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China's human rights practices in Hong Kong - 2003
U.S. Department of State
China Country Reports on Human Rights Practices - 2003
Released by the Bureau of Democracy, Human Rights, and Labor - February 25, 2004
A well-supervised police force under the firm control of civilian authorities maintained public order. An Independent Police Complaints Council, made up of public members appointed by the Chief Executive, monitored and reviewed the work of an office that investigated public complaints against the police. The 4,000 Chinese troops sent to Hong Kong in 1997 to replace the British military garrison have maintained a low profile and have not performed or interfered in police functions.
Hong Kong, with a free market economy, is an international trade, shipping, and finance center and is a principal platform for trade and investment with the PRC. The economy has suffered 6 years of deflation. However, despite the Severe Acute Respiratory Syndrome (SARS) outbreak, recovery since May led to an annual gross domestic product (GDP) growth rate of approximately 2.25 percent. Per capita GDP was approximately $24,000; the population was approximately 6.8 million.
The Government generally respected the human rights of residents, and the law and judiciary provided effective means of dealing with individual instances of abuse. Human rights problems that existed both before and after the handover included: Limitations on residents' ability to change their government and limitations on the power of the legislature to affect government policies; violence and discrimination against women; discrimination against ethnic minorities; restrictions on workers' rights to organize and bargain collectively; and trafficking in persons for the purposes of forced labor and prostitution. Despite the ban on the Falun Gong in mainland China, the Falun Gong remained legally registered and practitioners continued their activities in Hong Kong.
In September, the Government withdrew from legislative consideration proposed national security legislation required by Article 23 of the Basic Law. The withdrawal followed a series of large protests, including a July 1 demonstration in which approximately 500,000 persons participated, and intense public debate about the impact of such legislation on civil liberties and fundamental freedoms. Article 23 calls for the Government to draft and implement laws that criminalize subversion, secession, treason, sedition, and theft of state secrets, and to criminalize links with foreign political organizations that are harmful to national security. During the year, public demands also increased for the implementation of universal suffrage in the 2007 Chief Executive election and the 2008 Legislative Assembly election. In response, the Government announced that it would provide a timetable for public consultations by the end of the year. The Government's plan was to commence consultations early in 2004 and 2005 and enact necessary legislation in 2006. However, following consultations with the PRC Government, a timetable for public consultations was not announced at year's end.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including Freedom From:
a. Arbitrary or Unlawful Deprivation of Life
There were no reports of arbitrary or unlawful deprivations of life committed by the Government or its agents.
During the first 6 months of the year, there were three deaths in prison, which were determined to be suicides. An inquest into a 2001 case of death in police custody concluded that the cause of death was unknown.
There were no reports of politically motivated disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law forbids torture and other abuse by the police. There were allegations of assault by police officers during the year. The law stipulates punishment for those who violate these prohibitions. Disciplinary action can range from warnings to dismissal. Criminal proceedings may be undertaken independently of the disciplinary process. Allegations of excessive use of force are required to be investigated by the Complaints Against Police Office (CAPO), whose work is monitored and reviewed by the Independent Police Complaints Council (IPCC), a body composed of public members appointed by the Chief Executive.
During the year, CAPO received 427 allegations of assault by police officers against persons in custody and 267 allegations of assault against persons not in custody, out of a total of 42,051 arrests. Of the 427 allegations of assault by police officers against persons in custody, in 196 cases investigations were completed and endorsed by the IPCC, and none was substantiated: 126 were withdrawn, 54 were deemed "not pursuable," 13 were judged to be false, and 3 were judged "unsubstantiated." The remaining 231 cases were pending at year's end. Of the 267 allegations of assault against persons not in custody, there were 141 cases in which investigations were completed and endorsed by the IPCC, while none were substantiated: 86 were withdrawn, 33 were deemed "not pursuable," 1 was judged to be "no fault," 8 were judged to be false, and 13 were judged "unsubstantiated." The remaining 126 cases were pending at year's end. At year's end, in response to concerns about the police being responsible for investigating their own misconduct, the Government was drafting a bill to provide a statutory basis for the IPCC, which would allow it to set up its own secretariat, receive funding to hire its own permanent staff, and initiate investigations.
In 2001, six police officers accused of assaulting a television cameraman during interrogation were acquitted in District Court. An internal police disciplinary inquiry into the case was completed during the year. All of the officers received letters of warning in their service records and one of the six, a senior inspector, was convicted and issued a caution.
Prison conditions generally met international standards. Men and women were housed separately, juveniles were housed separately from adults, and pretrial detainees were held separately from convicted prisoners. For the first 6 months of the year, the average occupancy rate for Hong Kong's 24 prisons was 107 percent. Overcrowding was most serious in maximum-security prisons, which operated at an average occupancy rate of 126 percent. The Government continued its efforts to address the problem of prison overcrowding by remodeling existing buildings to provide space for additional prisoners and redistributing the prison population. In addition, completion of the Immigration Department's Detention Center in Tuen Mun in 2005 is expected to provide 400 additional places and eliminate the housing of immigration offenders in prison or detention facilities managed by the Correctional Services Department.
The Government permitted prison visits by human rights observers. Local justices of the peace regularly inspected prisons, and most of these visits were unannounced.
d. Arbitrary Arrest, Detention, or Exile
Common law, legal precedent, and the Basic Law provide substantial and effective legal protection against arbitrary arrest or detention, and the Government generally observed these provisions in practice. Suspects must be charged within 48 hours or released. In 2002, the average length of pre-conviction incarceration did not exceed 50 days.
Corruption was not a significant problem within the SAR's well-supervised police force, and police officers were subject to disciplinary review by CAPO and IPCC in cases of alleged misconduct (see Section 1.c.).
The law does not provide for, and the Government did not use, forced exile.
e. Denial of Fair Public Trial
The Basic Law provides for an independent judiciary, and the Government generally respected this provision in practice. The judiciary, underpinned by the Basic Law's provision that Hong Kong's common law tradition be maintained, generally provided citizens with a fair and efficient judicial process. Under the Basic Law, the courts may interpret those provisions of the Basic Law that address matters within the limits of the autonomy of the region. The courts also may interpret provisions of the Basic Law that touch on PRC central government responsibilities or on the relationship between the central authorities and the SAR, but before making final judgments on these matters, which are unappealable, the courts must seek an interpretation of the relevant provisions from the Standing Committee of the PRC's National People's Congress. The Basic Law requires that when the Standing Committee makes an interpretation of Basic Law provisions, the courts, in applying those provisions, "shall follow the interpretation of the Standing Committee." Judgments previously rendered are not affected. The National People's Congress' mechanism for interpretation is its Committee for the Basic Law, composed of six mainland and six Hong Kong members. The Hong Kong members are nominated by the Chief Executive, the President of the Legislative Council, and the Chief Justice. Human rights and lawyers' organizations long have expressed concern that this process, which circumvents the Court of Final Appeal's power of final adjudication, could be used to limit the independence of the judiciary or could degrade the courts' authority.
In a controversial 1999 "right of abode" case (concerning the right of certain persons to reside in Hong Kong), the Government, after losing the case in the Court of Final Appeals, sought a reinterpretation of relevant Basic Law provisions from the Standing Committee of the PRC's National People's Congress. This action raised questions about the independence and ultimate authority of the judiciary. After the controversy, the Government expressed its intention to make recourse to the NPC interpretation mechanism a rare and exceptional act, and there have been no such occurrences since the one instance in 1999.
The Court of Final Appeal is the SAR's supreme judicial body. An independent commission nominates judges; the Chief Executive is required to appoint those nominated, subject to endorsement by the legislature. Nomination procedures ensure that commission members nominated by the private bar have a virtual veto on the nominations. The Basic Law provides that, with the exception of the Chief Justice and the Chief Judge of the High Court, who are prohibited from residing outside of Hong Kong, foreigners may serve on the courts. In 2002, approximately 40 percent of judges were expatriates from other common law jurisdictions. Judges have security of tenure until retirement age (either 60 or 65, depending on the date of appointment).
Under the Court of Final Appeal is the High Court, composed of the Court of Appeal and the Court of First Instance. Lower judicial bodies include the District Court (which has limited jurisdiction in civil and criminal matters), the magistrates' courts (which exercise jurisdiction over a wide range of criminal offenses), the Coroner's Court, the Juvenile Court, the Lands Tribunal, the Labor Tribunal, the Small Claims Tribunal, and the Obscene Articles Tribunal.
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-court level, and the judiciary provided citizens with a fair and efficient judicial process.
Under corruption prosecution rules, there is a presumption of guilt in official corruption cases. Under the Prevention of Bribery Ordinance, a current or former government official who maintains a standard of living above that which is commensurate with his official income or who is in control of monies or property disproportionate to his official income is, unless he can satisfactorily explain the discrepancy, guilty of an offense. The courts have upheld this practice.
According to the Basic Law, English may be used as an official language by the executive, legislative, and judicial branches. For historical reasons and because of the courts' reliance on common law precedents, almost all civil cases and most criminal cases were heard in English. In recent years, the Government has developed a bilingual legal system. It has increased the number of officers in the Legal Aid Department proficient in Chinese and extended the use of bilingual prosecution documents and indictments. All laws are bilingual, with the English and Chinese texts being equally authentic. All courts and tribunals may operate in either Chinese or English. Judges, witnesses, the parties themselves, and legal representatives each may decide which language to use at any point in the proceedings.
Some human rights groups alleged that the Government has not protected vigorously enough the interests of Hong Kong residents arrested and imprisoned in mainland China. Hong Kong authorities stated that there is no agreement allowing them access to Hong Kong residents arrested or detained in mainland China, even after conviction. Under an agreement signed in 2000 and in effect since 2001, PRC and SAR public security authorities are required to notify each other of certain categories of detentions of each other's residents. A human rights group alleged that the Government has not sought information concerning Hong Kong residents convicted prior to 2001 and still serving sentences on the mainland. An estimated 500-1,000 Hong Kong residents were imprisoned in mainland China at year's end, including political prisoners such as Xu Zerong, a Hong Kong permanent resident teaching at universities in southern China who was sentenced in 2002 to 13 years in prison for "illegally providing state secrets" by sending confidential reference materials on the Korean War to a contact in Hong Kong.
There were no reports of political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The law prohibits arbitrary interference with privacy, family, home, and correspondence, and the Government generally respected these prohibitions in practice. Interception of communications was conducted under the Telecommunications Ordinance and the Post Office Ordinance. Wiretaps require high-level authorization for interception operations, but a court-issued warrant is not required. The Government did not release information regarding how often the Chief Executive used his powers to authorize telephone wiretaps and interception of private mail.
The Office of the Privacy Commissioner for Personal Data (PCO), established under the Personal Data (Privacy) Ordinance (PDPO), is tasked with preventing the misuse and disclosure of data such as medical and credit records. The PDPO also prohibits matching sets of personal data without the consent of the subject individual or the commissioner, although some government departments were exempted in order to combat social welfare abuse and tax evasion. Some violations of the PDPO constitute criminal offenses. In other cases, an injured party may seek compensation through civil proceedings. If the PCO believes that violations may continue or be repeated, it may issue enforcement notices to direct remedial measures. Between June 2002 and June 2003, the PCO investigated 1,111 complaints of suspected breaches of the ordinance, completing action on 1,016. The PCO found violations of the PDPO in 34 of these cases, with none resulting in prosecution. In 153 of the cases, contravention of the PDPO requirements was not established due to insufficient evidence, while 557 cases were resolved or rejected after preliminary inquiries. The remaining 272 cases were not pursued because complainants were unreachable or withdrew their complaints during the course of investigation. The PDPO is not applicable to PRC government organs in Hong Kong. At year's end, the Government was still considering whether it should be made applicable to PRC bodies. Under certain exemptions for purposes related to safeguarding the security, defense, or international relations of Hong Kong, and for the prevention, detection, or prosecution of a crime, Hong Kong authorities may be allowed to transfer personal data to a PRC body.
In 2002, the Government introduced a draft privacy code that sought to outlaw secret video cameras and monitoring of e-mail and phone calls in the workplace by employers. At year's end, legislation had not been passed.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The law provides for freedom of speech and of the press, and the Government generally respected these rights in practice. A wide range of views and topics appeared in the press, including articles critical of the PRC and Hong Kong SAR governments. In their annual report, released in June, the Hong Kong Journalists Association asserted that some journalists and news media practiced a degree of self-censorship, mainly in PRC-related reporting. Overall, the media has been outspoken in defending civil liberties. The Telecommunications Ordinance potentially allows limits on some speech and press freedoms by granting the Government wide-ranging powers to ban messages whenever it "considers that the public interest so requires." In practice, the Government has never invoked this law to limit freedom of speech.
The Basic Law's Article 23 requires the Government to enact legislation prohibiting treason, secession, sedition, subversion against the Central People's Government, and theft of state secrets, and to criminalize links with foreign political organizations that are harmful to national security. In 2002, the Government released a consultation document proposing guiding principles for the legislation. After the controversial legislation was introduced into the Legislative Council in February, the Government proposed a series of amendments to address public concerns from interested parties such as media and legal groups that the bill could restrict fundamental rights and freedoms. Of particular concern were the proposed extension of treason, sedition, secession, and subversion criminal offenses to permanent residents, without regard to nationality or legal domicile; the proposal to ban organizations affiliated with mainland political organizations that have been banned by the PRC on national security grounds; the proposal for extended emergency powers for the police; new uncertainty about the parameters of "unlawful disclosure" of state secrets; and other proposals perceived as potentially limiting freedom of speech and press. Opponents of the proposed legislation conducted a series of protests, including a July 1 demonstration in which approximately 500,000 persons participated to protest the Government's handling of the proposed legislation.
In response to the protests, the Government indefinitely postponed a second reading of the bill in July. In September, the Government withdrew the bill from the legislative process. At year's end, no timetable had been announced for reintroducing a draft bill to the Legislative Council.
In March, a political activist who burned the national flag during a 2002 demonstration was given a suspended sentence of 3 months in jail, in the SAR's first prosecution of a citizen for flag burning. Other persons have been convicted since the handover for altering or defacing flags, but no jail terms or suspended sentences were imposed in those cases.
Individuals may criticize the Government publicly or privately without reprisal, and many persons spoke freely to the media and used the media to voice their views. Political debate was vigorous, and numerous viewpoints, including stories and opinions critical of the SAR and PRC Governments and statements by leading Chinese dissidents and pro-independence Taiwan activists, were carried by the mass media, in public forums, and by political groups. The Secretary for Constitutional Affairs, however, did comment on a visit by two legislators to Taiwan to participate in a pro-Taiwan independence seminar, suggesting that legislators' overseas remarks should reflect the SAR's mainstream opinion.
During the year, newspapers published a wide variety of opinions, including opinions on Taiwan, Tibet, PRC leadership dynamics, Communist Party corruption, and human rights. There were some 15 daily newspapers, all privately owned in name although 4 were supported financially--and guided editorially--by the PRC (Wen Wei Po, Ta Kung Pao, the Hong Kong Commercial Daily, and the China Daily). The non-PRC-owned newspapers, hundreds of periodicals, four commercial television stations (broadcast and cable) and two commercial radio stations functioned with virtually no government control. One commercial radio station renewed its license without incident shortly after receiving an official warning from the Broadcast Authority regarding the content of one of its programs, which listeners perceived to have gone too far in insulting government officials on their handling of the SARS crisis. The station did not appeal the warning. International media organizations operated freely. Foreign reporters needed no special visas or government-issued press cards for Hong Kong.
China still requires some journalists to apply for journalist visas to make reporting trips to the mainland, but in 2002 the PRC Government somewhat eased those requirements, announcing that it would simplify visa application procedures and drop the requirement of a host organization for foreign journalists from Hong Kong, provided that their organizations have offices in Beijing, Shanghai, or Guangdong Province. All local journalists from Hong Kong can cover mainland stories, but must register with the Hong Kong Macau Affairs Office. Several Hong Kong publications were banned on the mainland, and the Next Group, a pro-democracy, tabloid-style, mass-market media group, was blocked from registering its reporters for mainland reporting. In August, a Radio Free Asia reporter was refused a journalism visa to cover multi-lateral talks in Beijing.
Despite regular coverage of sensitive subjects in print and in the broadcast media, professional journalist groups and NGOs asserted, often in the media, that media self-censorship continued. The Hong Kong Journalists Association (HKJA), for example, commented in a May report that self-censorship was a problem at Metro Finance radio, where an assignment editor was fired in 2002 after being ordered to tone down reports on the Chief Executive, the Falun Gong, pro-democracy activists, and the businesses of the station's owner, tycoon Li Ka-shing. The station's management said the dismissal was prompted by financial reasons rather than editorial policy. The HKJA reported that it was unable to determine whether self-censorship was a factor in the dismissal, though it could not be ruled out.
The government-owned Radio Television Hong Kong (RTHK) continued to enjoy the editorial independence granted to it in its framework agreement between the Government and the station's Director of Broadcasting. Local pro-PRC figures have called for the station to be more supportive of the PRC and Hong Kong Governments and for RTHK to conform to PRC political usage, for example by not referring to Taiwan leader Chen Shui-bian as "president" on the grounds that Taiwan is not a country.
There were no restrictions on the use of the Internet.
The Falun Gong was able to print flyers and other small materials in Hong Kong, but most of its publishing took place outside the SAR. One bookstore, owned by a practitioner, carried Falun Gong books.
The Basic Law provides for academic freedom, and the Government generally respected that freedom in practice. There was independent research, a wide range of opinions, and lively debate on campuses.
b. Freedom of Peaceful Assembly and Association
The Basic Law provides for freedom of assembly and the Government generally respected this right in practice. The Government routinely issued the required permits for public meetings and demonstrations.
Under the law, demonstration organizers must notify the police of their intention to demonstrate 1 week in advance (shorter notice is accepted when the Commissioner of Police is satisfied that earlier notice could not have been given) for a march involving more than 30 persons and for an assembly of more than 50 persons. The police must explicitly object within 48 hours; no reply indicates no objection. The post-handover provision in the Public Order Ordinance that empowered police to object to demonstrations on national security grounds never has been invoked. Appeals of a denial to demonstrate may be made to a statutory appeals board comprising members from different sectors of society. Both the board's proceedings and the police's exercise of power are subject to judicial review.
Since the handover, there have been over 13,600 public meetings and public processions. Approximately half of these demonstrations required notification. Since the handover, the police have objected to 21 demonstrations, 9 of which went ahead after the demonstration organizers altered their plans. In the first 6 months of the year, police objected to 1 demonstration, which was subsequently held after organizers changed their routes. Demonstrators have complained that demonstrations often were limited to "designated areas" where they received little public attention and that police sometimes outnumber demonstrators.
On July 1, approximately 500,000 people marched through central Hong Kong to protest the Government's proposed Article 23 national security legislation. On July 9, 50,000 people took part in a rally outside the Legislative Assembly to protest the national security legislation and demand universal suffrage, and on July 13, 20,000 people rallied to demand universal suffrage and greater democracy. These events were legally sanctioned and peaceful.
In addition to holding assemblies and marches on Hong Kong-related issues, groups continued to be free to demonstrate on issues of sensitivity in mainland China. On June 4, approximately 50,000 people attended the annual candlelight vigil to commemorate the anniversary of the 1989 massacre in Beijing's Tiananmen Square.
Falun Gong practitioners regularly conducted public protests against the crackdown on fellow practitioners in the PRC, holding daily protests in front of the Hong Kong offices of the Central Government. In September, an appeal hearing concluded for a group of Falun Gong practitioners who had been fined for obstruction in 2002 for refusing to remain in a designated demonstration area. At year's end, the group was awaiting the judges ruling. In February, Falun Gong practitioners were able to hold an annual international conference in the SAR.
The Basic Law provides for freedom of association, and the Government generally respected this right in practice. Since the handover, no applications for registration have been denied. From January through August, the Societies Licensing Office of the police registered 1,119 new organizations for a total of 8,402 registered since the 1997 handover.
Pro-Taiwan groups have expressed concern that the Societies Ordinance could be used to restrict political activity. The Societies Ordinance requires that new societies must apply for registration within 1 month of establishment. The Government may refuse registration if it believes that the refusal is necessary in the interests of national security, public safety, public order, or the protection of the rights and freedom of others. The Government also may refuse to register a political body that receives support from a foreign political organization or a Taiwan-based political organization.
c. Freedom of Religion
The Basic Law provides for freedom of religion, the Bill of Rights Ordinance prohibits religious discrimination, and the Government generally respected these provisions in practice.
The Government does not recognize a state religion but does grant public holidays to mark numerous special days on the traditional Chinese and Christian calendars, as well as the Buddha's birthday.
Religious groups are not required to register with the Government and are exempted specifically from the Societies Ordinance, which requires the registration of nongovernmental organizations. Some groups, such as the Falun Gong and various traditional Chinese meditation and exercise groups (known collectively as "qigong" groups), that do not consider themselves religions, have registered under the Societies Ordinance. Catholics freely and openly recognize the Pope as the head of the Catholic Church. The Vatican maintains a Diocese overseen by a local Bishop.
According to the Basic Law, the PRC Government has no authority over religious practices in the SAR. PRC representatives in the SAR and the two PRC-owned newspapers have criticized some religious and other spiritual groups and individuals. Local religious leaders also have noted that the Basic Law provision that calls for ties between local religious organizations and their mainland counterparts to be based on "nonsubordination, noninterference, and mutual respect" could be used to limit such ties. Similarly, the Catholic Bishop of Hong Kong continued to express concern that religious groups could be negatively affected by Article 23 laws.
During the year, Falun Gong, a spiritual movement that has explicitly stated that it is "not a religion," practiced freely and held regular public demonstrations against PRC policies. However, 80 overseas Falun Gong practitioners, mostly from Taiwan, were refused entry into Hong Kong to attend a conference in February (see Section 2.d.). Four of those practitioners filed a judicial review against the Immigration Department's decision to refuse entry. In May, the judge accepted their application to proceed with the case. At year's end, the group awaited further instruction from the court. In June 2002, over 90 foreign practitioners were also denied entry upon arrival at the Hong Kong international airport (see Section 2.d.). The number of practitioners in Hong Kong has reportedly dropped from approximately 1,000 to approximately 500 since the PRC government began its mainland crackdown in mid-1999.
Other qigong groups, including Xiang Gong and Yan Xin Qigong, also were registered as societies and practiced freely.
For a more detailed discussion, see the 2003 International Religious Freedom Report.
d. Freedom of Movement, Foreign Travel, Emigration, and Repatriation
The Basic Law provides residents freedom of movement within Hong Kong, freedom of emigration, and freedom to enter and leave the territory, and the Government generally respected these rights in practice, with some prominent exceptions. Most residents obtained travel documents freely and easily from the SAR Government. There were limits on travel to the mainland imposed by the PRC Government.
As was the case before the handover, the Taiwan passport is not recognized as valid for visa endorsement purposes.
Since the handover, several prominent overseas dissidents have been denied entry or visas to enter Hong Kong. In February, a group of 80 foreign Falun Gong practitioners were refused entry. In April 2002, exiled mainland dissident Harry Wu, who held foreign citizenship, was refused entry to Hong Kong, on the grounds of protecting Hong Kong's security. The Government asserted that the denial of Wu's entry was in accordance with the law. In June 2002, Wu was again denied a visa to come to Hong Kong, where he had been invited to address a seminar. Also in June 2002, over 90 foreign Falun Gong adherents who intended to stage protests during the fifth anniversary of the handover celebration were denied entry upon arrival at the Hong Kong international airport.
In August 2002, the Court of Final Appeals upheld the right of nonpermanent residents to return after leaving, a right that in practice had been treated as requiring case-by-case consideration.
Chinese authorities did not permit a number of Hong Kong human rights activists and prodemocracy legislators to visit the mainland.
The 1951 U.N. Convention Relating to the Status of Refugees and its 1967 Protocol does not extend to Hong Kong, and the SAR eliminated its temporary protection policy (extended only to Vietnamese) in 1998. On a case-by-case basis, the Director of Immigration has discretion to grant refugee status or asylum in cases of exceptional humanitarian or compassionate need, but the Immigration Ordinance does not provide foreigners any right to have their asylum claim recognized. The general practice is to refer refugee and asylum claimants to a lawyer or to the office of the U.N. High Commissioner for Refugees (UNHCR). Those granted refugee status, as well as those awaiting UNHCR assessment of their status, receive a subsistence allowance from the UNHCR, but are not allowed to seek employment or enroll their children in local schools. The UNHCR works with potential host country representatives in Hong Kong to resettle those few persons designated as refugees. Government policy is to repatriate all illegal immigrants, including those that arrive from the mainland, as promptly as possible. During the year, a total of 4,052 illegal PRC immigrants were repatriated to the mainland.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
Residents' right to change their government is limited by the Basic Law, which provides for the selection of the Chief Executive by an 800-person selection committee (composed of individuals who are either directly elected, indirectly elected, or appointed), the direct election of only 26 of 60 of Legislative Council members (to become 30 of 60 in legislative elections in 2004), and the inclusion of appointed members to the elected district councils. The approval of the Chief Executive, two-thirds of the legislature, and two-thirds of Hong Kong's National People's Congress delegates is required to place an amendment to the Basic Law originating in Hong Kong on the agenda of China's National People's Congress. The National People's Congress has the sole power to amend the Basic Law. Procedures for amendment or interpretations that originate in the mainland are unclear.
The Government is executive-led, with a two-tiered legislative system consisting of the Legislative Council and 18 district councils, and is staffed by a professional and independent civil service. The Basic Law provides for elections for Chief Executive in 2002 and 2007 by a selection committee of 800 local residents. The selection committee was made up of the 60 members of the Legislative Council, the 36 Hong Kong delegates to the National People's Congress, 41 representatives of Hong Kong members of the Chinese People's Political Consultative Conference, 40 representatives from religious groups, and 623 persons elected by the same approximately 180,000 voters (some representing organizations, others voting as individuals) who choose the functional constituency representatives of the Legislative Council. In 2002, C.H. Tung, unopposed, won his second 5-year term.
During the year, many citizens pressed the Government to enact procedural reforms needed to implement universal suffrage in the election of the Chief Executive in 2007 and Legco members in 2008. In response, the Government announced that it would provide a timetable for public consultations by the end of the year. The Government's plan was to commence consultations early in 2004 and 2005 and enact necessary legislation in 2006. However, following consultations with the PRC Government, a timetable for public consultations was not announced at year's end. The SAR Government did begin undertaking limited public consultations in late December through meetings with interested groups, public statements, and the creation of a web site for public input.
The Basic Law permits amendment of the Chief Executive selection process by a two-thirds majority of the Legislative Council, with the consent of the Chief Executive and the National People's Congress Standing Committee. Article 45 of the Basic Law states that "the ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures." Similarly, Article 68 of the Basic Law states that the "ultimate aim is the election of all the members of the Legislative Council by universal suffrage."
The members of the Legislative Council were elected in 2000 to 4-year terms; 24 members were elected directly from geographic districts through universal suffrage, 30 from functional (occupational) constituencies, and 6 by votes of the 800-person selection committee. Candidates who consider themselves pro-democracy advocates won 17 of the 24 seats elected on a geographic basis (including 1 in a December 2000 by-election) and 22 seats overall. In both the 1998 and 2000 Legislative Council elections, the functional constituencies were drawn more narrowly than the nine broad functional constituencies of the 1995 Legislative Council, reducing the total number of potential voters in functional constituencies from 1.15 million in 1995 to 180,000 in 1998.
The ability of the legislature to influence policy is limited substantially by Basic Law provisions that require separate majorities among members elected from geographical and functional constituencies in order to pass a bill introduced by an individual member. Another Basic Law provision prohibits the Legislative Council from putting forward bills that affect public expenditure, political structure, or government operations. The Chief Executive's written consent is required before bills affecting government policy may be introduced. The Government has adopted a very broad definition of "government policy" in order to block private member bills, and the President of the Legislative Council has upheld the Government's position. However, the Legislative Council's degree of popular representation and outspokenness gives it significant influence over the Government's policy positions.
The Executive Council (Exco) functions as the Chief Executive's cabinet. Exco includes 11 political appointees who run the 11 policy bureaus, and the Chief Secretary, Financial Secretary, and Justice Secretary, who are also political appointees. These 14 members are chosen by the Chief Executive and approved by the PRC Government. Exco also includes members of two political parties, a labor leader, and two other private citizens, also appointed by the Chief Executive. In July, the Liberal Party member of Exco resigned due to differences over Article 23 legislation. A different Liberal Party representative joined Exco in September.
In November, Hong Kong held its second post-handover District Council election, with a record turnout of over one million voters. Pro-democracy candidates made major gains, while the pro-Beijing Democratic Alliance for the Betterment of Hong Kong (DAB), Hong Kong's largest political party, suffered significant losses, leading to the DAB chairman's resignation. Following the election, there were increased calls for the Chief Executive not to exercise his authority to appoint additional District Councilors (up to 102 of 529), as has been done in the past. Nevertheless, the Chief Executive exercised his authority by appointing 102 District Councilors, the maximum number allowed under the District Councils Ordinance. According to the Ordinance, the District Councils are responsible for advising the Government on matters affecting: (1) the well-being of district residents; (2) the provision and use of public facilities; and (3) the use of public funds allocated for local public works and community activities.
In February, a village elections law was passed that requires the election of two village heads. Under this law, one village head represents indigenous residents (residents who are members of long-term local families) and deals with traditional affairs such as burial grounds, while the other leader handles general affairs. In July and August, after Government efforts to calm indigenous residents' resentments of this law's inclusion of non-indigenous candidates, 72 percent of registered rural voters turned out for a series of peaceful village elections.
Hong Kong sends 36 delegates to China's National People's Congress (NPC). In 2002, Hong Kong's NPC delegates were elected to a 5-year term by an NPC-appointed committee of 955 residents. Politicians and human rights activists have criticized the election process as undemocratic and lacking transparency.
The percentage of women in government and politics did not correspond to their percentage of the population, although larger numbers were seeking public office than ever before. Women held 11 of the 60 Legislative Council seats, and made up between 17 and 23 percent of membership in the major political parties. The President of the Legislative Council is a woman, as are the heads of several government departments. More than one-third of civil servants are women, and 2 of the 15 most senior Government positions were held by women. The Equal Opportunities Commission noted that women were a minority in government advisory bodies.
Minorities were also represented in senior civil service positions.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
A wide variety of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. These organizations had unrestricted contacts with the local community and with groups overseas. Government officials were generally receptive to, and respectful of, their views. Prominent human rights activists critical of mainland China also operated freely and maintained permanent resident status in Hong Kong, but overseas dissidents sometimes had difficulty gaining entry to the SAR. In addition, the U.S. Commission on International Religious Freedom postponed a planned visit to Hong Kong and China in August after the PRC Government told the Commission that the timing of the trip was too sensitive for the delegation to travel to Hong Kong. In December, the Commission postponed another trip to Hong Kong and China after the PRC Government insisted that the Commission not hold official meetings in Hong Kong.
Under the Basic Law, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights apply to Hong Kong. The PRC Government transmits Hong Kong's reports, mandated under these covenants, without editing, to the U.N. The SAR Government and several domestic NGOs have testified before several U.N. human rights committees, including the United Nations Human Rights Commission in Geneva. The hearings, including concerns of the Commission, have received widespread and balanced press coverage.
The Office of the Ombudsman has wide powers to investigate and report on grievances from members of the public as a result of administrative actions of the executive branch and other designated public bodies. The Ombudsman may publish investigation reports in which the identity of the complainant has been protected. In addition to responding to public complaints, the Ombudsman may initiate investigations. The Ombudsman may report to the Chief Executive if recommendations to the organizations under his jurisdiction have not been acted upon or if there are serious violations. The Chief Executive is bound by law to present such reports to the legislature. The Ombudsman (Amendment) Ordinance, passed in 2001, helped strengthen the independence of the Ombudsman by de-linking the office from government systems and processes. It empowered the office to set terms and conditions of appointment for staff and to have full powers to conduct its own financial and administrative matters.
The Ombudsman does not have oversight authority over the police, the Independent Commission Against Corruption, or the Office of the Privacy Commissioner for Personal Data, although it may investigate complaints of noncompliance with the code on access to information by government departments, including the police and the Independent Commission Against Corruption. With regard to election-related complaints, the Ombudsman only is empowered to investigate complaints made against the Registration and Electoral Office, not those made against the Electoral Affairs Commission.
Section 5 Discrimination Based on Race, Sex, Disability, Language, or Social Status
The Basic Law provides that all Hong Kong residents are equal before the law. The Bill of Rights Ordinance, which provides for the incorporation into law of the International Covenant on Civil and Political Rights as applied to Hong Kong, entitles residents to the civil and political rights recognized therein "without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." However, the ordinance binds only the Government, public authorities, and persons acting on their behalf; it does not bind private persons or entities. Three pieces of anti-discrimination legislation--the Sex Discrimination Ordinance, the Disability Discrimination Ordinance, and the Family Status Discrimination Ordinance--have made it illegal for any person or entity (public or private) to discriminate on the grounds of sex, marital status, pregnancy, disability, or family status, and prohibits behavior such as sexual harassment, harassment or vilification on the grounds of disability, and discriminatory advertising. Persons with HIV/AIDS are protected from discrimination under the Disability Discrimination Ordinance. Such persons can take legal action on their own or seek assistance from the Equal Opportunity Commission (EOC) through the formal complaint process.
The EOC was established in 1996 to work toward the elimination of discrimination and to promote equality of opportunity with specific reference to gender, disability, and family status. In August, the Government chose a new chairperson for the EOC, leading some observers to assert that the Government was dissatisfied with the former chairperson's willingness to challenge the Government for its handling of some discrimination issues. In November, the new Chairperson resigned amidst allegations of mishandling a personnel issue. In December, the government announced a new, interim Chairperson, to serve a 1-year, provisional term.
At year's end, the Government was in the process of drafting legislation prohibiting racial discrimination. Press reports during the year continued to identify examples of strong societal prejudice against minority groups and newly arrived mainland Chinese migrants.
During the year, the EOC received 1,032 total complaints for investigation and conciliation. The Commission concluded 923 cases, which included cases from previous years. Of these, 485 cases were discontinued for various reasons, including withdrawal by the complainant, agreement reached before an investigation was completed, and a lack of substance. Of the remaining concluded cases, 233 cases were successfully conciliated. Legal assistance was available for unsuccessful complainants.
Violence against women remained a problem, particularly among new immigrants from the mainland. The Domestic Violence Ordinance allows a woman to seek a 3-month injunction, extendable to 6 months, against her husband. Domestic violence also may be prosecuted as common assault. The Government enforced the law and prosecuted violators, but sentences were generally lenient, consisting only of injunctions or restraining orders. During the first half of the year, there were 1,716 cases of domestic violence reported to the Social Welfare Department, which received reports of domestic violence from the police as well as from social workers, the Health Department, and volunteer organizations.
Cultural factors and inadequate information about available assistance and resources resulted in many cases of spousal abuse going unreported. In 2001, the Government established a Women's Commission to address women's concerns in a comprehensive and systematic manner. During the year, the Government continued to fund programs such as family life education counseling, a hotline service, temporary housing, legal aid, and child protective services. It also initiated public education and media programs to promote public awareness and encourage early seeking of professional assistance.
There were 70 cases of rape reported to the police during the year and 95 in 2002. Underreporting was a serious problem. The 2002 passage of the Statute Law (Miscellaneous Provisions) Bill made marital rape a crime. In July, the legislature passed an amendment to the Crimes Ordinance expressly clarifying that the term "unlawful sexual intercourse" can be applied both outside and inside the bounds of marriage. Indecent assault cases reported to the police totaled 656 in the first 8 months of the year.
Prostitution is not illegal, but there are laws against activities such as causing or procuring another to be a prostitute, living on the prostitution of others, or keeping a vice establishment. Some women working in the sex industry have been trafficked to Hong Kong (see Section 6.f.).
The Sex Discrimination Ordinance prohibits sexual harassment of women seeking employment or already working in an organization. The Equal Opportunities Commission reported 130 sexual harassment complaints during the year, with 79 such complaints reported in 2002. A joint Government and NGO survey conducted in 2000 suggested that sexual harassment was seriously underreported.
Women faced discrimination in employment, salary, welfare, inheritance, and promotion. In August, a Government survey revealed that men earned an average of 26 percent more than women; the pay gap was only 20 percent in 2001. These figures excluded the salaries of foreign domestic workers. The press carried occasional stories of women alleging discrimination in the workplace.
Women entered professional fields, including sciences and engineering, law, teaching, accounting, social sciences, health, and medicine, in growing numbers. In 2001, the ratio of male to female professionals employed in these fields was 130,900 to 63,700; the ratio in 2002 was 126,700 to 67,600; the ratio in the third quarter of 2003 was 131,400 to 65,500. Female judicial officers and judges made up approximately 20 percent of the judiciary. In the Legislative Council, women held 11 of the 60 seats. Women held 20 percent of the most senior government positions and 24 percent of the senior policy level positions in the civil service. Women were disproportionately represented in the lower echelons of the work force.
The law treats men and women equally in inheritance matters, although women still faced discrimination based on traditional practices, such as in the inheritance of homes in rural areas of the New Territories.
During the year, the Women's Commission, which was established in 2001, introduced a gender mainstreaming analytical tool to facilitate gender sensitive policy analysis, published a booklet on empowerment practices, cultivated female candidates for government advisory and statutory bodies, launched a capacity building program, ran TV and radio campaigns, and established partnerships with NGOs to advance women's interests.
During the year, the Government worked to finalize Hong Kong's second report under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to the U.N.
The Government is committed firmly to children's rights and welfare through well-funded systems of public education, medical care, and protective services. The Education Department is committed to providing schooling for children between 6 and 15 years of age and provides placement services for non-Chinese speaking children. Education is free and compulsory through grade nine. The Government supported programs for custody, protection, day care, foster care, shelters, small group homes, and assistance to families.
Subsidized, quality medical care is available to all children who are residents.
In July, legislation came into effect that raised the age of criminal responsibility for children from 7 to 10 years. During the year, there were 148 youths under the age of 16 who were incarcerated: 37 in prison, 13 in training centers, 51 in detention centers, 44 in rehabilitation centers, and 3 in drug addiction treatment centers.
Statistics on the problems of child abuse and exploitation were limited. During the year, there were 1,028 child abuse cases reported to the police: 417 involved physical abuse and 611 involved sexual abuse. The Government reported 1,044 cases in 2002.
Effective in December, the Prevention of Child Pornography Ordinance criminalizes the making, production, distribution, publication, advertising, and possession of child pornography. It also prohibits the procurement of children for making pornography, extends the application of certain sexual offense provisions to acts committed against children outside of Hong Kong, and prohibits any arrangement or advertising relating to commission of those acts.
The Government provided parent education programs in all 50 of the Department of Health's Maternal and Child Health Centers and has revamped its child health and development program to include parenting skills believed to be important in preventing child abuse. The Social Welfare Department also commissioned research on domestic violence, including child abuse. The police maintained a child abuse investigation unit to improve the treatment of victims, and a witness support program helped child witnesses in need. A Child Care Center Law helped to prevent unsuitable persons from providing childcare services and facilitated the formation of mutual help childcare groups. There are substantial legal penalties for mistreatment or neglect of minors.
Persons with Disabilities
Discrimination against the physically and mentally disabled persisted in employment, education, and the provision of some public services. The Disability Discrimination Ordinance called for improved building access and sanctions against those who discriminate, and the amended Buildings Ordinance updated design requirements. However, despite inspections and occasional closure of noncompliant businesses, access to public buildings (including public schools) and transportation remained a serious problem for persons with disabilities. Advocates complained that limited access for persons with disabilities at polling stations made voting difficult.
The Government offered an integrated work program in sheltered workshops and provided vocational assessment and training. No comprehensive statistics were available on the number of persons with disabilities in the work force, but the last government survey conducted in 2000 estimated that there were approximately 269,500 persons with one or more disabilities, including 225,600 persons with physical disabilities and 52,700 with mental disabilities. However, a consortium of organizations representing persons with disabilities reported in 2002 that approximately 700,000 residents were disabled, and about half were able to work. According to government statistics, of the 269,500 persons with disabilities, 52,500 were employed and 59,700 were considered "economically active," including small business owners and street vendors. As of October, there were 3,398 persons with disabilities employed as civil servants in a total civil service work force of 170,605 (approximately 2 percent of all civil servants). During the first 8 months of the year, the Labor Department's Selective Placement Division found jobs for 1,612 of 3,065 disabled job seekers. Approximately 9,860 students in a school population of 850,000 (1.16 percent) were disabled. Of these, 3,234 were in mainstream schools where they received special education services.
In 2001, the U.N. Committee on Economic, Social and Cultural Rights (UNCESCR) recommended that the Government undertake a comprehensive review of mental health policy and adopt effective measures to ensure that persons with mental illness enjoy the right to adequate and affordable health care. The Committee also noted its concern over the Government's "apparent lack of initiative" to undertake public education to combat discrimination against those with mental disabilities. During the year, the EOC continued to respond by undertaking a variety of activities to address discrimination against persons with disabilities, including sponsoring youth education programs, distributing guidelines and resources for employers, carrying out media campaigns, and co-sponsoring seminars and research.
Human rights groups, legislators, the UNCESCR, and the UNCERD continued to call for laws specifically targeting racial discrimination in the private sector. At year's end, the Government was drafting anti-racial discrimination legislation.
The Government's non-legally binding "Code of Practice for Employers," put into place in 2001 and designed to prevent discrimination, states that race, among other factors, should not be considered when hiring employees. Since its establishment in July 2002, the Government's Race Relations Unit has funded numerous projects promoting racial harmony; published guidebooks for migrant workers; provided newspapers and periodicals in minority languages, such as Bahasa Indonesia, Nepalese, Tagalog, and Vietnamese; established a hotline for enquiries and complaints; provided education kits for teachers; and produced posters, pamphlets, and souvenirs promoting racial harmony.
Minorities, who make up approximately 5.1 percent of the population, were well represented in the civil service and many professions. There were allegations of racial discrimination in such areas as private sector employment, admission to public restaurants, placement in public schools, treatment in public hospitals, apartment rentals, and acceptance to institutions of higher education. Foreign domestic workers, most of whom are from the Philippines and Indonesia, were particularly vulnerable to discrimination. An Indonesian Migrant Workers Union was established in 2000 to unite Indonesian domestic helpers throughout Asia to protect members from abuse and exploitation. The organization served the approximately 76,000 Indonesian domestic helpers who work in the SAR. Similar organizations worked for the interests of Philippine domestic helpers, of whom there were approximately 129,000.
Section 6 Worker Rights
a. The Right of Association
The law provides for the right of association and the right of workers to establish and join organizations of their own choosing. Trade unions must be registered under the Trade Unions Ordinance. The basic precondition for registration is a minimum membership of seven persons. The Trade Unions Ordinance does not restrict union membership to a single trade, industry, or occupation. The Government did not discourage or impede the formation of unions. Trade unions were independent of political parties and the Government.
During the year, 29 new unions were registered, while 6 were deregistered; there were 689 registered trade unions. At the end of 2002, over 22 percent of the 3,054,400 salaried employees and wage earners belonged to a labor organization.
The Employment Ordinance includes provisions that protect against anti-union discrimination. Violation of the anti-union discrimination provisions is a criminal offense with a maximum fine of $12,800 (HK$100,000). Employees who allege such discrimination have the right to have their cases heard by the Labor Relations Tribunal. The Tribunal may order reinstatement of the employee, subject to mutual consent of the employer and employee. The Tribunal may award statutory entitlements (severance pay, etc.) and compensation. The maximum amount of compensation is $19,230 (HK$150,000). Some labor activists have complained in the past that the Labor Tribunals tended to push conciliation rather than issue orders.
The Basic Law commits the SAR to 41 International Labor Organization (ILO) conventions, and the Government has amended labor legislation and taken administrative measures to comply.
The Employment and Labor Relations (Miscellaneous Amendments) Ordinance permits the cross-industry affiliation of labor union federations and confederations and allows free association with overseas trade unions. Notification of the Labor Department within 1 month of affiliation is required.
b. The Right to Organize and Bargain Collectively
In 1997, the pre-handover Legislative Council passed three laws that greatly expanded the collective bargaining powers of workers, protected them from summary dismissal for union activity, and permitted union activity on company premises and time. The new ordinances would have enabled full implementation of ILO Conventions 87, 98, and 154. However, in 1997, after consultation with the Labor Advisory Board, the Provisional Legislature repealed the Employee's Right to Representation, Consultation, and Collective Bargaining Ordinance and the Employment (Amendment) Ordinance, and amended the Trade Union (Amendment) Ordinance. The repeals removed the new legislation's statutory protection against summary dismissal for union activity; the Government asserted that existing law already offered adequate protection against unfair dismissal arising from anti-union discrimination. In 2001, the U.N. Committee on Economic, Social and Cultural Rights expressed concern over the absence of protection against unfair dismissal.
The 1997 Employment and Labor Relations (Miscellaneous Amendments) Ordinance removed the legal stipulation of trade unions' right to engage employers in collective bargaining. The ordinance bans the use of union funds for political purposes, requires the Chief Executive's approval before unions can contribute funds to any trade union outside of the SAR, and restricts the appointment of persons from outside the enterprise or sector to union executive committees. In a few trades such as tailoring and carpentry, wage rates were determined collectively in accordance with established trade practices and customs rather than a statutory mechanism, but collective bargaining was not practiced widely. Unions were not powerful enough to force management to engage in collective bargaining. The Government did not engage in collective bargaining with civil servants' unions but merely "consulted" with them.
The Workplace Consultation Promotion Unit in the Labor Department facilitated communication, consultation, and voluntary negotiation between employers and employees. Tripartite committees for each of nine sectors of the economy included representatives from trade unions, employers, and the Labor Department.
Work stoppages and strikes are permitted; however, there are some restrictions on this right for civil servants. Although there was no legislative prohibition of 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.
There was 1 strike involving 150 working days lost (300 employees struck for a half day) during the year.
There were no export processing zones.
c. Prohibition of Forced or Bonded Labor
The law prohibits forced or bonded labor. The law does not specifically prohibit forced or bonded labor by children. There were no reports that such practices occurred.
d. Status of Child Labor Practices and Minimum Age for Employment
The Employment of Children Regulations prohibit employment of children under the age of 15 in any industrial establishment. Children 13 and 14 years of age may be employed in certain non-industrial establishments, subject to conditions aimed at ensuring a minimum of 9 years' education and protecting their safety, health, and welfare. To enforce compliance with the regulations, the Labor Department conducted regular workplace inspections. In the first 8 months of the year, the Labor Department conducted 103,079 inspections and discovered 6 violations of the Employment of Children Regulations, resulting in the assessment of $2,307 (HK$18,000) in fines. Work hours for young persons 15 to 17 years of age in the manufacturing sector remain limited to 8 hours per day and 48 hours per week between 7 a.m. and 7 p.m. Overtime is prohibited for all persons under the age of 18 in industrial establishments. Employment in dangerous trades is prohibited for persons under 18 years of age.
e. Acceptable Conditions of Work
There is no statutory minimum wage except for domestic workers of foreign origin. Aside from a small number of trades where a uniform wage structure existed, wage levels customarily are fixed by individual agreement between employer and employee and are determined by supply and demand. Some employers provided workers with various kinds of allowances, free medical treatment, and free subsidized transport. The average wage generally provided a decent standard of living for a worker and family. Two-income households were the norm. In 2001, the UNCESCR expressed concern over the lack of adequate regulation on a statutory minimum wage, working hours, paid weekly rest, rest breaks, and compulsory overtime. As of year's end, the Government had not taken any steps to formulate such regulations.
The minimum wage for foreign domestic workers was approximately $419 per month (HK$3,270). The standard workweek was 48 hours, but many domestic workers worked far longer hours. The standard contract law 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 provide a decent standard of living. Foreign domestic workers are subject to deportation if dismissed. There were credible reports of such workers illegally being forced to accept less than the minimum wage and unacceptable living conditions. During the first 8 months of the year, there were two cases of foreign domestic workers successfully taking their employers to court for mistreatment. In both cases, the employers were convicted and fined.
The Occupational Safety and Health Branch of the Labor Department is responsible for safety and health promotion, enforcement of safety management legislation, as well as policy formulation and implementation.
The Factories and Industrial Undertakings Ordinance, the Occupational Safety and Health Ordinance, the Boilers and Pressure Vessels Ordinance, and their 35 sets of subsidiary regulations regulate safety and health conditions. During the first half of the year, the Labor Department conducted 52,848 inspections of workplaces and issued 1,102 summonses, resulting in a total of $1,779,076 in fines (HK$13,876,800). Worker safety and health has improved over the years, but serious problems remain, particularly in the construction industry. During the first 4 months of the year, there were 9,459 occupational injuries, of which 4,124 were classified as industrial accidents. There were six fatal industrial accidents. Employers are required under the Employee's Compensation Ordinance to report any injuries sustained by their employees in work-related accidents. There is no specific legal provision allowing workers to remove themselves from dangerous work situations without jeopardy to continued employment.
f. Trafficking in Persons
There is no law prohibiting trafficking in persons; however, there are various laws and ordinances that allowed law enforcement authorities to take action against traffickers. Hong Kong was a point of transit and destination for persons trafficked for sexual exploitation and forced labor. It was difficult for authorities to identify trafficking victims among the larger group of illegal immigrants.
Hong Kong was a transit point for some persons trafficked from China and Southeast Asian nations to third countries, despite active efforts by the SAR Government to stop such activities. The most common method used to attempt to smuggle persons through the SAR employed forged or illegally obtained travel documents to move through the airport. During the first 8 months of the year, authorities apprehended 2,101 persons with forged travel documents.
Some women have been lured to Hong Kong with false promises of legitimate employment and forced or coerced to work as prostitutes. A Hong Kong University preliminary study of trafficking of women to Hong Kong for the purposes of prostitution found reports of 39 such cases from 1990 to 2000. Large numbers of illegal immigrant women from the mainland engaged in prostitution with the reported assistance of organized criminal groups.
Prostitution is legal, but there are laws against some related activities that make prostitution illegal in certain circumstances (see Section 5, Women). The authorities sought to combat illegal prostitution by nonresidents through strict immigration controls and by arresting and prosecuting illegal prostitutes and their employers. In the first 8 months of the year, 6,296 nonresident women prostitutes and a much smaller number of their employers were arrested. Most of those arrested were deported rather than formally charged. The Crimes Ordinance stipulates that a person who controls another person for purposes of prostitution can, upon conviction and indictment, be imprisoned for 14 years. A person who knowingly lives wholly or in part on the earnings of prostitution of another can be sentenced to 10 years' imprisonment. During the year, 119 persons were convicted of these offenses, and in 2002, 56 people were convicted. The majority of those convicted were sentenced to immediate imprisonment.
Persons also were trafficked to the SAR for labor purposes, including domestic labor. There continued to be reports of foreign domestic workers, particularly from Indonesia and India, recruited abroad and brought to Hong Kong only to find that the terms of their employment were not what they had agreed to or were not in compliance with domestic worker labor laws. Some recruitment agencies allegedly have conspired with employers to pay the workers significantly less than the minimum wage, charge excessive fees, require excessively long working hours, and take workers' passports from them upon arrival.
Provisions in the Immigration Ordinance, the Crimes Ordinance, and other relevant laws enabled law enforcement authorities to take action against trafficking in persons. The courts can impose heavy fines and prison sentences for up to 14 years for such activities as arranging passage of unauthorized entrants into Hong Kong, assisting unauthorized entrants to remain, using or possessing a forged, false or unlawfully obtained travel document, and aiding and abetting any person to use such a document. The Security Bureau has policy responsibility for combating migrant trafficking and oversees the police, customs, and immigration departments, which are responsible for enforcing antitrafficking laws. Law enforcement officials received specialized training on handling and protecting victims and vulnerable witnesses, including victims of trafficking.
Legal aid was available to those who chose to pursue legal proceedings against an employer, and immunity from prosecution was often made available to those who assisted in the investigation and prosecution of traffickers. An array of social services provided by the Social Welfare Department and local NGOs were available to victims of trafficking. The Government did not provide funding to foreign or domestic NGOs for services to victims. The Government's prevention efforts included providing pamphlets to workers about their rights; the pamphlets were widely distributed and were published in a wide range of languages.
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