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Human Rights Issues -- October 1999
Unreasonable tailed by the plain-clothed security officers (October 7, 99)(Article 17)
UN hearing dissenting views on Hong Kong's human rights
record (October 11, 99) (General)
Police tear down Taiwan flag during Double Tenth (October 11, 99) (Article 19)
The rejection to setup an Independent legal aid body (October 14, 1999) (General)
UN to hear plea for detainees (October 17, 1999) (Article 9, Article 10)
The Desecration of the SAR Flag Incident (October 21-24, 99) (Article 19)
Issue of Right of Abode put in the Court of Final Appeal (October 25-28, 1999) (Article 23)
Police are suspected to delay decision on protesters' slogans (October 1, 99) (Article 19, Article 22)
Mr. Leung Kwok-hung, a member of the April 5th Action Group, planned to shout slogans during the flag-raising ceremony and the police were suspected to delay to grant the permission to him. The police officer, Mr. Tsang Wai-hung, Wan Chai District Commander Chief Superintendent, explained that the arrangement was not so simple, more time was needed. He also pointed that people had to balance the interests of different parties. Also, it was known that police headquarters has issued a confidential operational order to the Hong Kong Island Region, which empowered the police to control protesters' noise. Hong Kong Human Rights Commission had contacted with the Police Commander and the reply was that such order did not exist actually. It was suspected that the freedom of expression was being affected by that order. Moreover, under the Public Order Ordinance, police are able to control noise if it poses an imminent threat to the interests of national security, public safety and order or the freedom and rights of others. However, the definition and meaning of terms like "national security", "public safety" are board and vague and could have many interpretations. It was doubtful that the police could use it deliberately to control any peaceful demonstration and freedom of expression would be suppressed.
Unreasonable tailed by the plain-clothed security officers (October 7, 99)(Article 17)
The member of the activist group was followed unreasonably by the plain-clothes officers during attending the ceremony. Ms. Lui Yuk-lin, a member of the April 5th Action Group, attended the National Day celebration show with her 10-year-old nephew at the Hong Kong Stadium after protesting during the flag-raising ceremony earlier in the day. The child was scared by the plain-cloth officers and burst into tears at the stadium. However, the stadium manager had denied sending security guards to follow Ms Lui and the boy, while the police admitted that they had a close co-ordination with the stadium managers on security arrangement but did not comment on that issues. Director of Hong Kong Human Rights Monitor claimed that the Government should provide a clear explanation for the incident.
UN hearing dissenting views on Hong Kong's human rights record (October
11, 99) (General)
The United Nations will hear dissenting views on Hong Kong's human rights record at the end of October. The Secretary for Home Affairs Mr. David Lan Hon-stung represented the SAR's first post-hand-over report under the International Covenant on Civil and Political Rights. On the other hand, human rights activities, including Hong Kong Human Rights Commission, and non-government watchdogs, also will join the UN Human Rights Committee hearing in Geneva.
Police tear down Taiwan flag during Double Tenth (October 11, 99) (Article 19)
Police had removed a Taiwan flag from the Dundas Street at Mongkok during Double Tenth celebrations yesterday, claiming they were protecting the one-China principle. Another Taiwan flag was also removed from Bishop's Hill in Shekkipmei.
A police spokeswoman said the removal was in accordance with the law to protect the principle of one China. Police were believed to use the Land (Miscellaneous Provisions) Ordinance to justify the action. The law states that public officers can remove unlicensed structures on unleased land or any such structures the administration believes are not being habitually used or used in a bona fide manner.
However, The director of Taiwanese Kwang-hwa Information and Culture Center, Ms. Susie Chiang Su-hui, said the Government should provide sufficient reason to explain why they removed the flag. Also, Mr. Leung Kwok-keung, chairman of the pro-Taiwan Hong Kong and Kowloon Trade Union Council, said that he could not find any law barring people from flying the flag.
The rejection to setup an Independent legal aid body (October 14, 1999) (General)
There was a long persuasion in setting up an independent legal aid body but the Government rejected that suggestion. Director of Administration Ms. Carrie Yau Tsang Ka-lai believed that jurisdictions with an independent legal aid body would increase the costs and faced pressures to contain costs and cut services firstly. These problems were also happened in Australia, Canada and Britain. She illustrated that the actual expenditure of legal aid services increased from $81 million (1988-1989) to $518 million (1998-1999). Secondly, there would be a problem of accountability if the department operated independently. Thirdly, according to the study conducted by the council, people were more concerned about the quality of services instead of the body's status.
On the other hand, lawyers, legislators, Bar Association and the Legal Aid Services Council disagreed with the ideas of the Government. Legislator Margaret Na Ngoi-yee, who represents the legal sector, argued that the reason of increasing expenditure should not be linked with that discussion and it just threatened the society. Democratic Party chairman Martin Lee Chu-ming also pointed out that the impact on the legal aid applicants should be considered rather than the morale of the staff. Bar Association chairman Ronny Tong Ka-wah said that keeping the department under the Government bureaucracy would give an impression that it belongs to the side of the Government and could not make independent decision. Law Society Mr. Chow Wing-kin said that it was the public interest to have an independent body.
UN to hear plea for detainees (October 17, 1999) (Article 9, Article 10)
Relatives of six Hong Kong family, whose their family members were being detained on the mainland without trail, sent their urgent appeal to the United Nations on November 1999. The families claimed that some of the detainees were made scapegoats for the business failures or debts of their employers. They were detained as a "debt hostage" and their families were required to pay huge ransom. The families hoped that the UN's human rights committees would urge the SAR and Chinese government to guarantee the detainees receive fair trials or immediate release.
The Desecration of the SAR Flag Incident (October 21-24, 99) (Article 19)
Two HK citizens, Mr. Ng Kung-siu, 25 and Mr. Lee Kin-yun, 19, were convicted of desecrating the national and SAR flags in May 1998 and bound over to keep the pace for one year. They used ink to blacken the stars of the national flag and wrote Chinese character "Shame" on the flag. They were arrested after the defaced flags had been raised in a peaceful demonstration in January 1998. The Court of Appeal overturned their convictions in March 1999 that the court claimed that action desecrated laws was unconstitutional because they breached the Basic Law. However, the Government was dissatisfied with the appeal court and put the case in the Court of Final Appeal. The case was heard from 20th to 24th October 1999 and the Chief Justice was Andrew Li Kwok-nang.
Plaintiff's Arguments -- Government
Gerard McCoy SC, for the Department of Justice, stated that the flag laws were a justifiable restriction on the freedom of expression. There was a principle that the flags represented the values of the SAR and it should be protected. This principle could also be applied in laws to make any contempt for the symbols of government, such as the Chief Executive, to be a crime. The government claimed that it only appeal for the sake of the real purpose of law: peace, good order and Government.
In addition, the Government also argued about the flag laws on the mainland, which were mentioned in an annex of the Basic Law, was justifiable restriction. On the question of interpretation of the parts of the Basic Law, the Government stated that flag laws were applying this mainland legislation and hence could not be held to be unconstitutional by the courts.
Defendant's Arguments - Mr. Ng Kung-siu & Mr. Lee Kin-yun
On the other hand, Mr. Ng stated that the Government was not just seeking to
protect the symbols of the state. He argued that the flag ordinances unnecessarily
restrict the freedom of speech of the Hong Kong people to criticize the Chinese
Communist Government or the communist revolutionary ideology. He said that his
purpose of damaging flag was to protest against the dictatorial ideology. Morevoer,
he complained that the SAR Government had allowed the number "50"
to be put on the national flag but not let him to put the Chinese character
"Shame" to commemorate the matter.
Besides, Audrey Eu SC, for Mr. Lee, said maintaining the right to desecrate
the national and SAR flags to reinforce the concept of "one country, two
system". She disagreed with the government arguments that attacks on symbols
of the state endanger national unity. She argued that the way to encourage people
to respect the flags was through education but not criminal sanctions.
Judges comment
Mr. McCoy said questions about the right of abode cases had been drafted
by the Government for consideration if the Court of Final Appeal thought that
it was appropriate to refer the case to the National People's Congress (NPC)
Standing Committee on June 2000. However, the Judge doubted whether it was essential
to do so when deciding that case and Mr. Justice Charles Ching even said that
it would make the Judges look like a bunch of clowns.
Also, Mr. Justice Henry Litton was also worried that that could mean judges were powerless to rule the court independently if it seeked the NPC to interpret the laws and set up penalty by itself. Chief Justice Li Kwok-nang also said that the presumption of innocence would be abolished and it was unconstitutional.
The result had not announced yet.
Issue of Right of Abode put in the Court of Final Appeal (October 25-28, 1999) (Article 23)
The issue of right of abode was heard in the Court of Final Appeal (CFA) and it was the first time that the CFA considered its constitutional relationship with the National People of Congress (NPC) Standing Committee. (17 migrants v Director of Immigration) The 17 migrants, who claimed to have the right of abode in accordance with the judgement of Court of Final Appeal on January 29, 1999, sought to overturn the Standing Committee re-interpretation. They claimed that they had the right of abode and could not be deported simply because they did not have the certificates of entitlement. Five Justice would hear the case: Chief Justice Li Kwok-nang, Mr. Justice Henry Litton, Mr Justice Kemal Bokhary, Mr. Justice Charles Ching and Sir Anthony Mason.
Plaintiff's Arguments -- 17-mirgant Cases
Mr. Denis Chang Kin-lee SC, for the 17 migrants, claimed that the National
People's Congress Standing Committee (NPC) breached the Basic Law as it could
not exercise its power of interpretation in relation to Hong Kong cases unless
it was asked by the Court of Final Appeal. He said that such power of interpretation
was regulated by the mechanisms guaranteed in Article 158 of the Basic Law.
Also, there was no freestanding power given to the NPC to re-interpret the law.
Otherwise, the re-interpretation would seriously harm to the judicial independence
of the legal system and the high degree of self-autonomy of Hong Kong SAR. Secondly,
it was unconstitutional to backdate the effect of the re-interpretation to July
1, 1997. NPC could not rewrite the history because there were certain facts,
which had already existed whatever the law existed. The fact was that migrants
had been unable to apply for certificates of entitlement, which was needed to
secure the right of abode, because the Government had failed to devise the workable
scheme for the migrant to make application. The migrants languished within an
"administrative gap". Thus, the Director of Immigration must at least
consider their evidence, including DNA tests, to show they had rights under
the Basic Law. Thirdly, Mr. Chang said that it was lawful to allow people with
two-way permit to come Hong Kong and claim for verifying their status.
The plaintiff had the basic six standpoints:
1. The NPC could not have reinterpretation unless it was requested by the CFA.
2 .The re-interpretation could not backdate to July 1,1997; June 26, 1999 was
the earliest date for re-interpretation.
3. Migrants who were in Hong Kong before June 26, 1999 were exempted from the
re-interpretation.
4. Director of Immigration should grant discretion for those special cases.
5. The baseline was that 17 claimants should be granted discretion by the Director
of Immigration to stay in Hong Kong.
6. Saying that the claimants staying at Hong Kong had to obtain permission from
the mainland government seriously affect the high autonomy of Hong Kong SAR.
Defendant' Arguments -- Director of Immigration
On the other side, Geoffrey Ma SC, for the Director of Immigration, urged the
court to follow the decision of the NPC Standing Committee. He said that the
power of the Basic Law gave the NPC "could not be clearer". It was
a supreme power, which was unrestricted and had retrospective effect. Alhough
the CFA had final say in the case, it did not prevent the NPC Standing Committee
from adopting re-interpretation. Mr Ma stated that the words in Basic Law did
not restrict the power of interpretation of NPC. The power of NPC was unrestricted
and it could interpret in any situation. Therefore, its re-interpretation should
also have power of backdate.
On asking why the claimants had to be sent back to the mainland and apply for
the certificates of entitlement, Mr. Ma explained that the original planned
scheme being ruled unconstitutional by the 29 January judgement. Time was not
enough for setting up the mechanism. He said that the law did not allow the
Director of Immigration to verify the right of abode by any means apart from
a certificate of entitlement. As the Court of Final Appeal ruled parts of it
unconstitutional, no complete scheme could be operated and no applications could
be approved.
In short, the defendant had the six basic viewpoints:
1. The NPC could have power of reinterpretation.
2. The re-interpretation could be backdated to July 1,1997.
3. Migrants who were in Hong Kong before June 26, 1999 were NOT exempted from
the re-interpretation and ONLY the claimants of 29 January, 1999 are exempted.
4. Director of Immigration could decide NOT to grant discretion to those cases.
5. The baseline was that 17 claimants should go back to the mainland first if
they wanted to apply the right of abode in Hong Kong.
6. People in the mainland had to receive the permission from the mainland authority
when they enter or exit Hong Kong SAR.
The trial will be announced at early of December, 1999.
The release of Mr. Lok Yuk-shing and Mr. Peter Leung Wing-sum (25 October & 22 November 1999) (Article 9, Article 10)
Mr. Lok Yuk Shing and Mr. Peter Leung Wing Sum were freed on bail on 25 October
and 22 November 1999 while both of them were detained in Inner Mongolia and
Jiyuan, Henan representatively. They were treated as scapegoats for his employers
who were involved with commercial disputes with their mainland partners.
During their detention, both of them were neither discharged offence nor put
on trial. The only method to release them was to pay "ransom". Besides,
they did not receive any medical treatment even though they had serious illness.
Visit was not allowed if the families did not pay any bribe to the Chinese Police.
After their release, they stated that they suffered from being torture during
those days in detention camps.
The detainees' families, including the Leung's and Lok's families, complained the SAR did nothing to help them and ignored their plights and feeling. In addition, the families were angry about the violations of human rights actions by the Chinese Government although it signed the International Covenant of Political and Civil Rights last year.
Democrat James To Kun-sun also hit out at the SAR government for its reluctance to stand up and to protect its citizens. Mr. Ho Hei Wah, director of a human rights group, Society for Community Organization, who has assisted the detainees' families, called for the establishment of a legal system in the mainland to enable Chinese firms to chase money owed by SAR residents. He also said "the government is totally unconcerned the families' feeling, but just want to claim credit for their release".
The Security Bureau stressed that a notification system was being set up requiring the mainland authority to inform the SAR Government when a resident was arrested there. It claimed that the release of Mr. Lok and Mr. Leung showed that there was good and effective communication between the SAR and the mainland authorities.
According to the figure given by Security Bureau, there were at least 28 residents being held in China without fair trial. However, Mr. Ho recently received ten more detainee cases after the releases of Mr. Lok and Mr. Leung and some of these cases had not been reported to Security Bureau.