II. AN OVERVIEW OF THE PRISON SYSTEM

The Hong Kong prison system held 12,302 prisoners as of March 27, 1997. With a prisoner-to-population ratio of about 200 per 100,000, Hong Kong has a higher rate of incarceration than found in the United Kingdom, the colonial power that established the territory's prison system, and a relatively high rate for Asia.18

Hong Kong's twenty-two penal facilities, which are administered by the Hong Kong Correctional Services Department (CSD), have a total certified capacity of 10,442 inmates. These facilities include adult prisons-minimum, medium and maximum security-juvenile institutions, a remand facility for male prisoners awaiting trial, a psychiatric center, and mandatory drug addiction treatment centers.19 Some facilities serve more than one purpose. Although the prison population is unevenly distributed among them, more than half of these institutions are overcrowded.

Besides operating Hong Kong's penal facilities, the CSD is also responsible for managing detention centers for Vietnamese migrants. For many years, the population of these camps far outnumbered the penal population, threatening to overwhelm the CSD's staff resources.20 However, with the vigorous implementation of Hong Kong's repatriation program, the number of Vietnamese held in these camps has shrunk dramatically.

Relevant Laws and Regulations

Several pieces of legislation regulate the CSD's operation of the territory's penal facilities: the Prisons Ordinance (Cap. 234), the Detention Centres Ordinance (Cap. 239), the Training Centres Ordinance (Cap. 280), and the Drug Addiction Treatment Centres Ordinance (Cap. 244). As their names suggest, these laws correspond to the various types of facilities that make up the Hong Kong correctional system. Statutory authorization for the detention of Vietnamese migrants is found in the Immigration Ordinance (Cap. 115).

The Prisons Ordinance, originally enacted in 1954 but amended numerous times since, is the oldest of these laws. Its provides the basis for the Prison Rules, a much more detailed set of provisions that was also enacted in 1954 but that has since been amended dozens of times.21 Together, these documents set out the basic groundrules of Hong Kong's correctional system. The other ordinances, and their subsidiary regulations, include additional provisions tailored to the institutions under their purview; otherwise they largely incorporate the Prisons Ordinance and the Prison Rules.22

At the time of the visit to Hong Kong of the Human Rights Watch/Hong Kong Human Rights Monitor delegation, an important set of amendments to the Prison Rules was being negotiated by the Legislative Council (Legco) and the CSD. The amendments, which passed in May 1997, loosened restrictions on prisoners' exercise of several rights.23 They included, for example, important reforms regarding prisoners' right to communicate with theoutside world. The stated purpose of the amendments was to "ensure that the Prison Rules are consistent with the Bill of Rights Ordinance."24

Besides the applicable rules and ordinances, which are published documents, the CSD has also promulgated numerous unpublished Standing Orders to govern the management of the territory's penal facilities. These have in some instances been difficult for prisoners to obtain, leaving them ignorant about policies that may affect their lives in significant ways.25 Finally, within each individual institution, internal rules and policies may apply.26

The Prison Population

The vast majority of Hong Kong prisoners are ethnic Chinese, and an increasingly large number of them are from mainland China. In their interviews with the Human Rights Watch/Hong Kong Human Rights Monitor delegation, the Hong Kong prison authorities consistently attributed the territory's prison overcrowding to the illegal Chinese immigrant population. (In Hong Kong, such persons are universally referred to as IIs.) Indeed, mainland Chinese constitute some 20 percent of the prison population, approximating the level of overcrowding, although it seems somewhat arbitrary to blame them for overcrowding, instead of the much larger numbers of local prisoners.

Because they are deported back to China immediately after they have served their criminal sentences, making post-release supervision impossible, prisoners from mainland China are ineligible for several alternative confinement regimes offered to local prisoners. Specifically, they are barred from the drug addiction treatment program, the training center program, and the detention center program (described below). These programs place strong emphasis on rehabilitation while the training center program, in addition, stresses the acquisition of useful skills; the disqualification of mainland Chinese is thus to their detriment.

Besides mainland Chinese, there are some 800 foreign prisoners in Hong Kong. The largest nationalities represented are the Vietnamese, Filipinos, Pakistanis, and Thais. As of March 27, 1997, they were 365, 230, sixty-six, and forty prisoners, respectively, from these countries. The Human Rights Watch/Hong Kong Human Rights Monitor delegation also met prisoners from Australia, Colombia, Great Britain, Ireland, and Nigeria.

Unconvicted inmates (those awaiting trial or in the midst of trial proceedings) make up a small minority of the Hong Kong prison population.27

Although their exact proportion is unclear, sizeable numbers of prisoners enter the system with drug problems.28 In addition, many prisoners are affiliated with Hong Kong's criminal gangs, known as triads. Although official statistics are more conservative, former prisoners have stated that the large majority of male prisoners are triad members.29 While the CSD acknowledges that it cannot stop prisoners from belonging to triads, it claims to have succeeded in controlling the triads' influence within the prison system.

Juveniles may enter the penal system as young as age fourteen. As in most prison systems, the large majority of prisoners are males between twenty and forty.30

Sentences

Persons sentenced to imprisonment receive fixed sentences that are normally subject to up to one-third remission for good behavior. In addition, a Release Under Supervision scheme was instituted in 1988, allowing certain prisoners to serve even less of their sentences.

Persons sentenced to drug addiction treatment centers, training centers, or detention centers-alternative sentencing options within the discretion of the court in many cases-receive partially indeterminant sentences followed by mandatory terms of post-release supervision. Drug addiction treatment centers hold inmates from two to twelve months. Training centers hold inmates from six months to three years. Detention centers hold inmates who are between fourteen and twenty years old from one month to six months, and hold those who are between twenty-one and twenty-four years old from three months to twelve months.

Prisoner Classification and the Various Types of Institutions

Hong Kong's prisons follow strict inmate classification rules. Prisoners are separated according to sex, age, security level, and status as sentenced or unsentenced prisoners, among other things. They are also divided into categories, ranging from A to D, based primarily on the seriousness of their crimes. (Murder and other very serious crimes, mostly those punishable with at least twelve years' imprisonment, place prisoners in category A; minor offenses carrying less than six months' imprisonment land them in category D.) Category A prisoners are generally separated from other categories of prisoners. Finally, sentenced prisoners are either classified as "star prisoners"-first offenders-or "ordinary prisoners"-recidivists.

These segregation rules comply with international standards, which require the separation of men and women, of juveniles and adults, and of sentenced and unsentenced prisoners.31

Adult male inmates are held in ten prisons, a remand facility and a psychiatric center. The remand facility, the Lai Chi Kok Reception Centre, is convenient to the Hong Kong courts. Besides unsentenced prisoners, Lai Chi Kok also holds a small number of prisoners appealing their convictions or their sentences, and newly convicted prisoners pending transfer to other institutions.

Hong Kong's two maximum security men's prisons are Stanley Prison, built in 1937, and Shek Pik Prison. Stanley, the territory's largest facility, holds prisoners serving life or long-term sentences, most of whom are classified as ordinary prisoners. Shek Pik, which holds mostly star prisoners, was originally designed to hold only Category A (maximum security) prisoners; because of overcrowding, however, it now holds over 500 Category B and Category C prisoners as well.

In addition, four medium security institutions and four minimum security institutions house adult male prisoners.32 Victoria Prison, one of the medium security facilities, presently serves the rather unusual purpose of housing short-term detainees awaiting deportation back to their home countries.33 Ma Hang Prison, one of the minimum security institutions, includes a section restricted to elderly prisoners, generally those over the age of sixty. In addition to these facilities, Siu Lam Psychiatric Centre, a maximum security institution, houses mentally ill prisoners, as well as certain protected witnesses and prisoners considered a threat to the orderly functioning of other institutions. Male drug addicts are held at the Hei Ling Chau Addiction Treatment Centre, which includes a separate section for those under twenty-one.

Besides those in the drug addiction program at Hei Ling Chau, young male offenders are divided among juvenile prisons, training centers, and a detention center. These are Cape Collinson Correctional Institution, Lai Sun Correctional Institution, Pik Uk Correctional Institution, Lai King Training Centre, and Sha Tsui Detention Centre.

There are four institutions for women prisoners. Tai Lam Centre for Women, which has a maximum security rating, functions as a remand facility and a prison for adult women. Chi Ma Wan Correctional Institution on Lantau Island is a medium security prison for female adult prisoners. Adjacent to it is the Chi Ma Wan Treatment Centre, a drug addition treatment center for women. Tai Tam Gap Correctional Institution houses young female offenders under the age of twenty-one. It includes separate living areas for training center inmates, drug addiction treatmentcenter inmates, young prisoners and girls on remand. Female inmates requiring psychiatric assessment or treatment are detained in the women's unit of Siu Lam Psychiatric Centre.

Vietnamese Detention Camps34

The largest remaining "closed camp" for Vietnamese migrants is the High Island Detention Centre, which houses persons whose applications for refugee status have previously been rejected.35 Many of the detainees confined at High Island have been confined for several years, some since June 1998.

The Hong Kong government's official position is that everyone in detention should return to Vietnam, and it is actively enforcing a mandatory repatriation program that offers partial assurance against persecution by the Vietnamese government, as well as reintegration assistance.36 When the Human Rights Watch/Hong Kong Human Rights Monitor delegation met Gov. Chris Patten, in fact, he stated that by July 1997 there should be only a few hundred ethnic Chinese, whom Vietnam refuses to accept, left in detention.37 Other estimates, however, are larger.38

Although the closed camps are governed by the Immigration Ordinance rather than the Prisons Ordinance, they are in many ways comparable to prisons. Most fundamentally, detainees cannot leave the camps: they live confined within high double walls topped with barbed wire.

Within the facilities, however, detainees live in family groups-men, women, and children intermingled-and, rather than being locked in cells, are free to circulate around within the living areas and the large outside yards. Detainees are not subject to prison discipline; indeed, the prison authorities insist that "they are treated as ordinary citizens."39

CSD Staff

With over 7,000 staff, nearly 4,000 of whom are custodial staff working in the prisons, the CSD approaches the size of the prison population it manages. It is a quasi-military force, with uniforms, ranks, and military discipline.

Unlike the military, however, the only weapons that CSD officers carry are wooden batons, and these are only carried in the men's prisons. All prison staff wear name tags.

CSD custodial staff are trained at the CSD's Staff Training Institute before commencing their duties in the penal system. Officers and assistant officers undergo a twenty-six-week and twenty-three-week recruit training course, respectively, which cover self-defense, first aid, counseling, and management skills, among other things, and include field placement to prisons. The "temporary staff" hired to accommodate the increased need for CSD personnel in the Vietnamese detention camps receive two weeks' training regarding the "basic know-how" needed for working in those facilities.40

CSD officers working in contact positions in the penal facilities are of the same sex as the prisoners under their authority.41

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

In Hong Kong, for the purposes of the prison system, juvenile offenders are defined as those under the age of twenty-one (most likely a legacy from the time when Hong Kong's age of majority was twenty-one). Thus, to the extent that twenty-year-old prisoners are, for example, mixed together with fourteen- to seventeen-year-olds, Hong Kong's practice is inconsistent with the above protections. In most of the territory's penal facilities, nonetheless, juveniles under eighteen are separated from those who are age eighteen and over. See also Reservations, Declarations, Notifications and Objections Relating to the International Covenant on Civil and Political Rights and the Optional Protocols Thereto, U.N. Doc. CCPR/C/2/Rev.4 (UK reservation allowing derogations from bar on mixing juvenile and adult prisoners); Bill of Rights Ordinance, Section 10 (stating that the mixing of juvenile and adult prisoners is permissible if a shortage of facilities prevents their separation).

The Human Rights Watch/Hong Kong Human Rights Monitor delegation did, however, find a more serious violation of these rules at Tai Lam Centre for Women. In that facility, a seventeen-year-old girl charged with murder is held together with adult Category A prisoners.

As will be described in more detail later in this report, conditions and treatment of the Vietnamese detainees are quite different from those of regular prisoners. Accordingly, the overall conclusions set out in this report are not meant to apply to the particular situation of the Vietnamese detainees; to the extent their situation is covered, it will be specifically mentioned.