displeasure with the newspaper. On December 10, International Human Rights Day, four newspapers printed Falun Gong advertisements protesting Chinese government persecution of its members. Three newspapers refused to print the advertisement; one based its refusal on the grounds that the advertisement was "defamatory of the Central Government."
In what many observers saw as an example of media self-censorship, the South China Morning Post (SCMP) in November demoted its long-time China observer Willy Lo-Lap Lam from the position of editor of the newspaper's China coverage to a position as an associate editor on mainland politics. Lam resigned rather than accept the change in responsibilities and claimed the newspaper's management had begun to "tone down" his column on China to avoid "exasperating" unnamed persons. The editor in chief denied the charges and attributed the change to a restructuring of China coverage for which different management skills were required. However, the incident followed a published letter to the editor from the newspaper's owner, who lambasted a Lam column that claimed a group of Hong Kong businesspersons (including the newspaper's owner) had been offered commercial advantages by Chinese leaders in return for supporting SAR Chief Executive C.H. Tung for a second term. A previous editor of the SCMP also described pressures from the ownership to fire Lam and others in the period before the handover, pressures that he only partially succeeded in resisting.
During the year, the SCMP's new English-language competitor, the Hong Kong iMail, brought back a satirical comic strip, which had been dropped abruptly by the SCMP in 1995 after it implicated then-PRC Premier Li Peng in the sale of organs from executed prisoners.
Since the 1999 controversy over the reassignment of the outspoken head of the government-owned Radio Television Hong Kong (RTHK) after RTHK produced a program in which a prominent but unofficial Taiwan representative endorsed then-Taiwan President Lee Teng-hui's controversial "two-states" policy, RTHK has continued to air views and news critical of the SAR and Chinese Governments, and continues to be criticized for this from supporters of the mainland Government. Some human rights groups have expressed concern that RTHK is dropping some of its more political programming in favor of softer cultural fare. The head of RTHK has acknowledged publicly "pressures" on RTHK for the last decade, but has been circumspect when asked to describe the pressures or to state whether such pressures continue. In general, however, there has been no discernible shift in RTHK's independent editorial stance since 1999's controversy. Debate continues over the desirability of the proposed privatization of RTHK.
At an April 12 public seminar, a senior deputy director of the Central People's Government Liaison Office in Hong Kong (formerly called the New China News Agency or Xinhua) stated that the Hong Kong media should not report views that advocate Taiwan independence as normal news. Arguing that even an objective report would have a bias, the official claimed that the Hong Kong media had the responsibility to uphold the integrity and sovereignty of the country. He claimed that this is not an issue of freedom of the press. He also stated that Hong Kong should expedite the drafting of antisubversion laws required by Article 23 of the Basic Law in order to define the difference between reporting on the issue of Taiwan independence and advocating independence (in order to make it clear what kind of reporting on Taiwan was permitted). The official's remarks created a furor among politicians, human rights activists, and the media, and renewed concerns over the drafting of the antisubversion law required by the Basic Law. Some saw the official's remarks regarding Taiwan as a warning to the press not to advocate independence for Taiwan. Acting Chief Executive Anson Chan issued a statement affirming freedom of the press under the Basic Law and restated the Government's position that the timetable and content of antisubversion legislation had yet to be decided. Prodemocracy legislators made clear their disagreement with the Chinese official's comments. Media and journalist organizations similarly objected to the official's remarks, stressing that news should not be influenced by government policies. Numerous newspaper editorials rejected the "advice" of the Chinese government official. Following the incident, there was no apparent diminution in Hong Kong media reporting on Taiwan, including of proindependence views. However, later in April, an Internet company's local affiliate blocked its chat room users from discussing certain politically sensitive topics. Phrases like "Taiwan independence" and "Tibet independence" were scrambled (English letters were replaced with asterisks, and Chinese characters were scrambled) when they were typed in chat rooms at the portal. Messages including those terms posted on the site's bulletin boards quickly were deleted. The Internet company is partly owned by the NCNA, the official PRC news agency (as well as by a foreign media company); the portal is registered in Hong Kong and has approximately 1 million registered users. The local affiliate company's chairman stated to the press that "there are certain areas that are considered sensitive in every market. Freedom of speech is not absolute." A spokesman for the company was quoted as saying the company wanted users to exercise self-discipline. After the media reports, the practices in question appeared to stop. In August a businessman and advisor to the central Government criticized the SCMP for reporting too little "good news" and too much "bad news." On October 27, Chinese President Jiang Zemin accused the Hong Kong media of naivete and low journalistic standards after a series of questions from journalists about whether he supported another term for Chief Executive C.H. Tung. President Jiang also cautioned journalists that they would be held accountable if their reports were not accurate enough. In November several major newspapers found that they were not invited to cover the festivities for the 20th anniversary of the Shenzhen special economic zone. Several reporters who tried to attend were detained for not having the appropriate credentials. On December 20, Chinese President Jiang warned the residents of Macau and Hong Kong against using their freedom to oppose the state and stated in remarks interpreted to include Hong Kong's news media that Macau's news media should value press freedom but also consider its social responsibilities.
In 1999 in response to a growing number of complaints about tabloid-style journalism, which encouraged intrusive reporting by the press, the Law Reform Commission (an independent commission appointed by the Government in the 1980's) suggested that a Press Council with the power to reprimand or fine a publication found to be "in serious breach of the Privacy Code" should be appointed by the Government. Public reaction included concerns by journalists, legal experts, human rights activists, and others that such a body could be used to restrict press freedom. The Government indicated its preference that the media should regulate itself. Many (but not all) major newspapers and news associations established an industry watchdog, the Hong Kong Press Council, which began its work in September. Some critics complained that not all newspapers, including those with the most invasion of privacy complaints against them (the Oriental Daily, the Apple Daily, and the Sun), had agreed to participate in the voluntary organization. Others expressed concern that even this nonstatutory organization could potentially be abused to restrict press freedoms. In the first 10 weeks of the new organization's work, it received around a dozen complaints. Some readers, reportedly including victims of sex crimes, claimed intrusion of privacy, while others complained of exaggerated, inaccurate, or graphic reporting.
In November a lawyer sued two radio talk show hosts for defamation, and the Court of Final Appeal ordered a retrial when it ruled that the trial judge in a lower court had misdirected a jury in a way that could endanger freedom of speech. In so doing, the Court effectively overturned a 150-year old guideline for defamation cases and called for a more generous approach toward the defense of fair comment by ruling that honest remarks, even those made with malice, could still be construed as fair comments.
During the year, a reporter for a Chinese-language newspaper was sentenced to 10 years in prison for bribing police officers for information. The two police officers were sentenced to 7 and 9 months' imprisonment respectively for accepting bribes from mid-1997 to November 1999 (see Section 1.c).
It is illegal to desecrate a PRC or Hong Kong flag or emblem publicly and willfully. In December 1999, the Court of Final Appeal ruled unanimously that flag-desecration laws did not violate the Basic Law (or the International Covenant on Civil and Political Rights subsumed therein) and reinstated the sentences of two persons accused of desecrating the Hong Kong and Chinese flags during a peaceful demonstration in 1998. The two had received the equivalent of 12 months' probation. In another flag desecration case pending at year's end, the Government charged a prominent local activist with three counts of desecrating the Hong Kong flag by publicly and willfully defiling it; a trial is scheduled for January 2001, and a verdict is expected shortly thereafter. During the year, the authorities reportedly took no action in response to an Internet website that invited site visitors to press a key to activate a virtual on-line desecration of the Chinese national flag.
Falun Gong publications again were displayed prominently at the annual Hong Kong International Book Fair. However, after some Hong Kong publishing houses owned by mainland Chinese interests declined to continue publishing Falun Gong materials after the movement was banned on the mainland in July 1999 (see Section 2.c.), the group shifted its publishing to companies based abroad. Some bookstores continued to offer Falun Gong materials for sale, but bookstores operated by Chinese enterprises that removed Falun Gong books from their shelves in the wake of the July 1999 ban on the movement, continued to refuse to carry Falun Gong publications.
The founder of the Information Center for Human Rights and Democracy Movements in China (which issues press releases on human rights-related strikes, demonstrations, and arrests in China), who complained in November 1999 that he was receiving almost 1,000 harassing phone calls and faxes each day from security agents in China, reported that the harassment continued through April. After that, his fax machine continued to receive a daily deluge of nuisance faxes, but the attacks on his phone and pager stopped. The nuisance faxes continued for several more months before they, too, ceased.
The code requiring government departments to release information to the public unless there is a valid reason to withhold it remained effective. A department may withhold "sensitive" information in such areas as defense, security, external affairs, or law enforcement. Guidelines for access to information are provided to the public on an Internet web page.
The Basic Law provides for academic freedom, and the Government generally respects that freedom in practice. There is independent research, a wide range of opinions, and lively debate on campuses. However, in July a Hong Kong University-based pollster and sometime political commentator publicly alleged that Chief Executive Tung Chee-Hwa had, beginning 18 months earlier, pressured him to stop conducting polls on the Chief Executive's declining popularity. Specifically, the pollster alleged that an assistant to the Chief Executive in January 1999 complained about the polls to a University Vice Chancellor, who in turn had sent a deputy to speak to the pollster. Although the pollster never stopped his polls, including those on the Chief Executive's popularity, he claimed that he had altered or not asked some questions in his surveys as a result of the pressure. The Chief Executive, his assistant, and university officials denied the allegations. The media, opposition parties, human rights and democracy advocates, and student groups were quick to respond to the allegations. The controversy continued for over 2 months, when an independent commission was established by the University to investigate the matter. The commission concluded that the allegations of pressure on the pollster were credible and that the Chief Executive's assistant and the university Vice Chancellor had not been "truthful" in their testimonies. No evidence that the Chief Executive himself was the origin of the pressure came to light. The two university officials at the center of the controversy resigned. However, the Chief Executive's aide remained in his position despite calls by opposition parties and student groups for his removal.
b. Freedom of Peaceful Assembly and Association
The Basic Law provides for freedom of assembly and this right is practiced without significant hindrance. Article 23 of the Basic Law provides that Hong Kong shall enact laws to prohibit subversion, secession, treason, and sedition against the Chinese Government. The process of developing this legislation continues with no indication of when such laws may be enacted. Amendments to the Crime Ordinance, passed by the prehandover Legislative Council in 1997, narrowed the definition of treason and sedition to include a "proven intention of causing violence or creating public disorder or a public disturbance." However, the amendments stipulate that the Government must name the date when the change is to take effect, and the Government has chosen not to enact the amendments until comprehensive legislation dealing with all "Article 23 crimes" is developed. In the interim, preexisting provisions in the Crime Ordinance dealing with treason and sedition continue to apply.
A revised Public Order Ordinance, which was passed by the Provisional Legislature and took effect in 1997, reintroduced the concept of the notice of no objection for public processions and empowered police to object to demonstrations on national security grounds as well as to protect the rights and freedoms of others. Under the law, demonstration organizers must notify the police of their intention to demonstrate 1 week in advance (shorter notice is accepted when the Commissioner of Police is satisfied that earlier notice could not have been given) for a march involving more than 30 persons and for an assembly of more than 50 persons. The police must give a clear reply within 48 hours if it objects, but otherwise no reply indicates no objection. In practice, demonstrators can assume "no objection" if they are not notified otherwise by 48 hours in advance of the planned demonstration. The national security provision has never been invoked. Appeals of a denial to demonstrate may be made to a statutory appeals board comprising members from different sectors of society. No public official is on the board. Both the board's proceedings and the police's exercise of power are subject to judicial review.
Since the handover, there have been over 7,000 demonstrations – an average of over 5 per day, which is higher than prehandover rates. Approximately half of these demonstrations required notification. The police have objected to five demonstrations, three of which went ahead after the demonstration organizers altered their plans. Of the remaining two cases, one involved an environmental group's plan to block city-center traffic with garbage trucks to urge the Government to open more recycling centers. That event eventually took place at a different venue. The other involved right of abode protesters who wished to continue protests in front of Government offices for 10 days immediately following clashes there between police and protesters reacting to the Court of Final Appeal's December 1999 verdict upholding the NPC Standing Committee's interpretation of the Basic Law. The Appeals Board supported the police decision, as it did in the two other cases that had come before it.
However, demonstrators, particularly labor activists, have complained that demonstrations often are limited to "designated areas" where they receive little public attention and that police sometimes outnumber demonstrators. A police order issued in September 1998, while underlining that it is police "policy to facilitate, as far as possible, all peaceful public order events," also stipulates that certain "internationally protected persons" are, in addition to security, entitled to "protection of their dignity." Human rights activists remain concerned that the policy could lead to the use of police tactics that the IPCC had previously ruled were inappropriate.
In addition to assemblies and marches on Hong Kong-related issues, groups continue to be free to demonstrate on issues of sensitivity in mainland China. On May 28, approximately 1,000 persons marched through central Hong Kong to commemorate the 11th anniversary of the June 4, 1989, massacre in Tiananmen Square. On June 4, approximately 40,000 demonstrators attended the annual candlelight vigil to commemorate the anniversary. Falun Gong practitioners regularly conduct public protests against the crackdown on fellow practitioners on the mainland, including directly in front of Hong Kong offices of the Central Government. However, the Falun Gong reports that some commercial establishments have refused to rent halls to the groups' practitioners. In a June protest against the Government's right of abode policies, the police were accused of using excessive force when they used pepper spray and struck demonstrators when removing them from the entrance to the main Government office building. As recommended by the police's internal disciplinary body, the Complaints against Police Office, two police officers received verbal warnings for their actions. A report on the alleged misuse of force was referred to the IPCC for further scrutiny.
Student groups and human rights activists have criticized the Public Order Ordinance and have called for amendments to the law. Some also have demanded that it be repealed on the grounds that its provisions violated the right of assembly and the International Covenant on Civil and Political Rights (ICCPR). Proposed amendments to the Public Order Ordinance include reducing the advance notification period, doing away with the notice of no objection, eliminating "excessive" criminal penalties of up to 5 years in prison, and requiring the police to obtain a court order in order to prohibit a demonstration. In what amounts to acts of civil disobedience, one group refuses to comply with the notification provisions, and it has made clear its intention to continue to do so until the law is revoked. Student and other protesters were arrested for investigation in connection with April and June demonstrations – over proposed tuition hikes and right of abode, respectively – in violation of the ordinance. All of the protestors were released immediately, and the Government did not prosecute. In December in a vote heatedly opposed by prodemocracy legislators, the Legislative Council supported the ordinance in its current form by a vote of 36 to 21. The U.N. Human Rights Committee in November 1999 noted its concern that the ordinance could be applied to restrict the right of assembly unduly, and it called on the Government to review the law and bring its terms into compliance with the ICCPR. The Court of Final Appeal has not yet had the opportunity to rule on the conformity of the ordinance with the ICCPR.
The Basic Law provides for freedom of association, which is practiced without significant hindrance. Since the handover, no applications for registration have been denied. From January to November, the Societies Office of the police registered 1,275 organizations. However, the "Never Forget June 4 Organization," whose constitution calls for the end of one party rule in China, claims that the police have delayed the group's registration. The police state that the organization cannot be registered until it has been formally established. Human rights groups also have expressed concern that the amended Societies Ordinance, which like the amended Public Order ordinance was passed by the Provisional Legislature, could be used to restrict political activity. The Societies Ordinance requires that new societies must apply for registration within 1 month of establishment. The Government may refuse registration if it believes that the refusal is necessary in the interests of national security, public safety, public order, or the protection of the rights and freedom of others. The Government also may refuse to register a political body that receives support from a foreign political organization or a Taiwan-based political organization. The U.N. Human Rights Committee in November 1999 noted its concern that the ordinance could be applied to restrict unduly the right of association and called on the Government to review the law so as to ensure full protection of the right to freedom of association under the ICCPR.
c. Freedom of Religion
The Basic Law provides for freedom of religion, the Bill of Rights Ordinance prohibits religious discrimination, and the Government respects these provisions in practice. The Government at all levels protects religious freedom in full, and does not tolerate its abuse, either by government or private actors.
The Government does not recognize a state religion but does grant public holidays to mark numerous special days on the traditional Chinese and Christian calendars, as well as Buddha's birthday.
Religious groups are not required to register with the Government and are exempted specifically from the Societies Ordinance, which requires the registration of nongovernmental organizations. Catholics recognize the Pope as the head of the Catholic Church, unlike on the mainland. The spiritual movement widely known as Falun Gong, which does not consider itself a religion, is registered, practices freely, and holds regular public demonstrations against PRC policies. Despite complaints by PRC representatives and a stern warning from Chief Executive C.H. Tung not to violate Hong Kong law or act "in any manner against the interests of China, Hong Kong, or 'one country, two systems,'" Falun Gong practitioners remained active, and organized public demonstrations outside PRC offices. Other traditional martial arts/meditation groups, known collectively as qigong groups, including Zhong Gong (which was banned in the PRC in late 1999), Xiang Gong, and Yan Xin Qigong, also are registered and practice freely in Hong Kong. Another group allegedly listed as an "evil cult" by the PRC, the Taiwan-based Guan Yin Method, is registered legally and practices freely.
Although under the Basic Law the PRC Government has no say over religious practices in Hong Kong, its representatives in the SAR and the two PRC-owned newspapers have criticized some religious and other spiritual groups and individuals there. Hong Kong religious leaders also have noted that the Basic Law provision that calls for ties between local religious organizations and their mainland counterparts to be based on "nonsubordination, noninterference and mutual respect" could be used to limit such ties. In April mainland authorities reportedly charged a Hong Kong religious leader with violating this noninterference clause by criticizing mainland religious policies. In September Hong Kong-based Chinese officials urged Hong Kong's Catholic Church to keep "low key" any celebrations of the October 1 canonization by the Pope of 120 foreign missionaries and Chinese Catholics who had been martyred in China. The Hong Kong Catholic Church stated however, that it did not alter its fairly extensive plans to mark the occasion. The traditional ties of the Hong Kong Catholic Church to the Vatican have not precluded its contacts with the official Catholic Church in the PRC. However, it reportedly has had many contacts and exchanges with its mainland counterparts in the official church put on hold due to the current restrictive climate in the PRC for religious groups.
In June 1999, the PRC Government, which has responsibility for the SAR's foreign affairs, blocked a proposed papal visit. The PRC Government reportedly considered the visit to be one of a head of state rather than one of a religious leader. When this news became public in August 1999, Hong Kong's Chief Executive reiterated the importance of religious freedom to Hong Kong and noted the "unfortunate" fact that the Pope could not visit Hong Kong because of foreign policy concerns.
Although Falun Gong is free to practice, organize, and conduct public demonstrations, its practitioners expressed concern about pressure coming from mainland authorities and their supporters. Numerous articles critical of the group appeared in PRC-owned Hong Kong newspapers. In April a PRC State Council spokesman reportedly called a Hong Kong Falun Gong spokesman "a tool used by Western powers to subvert the Central Government." A Falun Gong spokesman in Hong Kong responded that practitioners were undeterred by the PRC's unfounded criticisms, but the number of Falun Gong practitioners in Hong Kong is said to have dropped from approximately 1,000 to approximately 600 since the mainland crackdown began in mid-1999. In a December speech in which he made clear his comments applied equally to Hong Kong and Macau, Jiang Zemin said the Macau Government should never allow anyone to stage any activities in Macau against the Central Government or to split the country. Some Hong Kong publishing houses owned by mainland Chinese interests declined to continue publishing Falun Gong materials after the movement was banned on the mainland in July 1999, and some bookstores operated by mainland enterprises removed Falun Gong books from their shelves (see Section 2.a.). In addition Falun Gong organizers have reported reluctance on the part of some hotels, cultural centers, and other venues to lend or lease space for Falun Gong exhibitions or other activities.
In October 1999, it was discovered that PRC Government censorship of Falun Gong-related information temporarily affected Hong Kong users of a major local paging service because the service utilized mainland-located transmission centers. Mainland-based employees of the company refused to transmit messages regarding Falun Gong, even for Hong Kong customers, because of an alleged PRC Government instruction that any messages related to Falun Gong should not be broadcast. Under scrutiny from the Government and pressure from the wider community, the company found a technical solution to the problem and ceased censorship for customers whose service was limited to Hong Kong. However, the company insisted, and the Hong Kong Telecommunications Authority agreed, that the company must follow mainland laws (including censorship rules) for customers whose paging service extended to the mainland. Hong Kong customers with China-wide (rather than Hong Kong-only) service remained unable to receive messages relating to Falun Gong. The Hong Kong Telecommunications Authority issued amended guidelines in February requiring paging services to configure their systems to enable Hong Kong-origin paging messages, including those that would be barred for transmission in places outside Hong Kong, including the PRC, to be transmitted in Hong Kong (see Section 1.f.).
d. Freedom of Movement, Foreign Travel, Emigration, and Repatriation
The Basic Law provides residents freedom of movement within Hong Kong, freedom of emigration, and freedom to enter and leave the territory, and the Government respects these rights in practice. Travel documents are obtained freely and easily, however, there are some limits on travel to the mainland (imposed by the mainland Government).
As was the case before the handover, the Taiwan passport is not recognized as valid for visa endorsement purposes.
In the past, several prominent overseas dissidents have been denied visas to enter Hong Kong.
Chinese authorities do not permit a number of Hong Kong human rights activists and legislators to visit the mainland. Many Democratic Party legislators, for example, are not allowed to travel to the mainland. Political and human rights activists assert that the restriction on travel to the mainland on those who disagree with the Central Government's policies has a dampening effect on political debate, particularly among those with business interests on the mainland. However, one prominent labor and democracy activist, previously denied permission for many years, was allowed to enter the mainland to visit his ailing parent twice during the year.
In early August, several persons who would likely be required to return to the mainland as a result of the 1999 right of abode decision set fire to a floor of an Immigration Department office, some reportedly also set themselves on fire. Fifty persons were injured in the incident; 2 died.
The 1951 U.N. Convention Relating to the Status of Refugees and its 1967 Protocol does not extend to Hong Kong, and the SAR eliminated its first asylum policy in 1998. On a case-by-case basis, the Director of Immigration has discretion to grant refugee status or asylum in cases of exceptional humanitarian or compassionate need, but the Immigration Ordinance does not provide foreigners any right to have their asylum claim recognized. The general practice is to refer refugee and asylum claimants to a lawyer or to the office of the U.N. High Commissioner for Refugees (UNHCR). Those granted refugee status, as well as those awaiting UNHCR assessment of their status, receive a subsistence allowance from the UNHCR, but are allowed neither to seek employment nor enroll their children in local schools. Of the approximately 100 persons receiving UNHCR support in late November, around 70 began to receive such support during the year. The UNHCR works with potential host country representatives in Hong Kong to resettle those designated as refugees. Government policy is to repatriate all illegal immigrants, including the approximately 23 per day that arrive from the mainland, as promptly as possible. However, human rights groups have complained of a few cases in which seekers of asylum or refugee status have been arrested for illegal immigration and incarcerated for periods of up to several months, but there were no reports of the forced return of persons to a country where they feared persecution.
In February the Government terminated its Millport policy, under which Vietnamese asylum seekers intercepted in boats in Hong Kong waters were assisted in their voluntary departure from Hong Kong, because of evidence the policy was being abused by illegal immigrants who claimed passage through Hong Kong to other destinations. In June, in a move welcomed by human rights groups and the UNHCR, Hong Kong approved for permanent resettlement approximately 1,400 Vietnamese refugees and migrants. With this action the SAR Government closed the world's last remaining Vietnamese refugee camp (Pillar Point), and brought to an end the resettlement process that had handled more than 220,000 Vietnamese who had landed in Hong Kong since 1975. Approximately 6 percent of the 1,400 persons approved for resettlement declined the Government's offer, and instead chose to retain their refugee status in order to continue to seek resettlement elsewhere. Since the closure of the Pillar Point camp the number of undocumented Vietnamese immigrants arriving in Hong Kong dropped to approximately 40 per month.
The case of 289 additional Vietnamese illegal immigrants who entered Hong Kong from China was under appeal at year's end.
3. Respect for Political Rights: The Right of Citizens to Change Their Government
Residents' right to change their government is limited by the Basic Law, which provides for the selection of the Chief Executive by an 800-person selection committee (which itself is appointed or indirectly elected), the direct election of less than half of Legislative Council members, and the inclusion of appointed members to the elected district councils. In addition while the approval of the Chief Executive, two-thirds of the legislature, and two-thirds of Hong Kong's National People's Congress delegates is required to place an amendment to the Basic Law originating in Hong Kong on the agenda of China's National People's Congress, it is the National People's Congress that has the power actually to amend the Basic Law, and procedures for amendment or interpretations that originate in the mainland are unclear.
The government structure is two-tiered, and it consists of the Legislative Council and 18 district councils. (A third, middle tier, collectively known as the municipal councils, was abolished at the end of 1999.) C.H. Tung is Chief Executive.
The Chief Executive was chosen prior to the handover by a 400-member selection committee, which in turn was chosen by a 150-member preparatory committee appointed by the Chinese Government. The Basic Law provides for elections for Chief Executive in 2002 and 2007, by a committee of 800 local residents. This committee is the same as the committee formed to select 6 legislators in September. It is composed of the 60 members of the Legislative Council, the 36 Hong Kong delegates to the National People's Congress, 40 representatives from religious groups, and 664 persons elected by the same 179,000 voters (some representing organizations; others voting as individuals) who chose the functional constituency representatives of the Legislative Council. The Government stated in October that it would not introduce legislation on election procedures of the Chief Executive until mid-2001. The Basic Law permits amendment of the Chief Executive selection process after 2007 by a two-thirds majority of the Legislative Council, with consent of the Chief Executive and the Standing Committee of the National People's Congress. The Basic Law states that "the ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures."
A provisional legislature, appointed by the same 400-member committee that appointed the Chief Executive, served from July 1, 1997, until June 30, 1998. Although the Provisional Legislature included 33 of 34 legislators from the 1995 Legislative Council who sought inclusion, the Democratic Party and several independents declined to seek seats in what they deemed an illegitimate body, which they claimed lacked a legal foundation and transparency, and excluded groups, parties, and individuals critical of China. The Provisional Legislature repealed several laws that had been enacted by the elected Legislative Council to enhance civil and political rights, including: Amendments to the Bill of Rights Ordinance; the Employee Right to Representation, Consultation, and Collective Bargaining Ordinance; the 1997 Employment (Amendment) Ordinance, and the 1997 Trade Unions (Amendment) Ordinance (see Section 6.a.). A lawsuit challenging the constitutionality of the Provisional Legislative Council was unsuccessful, and the repeals remain controversial, albeit without further legal challenge.
Elections for Hong Kong's first and second posthandover Legislative Councils were held in May 1998 and in September, respectively. The Legislative Council elected in September is to serve a 4-year term. In the first election, 20 members were elected directly from geographic districts through universal suffrage, 30 from functional (occupational) constituencies, and 10 by votes of a committee of local elected officials. In the second, 24 members were elected directly from geographic districts through universal suffrage, 30 from functional constituencies, and 6 by votes of the 800-person Selection Committee which is composed of representatives of professions, district councils and religious groups, as well as local representatives to Chinese national political bodies, and Legislative Councilors. Prodemocracy candidates won 17 of the 24 seats elected on a geographic basis (including 1 in a December by-election) and 22 seats overall.
In both the 1998 and September elections, the functional constituencies were drawn more narrowly than the nine broad functional constituencies of the 1995 Legislative Council, and the total number of potential voters in functional constituencies was reduced from 1.15 million in 1995 to 189,000 in 1998. Human rights groups contend that the election of functional constituency representatives by so few persons is fundamentally undemocratic. There was general acceptance of the geographic electoral districts (which include 3 million registered voters) proposed in 1997 by the Electoral Affairs Commission. A bill calling for an accelerated time line for direct election of all Legislative Council seats was defeated in the Legislative Council in 1998.
In December the Court of Final Appeal ended a century-old practice of excluding nonindigenous villagers from participating in rural elections. The Court unanimously found that the practice violated both the Bill of Rights and the Sex Discrimination Ordinances.
The ability of the legislature to influence policy is limited substantially by Basic Law provisions that require separate majorities among members elected from geographical and functional constituencies in order to pass a bill introduced by an individual member and that prohibit the Legislative Council from putting forward bills that affect public expenditure, political structure, or government operations. The Chief Executive's written consent is required before bills affecting government policy may be introduced. Additionally, the Government has adopted a very broad definition of "government policy" in order to block private member bills, and the President of the Legislative Council has upheld the Government's position. A motion proposed by a prodemocracy legislator to repeal restrictions on private members' bills was rejected in January; however, the Legislative Council's degree of popular representation and outspokenness gives the Government cause to consider its views. In June when the Legislative Council passed a no-confidence motion against two senior housing officials, the more senior of the two resigned.
The November 1999 elections for Hong Kong's District Councils – the sole remaining local government body after the abolition of the Municipal Councils – were free and fair; however, democratic legislators and human rights activists complained that the appointment of nearly one-quarter of District Councilors by the Chief Executive is an undemocratic procedure. According to the District Councils Ordinance enacted in March 1999, the District Councils are responsible for advising the government on matters affecting: (1) the well-being of district residents; (2) the provision and use of public facilities; and (3) the use of public funds allocated for local public works and community activities.
An October 1999 motion in the Legislative Council calling for a referendum on the Government's proposal to abolish the Urban and Regional Councils, Hong Kong's mid-tier local government organs known collectively as the Municipal Councils, was defeated. However, in December 1999, the Legislative Council passed a controversial bill abolishing the Municipal Councils when their terms expired at the end of the year. The Councils had been the subject of widespread public criticism for their poor handling of the Avian Flu, the Red Tide, and other public health issues for which they were responsible. Legislators from the democratic parties and human rights activists protested the abolition of the councils, arguing that they were important to the development of party and democratic political leaders. The UN Human Rights Committee in November 1999 also expressed concern that the abolition of the municipal councils would "diminish the opportunity of Hong Kong residents to take part in the conduct of public affairs."
Hong Kong sends 36 delegates to China's National People's Congress (NPC). These 36 individuals are an important group since placing proposed amendments to the Basic Law on the agenda of the NPC requires the approval of two-thirds of Hong Kong's NPC delegates. Hong Kong's NPC delegates also are members of the Election Committee that chose 10 of the Legislature's 60 members in 1998 and 6 of the legislatures members during the year. Hong Kong's NPC delegates were selected to a 5-year term in December 1997 by an NPC-appointed committee of 424 residents. Politicians and human rights activists criticized the selection process as undemocratic and lacking transparency and noted that Central Government Liaison Office (formerly the New China News Agency) Director Jiang Enzhu, who is not a Hong Kong permanent resident, is one of Hong Kong's 36 delegates.
Women are underrepresented in politics and in elective office, but larger numbers are seeking public office than ever before. Women hold 10 of the 60 Legislative Council seats, and women make up between 5 and 33 percent of membership in political parties. The President of the Legislative Council is a woman, as is the head of the civil service (the number two person in the Hong Kong Government). The Equal Opportunities Commission noted that women were a minority in Government advisory bodies. A report in May compiled by the Hong Kong Federation of Women stated that only between 16 to 22 percent of judges, Executive Council members, advisory board members or top civil servants are women. However, women are well represented at the highest levels of government. The Chief Secretary, Secretary for Security, Secretary for Justice, Treasure Secretary and Education Secretary are all women. Minorities are also represented in senior civil service positions.
4. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
Dozens of domestic and international nongovernmental organizations (NGO's) operate freely (see Section 2.b.). These organizations have unrestricted and thriving contacts with the local community and with groups overseas. Government officials are generally receptive to, and respectful of, their views. Prominent human rights activists who focus on mainland China also operate freely and enjoy permanent resident status in Hong Kong.
The 1988 Ombudsman Ordinance established the Office of the Ombudsman, which has wide powers to investigate and report on grievances from members of the public as a result of administrative actions of the executive branch and other designated public bodies. However, the credibility of the Ombudsman's independence is undermined by the fact that most of its staff is seconded from the Government, putting them in the position of investigating their former and future bosses. A proposal for the office to become independent of the Government in 2002 reportedly has received official approval. Another limitation is that the Ombudsman does not have oversight authority over the police, the Independent Commission against Corruption, the Equal Opportunities Commission, or the Office of the Privacy Commissioner for Personal Data. The Ombudsman may investigate complaints of noncompliance with the code on access to information by government departments, including the police and the Independent Commission against Corruption. With regard to election-related complaints, the Ombudsman only is empowered to investigate complaints made against the Registration and Electoral Office, not those made against the Electoral Affairs Commission. Thus, the Ombudsman's human rights role regarding liberty of persons, freedom from arbitrary and unlawful arrest and detention, equality, and related matters is limited considerably.
The Ombudsman may publish investigation reports in which the identity of the complainant has been disguised. In addition to responding to public complaints, the Ombudsman may initiate investigations on his own. The Ombudsman may report to the Chief Executive if he believes that his recommendations to the organizations under his jurisdiction have not been acted upon or if there are serious violations; the Chief Executive is bound by law to present such reports to the legislature.
Human rights groups have complained that Hong Kong does not have a human rights commission. The U.N. Human Rights Committee in November 1999 expressed concern "that there is no independent body established by law to investigate and monitor human rights violations in Hong Kong and the implementation of Covenant rights." In March visiting U.N. Human Rights Commissioner Mary Robinson urged Hong Kong to set up such a body.
Under the Basic Law, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights apply, with certain restrictions, to Hong Kong. The Chinese Government transmits Hong Kong's reports under these covenants, without editing, to the U.N. The reports are prepared without interference from the Chinese Government, but local NGO's have complained that they were not consulted fully enough on the contents of the reports. The Government and several domestic NGO's have testified before the U.N. Human Rights Committee in Geneva, Switzerland. The hearings, including concerns of the Committee, have received widespread and balanced press coverage. In May Hong Kong sent representatives to attend, as part of China's delegation, hearings held by the U.N. Committee against Torture in Geneva on China's periodic report. In October Hong Kong's report under the International Convention on the Elimination of All Forms of Racial Discrimination was submitted to the U.N. in Geneva by the Chinese Government as part of China's periodic report. In November the U.N. Committee on Economic, Social and Cultural Rights considered Hong Kong's report under the International Covenant on Economic, Social and Cultural Rights.
5. Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
The Basic Law provides that all Hong Kong residents shall be equal before the law. The Bill of Rights Ordinance, which provides for the incorporation into Hong Kong law of the International Covenant on Civil and Political Rights as applied to Hong Kong, entitles Hong Kong residents to the civil and political rights recognized therein "without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." However, the ordinance binds only the Government, public authorities and persons acting on their behalf, that is, not private persons or entities. Three pieces of antidiscrimination legislation – the Sex Discrimination Ordinance (1995), the Disability Discrimination Ordinance (1995), and the Family Status Discrimination Ordinance (1997) – have made it illegal for any person or entity (public or private) to discriminate against anyone on the grounds of sex, marital status, pregnancy, disability, or family status, and prohibits behavior such as sexual harassment, harassment or vilification on the grounds of disability, and discriminatory advertising. An Equal Opportunities Commission was established in 1996 to work toward the elimination of discrimination and to promote equality of opportunity with specific reference to gender, disability, and family status.
Human rights groups have called for laws specifically targeting, among other problems, public or private discrimination based on race and age. The U.N. Human Rights Committee in November 1999 expressed concern "that no legislative remedies are available to individuals in respect of discrimination on the grounds of race..." and called for legislation to ensure full compliance with the Covenant. A November survey identified strong societal prejudice against minority groups including mainland Chinese migrants. The Equal Opportunities Commission reported that the elderly are discriminated against in the allocation of public housing, but noted that it was powerless to help, because there is no legislation prohibiting age discrimination in Hong Kong.
Although many rights activists generally consider the government's Equal Opportunity Commission (EOC) an ally in the fight against discrimination, some have criticized the organization for passivity and for emphasizing conciliation instead of acting as a watchdog or pursuing court cases. In the first 8 months of the year, the Equal Opportunities Commission received 198 complaints of sex discrimination, 83 of which involved pregnancy discrimination. As of the end of September, 5 cases were brought to court under the Sex Discrimination Ordinance and were pending resolution. In the first 8 months of the year, 191 complaints were filed under the Disability Discrimination Ordinance; 3 of these cases went to court. As of September, two cases were still pending while one case resulted in a ruling in favor of the plaintiffs. In the first 8 months of the year, 12 complaints were received under the Family Status Discrimination Ordinance, which protects persons whose marital status changes, who have children, or who are responsible for caring for another family member, such as a child or elderly person, 11 of the 12 complaints were related to employment, but no cases had been filed by year's end.
The Government's "Code of Practice for Employers" designed to prevent discrimination states that race, among other factors, should not be considered when hiring employees. However, it accepts that special circumstances exist, such as when the employee works or lives in the employer's home. The Government has undertaken a public education and awareness campaign to combat race discrimination with only limited effect.
Violence against women remains a problem, particularly among new immigrants from the mainland. The only law that specifically protects battered women is the 1987 Domestic Violence Ordinance, which allows a woman to seek a 3-month injunction against her husband (extendable to 6 months). Domestic violence also may be prosecuted as common assault. The Government enforces the laws and prosecutes violators, but sentences generally are lenient. In 1999 472 cases of domestic violence were reported to the police, while in the first 6 months of the year, 320 cases were reported. Cases of battered spouses reported to the Social Welfare Department from April 1999 to March increased 44 percent over the previous 12 months to 1,689 cases. Women tend not to seek help when subject to violence; cultural factors and inadequate information about available assistance and resources result in many cases of spousal abuse going unreported. In May the Government established an interdepartmental Working Group on Sexual Violence to ensure coordination of efforts among various departments and authorities in handling the problem of sexual violence. Also in May, the Government announced plans to establish a Women's Commission later in the year to address women's concerns in a comprehensive and systematic manner. The Government also funds programs such as family life education counseling, a hot line service, temporary housing, legal aid, and child protective services; it also has initiated public education and media programs.
The Hong Kong Federation of Women's Centres asked the Government to prepare a comprehensive services plan especially for women from the mainland, with counseling and job-training to help them integrate. Hong Kong's Society for Community Organisation estimated that tens of thousands of women in Hong Kong, largely single women and widows from the mainland, are regularly subjected to the threat of violence, abuse, robbery, and sexual harassment by cohabitors. In November some 200 women, including sex workers, domestic helpers, and members of 12 womens groups, held an antiviolence-against-women rally, demanding greater Government protection for women, more assistance to victims, and a special court to handle such cases in a bid to preserve a woman's dignity.
The general incidence of rape is low. There were 90 cases of rape reported to the police in 1998, 91 in 1999, and 49 in the first half of the year. However, underreporting is considered a serious problem. Amendments to the evidence bill and to the Crime Ordinance that would abolish the requirement of corroboration of evidence of sexual offense and would clarify that marital rape is a crime are under consideration.
Prostitution is not illegal. However, there are laws against activities such as causing or procuring another to be a prostitute, living on the prostitution of others, and keeping a vice establishment. Many women working in the sex industry have been brought to Hong Kong under conditions resembling trafficking (see Section 6.f.).
Sexual harassment is a problem. Many women tend not to seek help when subjected to sexual harassment, and it is underreported. Police statistics report 1,047 sexual harassment cases in 1999. Government and NGO surveys and statistics from a counseling hot line, however, suggest sexual harassment cases in fact total anywhere from 21/2 to 10 times more than the number reported.
Women face discrimination in employment, salary, welfare, inheritance, and promotion (see Section 6.e.). The EOC's task force on Equal Pay for Work of Equal Value is studying ways to implement this principle, including possible draft legislation. The press carries occasional stories of women alleging discrimination in the workplace in connection with pregnancies. The number of complaints to the EOC of dismissal after employees' return from maternity leave increased in 1999. Official unemployment figures for the period from May through July were 5.7 percent for men and 4.2 percent for women. However, human rights organizations and unions assert that the statistics inaccurately record many unemployed women as housewives and that, in fact, the unemployment rate for women is actually higher than the unemployment rate for men. Women are entering professional fields, including medicine, in greater numbers. Nonetheless, in the medical profession there are few women in prestigious specialties such as surgery. Female judicial officers and judges make up only 18.8 percent of the judiciary. Women also are disproportionately represented in the lower echelons of the work force, holding positions such as retail sales assistants and office clerks. The Home Affairs Department this summer organized the Working Group of Web-Enabling Women to help less educated women enter the digital workforce. As a result of 1994 revisions to inheritance statutes, the law treats men and women equally in inheritance matters, although women still face discrimination based on traditional practices. Alimony is another problem, with one survey indicating that 80 percent of divorced women fail to receive money regularly from their former husbands. The November 1999 U.N. Human Rights Committee report expressed concern that differences exist between men's and women's earning levels, that women were underrepresented in public boards and public offices, and that there is customary discrimination against women in the inheritance of small homes in rural areas of the New Territories.
Based on its 1999 study showing that the Education Department's allocation scheme for secondary school places clearly discriminated against girls, the EOC in July requested a judicial review of the scheme. Education officials acknowledge that the current system of secondary school place allocation discriminates against girls because boys and girls are ranked (and accepted) separately. The High Court's on the EOC's request for judicial review is pending. The November 1999 U.N. Human Rights Committee report expressed concern that the educational system discriminates against girls in selection for secondary schools. In 1999 the number of female secondary student candidates accounted for 55.7 percent of the total who took university advanced-level examinations, and the number of female candidates who matriculated at universities accounted for between 52 and 56 percent of all matriculating candidates. This is similar to earlier years.
In the spring, the Government announced the establishment of a Women's Commission to promote and protect the interests and well being of women. The Commission, which had yet to begin operating as of year's end, reportedly plans to focus on provision of health services, childcare support, protecting women against violence, promotion of a women-friendly working environment and legal issues relating to women and the family.
The Government is committed firmly to children's rights and welfare through well-funded systems of public education, medical care, and protective services. The Education Department is committed to providing schooling for children between 6 and 15 years of age and provides placement services for non-Chinese speaking children. Education is free and compulsory through grade nine. The Government supports programs for custody, protection, day care, foster care, shelters, small group homes, and assistance to families. The age of criminal responsibility for children is 7, although it must be proved that a child under the age of 14 understood the consequences of his or her actions. In May the Law Reform Commission recommended that the age of criminal responsibility be raised to 10, and stated that children between 10 and 14 should be presumed to be incapable of committing a crime unless that presumption can be rebutted by the prosecution. The Commission also recommended that the Administration carry out a general review of the juvenile justice system. In 1999 there were 108 youths under the age of 16 who were incarcerated, 48 who were in prison, 29 who were in training centers, 27 who were in detention centers, and 4 who were in drug addiction treatment centers. In April one youth died during an attempted escape from a detention center.
Child abuse and exploitation are not widespread, but statistics indicate they are increasing. There is no specific laws dealing with child pornography, but child pornography is covered under other antipornography laws. A proposed bill on Prevention of Child Pornography and proposed amendments to the Crimes Bill before the Legislative Council since June 1999 would prohibit the printing, distribution, advertising, or possession of child pornography. The bills also would prohibit arranging or advertising of sexual offenses involving children under the age of 16. The Crimes (Amendment) Bill would also provide extraterritorial effect when either the perpetrator or the victim of a sexual offense involving a child or a person printing, distributing, advertising or possessing child pornography "has a nexus with Hong Kong."
In the first 6 months of the year, 754 cases of child abuse were reported to the police; 327 involved physical abuse of victims below the age of 14, and 427 involved sexual abuse of victims below the age of 17. Child abuse cases newly registered with the Social Welfare Department totaled 328 through August and 575 for all of 1999. In 1995 the police set up a child abuse investigation unit to improve the treatment of victims, and in 1996 legislation was passed making it easier for child victims to testify in court using an interviewing suite for recording statements. Legal penalties for mistreatment or neglect of minors also were increased substantially. A witness support program also was launched in 1996 to help child witnesses in need. A child witness information kit in Chinese, with books explaining legal and court proceedings, was published in 1996 to help reduce children's anxiety about testifying. In 1998 a Child Care Center Bill was passed to prevent unsuitable persons from providing child care services and to facilitate the formation of mutual help child care groups.
People With Disabilities
Discrimination against the physically and mentally disabled persists in employment, education, and the provision of some public services. The 1995 Disability Nondiscrimination Law called for improved building access and sanctions against those who discriminate. The Buildings Ordinance amended in 1997 updated design requirements. However, despite inspections and occasional closure of noncompliant businesses, access to public buildings and transportation remains a serious problem for the disabled. Advocates for the disabled complained that limited access for the disabled at polling stations made voting in both the 1998 and in the September elections difficult because of accessibility problems. The Government has an integrated work extension program in sheltered workshops and expanded vocational assessment and training. No comprehensive statistics are available on the number of disabled persons in the work force, but a consortium of organizations representing disabled persons reported that about 700,000 residents are disabled, and about half are able to work. A 1997 survey by the EOC found that depending on the kind of disability, unemployment rates ranged from 20 to 50 percent. There are 5,259 disabled persons employed as civil servants of a total civil service work force of 185,868 – about 2.8 percent of all civil servants. During the first 8 months of the year, the Labor Department's Selective Placement Division found jobs for 1,359 of 2,463 disabled job seekers. Approximately 9,000 students in a school population of 955,000, or just under 1 percent, are disabled. In the 1999-2000 school year, there were 168 places in regular schools for the mildly disabled under the Integrated Education Program. In 1997 the Government started a special university admission scheme for the disabled.
In the first 9 months of the year, three cases under the Disability Discrimination Ordinance were brought to court with EOC involvement. One case was resolved in September when the court ruled in favor of the three plaintiffs who had been given legal assistance by the EOC. The other two cases remained pending.
In 1999 the Government formed the Guardianship Board under the Mental Health Ordinance to protect the interests of persons with mental disabilities or disorders, including dementia.
The Government has resisted recommendations by human rights groups, the U.N. Human Rights, legislators, and others that it enact specific antirace discrimination legislation. In June the Government blocked a proposed antirace discrimination bill put forward by a legislator. The Government proposes to combat discrimination through education, rather than by legislation. A government "Code of Practice for Employers" designed to prevent discrimination states that race should not be considered when hiring employees. Minorities, who make up approximately 5 percent of the population, are well represented in the civil service and many professions. However, there are regular allegations of racial discrimination in such areas as private sector employment, admission to public restaurants, placement in public schools, treatment in public hospitals, and acceptance to institutions of higher education. Foreign domestic workers, most of whom are from the Philippines, are particularly vulnerable to discrimination. In January an Indonesian Migrant Workers Union was established to unite Indonesian domestic helpers throughout Asia and to protect members from abuse and exploitation; approximately 41,000 Indonesian domestic helpers work in Hong Kong. Similar organizations work for the interests of Philippine domestic helpers, of whom there are approximately 170,000. According to organizations representing migrant workers, police intimidation of migrant workers is also a problem.
6. Worker Rights
a. The Right of Association
The law provides for the right of association and the right of workers to establish and join organizations of their own choosing. Trade unions must be registered under the Trade Unions Ordinance. The basic precondition for registration is a minimum of seven persons who serve in the same occupation. The Government does not discourage or impede the formation of unions. In 1999, 35 unions (comprising 33 employee unions and two mixed organizations of employees and employers) were registered under the Trade Unions Ordinance. During the year, 11 new unions (10 employee unions and one employee/employer mixed union) were registered. As of the end of August, the total number of registered trade unions was 632 (588 employee, 25 employer, and 19 mixed). Over 20 percent of the approximately 3.3 million salaried employees and wage earners belong to a labor organization. Trade unions are independent of political parties and the Government.
The Employment Ordinance includes provisions that protect against antiunion discrimination. Violation of the antiunion discrimination provisions is a criminal offense with a maximum fine of $12,800 (HK$100,000). Employees who allege such discrimination have the right to have their cases heard by the Labor Relations Tribunal. The Tribunal may order reinstatement of the employee, subject to mutual consent of the employer and employee. If no such order is made, the Tribunal may award statutory entitlements (severance pay, etc.) and compensation. The maximum amount of compensation is $20,000 (HK$156,000). However, labor activists complain that complainants are discouraged by the Labor Relations Tribunal's tendency to push conciliation rather than issue orders. In 1999 the Labor Relations Division of the Labor Department handled 7 complaints of antiunion discrimination. During the first 8 months of the year, there were 3 such complaints. Owing to insufficient evidence or unwillingness of employees to act as prosecution witnesses, no prosecution action has been taken against the employers concerned.
Work stoppages and strikes are permitted. However, there are some restrictions on this right for civil servants. Through August 4 strikes were reported. There were 3 strikes during 1999, which resulted in 299 lost workdays; in 1998 there were 8 strikes. Although there is no legislative prohibition of strikes, in practice, most workers must sign employment contracts that typically state that walking off the job is a breach of contract which can lead to summary dismissal.
The Basic Law commits the SAR to 40 International Labor Organization (ILO) conventions, and the Government has amended labor legislation and taken administrative measures to comply (see Section 6.b.).
In October 1997, the Provisional Legislature promulgated the Employment and Labor Relations (Miscellaneous Amendments) Bill. This bill permits the cross-industry affiliation of labor union federations and confederations and allows free association with overseas trade unions (although notification of the Labor Department within 1 month of affiliation is required).
b. The Right to Organize and Bargain Collectively
In June 1997, the Legislative Council passed three laws that greatly expanded the collective bargaining powers of workers, protected them from summary dismissal for union activity, and permitted union activity on company premises and time. The new ordinances would have enabled full implementation of ILO Conventions 87 (which was ratified with reservations in 1963), 98, and 154. However, in October 1997, after consultation with the Labor Advisory Board, the Provisional Legislature repealed the 1997 Employee's Right to Representation, Consultation, and Collective Bargaining Ordinance and the 1997 Employment (Amendment) Ordinance, and amended the Trade Union (Amendment) Ordinance. The repeal removed the new legislation's statutory protection against summary dismissal for union activity; the Government argued that existing law already offered adequate protection against unfair dismissal arising from antiunion discrimination.
The 1997 Employment and Labor Relations (Miscellaneous Amendments) Bill removes the legal stipulation of trade unions' right to engage employers in collective bargaining; bans the use of union funds for political purposes; requires the Chief Executive's approval before unions can contribute funds to any trade union outside of Hong Kong; and restricts the appointment of persons from outside the enterprise or sector to union executive committees. The Hong Kong Confederation of Trade Unions promptly filed a complaint against the Hong Kong Government for violation of ILO Conventions 87, 98, and 154. In November 1999, the ILO Committee on Freedom of Association concluded that the new labor ordinance breached conventions 87 and 98 and recommended that the Government take legislative action to remedy the situation. The Government provided the ILO progress reports in May 1999 and January asserting that it was in compliance with all of the 40 ILO conventions that apply to Hong Kong. In January 1999, the Government blocked a legislator's attempt to introduce two bills on collective bargaining and antiunion discrimination on the grounds that they would affect government spending and operations and therefore fell outside the scope allowed for private member bills under the Basic Law (see Section 3).
With the repeal of the short-lived collective bargaining legislation, the prehandover framework continued. There were no laws that stipulated collective bargaining on a mandatory basis. Wage rates in a few trades like tailoring and carpentry were determined collectively in accordance with established trade practices and customs rather than as a statutory mechanism. Collective bargaining is not practiced widely. Unions generally are not powerful enough to force management to engage in collective bargaining. The Government does not encourage it, since the Government itself does not engage in collective bargaining with civil servants' unions but merely "consults" with them.
The Labor Relations Division of the Department of Labor offers free, nonbinding conciliation services to employers and employees involved in disputes that may involve statutory benefits and protection in employment as well as arrears of wages, wages instead of notice, or severance pay. The Department of Labor takes a positive attitude towards the participation of trade unions in such dispute negotiations. In the first 8 months of the year, the Division handled 194 trade disputes and 19,667 claims, 61 percent of which were handled through conciliation. In 1999 the Division handled 290 disputes and 31,890 claims, 61 percent of which were handled through conciliation. In 1998 the Labor Relations Division handled 226 disputes and 24,231 claims, 60 percent of which were handled through conciliation. Depending on the size of the claim, the remaining cases were referred to the Labour Tribunal or the Minor Employment Claims Adjudication Board.
There are no export processing zones.
c. Prohibition of Forced or Compulsory Labor
The use of forced labor is prohibited in the Hong Kong Bill of Rights Ordinance. Trafficking in persons for the purpose of forced prostitution is a problem; there were credible reports that local, foreign, and mainland Chinese sex workers sometimes labor under onerous conditions for organized criminals in exchange for protection or other assistance (see Sections 5 and 6.f.). The law does not specifically prohibit forced or bonded labor by children; however, there were no reports of such practices.
d. Status of Child Labor Practices and Minimum Age for Employment
The Employment of Children Regulations prohibit employment of children under the age of 15 in any industrial establishment. Children 13 and 14 years of age may be employed in certain nonindustrial establishments, subject to conditions aimed at ensuring a minimum of 9 years' education and protecting their safety, health, and welfare. To enforce compliance with the regulations, the Labor Department conducts regular workplace inspections. In the first 8 months of the year, the Labor Department conducted 114,668 inspections, during which 2 violations of the Employment of Children Regulations were discovered. The Department issued 5 summonses, 3 of which resulted in convictions and fines. In 1999 the Labor Department conducted 160,272 inspections during which 8 violations were discovered and 3 summonses issued, each of which resulted in convictions and fines. In 1998 the Labor Department conducted 156,634 inspections during which 10 violations were discovered and 11 summonses issued, of which 10 resulted in convictions and fines. Work hours for young persons 15 to 17 years of age in the manufacturing sector remain limited to 8 hours per day and 48 hours per week between 6 a.m. and 11 p.m. Overtime is prohibited for all persons under the age of 18 in industrial establishments. Employment in dangerous trades is prohibited for youths except 16- and 17-year-old males. While provisions against forced or bonded labor do not specifically refer to children, there were no reports of such practices (see Section 6.c.).
e. Acceptable Conditions of Work
There is no statutory minimum wage except for foreign domestic workers. Aside from a small number of trades where a uniform wage structure exists, wage levels customarily are fixed by individual agreement between employer and employee and are determined by supply and demand. Some employers provide workers with various kinds of allowances, free medical treatment, and free subsidized transport. The average wage generally provides a decent standard of living for a worker and family. Two-income households are the norm.
The minimum wage for foreign domestic workers is approximately $450 (HK$3,500) per month. The law requires employers to provide foreign domestic workers with housing, worker's compensation insurance, travel allowances, and food or a food allowance in addition to the minimum wage, which together provide a decent standard of living for a foreign domestic worker. However, there have been credible reports of foreign domestic workers, who are subject to deportation if they are dismissed, and thus who are less likely to raise formal complaints, illegally being forced to accept less than the minimum wage and unacceptable living conditions. There also have been a number of cases of foreign domestic workers successfully taking their employers to court for mistreatment. The standard workweek is 48 hours.
The Factory Inspectorate Division was restructured in 1996 as part of a government effort to strengthen its safety and health promotion and enforcement program. The division – part of a new occupational safety and health branch of the Labor Department – consists of four units: An operations division covering field services such as safety and health advice; a support services division responsible for technical support services; a planning and training division; and a legal services division charged with processing and conducting prosecutions.
The Factories and Industrial Undertakings Ordinance and its 27 sets of subsidiary regulations regulate safety and health conditions. In the first 8 months of the year, the Labor Department conducted 101,368 inspections of industrial and nonindustrial workplaces and issued 2,412 summonses (2,249 of which resulted in convictions with a total of $4.13 million (HK$32 million) in fines). In 1999 the Labor Department conducted 121,414 inspections and issued 2,110 summonses (1,959 of which resulted in convictions with a total of $4.65 million (HK$36 million) in fines). In 1998 the Labor Department conducted 89,846 inspections and issued 3,181 summonses (2,912 of which resulted in convictions with a total of $7.6 million (HK$60 million) in fines). Worker safety and health has improved over the years, due in part to the transfer of many manufacturing jobs to factories in mainland China, but serious problems remain, particularly in the construction industry. In the first quarter of the year, there were 12,425 occupational accidents, of which 7,211 were classified as industrial accidents. Of the industrial accidents, 6 involved fatalities. In 1999 there were 58,841 occupational accidents, of which 35,986 were classified as industrial accidents. Of the industrial accidents, 52 involved fatalities. Employers are required under the Employee's Compensation Ordinance to report any injuries sustained by their employees in work-related accidents. There is no specific legal provision allowing workers to remove themselves from dangerous work situations without jeopardy to continued employment.
f. Trafficking in Persons
Trafficking in persons is a problem, and Hong Kong is both a destination and a transit point for trafficked persons. Specific provisions in the Immigration Ordinance, the Crimes Ordinance, and other relevant laws enable law enforcement authorities to take action against trafficking in persons. The courts can impose heavy fines and prison sentences for such activities as arranging passage of unauthorized entrants into Hong Kong (up to $465,000 (HK$5 million) and 14 years in prison), assisting unauthorized entrants to remain in Hong Kong (up to $64,500 (HK$500,000) and 10 years in prison), using or possessing a forged, false or unlawfully obtained travel document (up to $19,350 (HK$150,000) and 14 years in prison), and aiding and abetting any person to use such a document (up to $19,350 (HK$150,000) and 14 years in prison). In late 1999, authorities in the United States and Canada began to find persons smuggled from China in shipping containers on cargo ships arriving from Hong Kong; in the first 3 weeks of the year alone, according to press reports, more than 100 persons had been found in shipping containers in ports on the west coast of Canada and the United States. In one case, 3 trafficked persons were found dead in 1 poorly provisioned and unsanitary shipping container; another 15 survived their ordeal, but 7 of the survivors required hospitalization. Hong Kong officials pledged to increase attempts to stop such trafficking out of Hong Kong, and began an investigation into the incidents, resulting in the arrest of one Hong Kong resident. Shipping companies and terminal operators took steps to detect and stop such smuggling as well. In November 26 intending illegal immigrants discovered the previous month by Hong Kong authorities sealed in a cargo container bound for the United States were convicted of attempting to stow away and of remaining in Hong Kong after having entered unlawfully, with most sentenced to 18 months in jail. Several others were arrested in connection with organizing the alien smuggling operation. In December another 12 intending illegal immigrants were discovered in a shipping container and arrested. Subsequent raids on offices and apartments of persons connected with the operation resulted in 15 additional arrests, including the alleged boss of the alien-smuggling syndicate. These two cases of mainlanders discovered hiding in containers were the first such cases where the illegal immigrants were caught in Hong Kong, but the 12th and 13th this year involving suspected use of Hong Kong as a container transshipment point. While the Security Bureau has policy responsibility over migrant trafficking, the police, customs and immigration departments are responsible for enforcing laws that combat trafficking. In July an immigration officer who accepted money in exchange for helping mainland Chinese enter Hong Kong illegally was convicted for violating the Prevention of Bribery Ordinance and sentenced to 4-years imprisonment.
Hong Kong is a transit point for persons trafficked from China and other nations to third countries. These persons generally are trafficked by organized crime organizations, and are trafficked for purposes of forced labor, or debt bonded labor, or forced prostitution. Countries to which such persons are trafficked include the United States, Canada, Australia, and various Western European countries. Many trafficked persons agree to pay large sums for their transport, and are forced to work in conditions similar to indentured servitude in order to repay the cost of their passage. Their movements may be restricted and their travel documents may be confiscated. Often, trafficked persons live under poor conditions, and are threatened with deportation or harm to family members if they complain. Thousands of persons are caught in Hong Kong each year with forged travel documents, some at the airport and others elsewhere in the territory. It is presumed widely that thousands of other would-be illegal immigrants pass through the SAR each year. It is unknown how many of these persons are trafficked.
Government figures report the number of applications for the entry of Vietnamese women for taking up residence to join local husbands in recent years are as follows: 1998, 67 applications approved, 3 refused; 1999, 175 approved, 55 refused; this year (through September), 85 approved, 47 refused. Cases where the claimed relationship as husband and wife does not satisfy immigration officers are as a policy rejected. However, it is not known how many women may be trafficked into Hong Kong as mail order brides without going through immigration procedures.
Visitors who are found to be engaged in prostitution are prosecuted for the offence of "breach of condition of stay under the Immigration Ordinance." In 1999 1,193 visitors from mainland China were so prosecuted. Through September 1,468 were prosecuted. The figure for 1998 was 1,247. The Government reports that it rarely encounters cases where visitors were forced to practice prostitution against their will. The number of visitors from the former Soviet Union and Malaysia found by the authorities to be engaged in illegal prostitution is small: 2, 1, and 12 from Russia, Uzbekistan, and Malaysia, respectively, in 1998. In 1999 and this year (through September), the numbers were 5, 2, and 0, and 1, 3, and 4, respectively. The Government has no record of visitor prostitutes from Eastern Europe for the same period. The number of illegal visitors trafficked into the country for the purpose of prostitution is unknown.