China (includes Tibet, Hong Kong, and Macau) – Hong Kong
Section 2. Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The law provides for freedom of expression, including for the press, and the government generally respected this right. An independent press, an effective judiciary, and an unfettered internet combined to permit freedom of expression, including for the press, on most matters. During the year, however, SAR and central government actions and statements raised the perceived risks associated with expressing dissenting political views.
Freedom of Expression: There were some legal restrictions on the ability of individuals to criticize the government publicly without reprisal. A new national law passed by the central government in September criminalizes any action mocking the Chinese national anthem and requires persons attending public events to stand at attention and sing the anthem in a solemn manner when it is played. The central government’s National People’s Congress voted to add the law to the Basic Law’s Annex III, which obliges the SAR government to adopt local legislation. SAR officials said the law would be implemented after the LegCo passes local implementing legislation. In September a court found LegCo member Cheng Chung Tai guilty of desecrating both the national and Hong Kong SAR flags after he turned several Chinese and Hong Kong SAR flags upside down on the desks of other LegCo members. The court ordered Cheng to pay a fine of 5,000 Hong Kong dollars (HK$) ($640).
The SAR and central government called for restrictions on discussion of Hong Kong independence. Before Chinese president Xi Jinping’s July visit to the SAR, police told the proindependence Hong Kong National Party it would not be permitted to hold any public event, according to a Hong Kong Free Press article. In September students at several universities in the SAR hung banners in support of Hong Kong independence. In response Mathew Cheung, the SAR’s chief secretary for administration (the second-most senior executive official), stated “there is no room for discussion” of Hong Kong independence. A mainland government-controlled media outlet called on SAR authorities to take legal action to forbid persons from advocating for independence. On September 19, at a rally calling for the dismissal of Benny Tai, a coorganizer of the large-scale 2014 “Occupy” protests from Hong Kong University, LegCo member Junius Ho supported another protester’s call to “kill” independence advocates by saying “with no mercy” into his microphone.
Observers feared that requirements for electoral candidacy and for taking the oath of office limited free speech in the political arena. In July 2016 the Electoral Affairs Commission instituted a new requirement that all LegCo candidates sign a pledge stating that the SAR is an “inalienable part” of China in order to run for office.
The NPCSC’s November 2016 interpretation of Basic Law Article 104 barred legislators-elect from taking office if they refused to take the oath, altered the wording of the oath, or failed to demonstrate sufficient “sincerity” or “solemnity” when taking the oath. As of year’s end, the government had used the NPCSC’s interpretation to disqualify six legislators for making oaths that did not conform to the NPCSC’s interpretation. On August 25, the Court of Final Appeal dismissed the appeal bids of two of the six lawmakers. Two additional lawmakers appealed their cases on September 11; their appeals were pending at year’s end. The final two lawmakers declined to appeal their disqualification.
Press and Media Freedom: Independent media were active and expressed a wide variety of views; however, some journalists expressed concerns about increasing self-censorship.
Violence and Harassment: In February the home of a senior staff member at Sing Pao Daily News was splashed with red paint after staff members spotted suspicious persons following the newspaper’s managers, according to the Hong Kong Journalists Association’s annual report.
Censorship or Content Restrictions: Reports of media self-censorship continued during the year. Many media outlets were owned by companies with business interests on the mainland, which led to claims they were vulnerable to self-censorship, with editors deferring to perceived concerns of publishers regarding their business interests. Mainland interests reportedly owned most bookstores in the SAR and restricted the sale of politically sensitive books.
Libel/Slander Laws: In March then chief executive C. Y. Leung sued LegCo member Kenneth Leung for defamation over remarks Kenneth Leung made about a HK$50 million ($6.4 million) payment the former chief executive received from an Australian engineering firm.
Actions to Expand Freedom of Expression, Including for the Media: In September the SAR lifted its ban on online-only media attending government press conferences.
The SAR government did not restrict or disrupt access to the internet or censor online content, although activists claimed central government authorities closely monitored their email and internet use. The internet was widely available and used extensively.
There were reports of politically motivated cyberattacks against private persons and organizations. In September hackers replaced the regular content on the prodemocracy political party Demosisto’s website with promainland government messages and images mocking Demosisto’s secretary general, Joshua Wong.
ACADEMIC FREEDOM AND CULTURAL EVENTS
Some suggested Hong Kong-based academics and cultural figures practiced self-censorship to preserve opportunities in the mainland.
In 2016 Hong Kong’s Tiananmen Museum closed after two years of operation. The museum had been the only museum in the country commemorating the 1989 Tiananmen Square massacre. According to CNN and Time, the Hong Kong Alliance, a prodemocracy group that operated the museum, stated the closure was due to pressure from the owners’ committee of the building, which made it difficult for the museum to operate by restricting visitor numbers, filing a lawsuit disputing the usage of the space as a museum, and forcing visitors to provide their names and personal information–a requirement that discouraged visitors from the mainland. The museum operators also cited high rent and other fundraising challenges but kept the museum’s exhibits and said they hoped to move to a new and bigger location in the future. They temporarily reopened the museum from April to June but still did not have a new permanent location.
Hong Kong-based international NGOs expressed concern about pro-Beijing media outlets’ sustained criticism of their activities, which the newspapers characterized as interference by “foreign forces.” NGO staff members reported that these efforts to discredit their work in the SAR made it difficult for the groups to continue their existing partnerships with academic institutions and their public outreach. NGOs also expressed concern about the mainland’s Foreign NGO Management Law, which went into effect on January 1, noting the law imposed onerous restrictions on their ability to operate and implement social services delivery, advocacy work, and aid services in the mainland. The law specifically defines Hong Kong-based organizations as covered by the law’s requirements.
The law provides for the freedoms of peaceful assembly and association, but government actions, including prosecutions of activists, increased the perceived risks associated with participating in political protest.
FREEDOM OF PEACEFUL ASSEMBLY
The law provides for freedom of peaceful assembly, and the government generally respected this right. Police routinely issued the required “letter of no objection” for public meetings and demonstrations–including those critical of the SAR and central governments–and most protests occurred without serious incident.
On June 4, tens of thousands of persons peacefully gathered without incident in Victoria Park to commemorate the 28th anniversary of the Tiananmen Square crackdown. The annual vigil and a smaller annual event in Macau were reportedly the only sanctioned events in China to commemorate the Tiananmen Square anniversary. Figures varied for participation in the annual July 1 prodemocracy demonstration, held on the anniversary of the 1997 transfer of sovereignty over Hong Kong to China. Police estimated 14,500 protesters; an independent polling organization estimated 27,000, and organizers claimed 60,000. Police did not interfere with the legally permitted rally.
Several government prosecutions of protesters and attempts to seek harsher penalties against protesters raised the perceived cost of protesting government policies, which could have a chilling effect on political protest in the SAR. For example, in 2016 authorities found prodemocracy activists Joshua Wong and Alex Chow guilty of participating in an illegal assembly. The charge arose after they led a group of persons over a fence into a closed SAR government complex where protests had traditionally been held at the start of the 2014 Occupy protests. In connection with the same event, prodemocracy activist Nathan Law was found guilty of inciting others to participate in an illegal assembly. Wong and Law were originally sentenced to perform 80 and 120 hours of community service, respectively, while Chow was given a suspended sentence of three weeks’ imprisonment. The government filed a timely appeal of the sentences, and Wong and Law completed their community service sentences while the appeal was pending.
On August 17, the Court of Appeal overturned the lower court’s sentences and ordered Wong, Law, and Chow to serve six, eight, and seven months in prison, respectively. The Court of Appeal argued the lower court’s sentences were inadequate and stiffer sentences were required to deter such acts in the future, which the court characterized as violent. Wong and Law were imprisoned from August through October, when they were released on bail, pending the outcome of their appeal. Chow was imprisoned in August and released on bail in November, also pending the outcome of his appeal. On August 20, tens of thousands of persons protested the prison sentences, which would bar the three from running in local elections for five years, according to SAR law. Some commentators claimed the SAR government sought stiffer penalties against the trio in order to stifle dissent and prevent the three defendants from running for office. Two UN special rapporteurs and prominent international lawyers expressed public concern the prison sentences were inconsistent with freedoms of expression and assembly. The SAR government denied any political motivation for seeking stiffer penalties against the trio and argued the cases were handled in accordance with the law. Wong, Law, and Chow appealed their sentences.
FREEDOM OF ASSOCIATION
SAR law provides for freedom of association, and the government generally respected it. Nonetheless, officials did not approve prodemocracy political party Demosisto’s application to register as a legal entity, even though the application had been pending for more than one year. The mainland Foreign NGO Management Law, which came into effect on January 1 and also applies to NGOs based in the SAR, imposes onerous restrictions on NGOs’ ability to operate in the mainland.
See the Department of State’s International Religious Freedom Report at www.state.gov/religiousfreedomreport/.
The law provides for freedom of internal movement, foreign travel, emigration, and repatriation, and the government generally respected these rights, with some prominent exceptions.
The government cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) and humanitarian organizations in providing protection and assistance to refugees, asylum seekers, stateless persons, or other persons of concern.
There continued to be claims the Immigration Department refused entry to a small number of persons traveling to the SAR for political reasons. In June, shortly before Chinese president Xi Jinping’s visit to the SAR, two Macau-based prodemocracy activists reported they were denied entry. In October Benedict Rogers, deputy chairman of the British Conservative Party’s Human Rights Commission, was refused entry to the SAR. The Immigration Department, as a matter of policy, declined to comment on individual cases. Activists and other observers contended that the refusals, usually of persons holding views critical of the central government, were made at the behest of mainland authorities.
Foreign Travel: Most residents easily obtained travel documents from the SAR government, although central government authorities in the past have not permitted some human rights activists, student protesters, and prodemocracy legislators to visit the mainland. Some students who participated in the 2014 protest movement previously alleged the central government’s security agencies surveilled the protests and blacklisted them.
PROTECTION OF REFUGEES
Refoulement: Under the “one country, two systems” framework, the SAR continued to administer its own immigration and entry policies and make determinations regarding “nonrefoulement” claims independently. The government’s Unified Screening Mechanism (USM) consolidated the processing of claims based on risk of return to persecution, torture, or cruel, inhuman, or degrading treatment or punishment. From 2009 to the end of December, 110 of the more than 15,000 nonrefoulement claims adjudicated were substantiated, according to government statistics. Also according to government statistics, at year’s end there were 5,899 nonrefoulement claims pending adjudication.
Persons wishing to file a nonrefoulement claim cannot do so while they have legally entered the SAR and must instead wait until they overstay the terms of their entry before they can file such a claim, which typically results in a period of detention followed by release on recognizance. Persons whose claims are pending are required to appear periodically before the Immigration Department.
Applicants and activists continued to complain about the slow processing of claims, which can take several years, a shortage of government-provided interpretation services, and limited government subsidies available to applicants. Activists and refugee rights groups also expressed concerns about the very low rate of approved claims, suggesting the government’s threshold for approving claims was far higher than other developed jurisdictions.
Access to Asylum: The SAR is not a signatory to the 1951 UN Refugee Convention or its 1967 protocol. Under the “one country, two systems” framework, these international agreements are not extended to Hong Kong even though the central government is a signatory. Persons whose nonrefoulement claims are substantiated through the USM do not obtain a status that allows them to permanently live and work in the SAR. Instead, they are referred to UNHCR for possible recognition as refugees and resettlement to a third country. Some nonrefoulement claimants had waited in the SAR for resettlement for years.
Employment: The government defines nonrefoulement claimants as illegal immigrants or “overstayers” in the SAR, and as such they have no legal right to work in the SAR while claims are under review.
Access to Basic Services: Persons with nonrefoulement claims under the USM were eligible to receive publicly funded legal assistance, including translation services, as well as small living subsidies. The children of nonrefoulement claimants could usually attend SAR public schools.
Section 3. Freedom to Participate in the Political Process
The Basic Law limits the ability of residents to change their government through free and fair elections. Article 45 of the Basic Law establishes as the “ultimate aim” direct election of the chief executive through “universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.” The residents of Hong Kong, the SAR government, and the PRC central government have vigorously debated the nature, scope, and pace of democratic and electoral reforms.
Voters directly elect 40 of LegCo’s 70 seats by secret ballot. Thirty-five seats are designated as “geographic constituencies” (GCs) and 35 as “functional constituencies” (FCs). All 35 GCs are directly elected, while only five of the FCs are directly elected. The remaining 30 FC seats are selected by a subset of voters from FCs representing various economic and social sectors, most of whom are supportive of the central government. Under this structure a limited number of individuals and institutions were able to control multiple votes for LegCo members. In 2016 the constituencies that elected these 30 FC LegCo seats consisted of 232,498 registered individual and institutional voters, of whom approximately 172,820 voted, according to the SAR’s election affairs office’s statistics. The five FC seats in the district council sector, known as “super seats,” were directly elected by the approximately five million registered voters who were not otherwise represented in another FC and therefore represented larger constituencies than any other seats in LegCo. The government has previously acknowledged the method of selecting FC legislators did not conform to the principle of universal suffrage, but it took no steps to eliminate the FCs during the year.
Under the Basic Law, LegCo members may not introduce bills that affect public expenditure, the political structure, or government policy; only the government may introduce these types of bills. The SAR sends 36 deputies to the mainland’s National People’s Congress (NPC) and had approximately 250 delegates in the Chinese People’s Political Consultative Conference–bodies that operate under the direction of the Chinese Communist Party and do not exercise legislative independence. The approval of the chief executive, two-thirds of the LegCo, and two-thirds of the SAR’s delegates to the NPC are required to place an amendment to the Basic Law on the agenda of the NPC, which has the sole power to amend the Basic Law.
Voters directly elected all 431 of the SAR’s district council seats in 2015 following the government’s elimination of appointed district council seats. Previously the chief executive used his authority to appoint 68 of the 534 members of the district councils, the SAR’s most grassroots-level elected bodies.
Elections and Political Participation
Recent Elections: In March the 1,194-member Chief Executive Election Committee, dominated by proestablishment electors, selected Carrie Lam to be the SAR’s chief executive. Lam received 777 of 1,163 valid votes. The central government’s State Council formally appointed her, and on July 1, President Xi Jinping administered Lam’s oath of office.
In December 2016 representatives of various commercial sectors, professions, religious organizations, and social service providers as well as political representatives elected the 1,194 electors who cast ballots in the chief executive election. Residents expressed concern these small-circle elections were open to participation by a very small number (230,000) of the SAR’s 7.5 million residents. Moreover, although the 2016 Election Committee election saw an historically high voter turnout of 46 percent and a record number of contested seats across industrial, professional, grassroots, and political sectors, local political observers noted that 300 members–approximately 25 percent–of the committee were elected without a poll or other transparent election process to represent 12 uncontested subsectors and one sub-subsector.
In September 2016 SAR residents elected representatives to the 70-member LegCo. The election, which saw a record high turnout of 2.2 million voters, was considered generally free and fair according to the standards established in the Basic Law. The government acknowledged that election observers and other residents filed approximately 1,200 petitions concerning election misconduct with the Elections Affairs Committee following the conclusion of the LegCo election. Promainland and proestablishment candidates won 40 of 70 LegCo seats, while prodemocracy candidates won 30, an increase over the 27 the opposition camp held from 2012 to 2016.
Political Parties and Political Participation: In July 2016 the government announced for the first time that all LegCo candidates must sign a confirmation form pledging their allegiance to the SAR and their intent to uphold the Basic Law, including three provisions stating that Hong Kong is an inalienable part of the PRC. Legal scholars and prodemocracy activists criticized the government’s use of the confirmation form, noting the LegCo had not approved changes to election procedures or the qualifications needed to run for legislative office. In August 2016 the government disqualified proindependence LegCo candidate Edward Leung, of the Hong Kong Indigenous party, from running in the election in the New Territories East District. An elections officer refused Leung’s candidacy even though Leung had signed the confirmation form and said he would drop his proindependence stance. Leung and another candidate filed judicial review applications charging that the use of the confirmation form was not in accordance with the SAR’s laws. Leung also filed an election petition in September 2016 alleging his disqualification from the race was unlawful.
In August the Court of Final Appeal upheld a November 2016 court ruling that disqualified Yau Wai-ching and Sixtus Leung, two opposition legislators-elect who used their oath-swearing ceremonies to make proindependence gestures, from serving as LegCo members because they improperly took their oath of office. The November 2016 ruling came after the NPCSC earlier that month issued an unsolicited interpretation of the Basic Law that preempted the ability of the SAR’s independent judiciary to rule on the matter. It marked the first time that the NPCSC issued such an interpretation while a SAR judge was still deliberating the case in question and the second time it had done so in the absence of a request from SAR authorities.
In December 2016 then chief executive Leung and then secretary for justice Yuen filed a legal challenge to the legitimacy of four other opposition legislators–veteran activist “Long Hair” Leung Kwok-hung, former Occupy protest student leader Nathan Law, university lecturer Lau Siu-lai, and university professor Edward Yiu–over the manner in which they took their oaths. In July the court granted the government’s request to disqualify the four legislators. Two of them filed appeals against their disqualification.
Asymmetric systemic obstacles make it harder for pandemocratic parties to secure a majority of seats in the LegCo or have one of their members become chief executive. Of the LegCo’s 70 members, 30 were elected by functional constituencies, most of which were supportive of the central government; representatives from 12 of these constituencies ran unopposed. Moreover, the central government and its business supporters provided generous financial resources to parties that supported the central government’s political agenda in the SAR, ensuring that these organizations would control the levers of government and senior positions. According to local press reports, several political groups expressed concern that the Central Government Liaison Office (CGLO) interfered with legislative campaigns, lobbying for pro-Beijing candidates and threatening or harassing others. In August 2016 Liberal Party candidate Ken Chow suspended his campaign for a LegCo seat, alleging CGLO affiliates had harassed him and threatened the safety of his family. The Independent Commission Against Corruption, the Liberal Party, and the SAR government undertook investigations into Chow’s allegations.
Participation of Women and Minorities: No laws limit participation of women in the political process, and they did participate. In March, Carrie Lam was elected to be the SAR’s first female chief executive.
There is no legal restriction against ethnic minorities running for electoral office, serving as electoral monitors, or participating in the civil service. 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, and members of ethnic minorities reported they considered themselves unrepresented. The government made efforts to increase the hiring of ethnic minorities by reducing the level of Chinese-language ability needed to qualify for some jobs.
Section 4. Corruption and Lack of Transparency in Government
The law provides criminal penalties for corruption by officials, and the government generally implemented the law effectively. Although the SAR continued to be viewed as relatively uncorrupt, there were isolated reports of government corruption during the year.
Corruption: In February former chief executive Donald Tsang was sentenced to 20 months in jail for misconduct while in public office in connection with a below-market lease. Tsang appealed the sentence.
Financial Disclosure: 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. The Civil Service Bureau monitors and verifies disclosures, which are available to the public. There are criminal and administrative sanctions for noncompliance.