Human rights in Hong Kong - AbsoluteAstronomy.com

Human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...

in Hong Kong
Hong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...

occasionally comes under the spotlight of the international community because of its world city status. This is occasionally used as a yardstick by commentators to judge whether the People's Republic of China

People's Republic of China

China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...

has kept its end of the bargain of the "One Country, Two Systems

One country, two systems

"One country, two systems" is an idea originally proposed by Deng Xiaoping, then Paramount Leader of the People's Republic of China , for the reunification of China during the early 1980s...

" principle granted to the Hong Kong Special Administrative Region by its current mini-constitution, the Basic Law, under the Sino-British Joint Declaration. Alleged human rights violations are sometimes used by skeptics to argue that the “One Country, Two Systems” policy is a failure.

Human rights protection is enshrined in the Basic Law

Hong Kong Basic Law

The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, or simply Hong Kong Basic Law, serves as the constitutional document of the Hong Kong Special Administrative Region of the People's Republic of China...

and its Bill of Rights Ordinance (Cap.383). By virtue of the Bill of Rights Ordinance, the International Covenant on Civil and Political Rights

International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...

(ICCPR) is put into effect in Hong Kong. Any legislation that is inconsistent with the Basic Law can be set aside by the courts.

In general, Hong Kong is perceived to enjoy a high level of civil liberties

Civil liberties

Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...

. The Hong Kong government generally respects the human rights of the citizens, although core issues remain. There are concerns over the freedom of assembly

Freedom of assembly

Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...

which is restricted by the Public Order Ordinance. The police has been occasionally accused of using heavy-handed tactics towards protestors and questions are asked towards the extensive powers of the police. As to the right of privacy, covert surveillance remains the major concern. There is a lack of protection for homosexuals due to the absence of a sexual orientation discrimination law. There are also comments regarding a lack of protection for labour rights.

Sino-British Joint Declaration

Under the Annex I (Section XI) of the Sino-British Joint Declaration

Sino-British Joint Declaration

The Sino-British Joint Declaration, formally known as the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong, was signed by the Prime Ministers, Zhao Ziyang and Margaret...

, it stated that:

The Hong Kong Special Administrative Region Government shall protect the rights and freedoms of inhabitants and other persons in the Hong Kong Special Administrative Region according to law. The Hong Kong Special Administrative Region Government shall maintain the rights and freedoms as provided for by the laws previously in force in Hong Kong, including freedom of the person, of speech, of the press, of assembly, of association, to form and join trade unions, of correspondence, of travel, of movement, of strike, of demonstration, of choice of occupation, of academic research, of belief, inviolability of the home, the freedom to marry and the right to raise a family freely.

Basic Law

In the Hong Kong Basic Law

Hong Kong Basic Law

, the constitutional document of Hong Kong Special Administrative Region, human rights were safeguarded under Chapter III : Fundamental Rights and Duties of the Residents in the law. Article 39 expressly states that the provisions of the International Covenant on Civil and Political Rights

International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...

(ICCPR), the International Covenant on Economic, Social and Cultural Rights

International Covenant on Economic, Social and Cultural Rights

The International Covenant on Economic, Social and Cultural Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from January 3, 1976...

(ICESCR), and international labour conventions as applied to Hong Kong shall remain in force.

Bill of Rights Ordinance

The Hong Kong Bill of Rights Ordinance (Cap. 383), enacted in 1991, is the local adaptation of the provisions of the ICCPR.

After the change of sovereignty, certain provisions of the Bill of Rights Ordinance ceased to have effect, including section 2(3) (duty to have regard to purpose of Ordinance in interpretation), section 3(1) (duty to construe pre-existing legislation consistently with the Ordinance), section 3(2) (pre-existing legislation that cannot be construed consistently is repealed) etc. However, due to the entrenchment of the ICCPR in Article 39 of the Basic Law, the significance of the Bill of Rights Ordinance, which was modeled after the ICCPR, is not diminished.

While some Basic Law rights overlap with the rights in the Bill of Rights Ordinance, they are not exactly identical.

Judicial Review

Article 11 of the Basic Law provides that "no law enacted by the Legislature of the Hong Kong Special Administrative Region shall contravene this Law." This Article has the effect that any Ordinance that contravenes the Basic Law shall be null and void. Hence, any legislation that contravenes Article 39 of the Basic Law, which entrenches the ICCPR, is also null and void.

It is well established that the Hong Kong Courts can conduct the Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...

type of judicial review to review the legislative and executive acts of the Hong Kong Special Administrative Region. This power exists before the handover since Hong Kong was governed by the Letters Patent, as opposed to Britain which do not have a written constitution.

In the landmark case of Ng Ka Ling and Others v. Director of Immigration, Chief Justice Andrew Li

Andrew Li

Andrew Li Kwok-nang, CBE, GBM, JP is the former Chief Justice of the Court of Final Appeal of Hong Kong, a post he held from the 1997 Hong Kong handover until 31 August 2010 inclusive. He is succeeded by Geoffrey Ma.-Early life and education:...

declared in emphatic terms:
The approach of the courts towards the review of the constitutionality of legislation was laid down in R v. Sin Yau Ming, which adopted the Canadian approach in R. v. Oakes
R. v. Oakes
R. v. Oakes [1986] 1 S.C.R. 103 is a case decided by the Supreme Court of Canada which established the famous Oakes test, an analysis of the limitations clause of the Canadian Charter of Rights and Freedoms that allows reasonable limitations on rights and freedoms through legislation if it can be...

. Once there is a prima facie violation of a protected right, the government bears the burden of justifying the breach by showing:

The impugned provisions pursue a sufficiently important objective which is related to pressing and substantial concerns in a free and democratic society
There is a rational connection between the objective and the means chosen
The means adopted causes minimal impairment to the right of freedom in question
The effects on the limitation of rights and freedoms are proportional to the objective

However, controversies exist over whether the courts have the power to conduct a constitutional review of a legislative act of the National People's Congress

National People's Congress

The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...

or its Standing Committee

Standing Committee of the National People's Congress

The Standing Committee of the National People's Congress is a committee of about 150 members of the National People's Congress of the People's Republic of China , which is convened between plenary sessions of the NPC. It has the constitutional authority to modify legislation within limits set by...

. The Court of Final Appeal stated in Ng Ka Ling that the courts do have such a power. However, this declaration provoked heavy criticisms from the mainland authorities and developed into a constitutional crisis.

Right to life

The right to life

Right to life

Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...

is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights.
In practice, the right to life is mainly protected by the criminal law

Criminal law

Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

(murder

Murder

Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...

and manslaughter

Manslaughter

Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...

). No capital punishment

Capital punishment

Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...

has been carried out since 1966 and it has been formally abolished for all crimes in 1993.

Freedom of expression

The freedom of expression is protected under Article 27 of the Basic Law and Article 16 of the Bill of Rights. It is regarded as a fundamental right, but the Bill of Rights (and hence the ICCPR) provides that restrictions to it are justifiable provided that the restrictions are provided by law and are necessary for respect of the rights or reputations of others; or for the protection of national security or of public order (ordre public), or of public health or morals.

During a demonstration on 1 January 1998, civil activists Ng Kung Siu and Lee Kin Yun extensively defaced the National

Flag of the People's Republic of China

The flag of the People's Republic of China is a red field charged in the canton with five golden stars. The design features one large star, with four smaller stars in a semicircle set off towards the fly...

and Regional Flags

Flag of Hong Kong

The Flag of Hong Kong — or Regional Flag of the Hong Kong Special Administrative Region of the People's Republic of China — features a white, stylised, five-petal Hong Kong orchid tree flower in the centre of a red field. Its design was adopted on 4 April 1990 at the Third Session of the...

. Certain portions were cut out or torn, black ink was daubed over the flags, black crosses were drawn, and the word "shame" was written on the flags. The two were charged under section 7 of the National Flag Ordinance and section 7 of the Regional Flag Ordinance, which provide that a person who desecrates the national or regional flags commits an offence. The constitutionality of section 7 of the National Flag Ordinance and section 7 of the Regional Flag Ordinance were challenged by the defendants. The defendants were convicted before the magistrate, and were bound over to keep the peace on his own recognisance of $2,000 for 12 months for each offence. The Court of Appeal quashed their convictions. The Court of Final Appeal unanimously held that the provisions were justified and not unconstitutional, as they merely ban the mode of expressing one's message but do not interfere with the person's freedom to express the same message in other ways. The convictions and the binding over ordered by the Magistrate were restored. The decision was heavily criticized by Raymond Wacks

Raymond Wacks

Raymond Wacks is Emeritus Professor of Law and Legal Theory at the University of Hong Kong where he was Head of the Department of Law from 1986 to 1993. He was previously Professor of Public Law at the University of Natal, Durban...

in his article "Our Flagging Rights" in Hong Kong Law Journal.

The Edison Chen photo scandal

Edison Chen photo scandal

The Edison Chen photo scandal involved the illegal distribution over the Internet of intimate and private photographs of Hong Kong actor Edison Chen with various women, including actresses Gillian Chung, Bobo Chan, Rachel Ngan and Cecilia Cheung. The scandal shook the Hong Kong entertainment...

brought people to harbour doubts about the Control of Obscene and Indecent Articles Ordinance, which criminalizes the distribution of obscene articles and the distribution of indecent articles without proper warnings to persons under 18. On 2 February 2008, Commissioner of Police Tang King Shing

Tang King Shing

Tang King-shing, PMSM, PDSM was the Commissioner of the Hong Kong Police force until 11th January 2011.-Biography:Tang joined the Royal Hong Kong Police in 1976 as a Probationary Inspector...

warned that sharing the photos via email, and even storing them on a personal computer, might be illegal, even if there was no record of distribution. This inaccurate statement of the law led to the objection of Leung Kwok-hung

Leung Kwok-hung

Leung Kwok-hung , also known as Long Hair , is a member of the Legislative Council of Hong Kong , a founding member of the League of Social Democrats and a democratic political activist.-Biography:Leung is a self-proclaimed Trotskyist and a member of April Fifth Action, a radical socialist...

, who accused the police of sowing confusion and creating an atmosphere of "white terror" among netizens. Leung urged Commissioner Tang to clarify whether merely keeping the pictures violated the law. The police later amended Mr. Tang's statement, saying that looking at the photos or emailing them between mutual friends isn't against the law, although posting them to Web sites is. The police's exuberance and inconsistency in cracking down on naked photos of celebrities triggered a public backlash from some netizens, who feel the police was curbing their freedom of expression in order to serve the powerful. The public reaction caused the government to table a review and public consultation of the Control of Obscene and Indecent Articles Ordinance.

Another incident that concerned the freedom of expression in Hong Kong is the Citizens' Radio incident, in which several civil activists were charged for operating a radio station without a license granted by the Chief Executive in Council, contrary to section 8 and 20 of the Telecommunications Ordinance. Constitutional challenge of the licensing regime was unsuccessful.
According to section 4 of the Places of Public Entertainment Ordinance (Cap. 172), no person shall keep or use any place of public entertainment without a licence granted under section 10 of the Ordinance. On 30 May 2010, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China exhibited a replica of the Goddess of Democracy

Goddess of Democracy

The Goddess of Democracy , and the Goddess of Liberty , was a 10-meter-tall statue created during the Tiananmen Square protests of 1989.The statue was constructed in only four days out of foam and papier-mâché over a metal armature...

statue in Times Square

Times Square (Hong Kong)

Times Square is a major shopping centre and office tower complex in Causeway Bay, Hong Kong Island, Hong Kong.The complex, owned by Wharf Properties Limited, part of The Wharf Limited group, was opened in April 1994.-History:...

in the absence of a license in order to commemorate the June 4th incident. It was confiscated by the police and after the ensuring scuffle two senior members of the Alliance were arrested for obstruction of a police officer in the due execution of his duty. Secretary for Food and Health York Chow Yat-ngok rebuffed claims of political oppression by saying the authority was merely enforcing the law after receiving complaints.

Despite the incidents mentioned above, Hong Kong is generally considered to enjoy a high degree of freedom of expression, with Freedom House

Freedom House

Freedom House is an international non-governmental organization based in Washington, D.C. that conducts research and advocacy on democracy, political freedom and human rights...

commenting that it is a right that is "generally respected in practice, and political debate is vigorous".

Freedom of assembly

The freedom of assembly

Freedom of assembly

Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...

is protected under Article 27 of the Basic Law and Article 17 of the Bill of Rights.

Article 17 of the Bill of Rights provides:

Although there are no official figures in the number of protests, an analysis of newspaper reports has shown that the reported number of protests increased from under 100 before 2000 to 210 in 2004, and stayed at around 200 cases up to 2006, signaling the maturation of civil society. It has also been argued that the 1 July march in 2003, in which half-a-million residents took to the streets to protest the proposed national security bill and express strong general dissatisfaction with the government, halted the legislation of the proposed bill and allowed civil society to recognize its strength and potential in the policy-making process. The 1 July march is organized every year.

Statutory restriction framework

This fundamental right is mainly restricted by the Public Orders Ordinance (Cap. 245).

A public procession consisting of more than 30 persons can only take place if the Police Commissioner has been notified a week in advance and the Commissioner has notified the organizer that he has no objection.
The Commissioner can object to the public procession, but only if he reasonably considers that the objection is necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others.
The Commissioner may, where he reasonably considers it necessary in the interests of national security or public safety, public order or for the protection of the rights and freedoms of others, impose conditions in respect of any public procession notified under section 13A, and notice of any condition so imposed shall be given in writing to the organizer and shall state the reasons why such condition is considered necessary.
Further requirements include the presence of the organizer at the procession, maintenance of good order and public safety, the prohibition of unreasonable use of amplification devices, compliance with directions given by a police officer for ensuring compliance with the Commissioner's requirements and the Ordinance's requirements etc.

On the other hand, certain statutory safeguards are present in the Ordinance.

The Commissioner can accept notice that is given in less than a week. If he decides not to, he must inform the organizers in writing as soon as possible and give reasons.
The Commissioner can only reject an application if he considers objection is necessary for the statutory legitimate purposes. It is to be noted the "protection of public health & morals" purpose in the Bill of Rights is absent in the Ordinance, hence restricting the Commissioner's discretion.
The objection must be given as soon as possible and within the statutory time limit.
The Commissioner is obliged not to object if he reasonably considers that the relevant statutory legitimate purposes could be met by imposing conditions.
The Commissioner's discretion may only be delegated to police officers of inspector or above.
A decision by the Commissioner can be appealed to an Appeal Board. The decision of the Appeal Board can be judicially reviewed (but not appealed).

Constitutionality of the statutory framework

On 10 February 2002, a number of persons gathered at Chater Garden

Chater Garden

Chater Garden , located in the Central District of Hong Kong, is a public park directly east of the Legislative Council building. It is named after Sir Paul Chater, and one side of the garden is on Chater Road which is also named after him.-History:...

for a procession. Civil activist Leung Kwok-hung

Leung Kwok-hung

was the organizer of the procession, but did not notify the Commissioner in advance. A police officer invited him to go through the statutory notification procedure, but Leung refused and was warned of the consequences. Initially, the procession consisted of 40 people, but it eventually grew to about 96 persons. They ignored police advice for several times, but the procession was at all times peaceful.

Leung and two others were later charged under section 17A(3)(b)(i) of the Public Order Ordinance for holding an unauthorized assembly. They were convicted before the magistrate and were bound over on their own recognizance for $500 for a period of three months; the conviction was upheld by the Court of Appeal.

At the Court of Final Appeal, the constitutionality of the entire statutory notification scheme was challenged. Chief Justice Li

Andrew Li

, Justice Chan PJ

Patrick Chan (judge)

Patrick Chan Siu-oi is a judge in Hong Kong. He is currently one of the three Permanent Judges of the Court of Final Appeal.-Early life and education:...

, Justice Ribeiro PJ

Robert Ribeiro

Robert Ribeiro is a Hong Kong judge and honorary lecturer in law at the University of Hong Kong. He is currently serving one of the three permanent judges for the Court of Final Appeal in Hong Kong.-Early life and education:...

and Sir Anthony Mason NPJ, having considered all the statutory restrictions on the freedom of assembly and the statutory safeguards listed above, held that the notification system was constitutional. However, they held that the norm of "ordre public", which existed as a statutory legitimate purpose at that time, was too vague at statutory level and hence could not be said to be prescribed by law. "Ordre public" was as a result severed, but the term "public order" was sufficiently precise to survive. They also remarked in dicta that the norm of "protection of the rights and freedoms of others" was too wide and did not satisfy the legal certainty requirement. They affirmed the convictions as the severance did not affect the conviction. Justice Bokhary PJ

Kemal Bokhary

Syed Kemal Shah Bokhary is a judge in Hong Kong. , he serves as one of the three Permanent Judges of Hong Kong's Court of Final Appeal.-Early life and family:...

dissented, noting in his judgment that the whole statutory scheme should be struck down except the entitlement to notification.

Obstruction of public place

On 14 March 2002, a number of Falun Gong

Falun Gong

Falun Gong is a spiritual discipline first introduced in China in 1992 by its founder, Li Hongzhi, through public lectures. It combines the practice of meditation and slow-moving qigong exercises with the moral philosophy...

practitioners were engaged in peaceful demonstration outside the main entrance to the Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region

Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region

The Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region is an organ of the Central People's Government of the People's Republic of China.-Description:...

. Their number varied from 4 to 16 over time, hence rendering the statutory restriction scheme inapplicable. It was still possible to access the Liaison Office via a vehicular driveway. After warnings were ignored by the demonstrators, the superintendent

Superintendent (police)

Superintendent , often shortened to "super", is a rank in British police services and in most English-speaking Commonwealth nations. In many Commonwealth countries the full version is superintendent of police...

in charge ordered his officers to arrest and remove them. The demonstrators resisted arrest but were eventually forcibly removed using heavy handed tactics and loaded on board police vehicles. When they arrived at the police station, female demonstrators refused to leave the vehicles. Police officers took action to carry them off the vehicles and the demonstrators resisted and assaulted the officers.

The demonstrators were charged with obstruction of public place. The Court of Final Appeal, constituted by the same judges in Leung Kwok-hung and Others v. HKSAR, allowed the appeal from the defendants and quashed all convictions. The court stressed that any physical obstruction of public place must be accompanied by the element of "without lawful excuse" in order to constitute an offence. If a person is merely using public place reasonably, he cannot be said to be acting without lawful excuse. When obstruction results from peaceful demonstration, the constitutionally protected right is introduced into the equation for reasonableness. The court concluded the demonstrators were acting with reasonable excuse and acquitted them with regard to the offence of obstruction of public place.

Freedom of religion

The freedom of religion is protected by Article 32 of the Basic Law and Article 15 of the Bill of Rights.

The practice of Falun Gong

Falun Gong

is legal and tolerated in Hong Kong. However, in 2003 Falun Gong protestors were charged with obstruction of the public place after a peaceful demonstration outside the Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region

Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region

The Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region is an organ of the Central People's Government of the People's Republic of China.-Description:...

. They were initially convicted before the magistrate, but were eventually acquitted of all charges by the Court of Final Appeal. Furthermore, the HKSAR government was repeatedly accused of refusing entry to Falun Gong

Falun Gong

practitioners for allegedly political reasons. On the other hand, the Hong Kong Police arrested two men and charged them with criminal damage when they attacked a Falun Gong promotional stand in Mong Kok

Mong Kok

Mong Kok , less often known as Argyle , is an area in the Yau Tsim Mong District on Kowloon Peninsula, Hong Kong...

.

The Anglican and Roman Catholic churches in Hong Kong freely appoint their own bishops, unlike in mainland China. Cardinal

Cardinal (Catholicism)

A cardinal is a senior ecclesiastical official, usually an ordained bishop, and ecclesiastical prince of the Catholic Church. They are collectively known as the College of Cardinals, which as a body elects a new pope. The duties of the cardinals include attending the meetings of the College and...

Joseph Zen, the immediate past Bishop

Bishop

A bishop is an ordained or consecrated member of the Christian clergy who is generally entrusted with a position of authority and oversight. Within the Catholic Church, Eastern Orthodox, Oriental Orthodox Churches, in the Assyrian Church of the East, in the Independent Catholic Churches, and in the...

of Hong Kong, was outspoken about religious freedom and human rights in China.

Right to equality

The right to equality

Equality before the law

Equality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....

is protected by Article 25 of the Basic Law and Article 22 of the Bill of Rights.

A number of Ordinances have been enacted in order to give horizontal effect to the equality provisions in the Basic Law and the Bill of Rights. Examples include the Sex Discrimination Ordinance, the Disability Discrimination Ordinance, the Family Status Discrimination Ordinance and the Race Discrimination Ordinance. The Equal Opportunities Commission is a statutory body set up to implement these legislations and eliminate discrimination. The Race Discrimination Ordinance sparked fierce debates in Hong Kong because the definition of race as "race, colour, descent or national or ethnic origin of the person" left Mainland Chinese

Mainland Chinese

Mainland Chinese or Mainlanders are Chinese people who live in a region considered a "mainland". It is frequently used in the context of areas ruled by the People's Republic of China, referring to people from Mainland China as opposed to other areas controlled by the state such as Hong Kong or...

immigrants unprotected.

It was remarked by the Court that not all differential treatments constitute discrimination

Discrimination

Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...

. If the differential treatment pursues a legitimate aim, is rationally connected to the legitimate aim and is no more than necessary to accomplish the aim, the differential treatment is justified and does not constitute discrimination. Only when the differential treatment is unjustified will it be deemed as discrimination.

Sexual orientation

Gay sex was legalized in Hong Kong in 1991. However, the Crimes Ordinance (Cap. 200) shows a tendency to discriminate against the gay community

Gay community

The gay community, or LGBT community, is a loosely defined grouping of LGBT and LGBT-supportive people, organizations and subcultures, united by a common culture and civil rights movements. These communities generally celebrate pride, diversity, individuality, and sexuality...

by stipulating different ages of consent for homosexual and heterosexual sexual relations, and has been challenged for a number of times.

In Secretary for Justice v. Yau Yuk Lung Zigo, the constitutionality of section 118F(1) of the Crimes Ordinance was challenged. The section provides that it is an offence for a man to commit buggery

Buggery

The British English term buggery is very close in meaning to the term sodomy, and is often used interchangeably in law and popular speech. It may be, also, a specific common law offence, encompassing both sodomy and bestiality.-In law:...

with another man otherwise in private. The Court of Final Appeal unanimously held that the section was discriminatory as it constitute unnecessary differential treatment on the ground of sexual orientation

Sexual orientation

Sexual orientation describes a pattern of emotional, romantic, or sexual attractions to the opposite sex, the same sex, both, or neither, and the genders that accompany them. By the convention of organized researchers, these attractions are subsumed under heterosexuality, homosexuality,...

. All persons, irrespective of sexual orientation, are subject to the common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

offence of committing an act outraging public decency.

In Leung TC William Roy v Secretary for Justice
Leung TC William Roy v Secretary for Justice
Leung TC William Roy v Secretary for Justice is a leading Hong Kong High Court judicial review case on the equal protection on sexual orientation and the law of standing in Hong Kong...

, the constitutionality of section 118C of the Crimes Ordinance, which provides that a man who commits or suffers to commit buggery with a man under the age of 21 is liable on conviction on indictment to imprisonment for life, was challenged. The provision was held to be unconstitutional as while the age of consent for heterosexual couples is 16, male homosexual couples must reach 21 to have sex legally.

Despite fierce opposition from church groups, on December 16, 2009, Hong Kong's Legislative Council passed a bill extending its Domestic Violence Ordinance to apply to same-sex couples.

Despite the above victories of the homosexual community, same-sex marriage

Same-sex marriage

Same-sex marriage is marriage between two persons of the same biological sex or social gender. Supporters of legal recognition for same-sex marriage typically refer to such recognition as marriage equality....

is not recognized in Hong Kong. There is also an absence of anti-discrimination legislation to create horizontal effect for the protection of homosexuals in human rights instruments, leaving homosexuals with no legal redress if discriminated against for their sexuality by private individuals.

Indigenous persons

Hong Kong, despite being highly westernized, still retains Chinese culture and traditions, especially in the Region's New Territories

New Territories

New Territories is one of the three main regions of Hong Kong, alongside Hong Kong Island and the Kowloon Peninsula. It makes up 86.2% of Hong Kong's territory. Historically, it is the region described in The Convention for the Extension of Hong Kong Territory...

. Such traditions are expressly protected in Article 40 of the Basic Law, which provides that the lawful traditional rights and interests of the indigenous inhabitants of the New Territories shall be protected.

In Secretary for Justice and others v. Chan Wah and Others, the second respondent complained of having been excluded by electorial arrangements from standing as a candidate in village elections on the ground he was not indigenous, although he had lived there all his life. It was held that as the village representative would represent the whole village, not just indigenous persons, the restriction was not reasonable and electorial arrangements were held unconstitutional accordingly.

The Hong Kong Government introduced the Small House Policy

Small House Policy

The Small House Policy was introduced in 1972 in Hong Kong. The objective was to improve the then prevailing low standard of housing in the ruralareas of the New Territories...

in 1972, which is an attempt to regularise village traditions. It allows indigenous male adult villagers, who is descended through the male line from a resident in 1898 of a recognised village, to be granted a plot of land at reduced premium in order to build a small house of specified dimensions within the 'V' zone and the environs or the village extension area of a recognised village. There have been demands to abolish this inherently discriminatory policy, although such attempts have been strongly refuted by the Heung Yee Kuk

Heung Yee Kuk

The Heung Yee Kuk is a statutory advisory body representing the indigenous inhabitants of New Territories, Hong Kong.Colloquially shortened to 'the Kuk'.-History:...

Gender

In Secretary for Justice and others v. Chan Wah and others, the first respondent, who was non-indigenous and male and married to an indigenous and female villager, was excluded from voting in village elections. However, the arrangements were such that a non-indigenous, female villager married to an indigenous, male villager would have qualified as an indigenous villager with a right to vote. It was held such arrangements constitute unlawful discrimination on the ground of sex.

In Equal Opportunities Commission v. Director of Education, the Secondary School Place Allocation System was challenged as being discriminatory towards girls. To help boys overcome the late bloom, a scaling system was introduced whereby boys and girls scores were scaled separately. The result was that the final score of boys were boosted and those of girls reduced. Further the band cutting scores were different for each sex, with girls requiring a higher score to get into the top band. There were also gender quotas. The system was held to be unconstitutional.

Protection against sexual harassment

Sexual harassment

Sexual harassment, is intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors. In some contexts or circumstances, sexual harassment is illegal. It includes a range of behavior from seemingly mild transgressions and...

at the workplace was put in place in 1995 through the enactment of the Sex Discrimination Ordinance.

There is international jurisprudence that supports a reading of the word “sex” in the prohibition of sex discrimination to include discrimination against transgender persons. The Hong Kong government has provided public funding for the treatment of transgenderism

Transgenderism

Transgenderism is a social movement seeking transgender rights and affirming transgender pride.-History:In her 1995 book Apartheid of Sex, biopolitical lawyer and writer Martine Rothblatt describes "transgenderism" as a grassroots social movement seeking transgender rights and affirming transgender...

covering counseling and, for those who proceed further, the provision of gender reassignment surgery. Post-operative transsexual persons can apply to change the gender on their identity cards and passports. However, a person's gender at law is determined by a birth certificate, which cannot be changed. In 2010, in W v Registrar of Marriages, Andrew Cheung J held that the references in the Marriage Ordinance to "man" and "women" , properly interpreted, do not cover post-operative transsexual persons. It was further held that the Marriage Ordinance, which deny marriage to transsexual persons, was not inconsistent with the right to marry under the Basic Law or the Bill of Rights. Therefore, unless the decision is overturned on appeal, it is not possible for a transsexual person to marry someone of the same biological sex under Hong Kong law.

Legal certainty

Article 39 of the Basic Law stipulates that the rights and freedoms of Hong Kong residents shall not be restricted "unless as prescribed by law". Sir Anthony Mason NPJ, in his judgment in the landmark case Shum Kwok Sher v. HKSAR, said, "International human rights jurisprudence has developed to the point that it is now widely recognised that the expression "prescribed by law", when used in a context such as art. 39 of the Basic Law, mandates the principle of legal certainty." In that case, the Court of Final Appeal laid down two requirements for legal certainty:

The relevant law must be sufficiently certain and precise to enable citizens to regulate his conduct
The relevant law must be adequately accessible

The Court remarked that a balance has to be struck between requiring the law to be formulated with sufficient precision and the desirability of avoiding rigidity in the law. The precision required will vary according to the context of the law; if it is impossible to formulate the law with absolute certainty, a description of the nature of the activity will provide sufficient notice. On the facts of that case, the Court held that the common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

offence of misconduct in a public office was sufficiently certain.

Presumption of innocence

Article 87 of the Basic Law and Article 11 of the Bill of Rights provides that anyone charged with a criminal offence shall have the right to be presumed innocent

Presumption of innocence

The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...

until proven guilty according to law. This presumption is well established under the common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

; the much-celebrated case of Woolmington v DPP laid down the basic criminal law

Criminal law

principle that it is the duty of the prosecution to prove the defendant's guilt subject to the defence of insanity

Insanity

Insanity, craziness or madness is a spectrum of behaviors characterized by certain abnormal mental or behavioral patterns. Insanity may manifest as violations of societal norms, including becoming a danger to themselves and others, though not all such acts are considered insanity...

and statutory exceptions. If, at the end of and on the whole of the case, there is a reasonable doubt as to whether the defendant committed the criminal offence in question, the prosecution has not made out the case and the defendant is entitled to an acquittal.

However, as mentioned above, statutes may place the burden of proof on the defendant or make presumptions of facts which require the defendant to prove otherwise. In such circumstances, the reverse burden must be justifiable to avoid being struck down as unconstitutional. According to R v. Sin Yau Ming, a statutory provision is prima facie unconstitutional if the defendant has to prove the essential elements of the offence. Moreover, the reverse burden must be justified under the Oakes test.

This principle was partly affirmed by the Privy Council

Judicial Committee of the Privy Council

The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...

decision in AG v. Lee Kwong Kut when Lord Woolf said:

Right to property

The right to property

Right to property

The right to property, also known as the right to protection of property, is a human right and is understood to establish an entitlement to private property...

is protected by Article 6 of the Basic Law. Furthermore, Article 105 confers upon individuals the right to compensation for lawful deprivation of their property. Statutory protection of the right to property is found in the criminal offence of theft

Theft

In common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...

and in the Copyright Ordinance (Cap. 528) and the Prevention of Copyright Privacy Ordinance (Cap. 544) etc.

The town planning regime had been questioned as to its compatibility with this right. Whether zoning restrictions effected by the Outline Zoning Plans constitute a deprivation of property was considered by the Court of Appeal in Fine Tower Associates Ltd v Town Planning Board. The Conditions of Exchange limited the applicant's land use to industrial and/or godown, but the Draft Outline Zoning Plan designated 44% of the land as "Open Space" and 56% as "Other Specified Uses". The Court noted that a deprivation of land could occur not only by a formal expropriation of the land but also by an act which nullified any meaningful economic benefit in the land. It was held that the applicant had not lost all meaningful or economically viable use of the land, as it could still sell the land. The Court stressed that Article 105 had to be read in conjunction with Article 7, which authorizes the government to manage the land in Hong Kong.

No arbitrary arrest, detention, imprisonment, search or seizure

Arbitrary arrest, detention, imprisonment, search or seizure are prohibited under Article 28 of the Basic Law and Article 5 of the Bill of Rights. No one shall be deprived of his personal liberty except on such grounds and in accordance with such procedure established by law. In practice, this area is governed by a mixture of common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

and statutes.

At common law, false imprisonment

False imprisonment

False imprisonment is a restraint of a person in a bounded area without justification or consent. False imprisonment is a common-law felony and a tort. It applies to private as well as governmental detention...

is recognized as both a tort

Tort

A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

and a crime. Kidnapping

Kidnapping

In criminal law, kidnapping is the taking away or transportation of a person against that person's will, usually to hold the person in false imprisonment, a confinement without legal authority...

is a crime at common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

and is codified in section 42 of the Offence Against the Person Ordinance (Cap.212).

Power of arrest

It was confirmed in the case R v. To Kwan Hang & Another that the common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

power of arrest is applicable to Hong Kong. Any person has the right to take reasonable steps to stop someone from "breaking or threatening to break the peace", and that "reasonable steps in appropriate cases will include detaining him against his will".
Bokhary JA

Kemal Bokhary

Syed Kemal Shah Bokhary is a judge in Hong Kong. , he serves as one of the three Permanent Judges of Hong Kong's Court of Final Appeal.-Early life and family:...

, as he then was, explained that a breach of peace occurs when a person "unlawfully resorts to violence which injures someone or damages property, or which puts someone in immediate danger of injury or property in immediate danger of damage".

The general power of all persons to arrest can also be derived from statutory sources. Section 101 of the Criminal Procedure Ordinance (Cap.221) stipulates that any person may arrest without warrant

Arrest warrant

An arrest warrant is a warrant issued by and on behalf of the state, which authorizes the arrest and detention of an individual.-Canada:Arrest warrants are issued by a judge or justice of the peace under the Criminal Code of Canada....

any person whom he may reasonably suspect of being guilty of an arrestable offence

Arrestable offence

Arrestable offence is a legal term now obsolete in English law and the legal system of Northern Ireland, but still used in the legal system of the Republic of Ireland. The Criminal Law Act 1967 introduced the category to replace the ancient term felony...

. An arrestable offence in Hong Kong refers to an offence for which the sentence is fixed by law or for which a person may be sentenced to imprisonment for a term exceeding 12 months. Section 101A of the Criminal Procedure Ordinance also allows any person to use reasonable force when effecting or assisting a lawful arrest.

The power of the police to arrest is much more extensive than that for citizens. They have the unqualified power to arrest pursuant to a warrant, and the police officer effecting the arrest is not responsible for any irregularities in the warrant as long as he is acting pursuant to it. A police officer can execute a warrant notwithstanding the warrant is not in his possession at the time, but the warrant shall, on the demand of the person affected, be shown to him as soon as practicable after the arrest. If no warrant is obtained, the police can only effect an arrest pursuant to section 50 of the Police Force Ordinance (Cap.232).

Section 50 allows a police officer to apprehend any person who (i) he reasonably believes will be charged with or who (ii) he reasonably suspects of being guilty of any offence for which the sentence is fixed by law or for which a person may be sentenced to imprisonment or if the service of a summons

Summons

Legally, a summons is a legal document issued by a court or by an administrative agency of government for various purposes.-Judicial summons:...

is impracticable. The constitutionality of this provision was reviewed in Yeung May-wan and Others v. HKSAR. The Court held that, in order to be compatible with Article 28 of the Basic Law, the first limb must be read as encompassing the second and did not eliminate the requirement for reasonable suspicion of guilt. The suspicion of guilt must be objectively reasonable, and the facts known by the police officer must be such that, if true, they would constitute all the elements of the offence in question. On the facts of that case, it was held that the arrests were not lawful and constituted false imprisonment

False imprisonment

as the police officers did not have in mind the element of "without lawful excuse" when arresting the Falun Gong

Falun Gong

protestors for obstruction of public place.

If a person is unlawfully arrested, he is entitled to use reasonable force to free himself.
In the Yeung May-wan case, the defendants were therefore acquitted of willfully obstructing a police officer and assaulting a police officer, even though there was actually a scuffle.

The person arrested must be delivered immediately to a police station.

The reasons for the arrest must be given to the arrested person before or at the time of the arrest.

Power to stop, detain and search

Section 54(1) allows a police officer to stop, detain and search any person as long as he "acts in a suspicious manner". This requirement of suspicion was said to be subjective in a 1980 case. Whether this remains good law is unclear as it was decided before the coming into effect of the Basic Law and the Bill of Rights and the judgment in Yeung May-wan. On the other hand, section 54(2) requires an objective reasonable suspicion.

Proof of identity

Any person aged 15 or above and is a holder of a Hong Kong Identity Card

Hong Kong Identity Card

The Hong Kong Identity Card is an official identity document issued by the Immigration Department of Hong Kong. The Hong Kong Permanent Identity Card is a class of HKID issued to Hong Kong residents who have the right of abode in Hong Kong SAR. According to the Registration of Persons Ordinance...

is required to have it with him at all times. There is no requirement that reasonable suspicion is needed if a police officer decides to demand the production of one's Identity Card, as long as the officer is in uniform or produces his appointment documentation. A police officer may arrest without warrant anyone who fails to produce his Identity Card. Failure to produce one's Identity Card is an offence punishable by a level 2 fine.

The Hong Kong Human Rights Monitor

Hong Kong Human Rights Monitor

Hong Kong Human Rights Monitor is a local non-governmental organization which was established in April 1995. It aims at promoting better human rights protection in Hong Kong in the aspect of legislation and people's everyday life....

has expressed its reservations as to the compatibility of this power with the Bill of Rights.

Right to privacy

The right to privacy is protected by Article 30 of the Basic Law and Article 14 of the Bill of Rights. At statutory level, protection is mainly offered by the Personal Data (Privacy) Ordinance, which has quite a limited scope. It stipulates six data protection principles which must be adhered to when dealing with personal data. Non-compliance with the principles is not a criminal offence but the party concerned may be served with an enforcement notice by the Privacy Commissioner. Non-compliance with an enforcement notice is punishable by a penalty of a fine at Level 5 and imprisonment for 2 years. The statute also creates a civil cause of action

Cause of action

In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...

: an individual who suffers damage, including injured feeling, by reason of a contravention of the Ordinance in relation to his or her personal data may seek compensation from the data user concerned.

However, the powers of law enforcement officers to conduct covert surveillance had been largely unchecked before 2005. The legal basis for covert surveillance first came under scrutiny in two criminal cases in the District Court in 2005. To plug the loophole, the Chief Executive promulgated the Law Enforcement (Covert Surveillance Procedure) Order in August 2005. Leung Kwok-hung

Leung Kwok-hung

and Koo Sze Yiu, two political activists who claimed they had probably been targets of covert surveillance, brought an action to challenge the constitutionality of the practice of covert surveillance. They succeeded at the Court of First Instance, which held that section 33 of the Telecommunication Ordinance and the Order were both unconstitutional. The former created the power to intercept communications without adequate safeguards against abuse. The later failed to comply with the procedural requirement in the Basic Law. The decision was affirmed by the Court of Appeal and the Court of Final Appeal. The Court of Final Appeal suspended for six months the declaration of invalidity of the unconstitutional provisions, so that new legislation can be introduced to regulate covert surveillance. The Interception of Communications and Surveillance Ordinance (Cap. 589) was passed by the Legislative Council

Legislative Council of Hong Kong

The Legislative Council is the unicameral legislature of Hong Kong.-History:The Legislative Council of Hong Kong was set up in 1843 as a colonial legislature under British rule...

on 6 August 2006 after a 58-hour debate.

The law enforcement agencies

Law enforcement agency

In North American English, a law enforcement agency is a government agency responsible for the enforcement of the laws.Outside North America, such organizations are called police services. In North America, some of these services are called police while others have other names In North American...

have since been heavily criticized by the Honourable Mr Justice Woo V-P, the Commissioner on Interception of Communications and Surveillance. He remarked that some law enforcement officers were dishonest and unwilling to cooperate, behaved in an arrogant and presumptuous manner that was bordering on recalcitrance, and disobeyed orders by deleting relevant recordings of covert surveillance. It was also revealed that the government relied on a Canadian precedent to question the Commissioner's power to access covert surveillance recordings, and that a legislative amendment may be required to clarify the situation. An outrage was caused when it was revealed ICAC officers spent four days tapping a man's phone line although their target was a supposed to be female. Also revealed were four cases of unauthorised ICAC tapping of phone conversations between lawyers and their clients in 2007.

In 2010, it was reported that the police might have conducted covert surveillance over the phone conversations of participants of the anti-express rail

Opposition to the Guangzhou-Hong Kong Express Rail Link

Opposition to the Guangzhou-Hong Kong Express Rail Link , is a movement and period of civil discontent in Hong Kong between mid 2009 and early 2010...

demonstrations. When a district councillor questioned Police Commissioner Tang King Shing

Tang King Shing

Tang King-shing, PMSM, PDSM was the Commissioner of the Hong Kong Police force until 11th January 2011.-Biography:Tang joined the Royal Hong Kong Police in 1976 as a Probationary Inspector...

regarding the incident, Tang did not respond to the question directly, choosing to reply that the police acts according to law and adopts a stringent management of all covert surveillance operations.

Right to vote

The right to vote is protected under Article 26 of the Basic Law.

Previously, there was a general automatic and indiscriminate restrictions on prisoners' right to vote. A case was brought by two men, Chan Kin-sum and Choi Chuen-sun, who were in jail during the challenge, and Leung Kwok-hung

Leung Kwok-hung

, to challenge the restrictions. Mr. Justice Andrew Cheung ruled that inmates have the constitutional right to register as voters and cast their ballots while serving sentences, which was unjustificably infringed by the indiscriminate ban.

Two League of Social Democrats

League of Social Democrats

The League of Social Democrats or LSD is a radical pro-democratic political party in Hong Kong. Its declared purpose is to "take a clear-cut stand to defend the interests of the grassroots"...

activists also applied for a judicial review

Judicial review

Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...

to challenge the legality of corporate voting on the grounds that it contravened Article 26 or was discriminatory in nature. Mr. Justice Andrew Cheung dismissed the applications, emphasising that his judgment was solely concerned with the constitutionality of corporate voting rather than the political wisdom of corporate voting or functional constituencies.

Right of abode

The definition of Hong Kong permanent residents is listed in Article 24 of the Basic Law, under which this class of persons enjoy the right of abode. However, the conflict between this Article and Article 22 led to extensive controversies and litigations.

Right to travel and enter or leave the Region

The freedom of emigration, along with the freedom to travel and to enter or leave the Region, is guaranteed to Hong Kong residents under Article 31 of the Basic Law and Article 8(2) of the Bill of Rights. On the other hand, section 11(10) of the Immigration Ordinance provides that any permission given to a person to land or remain in Hong Kong shall, if in force on the day that person departs from Hong Kong, expire immediately after his departure.

The case of Gurung Kesh Bahadur v. Director of Immigration illustrated the problem of the provision. Mr. Bahadur, a Nepalese

Nepal

Nepal , officially the Federal Democratic Republic of Nepal, is a landlocked sovereign state located in South Asia. It is located in the Himalayas and bordered to the north by the People's Republic of China, and to the south, east, and west by the Republic of India...

citizen, was a non-permanent resident of Hong Kong since 1995. Extensions of stay were made a few times, and the last one was to expire in January 1999. In October 1997, he flew to Nepal

Nepal

, returning to Hong Kong 7 days later. The Custom refused Mr. Bahadur's application for permission to land by virtue of section 11(10) of the Immigration Ordinance. His challenge of the provision succeeded in the Court of Final Appeal, which held that the provision was on itself constitutional but was unconstitutional when applied to non-permanent residents whose permission to stay had yet to expire. Hence the provision is no longer applicable to the above class of persons.

Since the right to enter the Region is a right guaranteed to Hong Kong residents only, the government has been accused of denying entry to politically sensitive persons who are not Hong Kong residents, including US-based activists in the Tiananmen Incident

Tiananmen Incident

The Tiananmen Incident took place on April 5, 1976 at Tiananmen Square in Beijing, China. The incident occurred on the traditional day of mourning, the Qingming Festival, after the Nanjing Incident, and was triggered by the death of Premier Zhou Enlai earlier that year...

, Falun Gong practitioners, and Tibetian independence supporters. High profile persons denied entry include Taiwan President Ma Ying-jeou

Ma Ying-jeou

Ma Ying-jeou is the 12th term and current President of the Republic of China , commonly known as Taiwan, and the Chairman of the Kuomintang Party, also known as the Chinese Nationalist Party. He formerly served as Justice Minister from 1993 to 1996, Mayor of Taipei from 1998 to 2006, and Chairman...

and Jens Galschiot, the sculptor of the Pillar of Shame

Pillar of Shame

Pillar of Shame is a series of sculptures by Danish artist Jens Galschiøt. Each sculpture is an 8-metre tall bronze, copper or concrete statue — four have been erected, in Rome, Hong Kong, Mexico, and Brazil. A fifth one in Berlin was planned.-Symbolism:...

that commemorates the June 4th incident.

On 21 June 2010, the Court of First Instance held that the requirement that, subject to a grace period of 56 days, an adult applicant for comprehensive social security assistance (“CSSA”) must have resided in Hong Kong continuously for at least one year immediately before the date of application is unconstitutional since it unjustifiably infringes the freedom to travel and the right to equality.
The case was brought by Hong Kong permanent resident George Yao Man-fai, who had been previously employed on the mainland. He was refused CSSA after he returned to Hong Kong after termination of his employment. As a result, the Social Welfare Department announced it is shelving the one-year continuous residence requirement for new and repeat applications for Comprehensive Social Security Assistance.

Right to form trade unions and to strike

The right to form trade unions and to strike is provided by Article 27 of the Basic Law. The British government ratified the International Labour Conventions in 1949 but it was not until 1979 that the Conventions were partially enforced in Hong Kong.

There is a system of compulsory registration under the Trade Union Ordinance (Cap. 332). Under section 5(5) of the Ordinance, the officers of any trade union which fails to register are liable to a fine of $1,000 and imprisonment for six months. The Registrar has the power to monitor trade union activities through the supervision of union rule books, accounts and related documents. Trade unions are obliged by law to report to the Registrar where there are changes to the rule book, or the offices and branches operated by the trade unions. Such legal limits on the right to form trade unions were criticized by the Hong Kong Human Rights Commission.

Section 9 of the Employment Ordinance makes it clear that the fact that an employee takes part in a strike does not entitle his employer to terminate the employee's contract of employment. If a worker is be dismissed for strike action, he or she would have the right to sue the employer for compensation. However, there is no legal entitlement to reinstatement.

The Hong Kong Liaison Office of the International Trade Union Confederation commented that although there is some protection in labour law, workers and unions have little opportunity for defending their rights in practice.

Right to social welfare

The right to social welfare is protected under Article 36 of the Basic Law, which further provides that the welfare benefits and retirement security of the labour force shall be protected by law. The Comprehensive Social Security Assistance is a form of social security provided by the Hong Kong government. The Mandatory Provident Fund

Mandatory provident fund

The Mandatory Provident Fund , often abbreviated as MPF , is a compulsory saving scheme for the retirement of residents in Hong Kong...

is a compulsory saving scheme (pension fund) for the retirement of residents in Hong Kong: both employees and employers have to contribute, as long as the salary of the employee exceeds a statutorily stipulated level. However, there is no social insurance

Social insurance

Social insurance is any government-sponsored program with the following four characteristics:* the benefits, eligibility requirements and other aspects of the program are defined by statute;...

in Hong Kong.

The CSSA is only provided to residents of Hong Kong for at least seven years. A new mainland migrant whose Hong Kong husband died a day after her arrival challenged the seven years requirement. On 23 June 2009, the Court of First Instance held that the requirement was a justified restriction of the right to equality.

Human rights under international law

The International Covenant on Economic, Social and Cultural Rights

International Covenant on Economic, Social and Cultural Rights

The International Covenant on Economic, Social and Cultural Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from January 3, 1976...

(ICESCR) is in effect in Hong Kong by virtue of Article 39 of the Basic Law. It requires the government to take steps by all appropriate means and to the maximum of its available resources to achieve the rights in the Covenant. The Court has repeatedly expressed the judicial opinion that such rights are positive in nature and are not enforceable unless domestic legislation has been enacted providing for the rights stipulated therein. Unlike the ICCPR, the ICESCR was not incorporated into domestic Hong Kong law and is only binding under international law. Hartmann J's description of the ICESCR as "aspirational" and "promotional" sums up the approach of the Hong Kong courts.

A number of ICESCR rights are incorporated in the Basic Law, such as the right to form trade unions and to strike (Article 27), right to social welfare (Article 36) and the right to benefit from the production of moral and material interest resulting from any scientific, literary or artistic production of which he is the author (Article 140).

Although the right to housing

Right to housing

The right to housing is the economic, social and cultural right to adequate housing and shelter. It is recognised in the Universal Declaration of Human Rights and International Covenant on Economic, Social and Cultural Rights.- Definition :...

(Article 11 of the ICESCR) is not incorporated in any domestic law and is hence not an "entitlement", the Hong Kong Government has been providing public housing in the nature of "grace". In 1973, the government announced a 10-year plan to provide self-contained public housing to 1.8 million people. In 1995, public housing accommodated 2 million people, accounting for 45% of all housing. Public housing rental units are provided at subsidized rates (typically 20% of that in the private market), although their allocation is mean tested. The government introduced the Home Ownership Scheme

Home Ownership Scheme

The Home Ownership Scheme is a subsidized-sale programme of public housing in Hong Kong managed by the Hong Kong Housing Authority...

in 1978 and the Sandwich Class Housing Scheme

Sandwich Class Housing Scheme

Sandwich Class Housing Scheme was a scheme by the Hong Kong Housing Society for building apartments that were sold to middle-income families, i.e. sandwich class, at concessionary prices during the 1990s. The purchases were subject to a five-year resale restriction. The first development, Tivoli...

in the 1990s to allow families to own their own homes.

Although the right to health

Right to health

The right to health is the economic, social and cultural right to the highest attainable standard of health. It is recognised in the Universal Declaration of Human Rights and International Covenant on Economic, Social and Cultural Rights.- Definition :...

is contained in Article 12 of the ICESCR, there is again no entitlement as such in domestic Hong Kong law. However, Article 138 of the Basic Law requires the HKSAR to improve medical and health services by formulating policies to develop Western and Chinese medicine. Healthcare is provided by the government in the nature of "grace": the Accident & Emergency service and the in-patient (general acute beds) service provided by the Hospital Authority

Hospital Authority

The Hospital Authority is a statutory body managing all the public hospitals and institutes in Hong Kong. It is managed by the Hospital Authority Board and is under the monitor of the Secretary for Food and Health of the Hong Kong Government. Its chairman is Mr...

charges HKD100 per visit and HKD100 per day respectively. 95% of Hong Kong prople depend on the in-patient service provided by the public sector and 30% on the out-patient service provided by the public sector.

Allegations of police brutality

Human rights groups have accused the Hong Kong Police of using heavy-handed tactics on non-violent protesters.

In 2002, Amnesty International

Amnesty International

Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...

cited the use of excessive force in an incident at Chater Garden

Chater Garden

where more than 350 police and immigrations officers stormed a group of 200 protesters. According to them, the protesters had been peacefully staging rallies against the Court of Final Appeal ruling that the majority of 5,114 people seeking residence in the territory did not have right to stay in Hong Kong and should return to mainland China

Mainland China

Mainland China, the Chinese mainland or simply the mainland, is a geopolitical term that refers to the area under the jurisdiction of the People's Republic of China . According to the Taipei-based Mainland Affairs Council, the term excludes the PRC Special Administrative Regions of Hong Kong and...

.

In 2002, a group of Falun Gong

Falun Gong

practitioners who were protesting outside the Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region

Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region

The Liaison Office of the Central People's Government in the Hong Kong Special Administrative Region is an organ of the Central People's Government of the People's Republic of China.-Description:...

were being forcibly removed from the street by Hong Kong Police with heavy-handed tactics. All were later charged with the offence of Public Place Obstruction. The Falun Gong defendants contested and appealed to the Court of Final Appeal. All defendants in this case (Yeung May-Wan & others v Hong Kong Special Administrative Region) were acquitted.

In 2008, police sergeant Thom Wing-hong punched a man in custody

Detention (imprisonment)

Detention is the process when a state, government or citizen lawfully holds a person by removing their freedom of liberty at that time. This can be due to criminal charges being raised against the individual as part of a prosecution or to protect a person or property...

, Lik Sin-wan, in the head after the two argued over the way to conduct Lik's search. Lik, who had recently received a head operation, suffered serious injury as the strikes ruptured his reconstructed head bone. Thom then accused Lik of assaulting a police officer. Lik was later charged and appeared in court in August 2008 but was acquitted. The assault only came to light after the magistrate

Magistrate

A magistrate is an officer of the state; in modern usage the term usually refers to a judge or prosecutor. This was not always the case; in ancient Rome, a magistratus was one of the highest government officers and possessed both judicial and executive powers. Today, in common law systems, a...

became suspicious of the circumstances of Lik's injury and ordered an investigation. Thom was charged with causing grievous bodily harm

Grievous bodily harm

Grievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....

and sentenced to 10 months in prison.

In 2010, the Hong Kong Police came under heavy criticism for using pepper spray

Pepper spray

Pepper spray, also known as OC spray , OC gas, and capsicum spray, is a lachrymatory agent that is used in riot control, crowd control and personal self-defense, including defense against dogs and bears...

on anti-Guangzhou-Shenzhen-Hong Kong Express Rail Link

Guangzhou-Shenzhen-Hong Kong Express Rail Link

The Guangzhou-Shenzhen-Hong Kong Express Rail Link Hong Kong Section is a proposed high speed railway connecting Kowloon with the high-speed rail network of China at Shenzhen...

protestors who were demonstrating outside the Legislative Council

Legislative Council

A Legislative Council is the name given to the legislatures, or one of the chambers of the legislature of many nations and colonies.A Member of the Legislative Council is commonly referred to as an MLC.- Unicameral legislatures :...

. Shortly after the Legislative Council's approval of the project, a group of demonstrators tried to break through a security cordon and were met with pepper spray. Secretary for Security Ambrose Lee subsequently condemned demonstrators who clashed with the police, saying that they "violated stability and law and order" and would not be tolerated. When the police was questioned by the Legislative Council for their use of pepper spray, assistant police commissioner Austin Kerrigan claimed the force used was not excessive. He accepted many protestors were peaceful, but said some had crossed the line. He did not directly answer the legislators' question as to whether ample warning was given before using pepper spray. It was revealed 7 police officers suffered injuries in the clash.

Also, Hong Kong Human Rights Monitor

Hong Kong Human Rights Monitor

has alleged that cases of torture and death in custody have not being properly investigated.

Political neutrality of the police

Political activist Christina Chan

Christina Chan

Christina Chan is a political activist in Hong Kong, known for her stand on human rights, democracy and Tibetan independence. She is enrolled in a master's degree in philosophy in the University of Hong Kong.-Early life:...

claimed that policemen visited her parent's home the day before the anti-high speed rail demonstration

Opposition to the Guangzhou-Hong Kong Express Rail Link

Opposition to the Guangzhou-Hong Kong Express Rail Link , is a movement and period of civil discontent in Hong Kong between mid 2009 and early 2010...

and asked irrelevant questions. After being arrested for assaulting a police officer in the execution of his duty and subsequently bailed, she claimed the police did not ask any relevant questions to the incident, but harassed her instead.

In February 2010, immediately after Andrew To

Andrew To

Andrew To is a member of the Wong Tai Sin District Council, Hong Kong. He is the chairman of League of Social Democrats since February 2010, succeeding Wong Yuk-man...

became the Chairman of the League of Social Democrats

League of Social Democrats

The League of Social Democrats or LSD is a radical pro-democratic political party in Hong Kong. Its declared purpose is to "take a clear-cut stand to defend the interests of the grassroots"...

, he was charged with assaulting a police officer in the execution of his duty for his conduct during a demonstration on 1 October 2009. To claimed that certain video records showed that it was the police officers who punched him, and that he did not assault the police. He expressed his belief that the charge was based solely on political ground.

Independence of the police and accountability on policing

Regional police forces are not governed by a police authority

Police authority

A police authority in the United Kingdom, is a body charged with securing efficient and effective policing of a police area served by a territorial police force or the area and/or activity policed by a special police force...

consisting of elected officials and local members of public, but solely reports to the Security Bureau

Security Bureau (Hong Kong)

The Security Bureau is a body of the Government of Hong Kong responsible for a range of activities, including law enforcement, search and rescue and administer various laws in relation to the security of Hong Kong....

of HKSAR government, headed by appointed civil servants from the executive branch of government.

Complaints about the police are handled by Complaints against Police Office

Complaints Against Police Office

The Complaints Against Police Office is a unit within the Hong Kong Police Force that handles complaints against the force's officers.All reviews conducted by CAPO are monitored by the Independent Police Complaints Council ....

(CAPO), which is not independent but part of the Hong Kong Police Force. The Independent Police Complaints Council

Independent Police Complaints Council

The Independent Police Complaints Council is a civilian body of the Government of Hong Kong, part of the two-tier system in which the Hong Kong Police Force investigates complaints made by the public against its members and the IPCC monitors those investigations.The IPCC was created as an...

(IPCC) is set up to independently review every case handled by CAPO.

While the official mission of Independent Police Complaints Council (IPCC) is to independently review every case handled by CAPO, in fact it has no investigative powers, nor is it involved in hearing appeals to CAPO rulings.

Calls for reform, from both local non-government organisations

Non-governmental organization

A non-governmental organization is a legally constituted organization created by natural or legal persons that operates independently from any government. The term originated from the United Nations , and is normally used to refer to organizations that do not form part of the government and are...

, political parties as well as the UNCHR, have been largely ignored by the government.

National security and Article 23 of Basic Law

Hong Kong SAR has the constitutional duty of safeguarding national security

National security

National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...

by virtue of Article 23 of the Basic Law. In 2002, in order to fulfil their constitutional duty, the government tabled an anti-subversion bill. However, as with national security legislation in many countries, civil libertarians feared powers in the proposed law would erode the fundamental freedoms of the people. With the backdrop of an authoritarian sovereign state, there were fears that the propsed law would be used to suppress organisations which disagreed with the policies of either the Special Administrative Region or the Central Government.

External links

Official Web Pages

Non-Government Organisations

Information Sources

Freedom of expression in Hong Kong

The source of this article is wikipedia, the free encyclopedia. The text of this article is licensed under the GFDL.

Sino-British Joint Declaration

Basic Law

Bill of Rights Ordinance

Judicial Review

Right to life

Freedom of expression

Freedom of assembly

Statutory restriction framework

Constitutionality of the statutory framework

Obstruction of public place

Freedom of religion

Right to equality

Sexual orientation

Indigenous persons

Gender

Legal certainty

Presumption of innocence

Right to property

No arbitrary arrest, detention, imprisonment, search or seizure

Power of arrest

Power to stop, detain and search

Proof of identity

Right to privacy

Right to vote

Right of abode

Right to travel and enter or leave the Region

Right to form trade unions and to strike

Right to social welfare

Human rights under international law

Allegations of police brutality

Political neutrality of the police

Independence of the police and accountability on policing

National security and Article 23 of Basic Law

See also

External links