From bail bans to solitary confinement: Concerns about the treatment of detained lawmakers and protestors #ReleaseMyCandidate

On December 14, Hong Kong Watch launched its #ReleaseMyCandidate campaign, demanding the immediate release of 47 pro-democracy candidates for the upcoming Legislative Council election who were imprisoned under the National Security Law earlier this year. 

All but 14 of the candidates have been denied bail. Historically, the human rights safeguards under Hong Kong’s Basic Law have guaranteed the right to bail. Article 5(3) of the Hong Kong Bill of Rights Ordinance states that: “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.” As such the NSL, which provides that “no bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security” under Article 42(2), is a clear contravention of the human rights safeguards enshrined under the Basic Law. 

On 9 February 2021, the Court of Final Appeal rejected Jimmy Lai’s application for bail. The court judgment stated that the court has no jurisdiction to assess the National Security Law’s compliance with the human rights safeguards laid out in the Basic Law and concludes that the NSL supersedes the Basic Law and the Hong Kong Bill of Rights Ordinance. The resulting precedent means that those facing trial under the NSL are generally not allowed bail, even though the new status quo is in breach of Hong Kong’s international commitments.

Following conversations with sources in Hong Kong, we have profound concerns about the treatment of those subjected to lengthy periods of arbitrary detention. 

1.      Detained lawmakers have been held in solitary confinement

We have heard reports from multiple sources that those being held in pre-trial detention have been put into ad hoc, and seemingly random, prolonged periods of solitary confinement.

Solitary confinement has often been indiscriminately used as a tactic to punish imprisoned activists. In November 2020, it was reported that Joshua Wong Chi-fung was held in solitary confinement in Lai Chi Kok Reception Centre after X-ray scans had reportedly detected “foreign objects” in his stomach. During this time, he was not allowed time to exercise outdoors, and was forced to stay in his room at all times, apart from during visiting hours. Lights in his room were kept on for 24 hours, forcing him to use his face mask to cover his eyes in an attempt to fall asleep. As he was isolated due to presumed prior use of drugs, officers had to wake him up every four hours in the middle of the night to check his blood pressure and oxygen levels. He was also denied access to the toilet and running tap water, a rule likely meant to prevent offenders from washing down their drugs and was only given a plastic plate for excretion purposes.

In March this year, it was reported that activist Andy Li had been secretly held in solitary confinement at maximum security Siu Tam Psychiatric Centre. Li’s case was rumoured to be handled by a special unit in the CSD colloquially known as the “secret unit” which manages detainees who need to be kept separately. Li was said to have received special attention from authorities because they wanted to prevent him from speaking out of turn and revealing details about his seven-month detention treatment in mainland China. Visitors to detainees managed by the secret unit must be approved by police. Li’s sister had tried to contact Li in Siu Tam but to no avail. Li’s lawyer also hadn’t been allowed to meet with him at the time.

The United Nations Human Rights Committee has said that solitary confinement is a harsh penalty with serious psychological consequences and use other than in exceptional circumstances and for limited periods is inconsistent with the ICCPR and may amount to torture. The use of solitary confinement against those held in pre-trial detention is clearly in breach of international law and human rights principles. It must be immediately stopped.

2.      The trial of the 47 lawmakers could take up to two years

Lawyers advise that the collection of evidence for the trial of the 47 candidates for election will take considerable time, and that the case may not come before the courts for nearly two years.

This will mean that, before any of the democrats who have been charged under the law come to trial, they will have been held in pre-trial detention for nearly two years.

This is a clear case of arbitrary detention of pro-democracy activists and ought to be investigated by senior United Nations officials. The new bail requirements are unacceptable, and trials where the defendants are not granted bail ought to be expedited. Furthermore, in the case of the democratic candidates facing trial under the National Security Law, there are no rational grounds for denying bail to the defendants.

3.  The application of retroactive evidence to justify bail bans.

The courts and prosecutors have martialled evidence from prior to the passage of the National Security Law to justify denying bail to suspects.

In the case of Jeremy Tam, an invitation to coffee which was directed to him by the US Consulate prior to the passage of the National Security Law was used as evidence that he was a person of interest to foreign powers and therefore could not be granted bail. Similar evidence was used against ‘Long Hair’ Leung Kwok-hung and was accepted by the court. This is clearly in contravention to Carrie Lam’s pledge made in June that the NSL “would have no retrospective effect.”

4.  Physical abuse and heat exhaustion concerns

We are also worried that the lawmakers and activists might face physical abuse in prison. 

During a Demosisto press conference in 6 May 2020, three ex-detainees alleged that they were tortured and abused while detained in Pik Uk Correctional Institute. They recounted how they were taken to areas out of sight of surveillance cameras and were beaten and slapped by wooden rods, metal rulers and batons. On 7 February 2020, they were attacked by guards after being caught singing the popular protest anthem “Glory to Hong Kong” and were made to count aloud and shout “Thank you, sir” as prison staff beat their hands and feet. When the guards got tired, the inmates were ordered to repeatedly slap themselves instead.

Allegations of physical abuse in Hong Kong prisons are nothing new. In 2017, former juvenile prisoner ​​Paul Fu claimed that he was treated “like a dog” during his three months of detention in Lai Chi Kok Rehabilitation Centre. He said he had been “slapped ruthlessly” for no reason and had seen other prisoners being mistreated in many other ways, such as being forced to eat faeces and lick urine, barred from going to the toilet, or given only seconds for a hower, even when their bodies are still covered in soap.

There is also overwhelming evidence that the detainees could face heat exhaustion while in prison. It was widely reported that inmates suffered from overheating during summer this year. Democrat Fernando Cheung said, “High temperatures and lack of ventilation in prison cells during hot summers have been a problem for years, especially when most prison facilities are very old and not equipped to provide such protection.” Inmates complained about the severe heat, which was akin to “living in a steamer.” The Correctional Services Department has largely failed to ameliorate the deteriorating situation and the old prison facilities are still ill-equipped to provide adequate protection to inmates.

5.  The lack of an independent investigation mechanism

Even if the political prisoners faced abuse or harsh treatment, they would not have anywhere  to turn to. 

Individual reports of harsh treatment mentioned above are likely just the tip of the iceberg. The lack of an independent mechanism to investigate complaints results in prisoners being reluctant to report the abuse they suffered and a low number of substantiated complaints. Many prisoners are afraid to complain as prisons are “enclosed systems” under the full control of the CSD.

According to ex-inmate Berry Lam Kai-shing, silence has become a culture among young offenders because they think it is useless to complain. Lam has seen complainants who were called into an officer’s room to “have a talk” and came out denying the claims they had made. He suspects those complainants were either beaten or threatened. The fear of retribution is widespread and many have reported being placed in solitary confinement, reported for disciplinary offences, being beaten by either CSD staff or other inmates for having complained.

We call on the Hong Kong government to immediately stop the use of arbitrary solitary confinement against those in pre-trial detention and expedite trials where large numbers have been denied bail. The United Nations should assess whether the new bail regime is in breach of human rights. Democratic governments should call for better treatment for those who have been detained.

Recommendations

1.      The Hong Kong government should reform the National Security Law so that bail is granted to defendants in all but the most exceptional circumstances.

2.      The Hong Kong government must immediately stop the use of arbitrary solitary confinement and torture against those in pre-trial detention.

3.      The Hong Kong government should expedite the cases of those who have been denied bail.

4.      The United Nations should assess whether the new bail regime is in breach of fundamental rights including the right to fair trial, freedom from torture and freedom from arbitrary detention.

5.Democratic governments should petition with the Hong Kong government for better treatment of those who are being held in pre-trial detention, and that they should be granted bail.

This blog was written by Sophie Mak

由保釋被拒到單獨囚禁︰關注正被拘留的立法會議員和示威者的待遇

12月14日，香港監察在社交媒體開展 #釋放我的候選人 活動，促請當局立即釋放因國安法被囚禁的47位民主派立法會候選人。

目前只有14位候選人獲准保釋，其餘候選人的保釋申請均被拒。《基本法》的人權保障包括被保釋權。《香港人權法案》第5(3)條列明︰「因刑事罪名而被逮捕或拘禁之人，應迅即解送法官或依法執行司法權力之其他官員，並應於合理期間內審訊或釋放。」國安法第42(2)條卻列明︰「對犯罪嫌疑人、被告人，除非法官有充足理由相信其不會繼續實施危害國家安全行為的，不得準予保釋。」這條款顯然違背《基本法》訂明的人權保障。

2021年2月9日，終審法院拒絕黎智英的保釋申請。判詞指法院無權評估國安法是否符合《基本法》中訂明的人權保障，並總結指國安法凌駕《基本法》和《香港人權法案》。此先例意味著面臨國安法審判的人士通常都不會獲准保釋，這違反了香港的國際承諾。

根據香港知情人士提供的資料，以下是正被長期任意拘留的人士的待遇，我們對此深表關注︰

1.     據知部份在審訊前被拘留的立法會議員被單獨囚禁。聯合國人權事務委員會指單獨囚禁是嚴苛的懲罰，會帶來嚴重的心理後果，若不是在特殊情況下、而且不只在有限時間內單獨囚禁在囚人士，將不符合《公民權利和政治權利國際公約》，有可能構成酷刑。單獨囚禁在審訊前被拘留的人士，顯然違反了國際法和人權原則，必須立即停止。

2.     47名立法會議員的審訊可能需時長達2年。這將意味著所有民主派人士在開始審訊之前，將已被拘留近2年。這顯然是任意拘留民主派人士的案例，聯合國高級官員應該就此進行調查。新的保釋要求是不可接受的，應加快對不獲准保釋的被告的審判。此外，對於面臨國安法審判的民主派候選人，拒絕他們的保釋申請也沒有合理的理由。

3.    法院和檢察官收集國安法通過之前的證據，拒絕被捕人士的保釋申請。在譚文豪的案例中，美國領事館在國安法通過之前邀請過他喝咖啡，該邀請被用作證據，證明他是外國勢力的利益相關者，因此不獲准保釋。類似的證據被用於控告梁國雄，並獲法庭接納。這顯然違反了林鄭月娥6月份指國安法「不具追溯力」的承諾。

4.    我們憂慮被囚禁的立法會議員和民運人士在獄中可能遭受虐待。早前曾有被拘留的人士指他們在拘留中心遭受酷刑和被虐打，許多在囚人士亦指在夏天時，獄中的高溫和缺乏通風設備令他們中暑。

5.    儘管政治囚犯被虐待或面對嚴苛的對待，他們卻投訴無門，因為目前並沒有獨立的機制調查投訴，令在囚人士不敢報告他們被虐待的情況。

我們要求香港政府立即停止單獨囚禁在審訊前被拘留的人士，並加快對被拒保釋的人士的審訊。聯合國應評估新的保釋安排有否違反人權。民主政府應呼籲改善被拘留人士的待遇。

建議

1.     香港政府應修訂國安法，讓被告在大部份非特殊情況下獲准保釋。

2.     香港政府必須立刻停止單獨囚禁和以酷刑對待在審訊前被拘留的人士。

3.     香港政府應加快對被拒保釋的人士的審訊。

4.     聯合國應調查新的保釋安排有否違反基本人權，包括公平審訊的權利、免受酷刑的自由及免於任意拘留的自由。

5.     民主政府應促請香港政府改善對在審訊前被拘留的人士的待遇，以及讓他們獲准保釋。