Hong Kong Human Rights Monitor: Submission for the United Nations Universal Periodic Review of the People's Republic of China (Hong Kong Special Administrative Region) scheduled to be held in Oct 2013
Introduction After the Handover of Hong Kong from the United Kingdom to the People's Republic of China in 1997, China has adopted a 'One Country, Two Systems' policy by which the Hong Kong Special Administrative Region (HKSAR or HK) was promised a high degree of autonomy and institutions for preserving its way of life, including a legal system distinct from Mainland China. This report only highlights below six major areas of current human rights concerns in the HKSAR.
A). Democracy and universal suffrage Article 45 of the HKSAR Basic Law stipulates, "The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures." The Standing Committee of the National People's Congress (SCNPC) decided in 2007 that universal suffrage may be implemented for the Chief Executive in 2017, and for the Legislative Council in 2020.
There remain serious concerns as to whether the "universal suffrage" to be implemented in Chief Executive Election in 2017 and Legislative Council Election in 2020 is to be genuine, or will be distorted. Recent speeches alluding to a different concept of what they regard as universal suffrage have been made by Mainland China officials. The timing is not coincidental, but is seen as part of a carefully choreographed effort to obfuscate and re-define. The transparent aim is to build into the Chief Executive electoral system hurdles to exclude candidates considered not "loving the Country and loving Hong Kong" by the central authorities, and to perpetuate the gerrymandering in favour of pro-Government and pro-establishment parties by the maintenance of the functional constituency system in Legislative Council, which has been criticized for breaching human rights by various UN treaty bodies. The achievement of a non-ersatz sytem depends on whether distorting elements will be totally abolished, as well as on how the future nomination committee be composed and returned, and on whether there will be high or unreasonable nomination threshold as well as pre-screening, etc., designed to exclude candidates from the opposition.
We request the Human Rights Council (HRC) to urge the HKSAR government to implement universal suffrage in a way consistent with all Covenant rights and Concluding Observations of the UN Human Rights Committee, especially the equal right to nominate and be nominated to run for elections, and to run for elections and be elected in the Chief Executive Elections. The HKSAR government should also be urged to abolish all forms of functional constituencies in the Legislative Council Elections. No distorting elements and pre-screening. nor unreasonable thresholds, should be adopted in the nomination process or mechanism in all the Chief Executive and Legislative Council Elections.
B). The Rule of Law The Sino-British Joint Declaration promises the continuation of a Common Law legal system in HK. One key feature of a Common Law system is that no one other than the Court has the power to interpret what the law means. No one, including the legislature or the executive, other than the judiciary itself can impose, other than by emending the law, a binding interpretation of the law on the judiciary whether before, during or after a court case. Contrary to this promise, the Basic Law, the mini-constitution of the HKSAR adopted by the national parliament purportedly to implement the Joint Declaration, requires the HK judiciary to be bound by the interpretation of the Basic Law by the SCNPC. There are already several instances of interpretations since 1997, which the SCNPC interprets the law according to political needs and inevitably threatens judicial independence and autonomy in HK.
The HKSAR government has threatened to trigger interpretation of the Basic Law by the SCNPC on important issues with serious human rights implications. For instance, the Department of Justice (DoJ) filed the Respondents' cases in foreign domestic worker's rights of abode appeal in accordance with Court of Final Appeal on 12 Dec 2012. The DoJ suggested the Court consider seeking the NPCSC's interpretation on Article 158(1) of the Basic Law in order to clarify the legal effect of NPCSC's interpretation in 1999, which may deny right of abode to babies born in HK to mainland couples. Naturally, it triggered lawyers, legal academics and civil society's strong criticisms for damaging judicial independence, pressurizing the Court to overturn its 2001 decision that the opinions of the Preparatory Committee (another body) for the Hong Kong Special Administrative Region of the National People's Congress were not binding. This seeking of SCNPC's interpretation would set a very bad precedent as it implied the triggering of SCNPC's interpretation on provisions of the Basic Law on affairs totally internal to HK.
Justice Kemal Bokhary, the former permanent judge of the Court of Final Appeal warned that a "storm of unprecedented ferocity" was gathering over the rule of law in HK just before he retired in Oct 2012. He has rightly highlighted the fact that the rule of law in HK has been under pressure from individuals with influential political backgrounds and from certain media favouring the Mainland authorities. But the HKSAR government has failed to discharge its duty to defend the judiciary against attacks.
For example, senior Chinese leaders, including current China president Xi Jin-ping, have said the judiciary should cooperate with the Chief Executive during his trip as vice president to HK in 2008. Ms. Elsie Leung, the HKSAR's first Secretary for Justice who is also currently a Deputy Chairperson of the Committee for the Basic Law, alleged that the legal profession in HK, including judges, had a poor understanding of and misunderstood the Central-HKSAR relationship in Oct 2012, which suggests that she may be more interested in supporting the Central China government than she is in supporting the HKSAR Judiciary and legal profession, which is what she is supposed to do as a former HKSAR Secretary of Justice and a current HK Member of the Committee for the Basic Law.
We ask the HRC to urge the HKSAR and Mainland authorities not to use interpretation of the Basic Law by the Standing Committee for any purposes, thereby weakening or undermining the rule of law and the Common Law system in HK.
C). Press Freedom and freedom of information In the World Press Freedom index 2013 by Reporters without Borders, the rank of HK has dropped sharply from 34 in 2010-2011, 54 in 2011-2012 to 58 in 2012-2013. The World Press Freedom Index 2011-12 stated "Arrests, assaults and harassment worsened working conditions for journalists to an extent not seen previously, a sign of a worrying change in government policy."
There are frequent arrests of journalists by the HK Police Force. For instance, a photo journalist was arrested and charged, despite inadequate evidence, with common assault when he was obstructed in his reporting duty in the new HKSAR government headquarters in 2012. He was acquitted by the Court.
Unjustified restrictions on press freedom reached the peak during visits of Mainland China leaders. A reporter was detained for about 15 minutes, for shouting out question to the visiting China president Hu Jin-tao in June 2012 if Hu had heard about the HK People's wishes to vindicate 4 June Tiananmen crackdown, enough to prevent him from carrying out his legitimate journalistic duties. Another incident involved an attempt to prevent a photo journalist from filming during a visit by vice-premier Li Ke-qiang in August 2011.
We urge the HRC to urge the HKSAR government to ensure that the handling of press by the police officers should be in consistent with freedom of information enshrined by the ICCPR.
The HKSAR government has various attempts to restrict access to information by journalists, which will eventually undermine the freedom of information of public. For instance, the HK Police Force and the Fire Services Department have implemented a new system for releasing information about spot news incidents following the digitalization of their communication systems. Now journalists must rely on short announcements released through the Information Services Department that highlight the nature, place and time of a case, without giving any meaningful details. Another example is that the government intends to restrict public access to personal information of the managers in the company registry, which is an important way of collecting information for investigative reporting by journalists, researches on collusion between the government and tycoons by scholars and civil society, assessment of potential trade partners by companies and creditors, and meaningful tool for claiming unpaid salaries from absconding employers by workers.
There is no Freedom of Information Act in HK. The government maintains that its March 1995 administrative code on access to information introduced is effective. Even the government appointed Ombudsman severely criticized that Code in 2010. Under the Code, people of HK are not provided reasonable information and documents.
There is no archive law. There are no legal framework and professional standards for managing public records and archives. Only non-binding administrative rules and guidelines are present which public officials frequently ignored without serious consequences. In recent years, repeated loss, unauthorized massive destruction and mishandling of public records have been widely reported, which undermines people's right to know and the court to hold the Government accountable, e.g. in HK Association of Falun Dafa v Director of Immigration (CACV 119/2007). The HKSAR government destroyed over 30,000 linear meters of documents last year, undermining HK's historical records last year.
We urge the HRC to urge the HKSAR government to adopt policies and measures on media in line with the ICCPR. The government should "enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation" as stated in general comment no. 34 by the UN Human Rights Committee. The government should "proactively put in the public domain Government information of public interest" and enact an archive law.
D). Freedom of expression, police abuses and complaints handling system The HKSAR government has been taking hard line approach and threatening freedom of expression though prosecutions motivated by political reasons and abuses of law and procedures.
The UN Human Rights Committee expresses in its Concluding Observations that the Public Order Ordinance could be applied to restrict unduly enjoyment of the rights guaranteed in article 21 of the ICCPR. Indeed the number of protestors arrested has significantly increased in recent years. The regulation of the same Ordinance on public assemblies and its offences like "unauthorized assembly", "unlawful assembly" and "disorder in public places" are too vaguely, broadly and subjectively defined, which may be conducive to arbitrary and selective prosecution of protestors. We urge the HRC echoed the Committee's concerns and recommendations to urge the HKSAR government "to review this Ordinance and bring its terms into compliance with article 21 of the Covenant."
Furthermore, the police tightened its restriction on freedom of expression the most when Mainland China officials visited HK in 2011 and 2012. For instance, when the Appeal Board on Public Meetings and Processions has ruled in favour of a location for demonstration nearer to the demonstration target, the police defeated the Board's intention by engulfing the demonstration in 2-metre tall water barriers in order to stifle the petition to and demonstration against the visiting China President Hu Jin-tao in HK in late June 2012. Such abusive uses of water-filled barriers further provoked confrontation of the protestors with the police. We urge the HRC to urge the HKSAR government to ensure police handling of protests and assemblies should be in line with freedom of expression enshrined by the Article 19 and article 21 of the ICCPR.
The Independent Police Complaint Council (IPCC) cannot effectively monitor and check the police because of its limited mandate. It has no jurisdiction in investigation but basically in the review of complaints handled by the Complaint Against Police Office (CAPO), which is an internal unit of the police. IPCC gives non-binding advice the CAPO to reconsider complaint substantiation classifications and on measures against police officers found to be at fault. IPCC's limited access to the information of police forces further undermines its effectiveness.
Different UN Treaty bodies have called for establishing an independent police monitoring body with binding power. For instance, the Human Rights Committee's Concluding Observations in 2006 stated "The HKSAR should ensure that the investigation of complaints against the police is carried out by an independent body, the decisions of which are binding on relevant authorities." However there is no progress in empowering the IPCC to have power of investigation, verdict and punishment.
We urge the HRC to urge the HKSAR to expand the mandate and powers of the IPCC to conduct investigation into complaints against police officers.
E). National education, civic education and human rights education The HKSAR government has marginalized civil education and devoted its efforts and resources to promoting dubious uncritical "national education". The government attempted to boost nationalism in schools by focusing on the positive sides of China, emphasizing responsibility but not rights, requiring the students to recognize national identity at the expense of critical thinking. Increasing resources have been deployed to support production of indoctrination materials and trips to see the positive sides of Mainland China. The HKSAR government released the amended Moral and National Education Curriculum guide in May 2012 and made the subject compulsory in primary and secondary schools. However, the curriculum guide was criticized as rollback as it displaced civic education which emphasized universal human rights. Facing strong oppositions from students, parents and civic society through continued public assemblies, protests, hunger strikes and strikes in universities, the HKSAR government shelved the curriculum guide in Oct 2012.
We urge the HRC to urge the HKSAR government to better include and implement Human Rights education in an improved civic education framework according to Plan of Action of World Programme for Human Rights Education.
F). Human Rights Institution We urge the HRC to urge the HKSAR government to set up, in line with the Paris Principles, a statutory human rights commission for the protection and promotion of human rights in HK.
 "Decision of the Standing Committee of the National People's Congress on Issues Relating to the Methods for Selecting the Chief Executive of the Hong Kong Special Administrative Region and for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2012 and on Issues Relating to Universal Suffrage". 29 December 2007
 South China Morning Post, "Beijing offers definition of HK suffrage, 8 June 2010. Ming Pao, "Constitutional Reforms in HK and issues on universal suffrage in the future – the full text of Qiao Xiao-yang's speech", 8 June 20010.
 The electoral system of restricted franchise has been repeatedly by the UN Human Rights Committee to be inconsistent to several articles of the ICCPR in 1995, 1999, 2006 and 2013. For instance, it is criticized for violating the principle of university and equality, giving undue weight to the business community and discriminating between voters on the basis of property & functions.
 HKSAR Government press statement, "SJ on foreign domestic helper's case" 13 December 2012
 South China Morning Post, "Right of abode appeal to Beijing a bad precedent". The Standard, "'Ask Beijing' call dismays lawyers". 14 December 2012.
 South China Morning Post. "Retiring Court of Final Appeal judge Kemal Bokhary warns of legal turmoil". 25 October 2012
 South China Morning Post. "Xi tells Tsang to 'govern sensibly'". 8 July 2008.
 Hong Kong Bar Association, "HKBA Press Statement in Response to Recent Remarks Made by Ms Elsie Leung" http://hkba.org/whatsnew/press-release/HKBA%20Press%20Statement%20dated%2010%20Oct%20(Eng).pdf
 The International Federation of Journalists "Journalists Protest in Hong Kong over Photographer's Assault Charge". 28 September 2012.
 Chapter 5, "Direct Investigation Report: Effectiveness of Administration of Code on Access to Information", Office of the Ombudsman Hong Kong, January 2010.
 The number of protestors arrested in demonstration is greatly increased from 57 in 2010 to 440 in 2011.
 See e.g. Concluding Observations of the Human Rights Committee on Hong Kong Special Administrative Region (CCPR/C/79/Add.117), 15 November 1999, para. 19 and repetitions of calls in the subsequent Concluding Observations.
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更重要的是，法庭同時指出：「在考慮責任問題時，原告人和其他看到橫額的人的感受是沒有相關性的」(DCEO 1/2011 § 21)，而是根據Reasonable Man Standard去作出審核。
Reasonable Man Standard
作為要挑戰整條反歧視條例為目標的遠山當然不會放過這機會，在文中質疑Reasonable Man Standard 可能因為法官的「主觀性」會影響了在引用Reasonable Man Standard時的公平及公正性。
誠然；關於Reasonable Man Standard的問題，筆者認為這已經不單單是談及性傾向歧視條例的層面，而是涉及整個的普通法體制。須知道，Reasonable Man Standard近乎為普通法體制中最重要的基石之一，而其應用範圍更是數不勝數，小至普通的賠償追討，大至謀殺罪皆有其影子，其中涉及層面比較廣闊及重要的包括：
(1) Negligence Negligence（疏忽）為民事案件中其中一項最常見的理由，而其定義早在1856年就包含了Reasonable Man Standard（註三） ；並同時發展出Res ipsa loquitur，即要求被告舉證他已採取reasonable care 以證明非疏忽行為 （註四）；可見Reasonable Man Standard不單被應用在「一個普通合理的人」，更引申出更多以Reasonable為考慮因素的原則。
(2) Murder Murder（謀殺）可以算是其中一項最嚴重的刑事罪行，而這麼一項嚴重罪行的亦有Reasonable Man Standard；例如世界知名的徐步高案中，兇手徐步高最後被判為「合法被殺」，其中就是因為符合Self-Defence 的條件 - using reasonable force against an unjust threat（註五）。
註一：戴耀廷教授2005年的文章其實亦已反駁過有關說法。見附錄一。 註二：見附錄二。 註三："…Negligence is the omission to do something which a reasonable man… would do, or doing something which a prudent and reasonable man would not do" Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781 註四："…[the Defendant] offers an acceptable explanation consistent with his having taken reasonable care." SANFIELD BUILDING CONTRACTORS LTD v. LI KAI CHEONGFACV No. 16 of 2002§ 3 註五："A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. It must be reasonable" Beckford v R (1988) 1 AC 130