Restrictions on Reading Materials
Until the recent amendments were passed, the legal provision covering prisoners’ reading materials contained no explicit standards by which to determine whether a given book or periodical might be kept out of the prison. The present rule, in contrast, sets out five categories of reading materials that the superintendent may bar: those which contain information on manufacturing weapons, dangerous drugs, and similar items; those which describe or encourage prison violence or prison escapes; those which “facilitate gambling” or are “detrimental to [any prisoner’s] rehabilitation”; those which encourage criminal or disciplinary offenses; and those which “pose a threat to any individual’s personal safety or to the security, good order and discipline of the prison.”138 As with the rule regarding censorship of prisoners’ correspondence, these categories have an obvious degree of vagueness and malleability, but they do at least provide greater guidance than in the past.
Moreover, even prior to the new rules, it appears that censorship of reading materials had become relatively unintrusive in recent years. The prison officials who spoke to the Human Rights Watch/Hong Kong Human Rights Monitor delegation uniformly stated that they practiced very minimal censorship of prisoners’ reading materials, mostly limited to barring explicit sexual material, the special racing supplement, and descriptions of crime. Otherwise, prisoners freely subscribe to a variety of newspapers and magazines, and may receive other reading materials from visitors. For security reasons, certain prisons will not accept hardcover books.
Routine censorship of prisoners’ reading materials was practiced in the past, however, and certain traces of it have not entirely disappeared. At Tai Tam Gap Correctional Institution, the Human Rights Watch/Hong Kong Human Rights Monitor delegation found a notice posted in the visitors’ waiting room describing which types of books would be banned as “objectionable.” It listed seven such categories, including “books containing political doctrine or dogma and anti-government propaganda,” “medical books,” and “law or books of a legal nature.”139 The superintendent of the facility assured the Human Rights Watch/Hong Kong Human Rights Monitor delegation, however, that the notice was obsolete and the rules it stated were not enforced. At Hei Ling Chau Addiction Treatment Centre, a notice in the visitors’ waiting room stated that any book that “discusses or criticises the administration of justice” would be banned. The Human Rights Watch/Hong Kong Human Rights Monitor delegation sees no justification for prohibiting any of the above categories of books, and strongly urges the CSD to remove these notices.
Recently, a more defensible instance of CSD censorship was challenged in court by an inmate held at Stanley Prison. Because gambling is a serious problem in the prisons, the CSD decided in May 1995 to remove the special racing supplements from the newspapers that many prisoners received. A prisoner who claimed to be a horse racing fan challenged this ban on several grounds, among them, that the ban violated the Bill of Rights’ protections on the right to receive information; he prevailed in the High Court in late 1995.140 Reviewing this ruling the following year, the Court of Appeal reversed it.
Although the Human Rights Watch/Hong Kong Human Rights Monitor delegation understands the CSD’s strong interest in removing the racing supplements from prisoners’ newspapers and, accordingly, is not overly concerned as to this narrow issue, we find the underlying reasoning of the Court of Appeal’s decision extremely disturbing. Relying on a saving clause in Part III of the Hong Kong Bill of Rights, the Court of Appeal essentially stated that prisoners are beyond the reach of the the Bill of Rights’ substantive protections.141 Such a miserly reading of the Bill of Rights leaves prisoners entirely unprotected from abuse and is at odds with the document’s basic purpose. Moreover, as an indication of the judiciary’s approach to interpreting the Bill of Rights, it bodes poorly for the protection of the fundamental rights of all Hong Kong residents.
VI. WORK AND OTHER ACTIVITIES
Idleness—which leads to boredom, tensions, and violence—is the bane of the prison environment. In Hong Kong, unlike in many countries, most prisoners are kept occupied. Convicted prisoners work; juvenile prisoners are given education and vocational training; only remand prisoners have little to do. The emphasis on work, education, and training in the Hong Kong correctional system evidences the happy fact that rehabilitation is still regarded as one of the goals of imprisonment.
All convicted prisoners in Hong Kong are obliged to work unless they are excused for medical or other good reasons.142 Unconvicted prisoners do not work. Under the Prison Rules, they are supposed to have the option of working,143 but—largely because overcrowding has stretched the system’s resources—this option exists on paper only.
Prison labor is employed through the Correctional Services Industries (CSI), which, according to the CSD, produced HK $431 million worth of goods and services in 1996, an increase of HK $33 million over the previous year.144 CSI operates nearly 150 industrial workshops in the prisons. As the CSD explains:
The industries cover a wide range of trades, including laundry, garment making, silk screening, carpentry, fibreglass, precast concrete, metal work, knitting, shoe making and leather work, envelope making, printing and book binding. Apart from industrial production, inmates are employed for general domestic services, construction and maintenance work as well as community environmental improvement work.145
However, some goods made in the prisons, the Human Rights Watch/Hong Kong Human Rights Monitor delegation found, are the product of such simple and rote labor that mastering their production can be hardly be deemed a “trade.” The most glaring example of this, which the delegation saw in several prisons, was cotton-ball making: inmates sitting at tables covered with piles of cotton, twirling them into little balls.
As the cotton balls exemplify, not all prison labor equips inmates with meaningful skills, even if it does have the benefit of keeping them busy while incarcerated. Moreover, even with those tasks that might be considered as a possible vocation, such as garment making, the Human Rights Watch/Hong Kong Human Rights Monitor delegation noticed that overcrowding has to some extent overwhelmed the workshops, with one result being that there may be two or three inmates assigned to a machine for which only one is needed.
The final benefit to prisoners of being employed while incarcerated is, of course, the possibility of earning money. In accordance with international standards, the Hong Kong prison authorities pay inmates for their labor.146 The pay offered is minimal, however, though it varies a great deal depending upon the work involved and the inmate’s experience.147 Out of the salary received, inmates must save a mandatory 10 percent; the rest can be spent on canteen items.
All young offenders, with the exception of those held at the Hei Ling Chau Addiction Treatment Centre and the Sha Tsui Detention Centre, receive a half-day of education per day.148 Particularly useful educational offerings, such as computer training, are provided to training center inmates, who receive a half-day of vocational training in addition to the half-day of education. The Human Rights Watch/Hong Kong Human Rights Monitor delegation visited several classes at the juvenile facilities it inspected, finding that class sizes were reasonable and class facilities were well maintained. Several teachers, however, informed the delegation that because of insufficient numbers of custodial staff to post in the classrooms, security was often quite lax and violent outbursts occasionally occurred.149 They described a January 1997 incident at Pik Uk as a case in point: eight Vietnamese prisoners fought in a classroom, using tables and chairs as weapons, and one sustained injuries serious enough to require a hospital visit. Since teachers working in the prisons lack the security training provided to correctional officers, they feel ill-equipped to deal with such dangers.
Despite these problems, the emphasis placed on educating inmates under twenty-one is to be commended. In contrast to the emphasis placed on juvenile education, adult education gets fairly short shrift. Classes are given to adult prisoners in the evenings on a voluntary basis.
Almost all of the facilities visited by the Human Rights Watch/Hong Kong Human Rights Monitor delegation had ample, well-stocked libraries. The two libraries at Hei Ling Chau Addiction Treatment Centre, however, had just a few cabinets of books; the CSD might want to consider expanding it.
The exception to the general rule of inmate activity is the situation of unsentenced, or remand prisoners. At Lai Chi Kok Reception Centre, Tai Lam Centre for Women, and Pik Uk Correctional Institution, the Human Rights Watch/Hong Kong Human Rights Monitor delegation found that unsentenced prisoners have little or nothing to do besides sit and watch television, play board games, or read the newspaper.150 Women at Tai Lam, in fact, were assigned to tables and required to sit at them all day, only getting up for meals, exercise, and when they had permission to use the bathroom. This level of discipline seems unjustifiably high for prisoners who are, after all, presumed innocent.
The CSD employs two full-time chaplains who are responsible for coordinating the activities of all faiths within the prison. All other religious work in the prisons is done on a volunteer basis.
The Human Rights Watch/Hong Kong Human Rights Monitor delegation heard no allegations of a lack of religious freedom in the prisons. Chaplains stated that the CSD is extremely cooperative and in no way interferes with their work with prisoners.151 Further accommodation of prisoners’ religious beliefs is evidenced in the Prison Rules, which make special provision for the requirements of different religions, including Islam and Judaism.152
Still, given that the vast majority of the prison population consists of ethnic Chinese, many of whom may well ascribe to the Buddhist, Taoist or Confucian tradition, there is a marked lack of traditional Chinese religious activity in the prisons. The two official chaplains are Christian, as are many of the volunteers. In only one prison did the Human Rights Watch/Hong Kong Human Rights Monitor delegation see that prisoners are allowed to make small Chinese shrines, which are otherwise so commonly found in the streets, shops, and homes of Hong Kong.
CSD policy, in accordance with the Standard Minimum Rules, is that prisoners receive at least one hour of outdoor exercise per day. Because of the strains caused by overcrowding, we heard that this hour has been somewhat eroded at certain facilities, verging on forty minutes.
VII. SPECIAL CATEGORIES OF PRISONERS
Like prison populations everywhere, the Hong Kong prison population is largely male. Women prisoners do, however, account for 12 percent of the prison population, a far higher proportion than found in most prison systems. It should also be noted that the women’s prison population has grown at a tremendous rate in recent years, tripling since 1985.
The rise in the women’s prison population, much more so than the men’s prison population, is mainly due to the influx of mainland Chinese into the prison system. A significant proportion of these women are sex workers who have been prosecuted for immigration violations, usually working without an employment visa. Nearly half of the inmate population at Tai Tam Gap Correctional Institution, for example, is made up of mainland Chinese.153 The other significant factor in the growth of the women’s prison population is the larger numbers of female drug addicts entering the penal system.
In the past two years, in order to cope with this rapid growth, the CSD opened both a medium security women’s prison and drug addiction treatment center at Chi Ma Wan, converting a former Vietnamese detention camp. Prior to the inauguration of these facilities, the two existing women’s facilities suffered from extremely acute overcrowding. Tai Lam Centre for Women, for example, once held 817 prisoners in space designed for 278.154 Still, even with the new facilities, three out of four women’s institutions remain markedly overcrowded. Nonetheless, no new prisons for women are planned.
The Prison Rules specify that women prisoners must be supervised by women guards.155 In compliance with this rule—and with international standards156—very few male staff members work in the women’s prisons, and those that do are accompanied by a female officer when they come into contact with prisoners.157 Notably, however, all four of Hong Kong’s women institutions are run by male superintendents.158
Under the Prison Rules, incarcerated women have the right to keep their babies with them in prison until the babies reach nine months old, with the additional possibility of keeping them until age three.159 At Tai Lam Centre for Women, when the delegation visited, eight women inmates had infants with them. Mothers with babies stay in special nursery area. In addition, the facility has a very pleasant play room, full of toys, for children up to age six who are visiting their incarcerated mothers. At the mothers’ request, the children are allowed half-day contact visits with them up to once a week.
Hong Kong has five institutions for juvenile offenders: four for males and one for females. In addition, some male juveniles are held in a separate section of the Hei Ling Chau Addiction Treatment Centre.160
The Hong Kong prison authorities espouse a strongly rehabilitative ethic in their treatment of juvenile prisoners. Reflecting this emphasis, facilities for juveniles include not just prisons but also “training centers” and, for males, a detention center. While employing different approaches, both of these types of facilities are meant to make juvenile inmates more apt to lead a law-abiding life upon release. This forward-looking focus is further reinforced by the mandatory post-release supervision that training center and detention center inmates must undergo. Nearly half of all juveniles sentenced to terms of imprisonment were placed in either training center or detention center programs.
The primary purpose of training centers is to equip juveniles with useful skills.161 To that goal, all training center inmates are given half-day education classes and half-day vocational training. At Pik Uk Correctional Institution and Tai Tam Gap, the Human Rights Watch/Hong Kong Human Rights Monitor delegation saw training center inmates receiving computer and language instruction.
Young males may also be sent to Sha Tsui Detention Centre, a medium security facility that administers a high intensity quasi-military program (descriptively named “short sharp shock”). Sha Tsui includes two separate groups, one consisting of detainees between fourteen and twenty years old, and the other of those between twenty-one and twenty-four. The stated purpose of the detention center program, an ambitious one, is “to instil in young male detainees a respect for the law, to create self-respect and an awareness of neglected capabilities in legitimate pursuits as well as an ability to live with other people in harmony.”162
The primary means by which the detention center program seeks to achieve these ends is through strict discipline. Where prisoners at other Hong Kong correctional facilities are orderly, juveniles at Sha Tsui are rigidly controlled. In their cells, for example, almost all personal items are banned (no radios and no cassette players, for example), and the few personal items allowed—such as a toothbrush, a book, a comb—must be kept in precise places. Their shoes must be neatly placed in a specific spot under the bed, and their clothes must be precisely folded. Besides an emphasis on physical labor—grass cutting, maintenance and construction163—inmates are subject to a substantial amount of drilling. Staff at Sha Tsui, we were told, perceive themselves as instructors rather than guards, and the grounds of the facility are filled with inmates marching around shouting “left, right, left, right,” and following these instructors’ commands.
The CSD has impressive statistics to bolster its assertions that the detention center program’s effectiveness is proved by its graduates’ low recidivism rates.164 Academics have challenged these statistics, however, arguing that the methods used to calculate recidivism are faulty.165 Regardless of whether the program results in low recidivism, the lack of privacy, autonomy, and individual expression permitted detention center inmates is of concern to the Human Rights Watch/Hong Kong Human Rights Monitor delegation. On the other hand, we were impressed with the facility’s emphasis on parent-inmate relations, reflected in, among other things, the superintendent’s blanket approval of daily contact visits.
Besides local prisoners and mainland Chinese, the Hong Kong prisons house some 800 foreign prisoners from a variety of countries. Many of these prisoners have expressed concerns about the impending transfer of sovereignty.166 On July 1, 1997, all previously existing prisoner transfer treaties, by which prisoners may arrange to serve out their sentences in their home countries, will lapse.167 Some prisoners have reportedly been making hurried last-ditch efforts to effect a transfer before this deadline.168 In addition, the Hong Kong authorities are in the midst of negotiations with several countries to work out new transfer arrangements.
Foreign prisoners told the Human Rights Watch/Hong Kong Human Rights Monitor delegation of encountering frustrating language difficulties in their relations with CSD staff. One Nigerian prisoner also described racial discrimination and, in particular, guards’ use of racial slurs.169
The Mentally Ill
Inmates with mental problems are housed at the Siu Lam Psychiatric Centre.170 In appearance, the facility is quite pleasant: its rooms and corridors are spacious, airy, and painted in soothing colors. It also possesses attractive gardens with flowers, fish, and birds, tended by some of the inmates. As the facility is located on the side of a hill, inmates held there enjoy rather dramatic views of the surrounding area.
The majority of the psychiatric patients held at Siu Lam are schizophrenic, but there are also inmates suffering from clinical depression, manias, and severe mental deficiencies.171 (Since no member of the Human Rights Watch/Hong Kong Human Rights Monitor delegation has medical training, we did not independently assess inmates’ mental conditions.) Siu Lam’s psychiatric team, who divide their time between Siu Lam and a local hospital, consists of two consulting psychiatrists, a senior registrar, an acting senior medical officer, and two medical officers.
Britain’s Royal College of Psychiatrists (RCP) visited Siu Lam in late 1995 and apparently issued a report of its findings in 1996. The Human Rights Watch/Hong Kong Human Rights Monitor delegation was unable to obtain a copy of the report, but newspaper accounts stated that the RCP team expressed concerns over the “outdated” conditions and methods used at the facility.172 When questioned about the report, the superintendent at Siu Lam claimed not to have read it, though he added that “big improvements” had been made at the facility.173
The most obvious deficiency at Siu Lam is its severe shortage of qualified psychiatric nurses. Although according to a recent CSD report the facility should have ninety-seven nurses, it has almost precisely half that figure.174 Exacerbating this deficiency, many nurses, who also trained CSD security staff, are assigned non-nursing duties such as manning the guard towers.175 Nurses explained that, as a result, they had little time to provide the individualized treatment that patients needed—little time, in fact, even to open patients’ files. In their view, many of the problems at Siu Lam arose from its hybrid status as both a prison and a mental institution.176 In general, the CSD’s natural focus on security worked to the detriment of serving prisoners’ mental health needs.
Besides Siu Lam, several other institutions have padded cells (called protected rooms) in which to temporarily place prisoners who have become violent or unmanageable. On inquiring about these rooms, the Human Rights Watch/Hong Kong Human Rights Monitor delegation found that corrections staff generally could not even remember when they were last used; in one facility, in fact, the room was used for storage. Mechanical restraints, similarly, appear to be rarely used within the prisons (although they are used in the outside transport of certain prisoners).
The Drug Addicted
As mentioned previously, a large proportion of the Hong Kong penal population consists of drug addicts, primarily heroin addicts. Because of the severity of these drug problems, the CSD operates two drug addition treatment centers for inmates sentenced by the courts to mandatory treatment: one at Hei Ling Chau, for men, and one at Chi Ma Wan, for women. The focus of these centers—as with juvenile detention centers—is on discipline and open-air exercise. Methadone treatment, although it is regularly employed outside of the penal context in Hong Kong, is not available in the centers.
Besides those held in treatment centers, many drug addicts are found in the regular prisons. In all of these facilities, obligatory urine tests (EMIT tests) are regularly administered to inmates. Indeed, in some facilities one-quarter of the inmate population is tested each month, without any requirement of either a particularized or generalized suspicion of drug use.177 Contact visits and trips to court give rise to additional drug tests. To be sure, the high incidence of drug use among the penal population and the adverse impact of drugs within the prison environment may justify the intrusion on inmates’ privacy interests represented by drug testing.178 Nonetheless, in the delegation’s view, the CSD should consider adopting a more nuanced drug testing policy, which takes into account whether there is evidence of drug use either by a particular prisoner or in a particular institution.
VIII. MONITORING OF TREATMENT AND CONDITIONS
One of the tests of a good prison system is the extent to which it has effective mechanisms in place to monitor conditions and report abuses.179 In Hong Kong, there is a superficial profusion of prison monitoring bodies. Prisoners’ grievances may, in principle, be aired before a variety of audiences, including the CSD’s internal bodies, visiting justices of the peace, the office of the ombudsman, and the courts. Undoubtedly, the oversight provided by these bodies aids in preventing abuses and keeping the system in good shape. The Human Rights Watch/Hong Kong Human Rights Monitor delegation found, however, that for a number of reasons the protection provided by these bodies is incomplete.
Although the existing system with regard to monitoring falls short of the ideal, it does have some extremely praiseworthy aspects. Most notably, all of the territory’s penal facilities are replete with announcements informing prisoners of their right to complain. These announcements are found in all areas of the prisons, including punishment cells, and are translated into languages spoken by almost all prisoners (English, Chinese, and Vietnamese).180 In the delegation’s view, these announcements are a healthy reminder to both prisoners and staff that the prisons are not closed to outside scrutiny.
Another important innovation is the newly enacted rule by which all correspondence between prisoners and “specified persons”—which include legislators, justices of the peace, the ombudsman, and various other governmental authorities—cannot be read by CSD staff, and cannot even be opened to check for contraband except in the presence of the prisoner.181