Administrative Segregation (Prison Rule 68B)
The “special units” of Hong Kong’s prisons, besides housing prisoners assigned to disciplinary segregation, also house prisoners placed in administrative segregation. Prison Rule 68B, which is closely modeled on the U.K.’s Prison Rule 43, authorizes such segregation “for the maintenance of good order or discipline” or for prisoners’ own protection.
Rule 68B provides in relevant part that:
(1) Where the Superintendent has reasonable grounds for believing it is desirable, for the maintenance of good order or discipline or in the interests of a prisoner, that such prisoner should not associate with other prisoners, either generally, or for particular purposes, he may order the removal of such prisoner from association for a period of not more than 72 hours.
It further states, in subsection (5), that the commissioner may, for the same reasons, order the further removal of the prisoner for a month, and that he may continue to extend the prisoners’ term of removal from association on a month-to-month basis. Each time that the commissioner decides to prolong the prisoner’s segregation, the prisoner has to be told the reasons for his continued segregation, and he must be permitted to write something in his own defense. The commissioner must review the prisoner’s submission, as well as other relevant materials, in making the decision as to further segregation.98
Prisoners in Rule 68B administrative segregation are subject to essentially the same conditions as prisoners in disciplinary segregation—twenty-three hours a day of cell time, deprivation of privileges—but with an important difference: many of them endure these conditions for much longer lengths of time. The Human Rights Watch/Hong Kong Human Rights Monitor delegation met many prisoners who had spent several months in administrative segregation, and some who had spent years there.99 Separate confinement of this length is always a matter of concern.100
There are, to be precise, three distinct types of Rule 68B segregation. The first type covers prisoners who require protection from other prisoners because of who they are (normally, ex-policemen) or because they provided testimony for the prosecution in a criminal proceeding. These prisoners, many of whom stay in Rule 68B segregation during all or most of their time in prison, are not denied privileges while in segregation. They are also often held two per cell, and normally exercise in groups.
The second type of Rule 68B segregation is for prisoners who request protection for specific reasons, usually because they are in debt to other prisoners or because they, for another such reason, believe that other prisoners will try to hurt them. These prisoners are denied privileges unless they stay in segregation for a year; after the first year has passed they are permitted their radios, etc.
The final type of Rule 68B segregation—that which covers prisoners deemed to be “violent and influential characters”—is the most problematic. Prisoners of this type are segregated from the general prison population because prison officials fear that they would cause disruption, either through their own actions or through influencing other prisoners. Often, prisoners who have been placed in disciplinary confinement for a set amount of time will subsequently be placed in Rule 68B administrative confinement for an indefinite period of time. Although this type of Rule 68B confinement is technically not punishment, it is no different from punishment when viewed from the prisoner’s perspective. The fact that it is technically not punishment, however, means that the prisoner is deprived of the right of a disciplinary hearing and that the segregation can be extended over and again for an indefinite period.
Stanley Prison has the largest number of prisoners held in Rule 68B segregation of any penal facility in Hong Kong. It has two separate special units: one for Category A prisoners, and the other for Category B, C, and D prisoners. On the day that the Human Rights Watch/Hong Kong Human Rights Monitor visited, a total of 126 prisoners were being held under Rule 68B—far outnumbering the fifteen inmates held in disciplinary segregation. Twenty-one of these prisoners were “violent and influential characters” who, according to the superintendent, were typically held in segregation for three to four months.101
The following were among the Rule 68B cases observed by the delegation:
A Vietnamese prisoner who had been in segregation at Shek Pik since June 1996 was “removed from association [because] he assaulted staff in Victoria Prison.”102
Another prisoner at Shek Pik was placed in segregation nearly three months prior to the delegation’s visit because he “actively instigated other local/I.I. prisoners to launch a group assault against Vietnamese prisoners.”
A prisoner at Stanley who had violently attacked another prisoner served ten days of disciplinary segregation and was then placed in administrative segregation, where he had stayed for two months by the date of the delegation’s visit.
At Pik Uk Correctional Institution, the maximum security institution for male juveniles, a nineteen-year-old was held in segregation for two months “in view of his manipulative and violent [sic] prone character.”
The prisoner seen by the delegation who had served the longest time in Rule 68B segregation was a “manufacturer and distributor” of gambling items; he had been in separate confinement at Stanley Prison since October 1995.
As the above cases illustrate, there is considerable overlap between reasons for disciplinary segregation and those for Rule 68B administrative segregation. Given the lesser due process protections with regard to the application of Rule 68B, and thus the greater possibility that prisoners will be wrongly accused of disorderly or violent acts—and, equally important, given the much longer periods of segregation available under Rule 68B—this phenomenon is troubling. Of course, prison officials have a legitimate interest in maintaining order in their facilities and, in some instances, temporary segregation of a dangerous prisoner may be a reasonable way to protect that interest. The Human Rights Watch/Hong Kong Human Rights Monitor delegation believes, nonetheless, that it would be much preferable to allow the prisoner to defend himself at a hearing any time segregation of this magnitude is possible. Also, as should be clear, the use of such segregation should be strictly limited to exigent circumstances, and the affected prisoner should be returned back to his normal housing unit as quickly as is reasonably possible.
Transfer to Other Facilities
From what the delegation observed, the use of Rule 68B segregation is much less frequent in lower security facilities. In fact, Ma Po Ping Prison and Tong Fuk Centre, the medium and minimum security men’s facilities that the delegation visited, held no prisoners under Rule 68B.103
Lower security prisons do, however, have another quasi-punitive technique for handling difficult inmates, which is transfer to a higher security institution. Particularly given the overcrowding prevalent in the Hong Kong prison system, many Category B and C prisoners are held at Shek Pik, where conditions are notably more restrictive than in lower security institutions. As the superintendent of that facility explained to the delegation, it is the “troublemakers” who are transferred there.104
The Human Rights Watch/Hong Kong Human Rights Monitor delegation learned of one prisoner who was transferred from Ma Po Ping Prison to Shek Pik in what appears to be a likely case of retaliation for complaining. The delegation learned of the case by reading the log kept at Ma Po Ping by visiting justices of the peace (JPs). The log’s first relevant entry was in mid-December 1996; it stated that the inmate, a Pakistani, was in administrative segregation but complained to the JP that he was being wrongly punished. The CSD response to the entry, also included in the log, was that the Pakistani had been removed from association under Rule 68B because “he had intimidated fellow prisoners to jointly sign on a letter in order to protest against the allegedly poor quality of food provided to prisoners of other nationalities.”105
On each subsequent JP visit from December 1996 through February 1997, the prisoner reiterated his complaint of unfair treatment. During this time, his placement in Rule 68B segregation was extended twice. Finally, in late February, the CSD transferred him to maximum security Shek Pik Prison. When the Human Rights Watch/Hong Kong Human Rights Monitor inquired into the reasons for this transfer, the superintendent of Ma Po Ping stated bluntly that the inmate “had been making frequent requests to see the VJs [visiting justices of the peace] and the ombudsman.”106
The ultimate transfer possibility for difficult inmates is assignment to the Behavior Adjustment Unit (BAU) at Siu Lam Psychiatric Centre. Inmates who have had “behavioral problems” in other institutions are placed in this unit, although, as the superintendent at Siu Lam acknowledged, none of these prisoners are mentally ill.107 Prisoners who are involuntarily transferred to Siu Lam for behavioral reasons typically spend six months in the BAU program; they may receive psychological counseling but no psychiatric treatment. One such prisoner told members of the Human Rights Watch/Hong Kong Human Rights Monitor delegation that he was transferred to Siu Lam because he had filed a complaint with the police regarding a serious beating he had received from a guard.108 A Siu Lam staff member stated, similarly, that prisoners who “make a lot of complaints” and are “not cooperative” end up getting transferred to the facility because officers “want to adjust their behavior.”109
V. CONTACTS WITH THE OUTSIDE
The fact that prisoners are physically isolated from their family and friends while incarcerated promotes the loss of contact and the breakup of relationships. Besides the adverse affect that this has on prisoners’ psychological well-being while confined, it also bodes poorly for their future readjustment to life outside. Because imprisonment naturally strains family ties and friendships, it is critical that the prison system not further exacerbate prisoners’ isolation by creating impediments to prisoners’ contacts with outsiders.110
One of the major concerns of the Human Rights Watch/Hong Kong Human Rights Monitor delegation with regard to the Hong Kong prison system involves the restrictions placed on prisoners’ outside contacts. On this issue, however, it should be noted that significant improvements have recently been made. The Human Rights Watch/Hong Kong Human Rights Monitor delegation applauds these developments. In our view, it is critical to continue the process of lifting unnecessary restrictions on prisoners’ outside contacts.
Restrictions on Visits
The Prison Rules contain significant restrictions on the frequency, length and character of prison visits. To begin with, under existing rules only relatives and friends of prisoners are authorized to visit.111 In addition, visits are unnecessarily short and, for convicted prisoners, too infrequent. Finally, the CSD’s excessive reliance on closed visits is a subject of concern.
On the positive side, conditions in prison visiting areas are pleasant. Visiting rooms and visitors’ waiting rooms are air-conditioned, and waiting rooms normally have televisions, phones, and, often, vending machines. They are also replete with helpful information regarding what kinds of articles may allowably be given to prisoners, prisoners’ rights, and complaint procedures.
Length and Frequency of Visits
Unconvicted prisoners are permitted daily fifteen-minute visits with up to two people at a time.112 Convicted prisoners in most facilities are permitted two thirty-minute visits per month with up to three people at a time.113 In some facilities they are allowed up to four visits per month.114 Although these rules may be relaxed in special cases, they still constitute an important restraint on prisoners’ ability to maintain close relationships with family and friends.
The detrimental effect of short visits is particularly evident with regard to prisoners held in Hong Kong’s more remote penal facilities. Hei Ling Chau Island, for example, which is at least one-and-a-half to two hours by boat from Hong Kong Island, shelters three separate facilities which among them hold over 1,700 prisoners. Relatives of many prisoners have to travel an additional hour or so to reach Hong Kong Island, meaning that their total travel time is routinely four to six hours. It obviously burdens family ties to require relatives to spend so much time traveling for only a half-hour visit.
Open versus Closed Visits
The Hong Kong prison system has two types of visits, open and closed. With closed visits, known in some prison systems as non-contact visits, prisoners and their visitors are separated from each other by a glass or plexiglass screen. Not only does this entirely prevent physical contact, but communications must be done via a telephone/intercom system.115 The overall effect is very impersonal and, as prisoners and their family members complained, emotionally unsatisfying.
With open visits, also known as contact visits, visitors and prisoners speak to each other directly and enjoy a limited degree of physical contact.116 “Simple touching,” for example, shaking hands, is allowed; kissing is not.117 Conjugal visits have never been permitted. Most open visits in Hong Kong take place in rooms equipped with a long table that is divided down the middle by a short plexiglass partition that reaches almost to eye-level. Prisoners sit in a row on one side of the table; visitors sit on the other side.
Closed visits are the rule in institutions for Category A and B prisoners (the higher security levels).118 Because this restriction is based on security level, not age or other considerations, even many juveniles are limited to closed visits, meaning that they may be barred from touching their parents and siblings for years.
One mother told the Human Rights Watch/Hong Kong Human Rights Monitor delegation:
My son has been in prison since age fourteen and a half. I’ve only touched him twice in fifteen years. Twice he’s gotten a certificate for his studies, and when that’s happened we’ve gotten an open day, a thirty-minute visit. It happened in 1993 and again in 1994.119
The rule of closed visits also affects numerous Category C and D prisoners who are held in high security institutions. Although they would otherwise be permitted open visits, the institutions in which they are held make no provision for such visits. This is an especial problem at the Lai Chi Kok Reception Centre, which holds all adult male remand prisoners, regardless of their crime. Yet other maximum security prisons, including Shek Pik and Stanley, also hold Category C prisoners.120
It should be emphasized that Hong Kong’s restrictions on open visits are not without justification. Large numbers of prisoners are drug users. Drugs may be smuggled into prison during open visits and, indeed, in many prison systems in which open visits are the rule, such smuggling is a serious problem. European, Latin American, and U.S. prisons, for example, are often ridden with drugs. Besides the obvious health concerns, an influx of drugs into the prisons often leads to prisoner-on-prisoner intimidation and violence.121
While the CSD’s success in keeping drugs out of the prison system is to be applauded, the Human Rights Watch/Hong Kong Human Rights Monitor delegation would encourage reliance on alternative means of achieving this objective—means which are less damaging to prisoners’ social bonds.122 Indeed, the CSD acknowledges that the use of closed visits is but one element of a multifaceted anti-drug strategy. Because other techniques such as searches have also proved effective, drugs are not a problem even in the many facilities which employ open visits.123
The CSD has already shown some flexibility regarding closed versus open visits. In an important innovation, maximum security Shek Pik Prison has been offering open visits to prisoners whose sentences are longer than four years. This pilot program, which only applies to visits from close family members, is strictly regulated: prisoners must make a special application to be considered for it; they must have gone twelve months without a disciplinary report; and they cannot have any past history of drug use in prison.
The open visit program was initiated three years ago, and since that time it has operated without a hitch.124 Indeed, in the year prior to April 1997, over 1,000 open visits were held at Shek Pik.125
Visits from Members of the Prisoners’ Friends Society
Whatever the reason—whether they are foreigners whose families live too far away to visit or whether they are local prisoners whose relations with their families and friends have deteriorated—a full one-quarter of Hong Kong prisoners receive no visits at all.126 The goal of the Prisoners’ Friends’ Association (PFA), a voluntary organization, is to offer much-needed friendship and social connection to such prisoners.
PFA members consist of pen friends and prison visitors. Pen friends, as the name suggests, correspond with prisoners. Prison visitors, after they have been reviewed by the CSD, are permitted approximately forty-minute visits with inmates in the legal visit rooms of the prisons. Such visitors normally establish a stable relationship with individual prisoners, visiting one person over a long period of time, sometimes years. Unfortunately, since PFA members are only allowed to visit prisoners who have no other outside contacts, if that prisoner receives even a single visit, then he or she is barred from further PFA visits. About one hundred PFA members are prison visitors; a handful of others only write letters.127
Restrictions on Correspondence
Until the recently passed Prison Rules amendments went into effect, the Hong Kong prison system imposed significant restrictions on prisoners’ correspondence with outsiders. The restrictions pertained to the number of letters that could be sent, the permissible addressees, and the letters’ content.
The new amendments, passed in May 1997, greatly relaxed these curbs on correspondence. Whereas convicted prisoners were previously limited to sending out a single letter per week, they are now allowed to send out an unlimited number.128 One letter per week is subsidized by the government, while the prisoner must generally pay for additional letters out of his prison earnings. In addition, under certain circumstances—for example, if the prisoner is held in a detention center, an addiction treatment center, or a training center, or is under twenty-one—the government will bear the cost of such additional letters.129 Finally, as under the previous rules, unlimited incoming correspondence is allowed, subject to a couple of specific limitations.130
In another significant improvement, prisoners may now correspond with anyone, instead of being limited to corresponding with their friends and relatives.131 What this means, notably, is that prisoners may now send letters to the media and to outside organizations with an interest in prison issues, such as human rights organizations.
The rules regarding censorship have also been greatly modified, although content restrictions on correspondence have not been entirely lifted. Previously, any incoming or outgoing letter that the prison authorities deemed “objectionable” could be banned, giving officials broad discretion to censor inmates’ correspondence.132 At present, the prison authorities’ power to control the content of inmates’ correspondence is regulated by a detailed set of rules. Only letters to or from prisoners in maximum security institutions may routinely be read (although letters to all prisoners may be checked for contraband), while letters to or from prisoners in other facilities may be read under certain circumstances. However, one of the enumerated circumstances is when, in the view of the superintendent, “the reading would be in the best interests of the prisoner”—a vague and obviously malleable criterion.133
Prison Rule 47A, which regulates the reading of correspondence and censorship, now sets out nine specific classes of letters for which censorship is justified, in contrast to the previous blanket category of objectionable material. It allows CSD staff to bar letters that, among other things, contain information on escape plots; threats, extortion, obscenity, or “gratuitous profanity”; messages in code; information that would infringe upon the privacy of other prisoners or of CSD staff; and “any material that by its nature or content poses a threat to any individual’s personal safety or to the security, good order and discipline of the prison.” The last category is somewhat vague, although it is still an unquestionable improvement upon the previous standard.
Subcategory (g) of Prison Rule 47A, however, is of concern in that it imposes a particular restriction on material directed to the media. It bars prisoners from sending letters “intended for publication or for broadcast by radio or television” that refer to other prisoners or to CSD staff “in such a way that they may be identified.” In other words, if a prisoner were to attempt to report a particular prison abuse to the media—such as an unjustified beating by guards—and he or she named the guilty parties, then the letter could be barred even if the superintendent knew that the incident was accurately described and even if the public had a strong interest in learning of the situation. In the view of the Human Rights Watch/Hong Kong Human Rights Monitor delegation, it is important that this restriction be repealed.
Lack of Access to Telephones
Prisoners do not have regular access to telephones. There are no telephones in the day rooms of the prisons or in other areas where prisoners congregate. Prison officials told us, nonetheless, that prisoners may request to make collect phone calls from the administrative areas of the prison. Although they said that such requests are generally granted when prisoners have “a compelling reason”—or, in the words of other officials, “a strong justification”—the officials appear to have untrammelled discretion to grant or deny such requests.134 Legitimate justifications for making a phone call, we were told, include sick family members or pressing legal matters.135 Most prisoners told us that they had never made a phone call from the prison. The delegation did meet a Vietnamese prisoner, however, who stated that he had received permission to call home three months prior to our visit and had been allowed to make such calls once a month.
The Human Rights Watch/Hong Kong Human Rights Monitor delegation encourages the CSD to follow what is common practice in other industrialized countries, and regularize prisoners’ access to telephones. Particularly for illiterate prisoners—a not-insignificant proportion of the Hong Kong prison population—as well as for foreign prisoners whose relatives are rarely able to visit, more generous telephone rules would be of great benefit.
Visits and Communications with Legal Counsel
To facilitate communications regarding their criminal cases and other legal matters, prisoners are permitted contact visits with their lawyers. These visits take place “in the sight but not in the hearing” of CSD officers, normally in small offices in the visiting areas of the prisons.136 The Human Rights Watch/Hong Kong Human Rights Monitor delegation visited a number of the offices set apart for such visits and found all of them to be quite satisfactory.
In addition to visits, prisoners may send confidential letters to their legal counsel.137