Local Issue of Human Rights

According to the government statistics provided by Legco, Immigration Department had raised 1,516 prosecutions in forged travel-documents cases and merely 56 cases had been requested government laboratory for scientific testing. Less than 5 % of these suspected cases had been tested before prosecution and only six cases were sought for urgent examination. Actually, the laboratory took six days for testing each case but the Department rarely used it. Legislator Margaret Ng Ngoi-yee commented that the excuse of the Immigration Department for not seeking scientific testing was unreliable. Also, it reflected that the Department mostly relied on a confession. Bar Association chairman Ronny Tong SC said that the Department should have taken detailed steps to ensure the confession were appropriately taken. Professor Raymond Wacks suggested that it was necessary to set up for checking the genuineness of passports.

The worry for breaking the Rule of Law in Abode cases (March 2, 2000) (Article 14, 23)
Children, adopted by the Hong Kong residents were having a lawsuit with the Government in the Court of Appeal for remaining the ruling in their favor June 25, 1999. Mr Justice Simon Mayo, Mr Justice Anthony Rogers and Mr Justice Arthur Leong Shiu-chung heard the case.

Appellant's argument

Mr Joseph Fok SC, for the Director of Immigration, claimed that adopted children were not qualified for right of abode under the Article 24 of Basic Law. Firstly, according to the re-interpretation of National People Congress Standing Committee on June 1999, it focused on clarifying the time of birth. The article was focused on the sense of "born" rather than that of "parentage". The term "born…of" implied a natural and physical born but not included adoption as mentioned by the Court of First Instance. Moreover, Mr. Fok claimed that adoption was just a legally entitled relationship and could not mean that the children were naturally born.

Secondly, Mr. Fok doubted on whether Appendix 1.1(2) (c) of Immigration Ordinance was not related to that lawsuit because the focus on that case was the meaning of Article 24 Part 2 (3).

Thirdly, Mr. Fok argued that the removal order did not violate the International Covenant on Civil and Political Rights (ICCPR). He quoted one court case of the European Human Rights Court (EHRC) which claimed that the ICCPR mainly protected the family under existing family life, but not the family life formulated by choice.

Defendant's argument

Ms. Gladys Li, for the boy aged 3 and the girl aged 13, pointed out that the rule of law would be breached if the government took any action to prevent these children in having right of abode. She argued that the adopted children did enjoy the rights after the handover and their rights were being exploited only after the government introduced the changes. She also argued that the explanation of "born" by the government was too narrow and too technical. On the contrary, she quoted the verdict of Mr Justice Li Kwok Nang made on 29 January, 1999 that the interpretation of the Basic Law should be board and the meaning of Article 24 Part 2(3) focused on the parentage (parent identity),. Therefore, the adopted children should be involved.

Secondly, she stated that the main argument of the lawsuit was whether the Director of Immigration hand an authority to release a removal order in accordance with the Immigration Ordinance's appendix 1. 1 (2)(c). If the Director of Immigration found that the Article 24 of Basic Law was not applicable to the adopted children, the removal order would be inappropriate and unconstitutional that the government should amend it.

Thirdly, Ms Li agreed that the removal order violated ICCPR Article 23 (1) on the protection of family reunion. She refuted that the argument of existing family life and every family was formed by choice. In addition, she argued that the Adoption Ordinance of Hong Kong recognized the adoption order of other countries and hence the adopted children from the Mainland were legitimate.

ICAC was suspected violating judicial justice (March 3, 2000) (Article 14)

It was suspected that the corruption watchdog violated the judicial justice by abusing its power to fire its former staffs and permitting one staff to resume his work. Two former staff of ICAC, Mr. Yu Chi-yin and Mr. Lui initiated to have a judicial review. Mr. Yu, a former senior inspector of ICAC, stated that he was wrongly detained and unreasonably resigned by ICAC. Now Mr Lui charged ICAC to produce fake evidence to resign him, too.
On the other hand, ICAC had permitted another senior inspector, Mr. Ding, to resume his work without having permission and a prior notifying the advisory committee of corruption, which was responsible to monitor and supervise ICAC.
Legislator Mr. Lee Cheuk-yan said that the advisory committees without prior notification could not avoid the problem of ICAC brutality. Legislator Ms. Emily Lau Wai-hing pointed that the work of ICAC should be monitored. However, the Commissioner for ICAC, Mr. Lai Lin found that no brutality was happened, as the ICAC Ordinance had not required it to inform the committee.

RTHK became less critical (March 3, 2000)(Article 19)

Mr. Xu Simin, a member of the Chinese's People's Political Consultative Conference warned that RTHK should be more self-restraint while criticizing the Chinese leadership. Mr. Xu still found that RTHK continue to abuse or make jokes with people, while RTHK should serve to release government information and promote government policy. On the contrary, the spokesman of RTHK stated that the station still had long-insisted on its editorial independence and striked the balance of coverage between government rather than promoting a single viewpoint.

The legal plea of Eastweek Publisher Ltd and Eastweek Ltd vs the Privacy Comissioner for Personal Data. (March 4, 2000) (Article 17)

A journalist of the Eastweek Publisher Ltd. took a photographer in a crowded street with a telephoto lens and used in a fashion article in September 1997 with some criticisms on the dressing style of a woman and that it raised a legal plea.

Appellant's arguments
John Griffiths SC, for the Eastweek Publisher Ltd., argued that it was a information collection for the photographer to take a street shot. Mr. Griffiths pointed that the complainant concerned about the comments in the article instead of the photo taken. However, the journalist just took a photo for news activity. Moreover, he pointed that that the purpose of the Personal Data (Privacy) Ordinance was to regulate the collection and the use of personal data, rather than to provide relief for invasion of privacy. According to the law, personal data was defined as "material from which it was practicable to ascertain directly or indirectly the identity of a living person." Furthermore, Mr. Griffiths argued that a fair ruling should be considered the means of collection of data but not whether the collection was fair in general.

Plaintiff's argument
On the contrary, Mr. Gerard McCoy SC, for the Privacy Commissioner, pointed that the shutter of the camera was not the shutter of the requirement for fairness in accordance with SCMP dated March 4, 2000.

Government Official fear about subversion against Beijing did not have control by law (March 4, 2000)(Article 19, 21, 22)

A senior government official warned as there was no legislation with respect to the Article 23 of the Basic Law, it posed a danger to any person engaging in subversive activity or activity against the Central People Government. It found that the Official Secrets Ordinance mainly covered the theft of secrets of the Government without employing any law to penalize the theft of secrets from the Chinese military and independent movements for Tibet and Xinjiang. The official said that no pressure was given by the Central People Government on the legislation towards Article 23 and ensured that the SAR Government would take freedom of association, press and expression into consideration.

Privacy Commissioner for Personal Data warned of "identity theft" (March 4, 2000) (Article 17)

Privacy Commissioner for Personal Data Mr. Stephen Lau Ka-men expressed his reservations about the plan of replacing the existing HKID Card to smart card because too much data would be comprised card that would pose a danger of identity theft. Mr. Lau doubted about the card's the practicability and security of the card most. He suggested that every department should have the prior consent of holder. He accepted the Government could access a vast amount of data for crime prevention purposes.

Women's liberation beats the male chauvinism in a century old club (March 5, 2000) (Article 7)

Club Lusitano, which was a club established for high-profile members of the local Portuguese community since 1866, prohibited women from its billiards room and bar and restricted women's role in club decision. The old-fashioned and outdated rules were still in force despite the implementation of Sexual Discrimination Ordinance. The Equal Opportunities Commission commented that the rules and restrictions at the Club were probed and inappropriate. Also, it was unlawful for having men-only areas unless there were equivalent facilities for women only.

The eligible voter wrongly treated as not eligible (March 6, 2000) (Article 25)

One eligible voter, Miss Lau, was wrongly classified as a non-permanent Hong Kong resident by the Registration and Electoral Office and nearly lost the right to vote. She worried that her identity would be wrongly classified and approached the Office. Finally, the Office admitted the mistake and re-confirmed that she was eligible as a voter. In 1998, 27 cases were rejected to be a voter and 22 cases were successfully appealed.

Smaller flats for elderly who lived together created age discrimination (March 8, 2000) (Article 26)

Under the existing public rental housing policy, two people over 60 could get a 1720 square foot unit, while those people (aged below 60) could get bigger flats because of the possibility for them in having children. It reflected that the elderly was being discriminated in housing allocation. The Equal Opportunities Commission agreed discrimination did exist but it could not handle those complaints as there was no legislation on age discrimination.
Oppositely, the Housing Department spokesman said that the policy did not discriminate against elderly people as their spaces allocated (83 sq.ft) was already higher than the minimum allocation standard (59 sq.ft per person).

Female victims wrongly treated men right to beat women (March 8, 2000)(Article 9, Article 26)

According to a study conducted by a Family Service Center, up to one in five women who were beaten by their husband, believed that men had the right to use violence against them. Moreover, the police and social workers always overlooked minor injuries caused by slapping, pushing or beating. The study explained that tradition was a factor which caused men to treat their families as property, including the wives, and it expressed to be understandable if women disobeyed or did something wrong. The number of domestic violence was kept on increasing and domestic violence was especially serious in families with mainland women because they were generally more obedient. The study urged the Government to pay more attention and concern on the problem and suggested to have more community education programs and a "zero tolerance" policy helping to change the unhealthy culture of accepting family violence.

Police was accused of hurting men (March 10, 2000) (Article 7)

Two men were respectively beaten by the police and planned to have legal action in sueing the police brutality. The first case was about a restaurant operator who claimed that he was slapped and beaten by the constable after he tried to complain a taxi driver who attempted to overcharge him on January 2000. The police claimed that it was difficult for the restaurant operator to get the money back because the driver did not get the fare he wanted. The victim tried to put further argument. However, he was bullied by the police and he was arrested for disorder and released on $500 bail.
The second case was about Li Kin-fat who claimed that he was beaten for three times after he was arrested at Shatin where he had quarreled with his friends. He was beaten for 5 to 10 minutes at the police station and was taken to station and assaulted again.

Both cases were assisted by Legislator Mr. To Kun-sun to seek for compensation.

Procedures for passport checking should be more professional (March 13, 2000) (Article 9)

The police had finished an investigation towards the wrongful jailing of teenager Ms. Lin Qiaoying and it was found that there was no evidence to shoe the officials had employed threats or intimidations to force a confession. It was totally different from what Ms Lin reported that she was forced to sign a confession and plead guilty to the offence and being threatened by the interpreter to admit the charge. She was put in the prison for 2 1/2 months before her passport was found to be genuine. It was found that there had been at least five times of people using the passports belonging to Qiaoying's sibling for travelling. Most importantly, the investigation agreed that it was inappropriate for the Judiciary to use the same part-time translator on both when she was arrested and attended the court. Also, it was concluded that the management of procedures in the Immigration Department was "totally unprofessional" which needed improvements.

The Government would appeal the Case of Village Election to the Final Appeal Court (March 17, 2000) (Article 25)

The Government would appeal the case concerning the village election to the Final Appeal Court. The January ruling altered century-old arrangements for village election. According to the decision made by the Court of First Instance, non-indigenous villagers had the right to vote and stand in elections for village heads. However, elderly non-indigenous villager Mr. Chan Wah faced the problem of lacking money to bear a multi-million-dollar legal bill. The Legal Aids Department refused to give any financial assistance to him when Mr. Chan Wah and Mr. Tse Kwan-sang won in the appeal. Facing this financial problem, Mr. Chan said there was only one possibility for him to retreat from this court case.

Parents could not know language-skill test scores (March 14, 2000) (Article 19)

The Board of Education announced that the Academic Aptitude Test scores of the primary school students would not be disclosed to their parents but only disclosed to the school headmasters and teachers. Consequently, the only way for the parents and students to know the Chinese and English learning capacity of the students through their schools.

The language-skill test was introduced since 1994 and it was used for indicating the language ability of each student and acted as an indicator for parents choosing schools.
According to the Chairman of the Board, Mr. Moses Cheng Mo-chi, keeping individual assessment information secrets could minimize the labeling effect towards each student's learning ability and enhance a better matching between students and schools.

On the other hand, it was worried that if the parents could not access the information of their own children, the right to know could be adversely affected. There were no sufficient objective measures to know children's learning capacity in choosing appropriate secondary schools.

Adopted Children did not have the Right of Abode (March 17, 2000) (Article 23, Article 26)

The Court of Appeal ruled that the adopted children from the Mainland did not have right of abode and it overturned the ruling of the Court of First Instance in last December. The three judges commented that only children whose natural parents were permanent residents at the time of their birth were entitled to have right of abode under the Article 24 of the Basic Law.

According to South China Morning Post dated on March 17, Mr Justice Simon Mayo said "It is very clear that adopted children are not born to, or of, their adopting parents and this being the case they do not satisfy the criteria laid down in the article."

Another Mr. Justice Arthur Leung Shiu-chung, pointed out that parentage derived from adoption or step-parentage clearly did not contemplate and the category three of Article 24 only indicated the parent-child relationship established under natural birth. Also, he interpreted the intention of Article 24 was to prevent an influx of immigrants from China.
The third judge, Mr. Justice Anthony Rogers said that adoption was a voluntary act, it was not the case of splitting family because the children being concerned did not live with their adoptive parents at the time of adoption.

Oppositely, the lawyer for the adopted children, Mr. Peter Baynes, insisted that the case was about splitting up family. Also, Mr Law yuk-kai, Director of Human Rights Monitor, pointed that the family unit should be protected.
The ruling led the parents of adopted children vowed to appeal to the Court of Final Appeal and they claimed that it was discrimination towards the adopted children as they did not treat equally like the children born of natural parents.

Baptist University censored Group Emails (March 17, 2000) (Article 9 &17)

Hong Kong Baptist University issued a new policy concerning sending group emails. In accordance with the new policy, any email sent by lecturers through Mail Distribution List should be approved by the University Information and Technology Center. Those emails being classified as inappropriate to be sent through Mail Distribution List, senders should give further explanation and reason for drafting these emails. Otherwise, the center had the right to terminate to send them out. However, this new policy was criticized by different parties. Director of Hong Kong Human Rights Monitor, Mr. Law Yuk-kai, believed that university lecturers were capable in handling junk mails. The new policy was a way to restrict freedom of express. One lecturer from Department of Religion and Philosophy worried this system would be misused as no one knew who censored emails. The spokesman of Baptist University gave a written explanation to Ming Pao. It explained that this new policy was to prevent junk mails as the university got many complaints about receiving junk mails.

The Wife seeks aids from Liaison Office to free her Husband on the Mainland (March 22 & 24, 2000) (Article 9 &10)

The wife of Mr. Li Hiu-ming presented her petition letter to the Liaison Office of the Central Government in order to pressure Zhejiang authorities to free her husband. However, the office did not receive the letter. The letter was later collected by a staff of the office after Mrs. Li had left.
Mr. Li was a glass manufacturing businessman and joined with the municipal authorities to invest in the project of introducing glass-manufacturing techniques from a German company. Li was was accused of unlawfully taking possession of company property and of pocketing a consultant's fee of US$70000. Although the German company gave documentary proofs to the lawyer that Li did pay the required monies and the machinery had already sent in Jinhua, all these were not allowed to be presented in the court. In addition, Li was treated as a Shenzhen citizen instead of Hong Kong citizen. He was barred from any communication with outside parties and he was detained in China more than a year. On 21 December 1999, Li was sentenced for six years.
On 24 March 2000, the appeal of Mr. Li was rejected by the court and the 6 years of sentence remained unchanged.

Snapshot " No Invasion of Privacy" (March 29, 2000) (Article 17 & 19)

The Court of Appeal threw out that snapshot was not an action of invasion of privacy. The ruling said data collection involved the data-user compiling information about an identified person or someone whom they intended or sought to identify. Taking an individual's photo should not be proven as an action of data collection.
This case was brought to the court when a woman complained to the Privacy Commissioner for Personal Data that Eastweek magazine took a photo on her in a street without her consent or knowledge and used it in a fashion column, referring her as a "Japanese mushroom head". Her dress was also being criticized.

Right of Abode of Mr. Muhammad 'case (March 30, 2000) (Article 14, 23)

The appeal court handled the case of whether Mr. Fateh Muhammad, aged 68, a Pakistan who had lived in Hong Kong since 1962, had the right of abode. He appealed against the decision by the High Court, which ruled that he should not have been given a permanent identification card.

Appellant's arguments
Mr. Muhammad's counsel, Mr. Dennis Chang, Senior Counsel, claimed that his client should have the right of abode for the reason that he had met the three requirements in Article 24 of the Basic Law for non-Chinese nationals. The three requirements are as following:
1. He entered Hong Kong on valid travel documents.
2. He lived in Hong Kong for seven years or above.
3. He took the territory as his permanent home.

Government's arguments
On the contrary, the Government claimed that Mr. Muhammad was not entitled to have permanent residency because he was imprisoned for three years due to the case of forged bank notes. Also, Mr. Joseph Fok, Senior Counsel, for the Government, claimed that the government's decision was supported by the Immigration Ordinance, which had already stated that claimants must have met the seven-year requirement "immediately before" their application.
Moreover, the Government stated that its decision was also supported by the resolutions of a preparatory committee of the National People Congress Standing Committee (NPCSC) in March 1997. The resolution pointed that the court's decision was bounded by the in accordance with the ruling of the Court of Final Appeal made in December 1999.
Furthermore, the Government stated that it should establish linkage towards two qualifications that the "continuous" seven-year resident should be immediately before claiming residency. The Government hoped that requirement could avoid a huge sum of non-Chinese nationals lodging abode applications years later after they left Hong Kong for a long time.

The trial was heard by three justices, Justice Mr. Simon Mayo, Justice Mr. Anthony Rogers and Justice Mr. Roberto Ribeiro.

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