IV. "GOOD ORDER," DISCIPLINE, AND PUNISHMENT

By all accounts, the Hong Kong prison system of the early 1970s was out of control: violence was endemic; guard corruption was widespread; drug-trafficking was rampant. The present system, in marked contrast, displays a high degree of order and regimentation. Despite its large population of drug addicts, it is apparently drug-free; despite the abundance of triad members, it is relatively safe and secure. As knowledgeable observers have suggested, the system's past lawlessness may to a large extent explain its current preoccupation with discipline and control.69 Having suffered prison riots and disruption in the past, the Hong Kong correctional authorities are determined not to let things fall apart again.

The correctional authorities are to be particularly congratulated for the low level of violence found in the Hong Kong prison system, both in terms of staff-on-prisoner abuse and-what is an even more serious problem in many prison systems-prisoner-on-prisoner abuse. Although overcrowding has taken its toll, and staff shortages are a problem in some facilities, the prisons remain firmly under CSD control.

Overall, the Human Rights Watch/Hong Kong Human Rights Monitor delegation was impressed with the discipline, professionalism-and even, it appears, idealism-with which CSD staff approach their prison duties. Nonetheless, the delegation is worried that in some instances the CSD's focus on discipline and control is excessive. In particular, the lack of safeguards with regard to placement in administrative segregation and with regard to the deprivation of sentence remission is of concern.

Drugs, Gambling, Intimidation and Violence

The CSD goes to extraordinary lengths to keep drugs out of the prison system, relying on frequent searches, drug testing, sanctions for drug possession, and closed visits. To a striking degree, these strategies appear to be successful. Gambling, in contrast, is a vice that the prison authorities seem unable to eradicate. A multitude of different sources-even those who refused to acknowledge any other possible problem in the prisons-agreed that gambling is endemic to the territory's penal facilities.70 "The inmates bet on everything," explained one CSD officer. "They'll bet on whether the next person who walks into the dormitory has glasses or not. But they especially love the horses."71

The prevalence of gambling becomes evident when a visitor to the prisons sees the large number of inmates who are held in segregation "for their own protection" because of unpaid gambling debts. The Human RightsWatch/Hong Kong Human Rights Monitor delegation met prisoners who owed HK $20,000, $30,000, even $100,000 (approximately US $2,500 to $13,000).72 Lacking the means to pay these debts, and fearing retaliation, such prisoners confess to gambling and request placement in segregation. In Shek Pik, Stanley, and Lai Chi Kok, the delegation saw several unlucky gamblers who had lived in segregation for over a year out of fear of returning to the general population of the prison.

As these prisoners can attest, violence and intimidation are not entirely alien to the prison system. Indeed, the delegation saw a number of prisoners held in segregation for active involvement in fighting, some of which involved weapons. At Stanley, for example, one prisoner had spent two months in administrative segregation because he had "used a home-made sharpened weapon to attack [another prisoner] in the Main Dining Hall on 19-1-97."73 Another prisoner "was suspected by other prisoners to have been involved in an assault case [that] happened in the workshop on 8.8.96 and [was] thus afraid of being retaliated [against]."74 Members of the delegation spoke to an inmate held at Lai Chi Kok who had been held in segregation for his own protection for nearly a year; he had been attacked by a group of inmates at Stanley Prison and hurt so badly that he had to go to an outside hospital, followed by a week in the Stanley Prison hospital.75 His attackers has used sharpened steel rulers, chairs, and a pair of scissors. Former prisoners described similar outbreaks of violence, including both gang fights and one-on-one disputes, but said that serious incidents were relatively rare and that CSD staff responded quickly to them.76

Gambling is not, of course, the only cause of prison violence. More mundane, but equally commonplace, are the tensions which arise from overcrowding, particularly when two prisoners are held together in a cell designed for one.77 Understaffing, which tends to accompany overcrowding and which is a problem in some Hong Kong facilities, begets lapses in supervision that facilitate violence. Some prisoners, in addition-particularly those who have testified on behalf of the prosecution in a criminal trial or who have been convicted of sex offenses-are despised by the general prison population and thus targeted for abuse. CSD officers said that disputes between prisoners are more common in the summer, when the hot weather makes tempers fray.

The most serious recent assault on a prisoner occurred in April 1996, when a new inmate at Lai Chi Kok Reception Centre was beaten to death by a group of longer-term inmates. The prisoner was found lying under hisbed, dying of internal injuries, when CSD staff unlocked the dormitory in the morning.78 As described in further detail in Section III, Lai Chi Kok is one of Hong Kong's most overcrowded penal facilities.

Severely aggravating the problems caused by overcrowding at Lai Chi Kok is the serious understaffing of the facility. At the time that the delegation visited Lai Chi Kok, it had only seventy-five custodial staff per day shift and twenty-five per night shift-a number that, as the superintendent acknowledged, is definitely insufficient for managing over 1,300 prisoners.79 The combination of overcrowding, understaffing and, as Section VII describes in more detail, prisoner idleness, means that fights break out nearly every day at Lai Chi Kok.80

Ethnic tensions have also plagued Hong Kong's prisons, as local prisoners become embroiled in violent disputes with the mainland Chinese and, more frequently, with the Vietnamese. This is particularly true of Hong Kong's maximum security prisons, which hold the territory's more dangerous prisoners. On June 23, 1995, for example, "three separate groups of local Chinese prisoners launched assaults simultaneously on some Vietnamese prisoners at different locations of Shek Pik."81 At Stanley, the delegation met one prisoner accused of being "the instigator of a group fight between local and Vietnamese prisoners" that took place in the dining hall in February 1997.82 Similar reports of ethnic violence have surfaced in the press.83

Assaults on staff, although they occasionally occur in maximum security facilities, are much more infrequent. The authorities at Shek Pik reported that three staff members had been assaulted by prisoners in the past year.84 Stanley Prison tends to be the most dangerous for staff. In June 1996, two staff members there were stabbed with the sharpened handle of a toilet brush by a mainland Chinese prisoner, the third such attack in less than a week.85

It is well established that prison authorities' duty of care extends to providing prisoners with reasonable protection against assaults from other prisoners.86 Despite occasional violent incidents, the Hong Kong prison authorities appear generally to comply with this obligation. The overall level of prison violence in Hong Kong is low, and the CSD takes effective measures to respond to it. Particularly in lower security institutions, prisoners who do not owe money or have another particular reason to be targeted are assured of their safety, a state of affairs which, unfortunately, does not exist in many prison systems.

Disciplinary Offenses and Punishments

The Prison Rules include a comprehensive list of disciplinary offenses and punishments.87 The enumerated acts range from assault, which falls within the realm of the criminal law, to many offenses that are extremely prison-specific, and some which are quite vague.88 A prisoner who "in any way offends good order and discipline," for example, is guilty of a disciplinary offense.89

A wide range of potential punishments is available, including disciplinary segregation (called "separate confinement") of up to twenty-eight days, forfeiture of remission of up to one month, forfeiture of privileges (such as ability to buy items from the prison canteen)90 for up to three months, and deprivation of prison earnings.91 Previously, correspondence was deemed a "privilege" and, as a form of punishment, it could be terminated for up to three months. With the goal of bringing the Prison Rules into consistency with the Bill of Rights Ordinance, this rule was recently modified, and now even prisoners under punishment have the right to send at least one letter per week and to receive unlimited letters.92 Corporal punishment is no longer permitted; it was officially abolished in 1981.

The Human Rights Watch/Hong Kong Human Rights Monitor delegation found that Hong Kong prison authorities used the full array of punishments at their disposal, although loss of remission was the most frequently applied.93

Inmates placed in disciplinary segregation are normally transferred to individual cells in the facility's "special unit." They are held in their cells approximately twenty-three hours per day, leaving the cells only for exercise and for showers (meals are taken in the cells). Because disciplinary segregation is invariably accompanied by a loss of privileges, inmates temporarily lose their radios, cassette players, and non-academic reading materials. They are also not allowed to smoke. While in segregation, nonetheless, they continue to enjoy visiting rights. Convicted prisoners, in addition, are still required to work.94

When accused of disciplinary offenses, prisoners are given hearings and have the right to appeal adverse decisions to the commissioner. The vast majority of disciplinary reports result in punishment, however, and few appeals are granted.95 Although the Human Rights Watch/Hong Kong Human Rights Monitor delegation was unable confidently to gauge the value of the due process guarantees accorded in prison disciplinary proceedings, the high "conviction" rates, combined with the vagueness of the offenses and the seriousness of the potential penalties, do raise concerns. Imposing forfeiture of remission is essentially equivalent to imposing a longer criminal sentence; accordingly, due process concerns are paramount.

An examination of the 563 breach of discipline cases reported at Shek Pik during 1996, as an example of actual prison practice, reinforces these concerns. A full 170 of these cases-the largest number adjudicated under any single subsection of Prison Rule 61-involved prisoners who in some way "offend[ed] good order and discipline." The most liberally used punishment was loss of remission: a total of 4,747 days forfeited, compared to a total of 2,146 days of separate confinement and loss of privileges, and a total of 2,814 days of lost earnings.96

In many prison systems, of course, abuses occur not in the application of legitimate penalties but in use of unauthorized punishments-most frequently, brute force. While the Human Rights Watch/Hong Kong Human Rights Monitor did receive a few allegations of unjustified beatings by CSD officers, we were unable to confirm their validity.97 Complaints of verbal abuse were much more frequent: prisoners stated that lower-ranking CSD officers constantly swore at and insulted them.

Administrative Segregation (Prison Rule 68B)

The "special units" of Hong Kong's prisons, besides housing prisoners assigned to disciplinary segregation, also house prisoners placed in administrative segregation. Prison Rule 68B, which is closely modeled on the U.K.'s Prison Rule 43, authorizes such segregation "for the maintenance of good order or discipline" or for prisoners' own protection.

Rule 68B provides in relevant part that:

(1) Where the Superintendent has reasonable grounds for believing it is desirable, for the maintenance of good order or discipline or in the interests of a prisoner, that such prisoner should not associate with other prisoners, either generally, or for particular purposes, he may order the removal of such prisoner from association for a period of not more than 72 hours.

It further states, in subsection (5), that the commissioner may, for the same reasons, order the further removal of the prisoner for a month, and that he may continue to extend the prisoners' term of removal from association on a month-to-month basis. Each time that the commissioner decides to prolong the prisoner's segregation, the prisoner has to be told the reasons for his continued segregation, and he must be permitted to write something in his own defense. The commissioner must review the prisoner's submission, as well as other relevant materials, in making the decision as to further segregation.98

Prisoners in Rule 68B administrative segregation are subject to essentially the same conditions as prisoners in disciplinary segregation-twenty-three hours a day of cell time, deprivation of privileges-but with an important difference: many of them endure these conditions for much longer lengths of time. The Human Rights Watch/Hong Kong Human Rights Monitor delegation met many prisoners who had spent several months in administrative segregation, and some who had spent years there.99 Separate confinement of this length is always a matter of concern.100

There are, to be precise, three distinct types of Rule 68B segregation. The first type covers prisoners who require protection from other prisoners because of who they are (normally, ex-policemen) or because they provided testimony for the prosecution in a criminal proceeding. These prisoners, many of whom stay in Rule 68B segregation during all or most of their time in prison, are not denied privileges while in segregation. They are also often held two per cell, and normally exercise in groups.

The second type of Rule 68B segregation is for prisoners who request protection for specific reasons, usually because they are in debt to other prisoners or because they, for another such reason, believe that other prisoners will try to hurt them. These prisoners are denied privileges unless they stay in segregation for a year; after the first year has passed they are permitted their radios, etc.

The final type of Rule 68B segregation-that which covers prisoners deemed to be "violent and influential characters"-is the most problematic. Prisoners of this type are segregated from the general prison population because prison officials fear that they would cause disruption, either through their own actions or through influencing other prisoners. Often, prisoners who have been placed in disciplinary confinement for a set amount of time will subsequently be placed in Rule 68B administrative confinement for an indefinite period of time. Although this type of Rule 68B confinement is technically not punishment, it is no different from punishment when viewed from the prisoner's perspective. The fact that it is technically not punishment, however, means that the prisoner is deprived of the right of a disciplinary hearing and that the segregation can be extended over and again for an indefinite period.

Stanley Prison has the largest number of prisoners held in Rule 68B segregation of any penal facility in Hong Kong. It has two separate special units: one for Category A prisoners, and the other for Category B, C, and D prisoners. On the day that the Human Rights Watch/Hong Kong Human Rights Monitor visited, a total of 126 prisoners were being held under Rule 68B-far outnumbering the fifteen inmates held in disciplinary segregation. Twenty-one of these prisoners were "violent and influential characters" who, according to the superintendent, were typically held in segregation for three to four months.101

The following were among the Rule 68B cases observed by the delegation:

* A Vietnamese prisoner who had been in segregation at Shek Pik since June 1996 was "removed from association [because] he assaulted staff in Victoria Prison."102

* Another prisoner at Shek Pik was placed in segregation nearly three months prior to the delegation's visit because he "actively instigated other local/I.I. prisoners to launch a group assault against Vietnamese prisoners."

* A prisoner at Stanley who had violently attacked another prisoner served ten days of disciplinary segregation and was then placed in administrative segregation, where he had stayed for two months by the date of the delegation's visit.

* At Pik Uk Correctional Institution, the maximum security institution for male juveniles, a nineteen-year-old was held in segregation for two months "in view of his manipulative and violent [sic] prone character."

* The prisoner seen by the delegation who had served the longest time in Rule 68B segregation was a "manufacturer and distributor" of gambling items; he had been in separate confinement at Stanley Prison since October 1995.

As the above cases illustrate, there is considerable overlap between reasons for disciplinary segregation and those for Rule 68B administrative segregation. Given the lesser due process protections with regard to the application of Rule 68B, and thus the greater possibility that prisoners will be wrongly accused of disorderly or violent acts-and, equally important, given the much longer periods of segregation available under Rule 68B-this phenomenon is troubling. Of course, prison officials have a legitimate interest in maintaining order in their facilities and, in some instances, temporary segregation of a dangerous prisoner may be a reasonable way to protect that interest. The Human Rights Watch/Hong Kong Human Rights Monitor delegation believes, nonetheless, that it would be much preferable to allow the prisoner to defend himself at a hearing any time segregation of this magnitude is possible. Also, as should be clear, the use of such segregation should be strictly limited to exigent circumstances, and the affected prisoner should be returned back to his normal housing unit as quickly as is reasonably possible.

Transfer to Other Facilities

From what the delegation observed, the use of Rule 68B segregation is much less frequent in lower security facilities. In fact, Ma Po Ping Prison and Tong Fuk Centre, the medium and minimum security men's facilities that the delegation visited, held no prisoners under Rule 68B.103

Lower security prisons do, however, have another quasi-punitive technique for handling difficult inmates, which is transfer to a higher security institution. Particularly given the overcrowding prevalent in the Hong Kong prison system, many Category B and C prisoners are held at Shek Pik, where conditions are notably more restrictive than in lower security institutions. As the superintendent of that facility explained to the delegation, it is the "troublemakers" who are transferred there.104

The Human Rights Watch/Hong Kong Human Rights Monitor delegation learned of one prisoner who was transferred from Ma Po Ping Prison to Shek Pik in what appears to be a likely case of retaliation for complaining. The delegation learned of the case by reading the log kept at Ma Po Ping by visiting justices of the peace (JPs). The log's first relevant entry was in mid-December 1996; it stated that the inmate, a Pakistani, was in administrative segregation but complained to the JP that he was being wrongly punished. The CSD response to the entry, also included in the log, was that the Pakistani had been removed from association under Rule 68B because "he had intimidated fellow prisoners to jointly sign on a letter in order to protest against the allegedly poor quality of food provided to prisoners of other nationalities."105

On each subsequent JP visit from December 1996 through February 1997, the prisoner reiterated his complaint of unfair treatment. During this time, his placement in Rule 68B segregation was extended twice. Finally, in late February, the CSD transferred him to maximum security Shek Pik Prison. When the Human Rights Watch/Hong Kong Human Rights Monitor inquired into the reasons for this transfer, the superintendent of Ma Po Ping stated bluntly that the inmate "had been making frequent requests to see the VJs [visiting justices of the peace] and the ombudsman."106

The ultimate transfer possibility for difficult inmates is assignment to the Behavior Adjustment Unit (BAU) at Siu Lam Psychiatric Centre. Inmates who have had "behavioral problems" in other institutions are placed in thisunit, although, as the superintendent at Siu Lam acknowledged, none of these prisoners are mentally ill.107 Prisoners who are involuntarily transferred to Siu Lam for behavioral reasons typically spend six months in the BAU program; they may receive psychological counseling but no psychiatric treatment. One such prisoner told members of the Human Rights Watch/Hong Kong Human Rights Monitor delegation that he was transferred to Siu Lam because he had filed a complaint with the police regarding a serious beating he had received from a guard.108 A Siu Lam staff member stated, similarly, that prisoners who "make a lot of complaints" and are "not cooperative" end up getting transferred to the facility because officers "want to adjust their behavior."109

In addition, since the booklet is only available in complex Chinese characters (as opposed to the simplified characters prevalent in mainland China) and in English, some prisoners cannot read it.