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Diplomacy in Action

2011 Human Rights Reports: China (includes Tibet, Hong Kong, and Macau) - Hong Kong


Bureau of Democracy, Human Rights, and Labor
Report
May 24, 2012

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EXECUTIVE SUMMARYShare    

Hong Kong is a Special Administrative Region (SAR) of the People’s Republic of China (PRC). The 1984 Sino-British Joint Declaration on the Question of Hong Kong and the SAR’s charter, the Basic Law of the SAR (the Basic Law), specify that Hong Kong will enjoy a high degree of autonomy except in matters of defense and foreign affairs. The Fourth Term Legislative Council (Legco) was elected from a combination of geographic and functional constituencies in 2008 elections that were generally free and fair. Security forces reported to civilian authorities.

The three most important human rights problems reported were the limited ability of citizens to participate in and change their government; an increase in arbitrary arrest or detention and other aggressive police tactics hampering the freedom of assembly; and a legislature with limited powers in which certain sectors of society wield disproportionate political influence.

Other areas of reported concern include increasing limitations on freedom of the press and self-censorship; increasing denial of visas for political reasons; alleged election fraud; trafficking in persons; and societal prejudice against certain ethnic minorities.

The government took steps to prosecute and punish officials who committed abuses.

Section 1. Respect for the Integrity of the Person, Including Freedom from:Share    

a. Arbitrary or Unlawful Deprivation of Life

There were no reports that the government or its agents committed arbitrary or unlawful killings.

On January 21, the High Court (Court of First Instance) dismissed a judicial review challenging the inquest in the case of ethnic Nepali Dil Bahadur Limbu. A police constable shot and killed Limbu in 2009 when he resisted the constable’s request to examine his identity documents. The High Court ruled that the coroner had misapplied the law regarding the scope of the inquest. In May 2010 a jury ruled that Limbu’s death was a lawful killing.

b. Disappearance

There were no reports of politically motivated disappearances.

c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

The Basic Law prohibits torture and other forms of abuse, but there were some reports that government officials employed them. In the first half of the year, the police force’s Complaints Against Police Office (CAPO) received 120 complaints that involved 137 allegations of assault by police officers on persons in custody. Thirty-two cases were found “not pursuable,” 65 were withdrawn, and 40 were pending investigation and endorsement by the Independent Police Complaints Council (IPCC). There were 14 allegations of assault by police officers on persons not in custody. Five were found “not pursuable,” three were withdrawn, one was found unsubstantiated, one false, and four were pending investigation as of June.

In May, Alex Diallo Mamadou, an asylum seeker from West Africa, claimed undercover police detained him for 48 hours in September 2010 in a police station where he was physically abused with his hands bound by a plastic cord. Diallo said he was jogging when police detained him with a group of suspected Pakistani illegal immigrants. He also said the police beat him and the Pakistanis. According to CAPO, police arrested Diallo for unlawful assembly and possession of offensive and prohibited weapons. CAPO is investigating Diallo’s complaint on the “police’s use of plasticuffs for long hours.”

Prison and Detention Center Conditions

Prison and detention center conditions generally met international standards, and the Correctional Services Department (CSD) permitted visits by independent human rights observers.

During the year the CSD managed 24 penal institutions with a certified accommodation capacity of 11,144 places. As of September 30, Hong Kong’s total prison population was 9,456. The average occupancy rate for all penal institutions was 88 percent. The CSD admitted overcrowding was a problem in certain types of penal institutions, such as remand facilities and maximum-security institutions. Prisoners generally had access to potable water. The Hong Kong Human Rights Monitor reported that some detainees at the Lo Wu Correctional Institution complained about poor airflow due to a lack of adequate windows and electric fans in the summer and little warm clothing for inmates during the winter.

There were two deaths in police custody; both were under investigation. In the first six months of the year, there were seven reported deaths of persons in custody of the Correctional Services Department. Inquest results had not been reported by year’s end.

Prisoners and detainees were able to send and receive letters, receive regular visits, manifest their religious beliefs or practices, and attend available religious services in correctional institutions. Authorities permitted prisoners and detainees to submit complaints to judicial authorities without censorship, request investigation of credible allegations of inhumane conditions, and initiate legal action against any alleged inhumane conditions. Judicial authorities investigated credible allegations of inhumane conditions and documented the results of such investigations in a publicly accessible manner. The government investigated and monitored prison and detention center conditions, and there was an external Office of the Ombudsman. There were no reports of steps taken to improve recordkeeping or use alternatives to sentencing for nonviolent offenders.

The government permitted human rights groups to conduct prison visits. In the first six months of the year, there were eight media visits, one visit by a human rights organization, and 218 visits by justices of peace. Justices of the peace may make suggestions and comments on matters such as physical environment facilities, overcrowding, staff improvement, training and recreational programs and activities, and other matters affecting the welfare of inmates.

The government regularly assessed how to expand prison capacity and provide vocational training and educational opportunities to the incarcerated.

d. Arbitrary Arrest or Detention

The law prohibits arbitrary arrest or detention, but a number of incidents this year resulted in an increased use of arbitrary arrest and detention.

Role of the Police and Security Apparatus

Civilian authorities maintained effective control over the Hong Kong Police Force, and the government had effective mechanisms to investigate and punish abuse and corruption.

There were no reports of impunity involving the security forces during the year.

Human rights activists and some legislators expressed concern that all IPCC members were appointed by the Chief Executive (CE) and that the IPCC’s lack of power to conduct independent investigations limited its oversight capacity. The IPCC cannot compel officers to participate in its investigations, and the media reported cases of police officers declining to do so. In response, IPCC Chairman Jat Sew-tong told the media he was confident that, if needed, he could approach the police commissioner and any officer so requested would be ordered to participate.

There was a widespread public perception that police abuse of power increased dramatically during the year. Public dissatisfaction with the police rose to a record high of 20 percent.

Arrest Procedures and Treatment While in Detention

Suspects generally were apprehended openly with warrants based on sufficient evidence and issued by a duly authorized official. They must be charged within 48 hours or released, and the government respected this right in practice. Interviews of suspects are required to be videotaped. The law provides accused persons with the right to a prompt judicial determination, and authorities respected this right effectively in practice. Detainees were informed promptly of charges against them. There was a functioning bail system, and detainees were allowed ready access to a lawyer of their choice and family members.

Arbitrary Arrest: The Civil Human Rights Front reported that, for the first time since the 1997 handover, police detained one of Hong Kong’s most well-known and respected human rights activists, Law Yuk-kai, after his participation in the annual July 1 march commemorating the 1997 handover.

In August, during PRC Vice Premier Li Keqiang’s visit to Hong Kong, unidentified security personnel detained a man wearing a “vindicate June 4” (a reference to the 1989 Tiananmen massacre) t-shirt during a visit to a public housing complex, and police detained three student demonstrators during Li’s speech at the University of Hong Kong (HKU) in what has now become known as the “818” incident. The police behavior raised a public outcry. HKU Vice Chancellor Tsui Lap-chee later resigned, although he claimed his decision was unrelated. The police formed a committee to investigate the circumstances surrounding the visit, including the conduct of some officers involved in the incident. The independent Bar Association issued a statement critical of police security arrangements following Vice Premier Li’s visit.

e. Denial of Fair Public Trial

The law provides for an independent judiciary, and the government generally respected judicial independence in practice. The judiciary provided citizens with a fair and efficient judicial process. The courts may interpret those provisions of the Basic Law that address matters within the limits of the SAR’s autonomy. The courts also interpret provisions of the Basic Law that touch on central government responsibilities or on the relationship between the central authorities and the SAR. However, before making final judgments on these matters, which are not subject to appeal, the courts must seek an interpretation of the relevant provisions from the Standing Committee of the National People’s Congress (NPC/SC). The Basic Law requires that courts follow the NPC/SC’s interpretations, although judgments previously rendered are not affected. As the final interpreter of the Basic Law, the NPC/SC also has the power to initiate interpretations of the Basic Law.

The NPC/SC’s mechanism for interpretation is its Committee for the Basic Law, composed of six mainland and six Hong Kong members. The CE, Legco president, and chief justice nominate the Hong Kong members. Human rights and lawyers’ organizations expressed concern that this process, which can supersede the Court of Final Appeal’s power of final adjudication, could be used to limit the independence of the judiciary or degrade the court’s authority.

In September the Court of Final Appeal requested the NPC/SC’s interpretation, for the first time since the former British colony returned to Chinese rule in 1997, on a sovereign immunity case involving the Democratic Republic of the Congo. Activists complained that the court did not need to seek Beijing’s input and that doing so jeopardized Hong Kong’s judicial autonomy. The court claimed that the case involved a foreign policy issue, and it was therefore bound by the Basic Law to seek the NPC/SC’s interpretation.

Trial Procedures

The law provides for the right to a fair public trial, and an independent judiciary generally enforced this right in practice. Trials were by jury except at the magistrate and district court level. An attorney is provided at the public’s expense if defendants cannot afford counsel. Several activists complained that legal aid did not provide attorneys who were interested in committing significant attention to their pro bono clients. Defendants can confront and question witnesses testifying against them and present witnesses to testify on their behalf. Defendants and their attorneys have access to government-held evidence relevant to their cases. Defendants have the right of appeal.

Defendants enjoy a presumption of innocence except in official corruption cases. Under the law a current or former government official who maintained a standard of living above that commensurate with his or her official income, or who controls monies or property disproportionate to his official income, is guilty of an offense unless he can satisfactorily explain the discrepancy. In practice, the courts upheld this ordinance. Court proceedings were conducted in either Chinese or English, the SAR’s two official languages.

Political Prisoners and Detainees

There were very limited reports of political prisoners or detainees. Following artist Ai Weiwei’s detention in mainland China in April, Hong Kong police detained two local activists who protested Ai’s treatment. Activists claimed Beijing pressured Hong Kong police to assign officers from their serious crimes units to apprehend a Hong Kong street artist who painted images of Ai and wrote “Who’s Afraid of Ai Weiwei” on pavements and public buildings throughout Hong Kong. When activists chalked copycat drawings, police detained several before eventually releasing them.

Civil Judicial Procedures and Remedies

There is an independent and impartial judiciary for civil matters and access to a court to bring lawsuits seeking damages for, or the cessation of, human rights violations.

f. Arbitrary Interference with Privacy, Family, Home, or Correspondence

The law prohibits such actions, and the government generally respected these prohibitions in practice.

The law provided that no personal data may be used for a purpose other than that stated at the time of its collection without the data subject’s consent. Specific exemptions allowed SAR authorities to transfer personal data to permit prevention, detection, or prosecution of a crime when certain conditions were met. Data may be transferred to a body outside of the SAR for purposes of safeguarding the security, defense, or international relations of the SAR or for the prevention, detection, or prosecution of a crime, provided conditions set out in the ordinance were met. The Office of the Privacy Commissioner for Personal Data worked to prevent the misuse, disclosure, or matching of personal data without the consent of the subject individual or the commissioner.

The use of covert surveillance and the interception of telecommunications and postal communications can be granted only to prevent or detect “serious crime” or protect “public security.” The law establishes a two-tiered system for granting approval for surveillance activities, under which surveillance of a more intrusive nature requires the approval of a judge, and surveillance of a less intrusive nature requires the approval of a senior law-enforcement official. Applications to intercept telecommunications must involve crimes with a penalty of at least seven years’ imprisonment, while applications for covert surveillance must involve crimes with a penalty of at least three years’ imprisonment or a fine of at least HK$1 million (approximately US$129,000).

Section 2. Respect for Civil Liberties, Including:Share    

a. Freedom of Speech and Press

Status of Freedom of Speech and Press

The law provides for freedom of speech and press, and the government generally respected these rights in practice. An independent press, an effective judiciary, and a functioning democratic political system combined to ensure freedom of speech and of the press.

Freedom of Press: The Hong Kong Journalists’ Association (HKJA) alleged there were severe restrictions on the media during Vice Premier Li’s visit to Hong Kong. Police prevented journalists from reporting at about 20 of Li’s scheduled activities and were granted access to less than half of his program, according to the HKJA. The Government Information Office had exclusive coverage rights for most of the events. The HKJA also alleged that police performed an arbitrary security check on at least one member of the media and a security officer hit a cameraman’s recording device to block him from taping. Then chief secretary for administration Henry Tang claimed that allegations press freedom was undermined during the visit were “complete rubbish.”

In January the employees union at the government-owned broadcaster Radio Television Hong Kong (RTHK) complained that RTHK had cancelled a live webcast of democratic leader Szeto Wah’s funeral because of political pressure. Other major television stations had live coverage of the service.

Violence and Harassment: The International Federation of Journalists (IFJ) alleged that on July 1 police arrested and detained two reporters in a police station for more than 10 hours because they did not produce press cards. Police Commissioner Tsang denied the arrests had ever occurred. On August 11, the police detained three journalists for six hours on accusations of attempted burglary at the New Government Complex. The police later released the journalists without charge.

Censorship or Content Restrictions: Reports of media self-censorship continued during the year. Most media outlets were owned by businesses with interests on the mainland, which led to claims that they were vulnerable to self-censorship with editors deferring to the perceived concerns of publishers regarding their business interests.

Actions to Expand Press Freedom

In May Legco member Cyd Ho introduced a nonbinding motion calling on the government to “safeguard freedom of the press and the right to expression.” Only after pro-Beijing legislators added language stating “in accordance with the Basic Law and the principle of one country, two systems” did the Legco pass the bill.

Internet Freedom

There were no government restrictions on access to the Internet; there was some monitoring of the Internet. Democratic activists claimed central government authorities closely monitored their e-mails and Internet use. In a Netizens Power survey, 33 percent of users of Golden Forum, a popular local Internet community forum, said they had some of their online posts deleted over the past year and almost half indicated this was because their posted content was “too politically sensitive.”

Activists complained that the government’s Copyright Amendments Bill prohibiting unauthorized use of copyright material in any medium without permission would threaten freedom of speech. They claimed the changes would negatively affect works of satire or parody on the Internet because there would be no “fair-use exception.” Some pan-democratic activists and supporters termed the bill a “cyberspace Article 23” (a reference to controversial anti-subversion measures the government proposed in 2002 that led to Hong Kong’s largest-ever street demonstrations). The government’s position was that the amendments would strengthen intellectual property rights.

Academic Freedom and Cultural Events

There were generally no restrictions on academic freedom and cultural events.

Some scholars suggested Hong Kong-based academics practiced some self-censorship in their China-related work to preserve good relations and research and lecturing opportunities in the mainland.

b. Freedom of Peaceful Assembly and Association

Freedom of Assembly

The law provides for freedom of assembly and association, and the government generally respected these rights in practice. The government routinely issued the required “Letter of No Objection” for public meetings and demonstrations, and the overwhelming majority of protests occurred without serious incident. Government statistics indicate that an average of seven to eight “public events” occurred every day. However, activists and pan-democratic legislators expressed concern that the government took a more restrictive view of protests at the Central Government Liaison Office, which saw several clashes with protesters end in arrests. Activists alleged the police were acting under instructions from Beijing, which police denied. The number of protesters arrested during the year increased from 57 in 2010 to 440. Authorities claimed these figures reflected the growth in “radical protests.”

The IFJ claimed that, after the appointment of Hong Kong Police Commissioner Andrew Tsang in January, there was a “rapid erosion” in basic civil liberties and that the government and “in particular the police” were becoming more aggressive against protesters. In one incident the police refused to apologize for spraying pepper spray at an eight-year-old boy during the March 6 protests over the government’s budget that led to the arrests of 113 individuals.

Activists and some lawmakers expressed concern about the lack of clear guidelines about whether a person arrested on assault charges related to public demonstrations would be charged under the Police Force Ordinance (PFO) or the Offences Against the Person Ordinance (OAPO). Both criminalize assault on a police officer on duty, but while the PFO carries a maximum penalty of six months’ imprisonment and a HK$5,000 (US$644) fine, the OAPO carries a maximum penalty of two years’ imprisonment. Some activists also alleged that police faced no penalty for making arrests that ultimately were not prosecuted or were dismissed by the courts, allowing them to use arrest as a means to intimidate and discredit protesters. The Civil Human Rights Front nongovernmental organization (NGO) alliance reported that law enforcement was charging an increasing number of protest participants under the tougher OAPO.

Organizers of the annual July 1 demonstration complained of heavy-handed police actions, including excessive force in the arrest of 231 participants and the indiscriminate use of pepper spray against media observers and protesters. According to media reports, at least 10 people were injured, including two Legco members, and the police detained another Legco member and his party’s chairman. According to law enforcement authorities, the protesters’ actions had halted traffic in a major thoroughfare for seven hours. One activist was convicted and fined for erecting a replica of the Goddess of Democracy statue, the statue raised in Tiananmen Square in 1989.

Freedom of Association

The law provides for this right, and the government generally respected it in practice.

c. Freedom of Religion

See the Department of State’s International Religious Freedom Report at www.state.gov/j/drl/irf/rpt/.

d. Freedom of Movement, Internally Displaced Persons, Protection of Refugees, and Stateless Persons

The law provides for freedom of movement within the SAR, foreign travel, emigration, and repatriation, and the government generally respected these rights in practice, with some prominent exceptions.

Under the “one country, two systems” framework, the SAR continued to administer its own immigration and entry policies and make determinations regarding claims under the UN Convention Against Torture (CAT) independently. As of July there were 6,716 torture claims pending Immigration Department determination.

The government cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) and other humanitarian organizations in providing protection and assistance to internally displaced persons, refugees, returning refugees, asylum seekers, stateless persons, and other persons of concern.

There continued to be cases in which persons traveling to the SAR for reasons that did not appear to contravene the law were refused entry by the Immigration Department. The Immigration Department, as a matter of policy, declined to comment on individual cases. Activists, some legislators, and others contended that the refusals, usually of persons holding critical views of the mainland, were made at the behest of the PRC authorities. The Security Bureau countered that, while the Immigration Department exchanges information with other immigration authorities including the mainland, it makes its decisions independently. Authorities denied entry permission to a number of exiled mainland dissidents including Wang Dan, Wu’er Kaixi, and Wang Chaohua, who sought to attend the funeral of democratic leader Szeto Wah in January. In October the authorities’ denial of entry to Yang Jianli, another noted dissident, raised questions about the integrity of Hong Kong’s immigration policy.

In March the High Court overturned the Immigration Department’s January 2010 decision to deny visas to six technicians of the Shen Yun Performing Arts company, a Falun Gong-affiliated music and dance troupe.

On September 30, in a landmark decision on the controversial issue of the right of abode for foreign domestic workers, the Court of First Instance granted Filipina domestic helper Evangeline Banao Vallejos, who lived in Hong Kong for 26 years, the right to apply for permanent residency. The decision was extremely unpopular, as most Hong Kongers did not wish to extend right of abode to thousands of “temporary workers,” claiming doing so would open the “floodgates” to requests for education, health, employment, and other benefits. At year’s end the government’s appeal remained before the Court of Appeal.

Foreign Travel: Most residents easily obtained travel documents from the SAR government. However, PRC authorities did not permit some Hong Kong human rights activists and most prodemocracy legislators to visit the mainland. Eleven incumbent legislators were denied “Home Return Permits” to visit the mainland.

Emigration and Repatriation: Government policy was to repatriate undocumented migrants who arrived from the mainland, and authorities did not consider them for refugee status. As of June 30, 2,618 immigration offenders and illegal immigrants were repatriated to the mainland. The government did not recognize the Taiwan passport as valid for visa endorsement purposes, although convenient mechanisms existed for Taiwan passport holders to visit Hong Kong. Beginning in September, Taiwan visitors to Hong Kong were able to stay for a month if they held a mainland travel permit.

Protection of Refugees

Access to asylum: The SAR has no temporary protection policy. The director of immigration has discretion to grant refugee status or asylum on an ad hoc basis but only in cases of exceptional humanitarian or compassionate need. The law does not provide foreigners the right to have asylum claims recognized. In practice the government provided some protection against the expulsion or return of refugees to countries where their lives or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group, or political opinion. The government’s practice was to refer refugee and asylum claimants to a lawyer or the UNHCR.

The government does not recognize a legal obligation to grant protection under the CAT, leaving this to the discretion of the director of immigration, but in practice generally reviewed claims made under the CAT. Claimants had access to legal counsel from the Duty Lawyer Service, whose lawyers received training in refugee and torture claims from the Hong Kong Academy of Law. There was also a system to appeal decisions by the Immigration Department, with reviews conducted by experienced magistrates. Several observers, including the Bar Association and the Law Society, suggested processing refugee and CAT claims simultaneously to avoid duplicate filings.

Access to Basic Services: The government, in collaboration with an NGO, has offered in-kind assistance, including temporary accommodation, food, clothing, appropriate transport allowance, counseling, medical services, and other basic necessities, to asylum seekers and torture claimants who were deprived of basic needs while their claims were being processed. As of July, 5,759 persons were receiving assistance.

Employment: Those whose claims were pending have no legal right to work, and those granted either refugee status by the UNHCR or relief from removal under the CAT were permitted to work only with approval from the director of immigration. They were also ineligible for training by either the Employees Retraining Board or Vocational Training Council. Applications to attend school or university were considered on a case-by-case basis at the discretion of the director of immigration.

Section 3. Respect for Political Rights: The Right of Citizens to Change Their GovernmentShare    

The Basic Law limited the right of residents to change their government peacefully. A portion of the Legco was elected by a subset of voters representing “functional constituencies” (FC) which speak for key economic and social sectors; under this structure some individuals were able to control multiple votes for Legco members. The constituencies that elected the 30 FC Legco seats had fewer voters in total than the constituency for a single Geographical Constituency (GC) seat. The government stated that the current method of selecting FC legislators did not conform to principles of universal suffrage, but it took no steps to eliminate the FCs.

The Basic Law prohibited the Legco from putting forward bills that affect public expenditure, political structure, or government policy. The SAR sent 36 deputies to the mainland’s National People’s Congress (NPC) and had 126 delegates in the Chinese People’s Political Consultative Conference. The approval of the CE, two-thirds of Legco, and two-thirds of the SAR’s delegates to the NPC are required to place an amendment of the Basic Law on the agenda of the NPC, which has the sole power to amend the Basic Law.

The CE used his authority to appoint 68 of the 534 members of the District Council, Hong Kong’s lowest form of elected government, despite earlier promises to eliminate all appointed seats. The government stated that it would work on phasing the nonelected seats out in two tranches in 2016 and 2020, but pan-democrats complained that this was a violation of a previous understanding between the Legco and the government.

Elections and Political Participation

Recent Elections: In 2007, the CE Election Committee selected incumbent Donald Tsang Yam-kuen, and the PRC’s State Council formally appointed him. In 2008 voters in five GCs elected 30 legislators, half of the total Legco, in elections that were generally free and fair. A record number of candidates, both party-affiliated and independent, contested the elections. Of the 30 FC seats, 14 incumbents returned uncontested.

In January 2010, five legislators resigned to force a by-election they declared to be a “referendum” on political reform, particularly on achieving universal suffrage. While the government stated that neither the Basic Law nor local law establishes a legal process by which to conduct a referendum, on May 16, the government held the by-election. Supporters of the by-election criticized the government for not making the traditional efforts to encourage citizens to vote in the by-election. They also criticized the publicly announced decision of the CE and senior officials not to cast ballots in the election. The by-election itself, which saw a turnout of approximately 17 percent, was generally free and fair, and the five “incumbents” were reelected.

Responding to this event, and arguing that the democrats used a loophole to abuse the electoral system and waste public money, the government presented draft legislation on June 8 to eliminate by-elections. Angered by the government’s efforts to rush the bill through the Legco, thousands of Hong Kongers (organizers claimed 218,000 participants and the police put the number at 54,000) marched in the biggest July 1 protest since 2004. The government responded by holding a public consultation on the reforms and presenting four proposals for filling vacant seats; many commented that the government’s options were undemocratic. At year’s end the Constitutional and Mainland Affairs Bureau had not sent the government’s draft legislation to the Legco.

Following the District Council elections in November, the Independent Commission Against Corruption (ICAC) received more than 1,182 complaints about the races, including voter tampering and fraud. By the end of the year, the ICAC was investigating 730 vote-rigging cases involving 7,700 voters at 2,300 addresses. Some prodemocracy activists claimed pro-Beijing forces manipulated over 10 percent of the final results to ensure their supporters’ victories. Law enforcement arrested 53 people in relation to these cases.

Political Parties: Pan-democratic parties faced a number of institutional challenges preventing them from holding a majority of the seats in the Legco or having one of their members become chief executive. The unique nature of voting for Legco members ensures pro-business representatives and Beijing’s allies control a majority. Additionally, the Central Government and its business supporters provided generous financial resources to parties that support Beijing’s political agenda in Hong Kong, ensuring these organizations will control the levers of government and all senior positions.

Participation of Women and Minorities: Seven of the 30 members of the Executive Council (cabinet-level secretaries and “nonofficial” councilors who advise the CE) were women. Seven of the 30 directly elected Legco members were women, and women held four of the 30 FC seats. Two political parties represented in the Legco were headed by women. Four of the 22 most senior government officials were women.

There is no legal restriction against non-Chinese running for electoral office or participating in the civil service, although most elected or senior appointed positions require that the officeholder have a legal right of abode only in the SAR. There were no members of ethnic minorities in the Legco. The government regarded ethnic origin as irrelevant to civil service appointment and did not collect data on the number of non-ethnic Chinese serving in the civil service, a practice that some observers criticized as preventing the government from monitoring hiring and promotion rates for non-ethnic Chinese.

Section 4. Official Corruption and Government TransparencyShare    

The law provides criminal penalties for official corruption, and the government generally implemented it effectively. There were isolated reports of government corruption during the year.

During the year the ICAC received 4,010 corruption reports, an increase of 13 percent from 3,535 reports in 2010. Pursuable reports increased by 12 percent to 3,072. Of the reports, 2,664 concerned the private sector, 1,117 were related to government departments, and 229 involved public bodies. A total of 283 persons were prosecuted with convictions in 84 percent of the cases.

In October, ICAC agents arrested five police officers on allegations that they were either running a brothel or accepting free sexual services from prostitutes in return for not reporting the brothel.

There were no legal protections for whistleblowers.

The SAR requires the 27 most senior civil service officials to declare their financial investments annually and the approximately 3,100 senior working-level officials to do so biennially. Policy bureaus may impose additional reporting requirements for positions seen as having a greater risk of conflict of interest.

There was no freedom of information legislation. An administrative code on access to information served as the framework for the provision of information by government bureaus and departments and the ICAC. However, they may refuse to disclose information if doing so would cause or risk causing harm or prejudice in several broad areas: national security and foreign affairs (which were reserved to the central government); immigration issues; judicial and law enforcement issues; direct risks to individuals; damage to the environment; improper gain or advantage; management of the economy; management and operation of the public service; internal discussion and advice; public employment and public appointments; research, statistics and analysis; third-party information; business affairs; premature requests; and information on which legal restrictions apply. Political inconvenience or the potential for embarrassment were not a justifiable basis for withholding information. Through September the ombudsman received 29 complaints relating to the code.

Section 5. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human RightsShare    

A wide variety of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials generally were cooperative and responsive to their views. Prominent human rights activists critical of the central government also operated freely and maintained permanent resident status in the SAR.

Government Human Rights Bodies: There are an Office of the Ombudsman and an Equal Opportunity Commission (EOC), both appointed by the government but independent in their operations. Both organizations operated without interference from the government and published critical findings in their areas of responsibility. EOC Commissioner Lam Woon-kwong continued to serve as a vocal public advocate on minority rights, access to public and commercial buildings for persons with disabilities, and other issues within the EOC’s responsibility.

Section 6. Discrimination, Societal Abuses, and Trafficking in PersonsShare    

The law provided that all permanent residents were equal, and the government enforced this in practice. The EOC is responsible for enforcing the relevant laws.

Women

Rape and Domestic Violence: Rape, including spousal rape, is criminalized under the law, and police enforced the law effectively. Through June, 55 rape cases and 674 indecent assault cases were reported to the police. Of these, 51 rape cases and 451 indecent assault cases were investigated, leading to 57 and 446 arrests, respectively.

The government regarded domestic violence against women as a serious concern and took measures to prevent and prosecute offenses. It effectively enforced criminal statutes prohibiting domestic violence against women and prosecuted violators. Through June 957 cases of domestic violence were reported to, and investigated by, the police. The law allows victims to seek a three-month injunction, extendable to six months, against an abuser. The ordinance does not criminalize domestic violence directly, although abusers may be liable for criminal charges under other ordinances. The government enforced the law and prosecuted violators, but sentences typically consisted only of injunctions or restraining orders.

The law covers molestation between married couples and heterosexual cohabitants, former spouses or cohabitants, and immediate and extended family members. It protects victims under age 18, allowing them to apply for an injunction in their own right, with the assistance of an adult guardian, against molestation by their parents, siblings, and specified immediate and extended family members. The law also empowers the court to require that the abuser attend an antiviolence program. In cases in which the abuser caused bodily harm, the court may attach an authorization of arrest to an existing injunction, and both injunctions and authorizations for arrest can be extended to two years.

The government maintained programs that provided intervention and counseling to batterers. Eight integrated family service centers and family and child protective services units offered services to domestic violence victims and batterers. The government continued its public information campaign to strengthen families and combat violence, and increased public education on the prevention of domestic violence.

Sexual Harassment: The law prohibits sexual harassment or discrimination on the basis of sex, marital status, and pregnancy. The law applies to both males and females. Through July the EOC received 197 new complaints and handled 316 complaints (including complaints carried forward from the previous year).

Reproductive Rights: Couples and individuals had the right to decide the number, spacing, and timing of children and had the information and means to do so free from discrimination, coercion, and violence. Access to information on contraception, skilled attendance at delivery, and prenatal and postpartum care were widely available. Women and men were given equal access to diagnostic services and treatment for sexually transmitted infections.

Discrimination: Women enjoy the same legal status and rights as men. As of March 31, women filled 35 percent of the civil service at all ranks. Women made up 64 percent of the Legco Secretariat workforce and 54 percent of its senior “directorate” ranks, including the Secretary General and Assistant Secretary General. Twenty-three percent of judges and judicial officers were women.

According to gender rights activists and public policy analysts, while the law treats men and women equally in terms of property rights in divorce settlements and inheritance matters, in practice women faced discrimination in employment, salary, welfare, inheritance, and promotion. Women reportedly formed the majority of the working poor and those who fall outside the protection of labor laws. Despite the fact that the law makes it illegal to discriminate against people of both sexes, a study by HKU found that women were paid 24 percent less, even after adjusting for age, education, industry, and occupation, than men in Hong Kong.

According to the Women’s Foundation, women held 9 percent of board positions listed on the Hang Seng Index. The foundation also found that 14 percent of senior academic positions were held by women, 17 percent of the SAR’s senior judges were women, and there were no female judges on the Court of Final Appeal, the SAR’s highest court.

The law establishes the EOC to work towards the elimination of discrimination and harassment as well as to promote equal opportunity between men and women. There was a Women’s Commission that served as an advisory body for policymaking, and a number of NGOs were active in raising problems of societal attitudes and discrimination against women.

Children

Birth Registration: All Chinese nationals born in Hong Kong or abroad to parents, of whom at least one is a PRC-national Hong Kong permanent resident, acquired both PRC citizenship and Hong Kong permanent residence, the latter allowing right of abode in the SAR. Children born in Hong Kong to non-Chinese parents, at least one of whom is a permanent resident, acquire permanent residence and qualify to apply for naturalization as PRC citizens. Registration of all such statuses was routine.

Child Abuse: Through June, 673 cases of crimes against children were reported to police: 254 involved physical abuse (referring to victims younger than 14 years of age), and 419 involved sexual abuse (referring to victims younger than 17 years of age). The law mandates protection for victims of child abuse such as battery, assault, neglect, abandonment, and sexual exploitation, and the government enforced the law. The law allows for the prosecution of certain sexual offenses, including against minors, committed outside the territory of the SAR.

The government provided parent-education programs, including instruction on child abuse prevention, in all 50 of the Department of Health’s maternal and child health centers. It also provided public education programs to raise awareness of child abuse and alert children about how to protect themselves. The Social Welfare Department provided child psychologists for its clinical psychology units and social workers for its family and child protective services units. The police maintained a child abuse investigation unit and a child witness support program. A law on child-care centers helped prevent unsuitable persons from providing child-care services.

Sexual Exploitation of Children: The media reported on a growing number of boys engaged in “compensated dating,” which was already a concern among minor girls. The majority of cases involved teenage girls, both above and below the age of consent, who advertised escort services that might include sex, either to support themselves or for extra pocket money. Some women and girls involved in the trade reported being beaten or abused by clients. In response to this trend police continued monitoring Internet chat rooms and Web sites used by both individuals and syndicates to advertise services, with officers assigned to gather evidence against the operations and determine the techniques used by syndicates to recruit the girls.

The legal age of consent for heterosexuals is 16. Under the law, a person having “unlawful sexual intercourse” with a victim under 16 is subject to five years’ imprisonment, while having unlawful sexual intercourse with a victim under 13 results in imprisonment for life.

The law makes it an offense to possess, produce, copy, import, or export pornography involving a child under 18 years of age, or to publish or cause to be published any advertisement that conveys or is likely to be understood as conveying the message that any person has published, publishes, or intends to publish any child pornography. The penalty for creation, publication, or advertisement of child pornography is eight years’ imprisonment, while possession carries a penalty of five years’ imprisonment.

International Child Abductions: The SAR is a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. See the Department of State’s country-specific information at http://travel.state.gov/abduction/country/country_3781.html.

Anti-Semitism

The Jewish community numbered approximately 5,000-6,000, and reported a few acts of anti-Semitism during the year. According to the media, during a Legco policy debate in October, financial services sector representative and Legco lawmaker Chim Pui-chung accused “Jewish funds in the United States” of committing “a major financial robbery every five years and a minor robbery every three years.” He reportedly said these funds “bullied” Hong Kong and hurt Chinese funds and bankers. There were concerns within the Jewish community about some religious sermons in the otherwise peaceful Muslim community. Some anti-Semitic graffiti, harassment of Jewish students, and hateful Web sites set up by foreign-born Hong Kong residents were reported to the police.

Trafficking in Persons

See the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip.

Persons with Disabilities

The law prohibits discrimination against persons with physical, sensory, intellectual, and mental disabilities in employment, education, access to health care, and the provision of other state services, and the government effectively enforced these provisions. The government generally implemented laws and programs to ensure that persons with disabilities have access to buildings, information, and communications, although some restrictions were reported.

The Social Welfare Department, directly or in coordination with NGOs and employers, provided training and vocational rehabilitation services to assist persons with disabilities. As of September a total of 16,634 persons were participating in these various programs.

As of March 31, the government employed 3,317 civil servants with disabilities, out of a total workforce of 156,886. Persons with disabilities filled 2 percent of Legco Secretariat positions, 1 percent of judicial positions, and 2 percent of nonjudicial positions in the judiciary.

Instances of discrimination against persons with disabilities persisted in employment, education, and the provision of some public services. The law calls for improved building access and sanctions against those who discriminate. As of July 31, the EOC received 346 complaints under the ordinance and handled 520 cases (including cases carried over from the previous year).

Despite inspections and the occasional closure of noncompliant businesses, access to public buildings (including public schools) and transportation remained a serious problem for persons with disabilities. Following Chief Executive Tsang’s October 12 policy address, a number of persons with disabilities protested that the government discriminated against them. They claimed persons with severe disabilities who lived with their families could only qualify for social security by moving out of their families’ homes and living alone or if every member of their families quit their jobs.

National/Racial/Ethnic Minorities

Although 95 percent ethnic Chinese, the SAR is a multiethnic society with persons from a number of ethnic groups recognized as permanent residents with full rights under the law. Discrimination based on race is prohibited by law, and the EOC oversees implementation and enforcement of the law. The Race Relations Unit, which is subordinate to the Constitutional and Mainland Affairs Bureau, served as secretariat to the Committee on the Promotion of Racial Harmony and implemented the committee’s programs. The unit also maintained a hotline for inquiries and complaints concerning racial discrimination. The code of practice (along with selected other EOC materials) was available in Hindi, Thai, Urdu, Nepali, Indonesian, and Tagalog, in addition to Chinese and English. As of July 31, the EOC received 49 complaints and handled 63 cases.

The Constitutional and Mainland Affairs Bureau sponsored a cross-cultural learning program for non-Chinese speaking youth through grants to NGOs.

The government had a policy to integrate non-Chinese students into Hong Kong’s schools. The government also provided a special grant for designated schools with a critical mass of non-Chinese students to develop their own programs, share best practices with other schools, develop supplementary curriculum materials, and set up the Chinese-language support centers to provide after-school programs. However, activists expressed concern that there was no formal government-provided course to prepare students for the General Certificate for Secondary Education exam in Chinese, a passing grade from which is required for most civil service employment. Activists also noted that government programs encouraging predominantly Chinese schools to welcome minority students backfired, turning whole schools into “segregated institutions.” These schools did not teach Chinese to the non-ethnically Chinese students. Students who did not learn Chinese had significant difficulty entering the labor market, leading to a cycle of problems including unemployment and poverty, according to reports from the government and nongovernmental organizations.

The EOC established a working group on Education for Ethnic Minorities in July 2010, which presented a set of recommendations to the Education Bureau in March and July. According to activists and the EOC, the Education Bureau has not responded to the recommendations.

Minority group leaders and activists complained that government requirements that all job applicants speak Chinese kept nonnative Chinese speakers out of civil service and law enforcement positions. Despite the fact that both English and Chinese were official languages, reports indicated that little more than one third of government departments regularly issued their press releases in both.

Following Chief Executive Tsang’s calls for support to ethnic minorities in the October policy address, the government’s Community Care Fund endorsed a new program to support minorities and new arrivals with Chinese language training.

Activists and the government disputed whether new immigrants from the mainland should be considered as a population of concern under antidiscrimination legislation. While concerns were raised that new immigrants do not qualify to receive social welfare benefits until they have resided in the SAR for seven years, the courts upheld this legal standard. Such immigrants can apply on a case-specific basis for assistance.

Societal Abuses, Discrimination, and Acts of Violence Based on Sexual Orientation and Gender Identity

There were no laws criminalizing consensual same-sex sexual activity. In 2005, the High Court (Court of First Instance) ruled that maintaining an age of consent for male-male relations at 21 rather than 16 violated the Bill of Rights Ordinance. The Law Reform Commission continued a review of sexual offenses in common and statute law. In the interim, enforcement of the law was in accordance with the 2005 decision. There were no specific laws governing age of consent for female-female relations.

On June 17, the government sponsored a seminar on “homosexual conversion therapy.” According to gay rights groups, the seminar’s contents explained homosexuality as deriving from “unhealthy parent-children relationships,” “experience of sexual abuse or same-sex sexual behavior,” or “serious emotional harm caused by the opposite sex.”

During an International Day Against Homophobia and Transphobia rally on May 15, police stopped a dance that was part of the program, alleging some participants had violated public entertainment laws. Activists from the gay rights community claimed this was the first time in over a dozen years police had stopped a rally of this sort.

Other Societal Violence or Discrimination

There were no reports of societal violence or discrimination against persons with HIV/AIDS or against other groups not covered above.

Section 7. Worker RightsShare    

a. Freedom of Association and the Right to Collective Bargaining

The law protects the right of workers to form and join independent unions without previous authorization or excessive requirements, and conduct legal strikes. However, the law does not guarantee the right to collective bargaining. Trade unions must register with the government’s Registry of Trade Unions and must have a minimum membership of seven persons for registration. Unions could affiliate, and workers were not prevented from unionizing.

The law prohibits the use of union funds for political purposes, required the CE’s approval before unions can contribute funds to any trade union outside of the SAR, and restricted the appointment of persons from outside the enterprise or sector to union executive committees.

The law provides for the right to strike, although there are some restrictions on this right for civil servants. In addition, while the law protected workers against dismissal for trade union activities, there is no legal entitlement to reinstatement in these cases, and the law does not cover other forms of antiunion discrimination.

The Workplace Consultation Promotion Unit in the Labor Department facilitated communication, consultation, and voluntary negotiation between employers and employees. Tripartite committees for each of the nine sectors of the economy included representatives from some trade unions, employers, and the Labor Department. During a labor dispute the Unit facilitated conciliation so that the labor disputes could be settled with a minimum friction and disruption.

Worker organizations were independent of the government and political parties. However, only progovernment unions were able to participate substantively in the tripartite process, while the democratic Hong Kong Confederation of Trade Unions was consistently excluded. Antiunion discrimination did not occur in practice.

Although there was no legislative prohibition against strikes, in practice most workers had to sign employment contracts that typically stated that walking off the job is a breach of contract, which could lead to summary dismissal. Several strikes took place throughout the year.

Local trade unions and NGOs escalated efforts to advocate for legislation that would guarantee collective bargaining rights, but as of the end of the year there was no progress on a bill addressing this concern.

b. Prohibition of Forced or Compulsory Labor

The law prohibits all forms of forced or compulsory labor, and the government effectively enforced such laws. There were concerns that some migrant workers faced high levels of indebtedness assumed as part of the terms of employment, creating a risk they could fall victim to debt bondage. Hong Kong prohibits the collection of employment-related debt, but prosecution was hampered by looser restrictions in some countries that send workers. Some Hong Kong-licensed employment agencies were suspected of colluding with Indonesian agencies to profit from a debt scheme, and some Hong Kong agencies illegally confiscated the passports, employment contracts, and ATM cards of domestic workers and withheld them until their debt had been repaid. The government conveyed its concerns about these cases to a number of foreign missions.

There also were reports that some employers illegally forbade domestic workers to leave the residence of work for non-work-related reasons, effectively preventing them from reporting exploitation to authorities. SAR authorities actively pursued reports of such violations.

According to a Catholic Commission for Labor Affairs survey of Indonesian foreign domestic workers in October, 70 percent of respondents claimed they were underpaid, 67 percent had personal items such identity cards and passports confiscated, and 48 percent did additional work outside of their contracts.

Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip.

c. Prohibition of Child Labor and Minimum Age for Employment

There were laws to protect children from exploitation in the workplace. Regulations prohibit employment of children under the age of 15 in any industrial establishment. Other regulations limit work hours in the manufacturing sector for persons 15 to 17 years of age to eight hours per day and 48 hours per week between 7 a.m. and 7 p.m., and prohibit overtime in industrial establishments with employment in dangerous trades for persons less than 18 years of age.

Children 13 and 14 years of age may work in certain nonindustrial establishments, subject to conditions aimed at ensuring a minimum of nine years of education and protection of their safety, health, and welfare.

The Labor Department effectively enforced these laws and regularly inspected workplaces to enforce compliance with the regulations. In the first nine months of the year, the Labor Department conducted 96,788 inspections. Two employers were convicted of offenses and fined.

d. Acceptable Conditions of Work

The SAR’s first statutory minimum hourly wage, HK$28 (US$3.60), came into force in May. Approximately 760,000 Hong Kong residents live under the locally defined poverty line (annual income of about HK$47,213 [US$6,053] for an individual, HK$75,598 [US$9,692] for a two-person unit, HK$100,168 [US$12,842] for a three-person family, etc.).

In practice wages were often set by employers and employer associations. Additionally, unionists alleged that workers were tricked by employers into signing contracts that changed their terms of employment to “self-employed,” and thus they were not entitled to employer-provided benefits such as paid leave, sick leave, medical insurance, workers’ compensation, or Mandatory Provident Fund payments.

The minimum wage for foreign domestic workers was HK$3,740 per month (US$482). The government’s Standard Employment Contract requires employers to provide foreign domestic workers with housing, worker’s compensation insurance, travel allowances, and food or a food allowance in addition to the minimum wage, which together provided a decent standard of living. Foreign domestic workers could be deported if dismissed. After leaving one employer, workers have two weeks to secure new employment before they must leave the SAR. Activists contended this restriction left workers vulnerable to a range of abuses from employers. Workers who pursued complaints through legal channels may be granted leave to remain; however, they were not able to work, leaving them either to live from savings or to depend on charitable assistance.

During the first six months of the year, three employers were convicted for wage offenses relating to the employment of foreign domestic workers. During the same period 75 foreign domestic workers filed criminal suits, 37 of which were against employers for maltreatment including rape (one), indecent assault (seven), and injury and serious assault (29).

There was no law concerning working hours, paid weekly rest, rest breaks, or compulsory overtime for most employees. For certain groups and occupations, such as security guards and certain categories of drivers, there were regulations and guidelines on working hours and rest breaks. According to the General Household Survey conducted by the Census and Statistics Department during the year, about 17.1 percent of Hong Kong employees worked 60 hours or more per week. The law stipulates that employees are entitled to 12 days of statutory holidays and employers must not make payment in lieu of granting holidays.

Domestic workers were required to live with their employers (who do not always provide separate accommodation for the worker), which made it difficult to enforce maximum working hours per day or overtime.

The government contended that the “two-week rule” was necessary to maintain effective immigration control and prevent migrant workers from overstaying and taking up unauthorized work. Regarding maximum hours and rest periods, the government stated that the rules on these issues cover local and migrant workers. However, in its explanation of why live-in domestic helpers (both local and foreign) would not be covered by the statutory minimum wage, the government explained that “the distinctive working pattern--round-the-clock presence, provision of service-on-demand, and the multifarious domestic duties expected of live-in domestic workers--makes it impossible to ascertain the actual hours worked so as to determine the wages to be paid.”

Laws exist to ensure health and safety of workers in the workplace, and these laws were effectively enforced. There is no specific legal provision allowing workers to remove themselves from dangerous work situations without jeopardy to continued employment.

The Occupational Safety and Health Branch of the Labor Department is responsible for safety and health promotion, enforcement of safety management legislation, and policy formulation and implementation. In the first three quarters, the Labor Department’s 200 inspectors conducted 88,514 workplace inspections. There were 778 convicted summonses, resulting in fines totaling HK$6.2 million (US$800,000). In addition to prosecuting offenses under the safety legislation, the Labor Department also issued improvement notices requiring employers to remedy contraventions of safety laws within a specified period and suspension notices directing removal of imminent risks to life and limb in workplaces. During the first half of the year, the department served 607 improvement notices and 50 suspension notices.

Although worker safety and health continued to improve, serious problems remained, particularly in the construction industry. In the first quarter of the year, the Labor Department reported 19,163 occupational injuries, including 6,436 classified as industrial accidents. In the same period there were 13 fatal industrial accidents. Employers are required to report any injuries sustained by their employees in work-related accidents. Labor activists raised the issue of the increase in deadly industrial accidents, mainly due to construction and infrastructure projects in Hong Kong.

There are no laws restricting work during typhoon or rainstorm warning signals except for a Labor Department recommendation that employers have only essential staff come to work during certain categories of typhoon or rainstorm warnings. Both pro-Beijing and pan-democratic unions called for a review of protections for workers during inclement weather, including legal protections.





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