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HONG KONG One of the tests of a good prison system is the extent to which it has
effective mechanisms in place to monitor conditions and report abuses.(162) In
Hong Kong, there is a superficial profusion of prison monitoring bodies.
Prisoners' grievances may, in principle, be aired before a variety of
audiences, including the CSD's internal bodies, visiting justices of the
peace, the office of the ombudsman, and the courts. Undoubtedly, the oversight
provided by these bodies aids in preventing abuses and keeping the system in
good shape. The Human Rights Watch/Hong Kong Human Rights Monitor delegation
found, however, that for a number of reasons the protection provided by these
bodies is incomplete. Although the existing system with regard to monitoring falls short of the
ideal, it does have some extremely praiseworthy aspects. Most notably, all of
the territory's penal facilities are replete with announcements informing
prisoners of their right to complain. These announcements are found in all
areas of the prisons, including punishment cells, and are translated into
languages spoken by almost all prisoners (English, Chinese, and
Vietnamese).(163)If you have any complaint, you can approach the Superintendent
or any staff on duty in the institution. Also, you may approach any Senior
Officer visiting the institution or, if you wish, direct your complaint to the
Complaints Investigation Unit of this department, the Office of the Ombudsman or
the Office of Members of the Legislative Council. In the delegation's
view, these announcements are a healthy reminder to both prisoners and staff
that the prisons are not closed to outside scrutiny. Another important innovation is the newly enacted rule by which all
correspondence between prisoners and "specified persons" -- which include
legislators, justices of the peace, the ombudsman, and various other
governmental authorities -- cannot be read by CSD staff, and cannot even be opened
to check for contraband except in the presence of the prisoner.(164) The CSD has two monitoring bodies within its Inspectorate and Management
Services Division. The Inspection Unit (IU) is responsible for monitoring
departmental compliance with the relevant ordinances, rules and departmental
policies; it conducts regular and ad hoc inspections of penal facilities. In
1995, it conducted a total of forty-six inspections.(165) The Complaints
Investigation Unit (CIU), which consists of nine investigators and two
supervisory staff, is responsible, among other things, for investigating
prisoners' complaints of abuse or mistreatment. It received 181 complaints
from prisoners in 1996, but found only four to have merit.(174) Although
without more information it is impossible for the Human Rights Watch/Hong Kong
Human Rights Monitor delegation to reach any conclusions about the validity of
the particular cases that were dismissed, we note that four out of 181 cases is
a very low substantiation rate. The record from past years is comparable.(167) Regardless of the seriousness with which these bodies approach their
responsibilities, our experience convinces us that internal departmental
monitoring of prison conditions is inherently insufficient. First, fearing
retaliation, prisoners often hesitate to complain to internal bodies of
mistreatment by prison staff. Given the adversarial atmosphere that tends to
reign in the prison context, they assume that such bodies are biased in favor of
departmental staff. Second, whether the problems found are serious or
relatively trivial, outside bodies are freer to criticize and, if necessary, to
draw public attention to abuses. The pressing need for transparency and
accountability in the operation of prisons militates in favor of outside
oversight.(168) Justices of the peace (JPs) are counted as the primary mechanism for outside
monitoring of Hong Kong's prisons. Appointed by the Governor, JPs enjoy an
array of formal powers, although their main practical function is to visit
prisons and other institutions.(169) The job of JP is not a full-time
occupation, but rather more of an honorary post. JPs include both government
officials, known as official JPs, and members of the public, known as unofficial
JPs. According to the Prison Rules, each prison is to be visited by two justices
of the peace (one official and one unofficial) every fifteen days.(170)
Training centers, detention centers, and drug addiction treatment centers, in
contrast, receive JP visits once a month. Within this prescribed period, JPs
have considerable flexibility to choose the date and time of their visits, and
they can arrive without giving prior notice. JPs normally receive a
fifteen-minute to half-hour orientation from the facility's superintendent,
then they tour the facility in the company of the superintendent or a
high-ranking officer. Although the amount of time spent at the facility varies
according to its size and the JPs' preferences, they normally spend between
one and a half to three hours per visit. The Human Rights Watch/Hong Kong Human Rights Monitor delegation found
serious defects in the approach and methodology of Hong Kong's system of JP
visits. To begin with, because JPs have no specific training or experience in
prison matters, they are ill-prepared to delve beneath the surface in
investigating conditions. In addition, their visits are largely overseen by the
prison authorities. One knowledgeable observer, commenting on this problem,
described the JPs' prison tours as "staged visits."(171) Indeed,
the Prison Rules specifically mandate that a high-ranking officer accompany the
JPs around the prison and "bring before them" any prisoners wishing to
speak to them.(172) Although a few prison officials stated, when pressed on
this point, that the JPs might if they preferred speak with prisoners privately,
it is quite clear that the normal practice is for JPs to speak with prisoners in
the presence of prison officials.(173) The announcements posted in the prisons
do mention the possibility of private interviews with JPs. They say, however,
that such interviews "can be arranged by the Superintendent." To
request the superintendent to arrange a private interview would, of course, draw
great attention to the prisoner. Given this fact, it is unsurprising that
public interviews are the standard procedure. The lack of confidential communications between prisoners and JPs flies in
the face of the requirements of the Standard Minimum Rules, which state that
during prison inspections, "[t]he prisoner shall have the opportunity to
talk to the inspector or to any other inspecting officer without the director
[of the prison] or other members of the [prison] staff being present."(174)
While many prison officials seem not to have contemplated the possibility that
prisoners and JPs might speak to each other privately, others are openly hostile
to the idea. One superintendent, when asked why this is not the normal
practice, stated bluntly that "it has to do with who is running the prison.
The VJ [visiting justice of the peace] is not running the prison."(175) At the close of their visit, the JPs write up their comments in a log book,
describing their impressions of the prison and any complaints made to them. The
Human Rights Watch/Hong Kong Human Rights Monitor viewed these comments at every
facility that we visited. We found them to be brief and almost uniformly
uncritical. At High Island Detention Centre, for example, a facility that the
delegation found to be in serious need of improvement, we read with surprise the
JPs' comments of only one month earlier. In what, to the delegation, was
an enormous understatement, the JP noted: "The sanitary conditions were not
entirely satisfactory . . . [but] overall, the centre was in good order."(176) Finally, the JP system suffers from a serious lack of continuity and
follow-through. Instead of repeat visits by the same inspector over a period of
time, which would permit that person to evaluate whether conditions were
improving and recommended improvements were being implemented, every fifteen
days a different set of JPs visits. The Office of the Ombudsman is charged with "redressing grievances and
addressing issues arising from maladministration in the public sector."(177)
This monitoring and investigative body has existed for some time, but it only
quite recently became active in the prisons. While the ombudsman had received
scattered complaints from prisoners in the past -- from July 1995 to June 1996, for
example, he received sixty-six prisoners' complaints -- the number of
complaints received rose significantly after July 1996, when he initiated a
campaign to increase inmates' awareness and access to the office. At that
time the CSD, acting on the ombudsman's suggestion, began posting
announcements in the prisons informing inmates of their right to lodge
complaints with the ombudsman, and making confidential aerograms available to
them for this purpose.(178) At our meeting with the deputy ombudsman, the Human Rights Watch/Hong Kong
Human Rights Monitor delegation was informed that the ombudsman's office
had received some 200 complaints from prisoners since July 1996.(179) With a
prison team of five investigators, the ombudsman has the power of direct
investigation, and can even demand official statements under oath. The
ombudsman has a limited mandate to hear complaints: most notably, they cannot
involve a crime (thus no cases of excessive force by guards), and they must be
submitted by the prisoners themselves, not by relatives. The deputy ombudsman was unable to give the delegation any details regarding
the 200 cases received, but he did describe the procedures for handling
cases.(180) After ascertaining whether the complaint falls within the office's
jurisdiction, it is normally referred to the CSD through an internal complaint
handling procedure. Attempts are made -- usually successfully -- to resolve the
complaint at this level.(181) If, however, the complaint cannot be
satisfactorily resolved and it appears that an injustice has occurred, then the
ombudsman's office undertakes an in-depth investigation that culminates in
a judgment and recommendations. If these recommendations are not acted upon,
the ombudsman may submit a report to the governor. The Human Rights Watch/Hong Kong Human Rights Monitor delegation welcomes
the ombudsman's increased prison activity. We note, nonetheless, that the
ombudsman's mandate is extremely complaint-specific and reactive: he does
not conduct broad investigations or formulate broad recommendations for
improving the prison system. In addition, although a few representative cases
are described to the public in the ombudsman's monthly reports, and a
summary of the ombudsman's work is provided in his annual reports, neither
the focus nor the effect of the ombudsman's work is to inform the public
about prison conditions. As evidenced by the legal cases described in previous chapters of this
report, prisoners occasionally go to court to challenge their treatment. These
cases are extremely important because of the judiciary's broad power to
protect the rights of Hong Kong residents and, in particular, to enforce the
protections contained in Bill of Rights. It should be emphasized, however, that
few prisoners have the financial resources necessary to litigate cases involving
prison abuses.(182) In addition, the Court of Appeal's recent decision in
Chim Shing Chung, discussed above, discourages hopes that the courts
will take any kind of a leading role in protecting prisoners' rights. |