Human rights watch/asia hong kong human rights monitor june 1997 Vol. 9, No. 5 (C) hong kong prison conditions in 1997



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Internal CSD Monitoring

The CSD has two monitoring bodies within its Inspectorate and Management Services Division. The Inspection Unit (IU) is responsible for monitoring departmental compliance with the relevant ordinances, rules and departmental policies; it conducts regular and ad hoc inspections of penal facilities. In 1995, it conducted a total of forty-six inspections.182 The Complaints Investigation Unit (CIU), which consists of nine investigators and two supervisory staff, is responsible, among other things, for investigating prisoners’ complaints of abuse or mistreatment. It received 181 complaints from prisoners in 1996, but found only four to have merit.183 Although without more information it is impossible for the Human Rights Watch/Hong Kong Human Rights Monitor delegation to reach any conclusions about the validity of the particular cases that were dismissed, we note that four out of 181 cases is a very low substantiation rate. The record from past years is comparable.184


Regardless of the seriousness with which these bodies approach their responsibilities, our experience convinces us that internal departmental monitoring of prison conditions is inherently insufficient. First, fearing retaliation, prisoners often hesitate to complain to internal bodies of mistreatment by prison staff. Given the adversarial atmosphere that tends to reign in the prison context, they assume that such bodies are biased in favor of departmental staff. Second, whether the problems found are serious or relatively trivial, outside bodies are freer to criticize and, if necessary, to draw public attention to abuses. The pressing need for transparency and accountability in the operation of prisons militates in favor of outside oversight.185
Justices of the Peace

Justices of the peace (JPs) are counted as the primary mechanism for outside monitoring of Hong Kong’s prisons. Appointed by the Governor, JPs enjoy an array of formal powers, although their main practical function is to visit prisons and other institutions.186 The job of JP is not a full-time occupation, but rather more of an honorary post. JPs include both government officials, known as official JPs, and members of the public, known as unofficial JPs.


According to the Prison Rules, each prison is to be visited by two justices of the peace (one official and one unofficial) every fifteen days.187 Training centers, detention centers, and drug addiction treatment centers, in contrast, receive JP visits once a month. Within this prescribed period, JPs have considerable flexibility to choose the date and time of their visits, and they can arrive without giving prior notice. JPs normally receive a fifteen-minute to half-hour orientation from the facility’s superintendent, then they tour the facility in the company of the superintendent or a high-ranking officer. Although the amount of time spent at the facility varies according to its size and the JPs’ preferences, they normally spend between one and a half to three hours per visit.
The Human Rights Watch/Hong Kong Human Rights Monitor delegation found serious defects in the approach and methodology of Hong Kong’s system of JP visits. To begin with, because JPs have no specific training or experience in prison matters, they are ill-prepared to delve beneath the surface in investigating conditions. In addition, their visits are largely overseen by the prison authorities. One knowledgeable observer, commenting on this problem, described the JPs’ prison tours as “staged visits.”188 Indeed, the Prison Rules specifically mandate that a high-ranking officer accompany the JPs around the prison and “bring before them” any prisoners wishing to speak to them.189 Although a few prison officials stated, when pressed on this point, that the JPs might if they preferred speak with prisoners privately, it is quite clear that the normal practice is for JPs to speak with prisoners in the presence of prison officials.190
The lack of confidential communications between prisoners and JPs flies in the face of the requirements of the Standard Minimum Rules, which state that during prison inspections, “[t]he prisoner shall have the opportunity to talk to the inspector or to any other inspecting officer without the director [of the prison] or other members of the [prison] staff being present.”191 While many prison officials seem not to have contemplated the possibility that prisoners and JPs might speak to each other privately, others are openly hostile to the idea. One superintendent, when asked why this is not the normal practice, stated bluntly that “it has to do with who is running the prison. The VJ [visiting justice of the peace] is not running the prison.”192
At the close of their visit, the JPs write up their comments in a log book, describing their impressions of the prison and any complaints made to them. The Human Rights Watch/Hong Kong Human Rights Monitor viewed these comments at every facility that we visited. We found them to be brief and almost uniformly uncritical. At High Island Detention Centre, for example, a facility that the delegation found to be in serious need of improvement, we read with surprise the JPs’ comments of only one month earlier. In what, to the delegation, was an enormous understatement, the JP noted: “The sanitary conditions were not entirely satisfactory . . . [but] overall, the centre was in good order.”193
Finally, the JP system suffers from a serious lack of continuity and follow-through. Instead of repeat visits by the same inspector over a period of time, which would permit that person to evaluate whether conditions were improving and recommended improvements were being implemented, every fifteen days a different set of JPs visits.
Office of the Ombudsman

The Office of the Ombudsman is charged with “redressing grievances and addressing issues arising from maladministration in the public sector.”194 This monitoring and investigative body has existed for some time, but it only quite recently became active in the prisons. While the ombudsman had received scattered complaints from prisoners in the past—from July 1995 to June 1996, for example, he received sixty-six prisoners’ complaints—the number of complaints received rose significantly after July 1996, when he initiated a campaign to increase inmates’ awareness and access to the office. At that time the CSD, acting on the ombudsman’s suggestion, began posting announcements in the prisons informing inmates of their right to lodge complaints with the ombudsman, and making confidential aerograms available to them for this purpose.195

At our meeting with the deputy ombudsman, the Human Rights Watch/Hong Kong Human Rights Monitor delegation was informed that the ombudsman’s office had received some 200 complaints from prisoners since July 1996.196 With a prison team of five investigators, the ombudsman has the power of direct investigation, and can even demand official statements under oath. The ombudsman has a limited mandate to hear complaints: most notably, they cannot involve a crime (thus no cases of excessive force by guards), and they must be submitted by the prisoners themselves, not by relatives.
The deputy ombudsman was unable to give the delegation any details regarding the 200 cases received, but he did describe the procedures for handling cases.197 After ascertaining whether the complaint falls within the office’s jurisdiction, it is normally referred to the CSD through an internal complaint handling procedure. Attempts are made—usually successfully—to resolve the complaint at this level.198 If, however, the complaint cannot be satisfactorily resolved and it appears that an injustice has occurred, then the ombudsman’s office undertakes an in-depth investigation that culminates in a judgment and recommendations. If these recommendations are not acted upon, the ombudsman may submit a report to the governor.
The Human Rights Watch/Hong Kong Human Rights Monitor delegation welcomes the ombudsman’s increased prison activity. We note, nonetheless, that the ombudsman’s mandate is extremely complaint-specific and reactive: he does not conduct broad investigations or formulate broad recommendations for improving the prison system. In addition, although a few representative cases are described to the public in the ombudsman’s monthly reports, and a summary of the ombudsman’s work is provided in his annual reports, neither the focus nor the effect of the ombudsman’s work is to inform the public about prison conditions.
Judicial Oversight

As evidenced by the legal cases described in previous chapters of this report, prisoners occasionally go to court to challenge their treatment. These cases are extremely important because of the judiciary’s broad power to protect the rights of Hong Kong residents and, in particular, to enforce the protections contained in Bill of Rights. It should be emphasized, however, that few prisoners have the financial resources necessary to litigate cases involving prison abuses.199 In addition, the Court of Appeal’s recent decision in Chim Shing Chung, discussed above, discourages hopes that the courts will take any kind of a leading role in protecting prisoners’ rights.



ACKNOWLEDGMENTS
This report was written by Joanne Mariner, associate counsel at Human Rights Watch. It is based on information gathered during an investigation that took place from March 17 to April 4, 1997. Sir Stephen Tumim, principal at St. Edmund Hall at Oxford University and the U.K.’s former Chief Inspector of Prisons, Law Yuk-kai, director of the Hong Kong Human Rights Monitor, Ms. Mariner, members of the staff of Human Rights Watch/Asia, and volunteer members of the Hong Kong Human Rights Monitor conducted the investigation. Cynthia Brown, program director of Human Rights Watch, edited this report. Paul Lal, associate at Human Rights Watch/Asia, provided production assistance.
Human Rights Watch and the Hong Kong Human Rights Monitor thank the many individuals in Hong Kong who gave generously of their time and expertise in assisting the investigation.
In addition, Human Rights Watch is grateful to the Edna McConnell Clark Foundation for its generous support of our work monitoring prison conditions and the treatment of prisoners.

Human Rights Watch/Asia

Human Rights Watch is a nongovernmental organization established in 1978 to monitor and promote the observance of internationally recognized human rights in Africa, the Americas, Asia, the Middle East and among the signatories of the Helsinki accords. It is supported by contributions from private individuals and foundations worldwide. It accepts no government funds, directly or indirectly. The staff includes Kenneth Roth, executive director; Michele Alexander, development director; Cynthia Brown, program director; Barbara Guglielmo, finance and administration director; Robert Kimzey, publications director; Jeri Laber, special advisor; Lotte Leicht, Brussels office director; Susan Osnos, communications director; Jemera Rone, counsel; Wilder Tayler, general counsel; and Joanna Weschler, United Nations representative. Robert L. Bernstein is the chair of the board and Adrian W. DeWind is vice chair. Its Asia division was established in 1985 to monitor and promote the observance of internationally recognized human rights in Asia. Sidney Jones is the executive director; Mike Jendrzejczyk is the Washington director; Robin Munro is the Hong Kong director; Patricia Gossman is the senior researcher; Zunetta Liddell and Paul Slusher are the research associates; Jeannine Guthrie is NGO liaison; Mickey Spiegel is a consultant; Paul Lall and Olga Nousias are associates. Andrew J. Nathan is chair of the advisory committee and Orville Schell is vice chair.


Web Site Address: http://www.hrw.org

Gopher Address: gopher://gopher.humanrights.org:5000/11/int/hrw

Listserv address: To subscribe to the list, send an e mail message to majordomo@igc.apc.org with “subscribe hrw news” in the body of the message (leave the subject line blank).
Hong Kong Human Rights Monitor

The Monitor is an Hong Kong non governmental organization which aims to promote better human rights protection in Hong Kong, both in terms of law and of practical daily life, and to encourage greater human rights awareness. The Monitor is particularly concerned that human rights should be protected over the transfer of administration from Britain to China. Members of the Monitor are from many different backgrounds and walks of life, many of whom have long experience in human rights work. Activities of the Monitor include: monitoring the actions of the Hong Kong Government and speaking out about matters which affect human rights; carrying out research on topics related to human rights; Investigating individual cases which raise human rights issues; and publishing and distributing information about human rights in both Chinese and English.


Web Site Address: http://members.hknet.com/~hkhrm/
APPENDIX
The following table compares the certified capacities and the actual populations of Hong Kong’s twenty-two correctional facilities as of March 27, 1997.


Prison

Certified

Capacity


Population as of March 27, 1997

Cape Collinson Correctional Institution

230

166


Ma Po Ping Prison

650

759



Prison

Certified

Capacity


Population as of March 27, 1997

Pik Uk Correctional Institution

385

460


Victoria Prison



438

487


Previous Human Rights Watch Reports on Prison Conditions and the Treatment of Prisoners
The Human Rights Watch Global Report on Prisons, 1993

Prison Massacre in Sao Paulo (Brazil), 1992

Prison Conditions in Brazil (Available in Portuguese), 1989

Prison Labor in China, 1991

Yao Yongzhan: A Year in a Chinese Jail, 1990

Prison Conditions in Czechoslovakia: An Update, 1991

Prison Conditions in Czechoslovakia, 1989

Prison Conditions in Egypt, 1993

Egypt: Arrest & Detention Practices & Prison Conditions, 1992

Prison Conditions in India, 1991

Prison Conditions in Indonesia, 1990

Prison Conditions in Israel & Israeli Occupied West Bank & Gaza Strip, 1991

Prison Conditions in Jamaica, 1990

Prison Conditions in Japan, 1995

Prison Conditions in Mexico, 1991

Prison Conditions in Poland: An Update, 1991

Prison Conditions in Poland, 1988

Prison Conditions in Romania, 1992

Prison Conditions in South Africa, 1994

Prison Conditions in Spain, 1992

Prison Conditions in Turkey, 1989

Prison Conditions in the United Kingdom, 1992

Prison Conditions in the United States, 1991

All Too Familiar: Sexual Abuse of Women in U.S. State Prisons, 1996

Prison Conditions in Puerto Rico, 1991

Prison Conditions in the Soviet Union, 1991

Punishment Before Trial: Prison Conditions in Venezuela, 1997

Prison Massacre in Maracaibo (Venezuela), 1994



Prison Conditions in Zaire, 1994


1The Human Rights Watch/Hong Kong Human Rights Monitor delegation saw one Hong Kong prisoner, for example, with a warning outside his cell stating that he “would take every chance to escape as he strongly believed that he would be executed when the Chinese Government takes over sovereignty in 1997.” Other prisoners expressed fear that prison conditions would deteriorate under Chinese rule. For a description of prison conditions in China, see, for example, Asia Watch, Anthems of Defeat: Crackdown in Hunan Province, 1989-92 (New York: Human Rights Watch, 1992), pp. 74-111; Hongda Harry Wu, Laogai—The Chinese Gulag (Westview Press: Boulder, 1992).

2 See generally Py Lo, “Hong Kong Human Rights Monitor Briefing Paper for the United Nations Human Rights Committee, October 1996 (available on the website of the Hong Kong Human Rights Monitor: http://members.hknet.com/ ~hkhrm/).

3Yet, notably, only twenty of sixty seats in Hong Kong’s Legislative Council are subject to direct popular election. The Human Rights Committee, the U.N. organ responsible for supervising the implementation of the International Covenant on Civil and Political Rights (ICCPR), has concluded that the Hong Kong electoral system, which designates many seats via elections restricted to “functional constituencies,” unjustly discriminates among voters on the basis of property and functions. Human Rights Committee, Comments on United Kingdom of Great Britain and Northern Ireland (Hong Kong), U.N. Doc. CCPR/C/79/Add.57 (1995).

4Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, signed December 19, 1984, entered into force May 27, 1985.

5 The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, adopted on June 4, 1990 by the Seventh National People’s Congress of the People’s Republic of China at its Third Session.

6Oxfam Hong Kong, Submission to the Panel on Home Affairs, Legislative Council, on the Implementation of the ICESCR, July 6, 1996, p. 1.

7During a three-week period in March and April 1997, the delegation visited Stanley Prison, Shek Pik Prison, Lai Chi Kok Reception Centre, Siu Lam Psychiatric Centre, Ma Po Ping Prison, Victoria Prison, Tong Fuk Centre, Sha Tsui Detention Centre, Pik Uk Correctional Institution, Tai Lam Centre for Women, Tai Tam Gap Correctional Institution, Hei Ling Chau Addiction Treatment Centre, and High Island Detention Centre.

8ICCPR, Article 7; Torture Convention, Articles 2 and 16.

9ICCPR, Article 10(1).

10ICCPR, Article 10(3).

11Fourth Periodic Report by Hong Kong under Article 40 of the International Covenant on Civil and Political Rights, U.N. Doc. CCPR/C/95/Add.5 (1995), p. 90.

12Basic Principles for the Treatment of Prisoners, Article 5.

13U.N. Human Rights Committee, General Comment 21, paragraph 3. The Human Rights Committee provides authoritative interpretations of the ICCPR though the periodic issuance of General Comments.

14Hong Kong Bill of Rights Ordinance, Section 9. See also Chim Shing Chung v. Commissioner for Correctional Services, 6 HKPLR 313, 323 (Ct. App. 1996) (interpreting the savings clause broadly to nullify any protections on prisoners’ rights).

15China is party to the Torture Convention.

16Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, _ XIII. The Basic Law, which establishes the framework for China’s relations with Hong Kong, includes a similar guarantee.

17Human Rights Committee, Comments on United Kingdom of Great Britain and Northern Ireland (Hong Kong), U.N. Doc. CCPR/C/79/Add.57 (1995) (statement by the chairperson on behalf of the Human Rights Committee); Human Rights Committee, Comments on United Kingdom of Great Britain and Northern Ireland (Hong Kong), U.N. Doc. CCPR/C/79/Add.69 (1996).

18The U.K incarcerates some 110 people per 100,000 population, a fairly high rate in comparison with other countries in Europe, but not terribly high internationally. Many Asian countries, however, have extremely low incarceration rates. India, for example, confines approximately twenty-four prisoners per 100,000 population; Japan confines approximately thirty-eight prisoners per 100,000 population. The United States, among countries at the other extreme, confines some 615 prisoners per 100,000 population. Statistics on file with Human Rights Watch.

19The CSD calls some of its facilities “prisons” and others “correctional institutions,” but this semantic distinction is not relevant for the purposes of this report. As noted above, the CSD also operates facilities known as training, treatment, psychiatric, and detention centers. However, unless otherwise specified, this report uses the term “prison” generically to refer to all penal facilities.

20In 1991, for example, the Vietnamese migrant population was 34,297, more than triple the penal population.

21The Hong Kong Prison Rules contain numerous provisions analogous to provisions of the U.K. Prison Rules, often employing almost the exact same language. Where relevant, this report will note such provisions.

22Subsidiary regulations include the Training Centre Regulations, the Drug Addiction Treatment Centres Regulations, and the Detention Centres Regulations.

23The precise chronology of the amendment process was somewhat complicated. In their first incarnation (the Prison (Amendment) Rules 1996), the amended rules were introduced in July 1996, and were to come into effect on November 1, 1996. Before they could come into effect, however, they were repealed. After negotiations between the CDC and the Legco, the Prison (Amendment) Rules 1997 were introduced in May 1997 by Law Notice 275 of 1997. The new rules will come into operation on a day to be appointed by the Secretary for Security.

24Secretariat Press Office (Security and Constitutional Affairs), “Prison (Amendment) Rules 1997 gazetted,” May 23, 1997.

25Indeed, in the course of recent litigation, a solicitor representing a prisoner challenging newspaper censorship requested a copy of the Standing Order relevant to such censorship. Although the CSD claimed that the Standing Order provided the legal basis for the censorship, it denied the solicitor’s request to see the document. The CSD’s inflexibility on the issue led the court to point out that “[i]t is rather alarming that a person who says his rights are infringed is not told why.” Chim Shing Chung v. Commissioner of Correctional Services, 5 HKPLR 570, 577 (1995).

Particularly in light of this history, the delegation is pleased to report that the CSD provided it with a near-complete set of Standing Orders (minus a few dozen that the CSD concluded would prejudice security, efficiency or similar concerns).

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