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U.S. and Hong Kong (2009)

U.S. Department of State

2008 Human Rights Report: China (Hong Kong)

Bureau of Democracy, Human Rights, and Labor
2008 Country Reports on Human Rights Practices
February 25, 2009

HONG KONG

Hong Kong, with a population of approximately seven million, is a Special Administrative Region (SAR) of the People's Republic of China (PRC). The 1984 Sino-British Joint Declaration on the Question of Hong Kong and the SAR's constitution, the Basic Law of the SAR (the Basic Law), specify that Hong Kong will enjoy a high degree of autonomy except in matters of defense and foreign affairs. In September, in generally free and fair elections, the Fourth Term Legislative Council (LegCo) was elected from a combination of geographic and functional constituencies. Civilian authorities generally maintained effective control of the security forces.

The government generally respected the human rights of its citizens, although core issues remained. The terms of the Basic Law limit the ability of citizens to participate in and change their government. Claims of press self-censorship persisted. The legislature was limited in its power to introduce or amend legislation and could not approve executive appointments. Violence against women remained a concern. Workers had a number of problems, including a minimum wage and a guaranteed right to bargain collectively.

RESPECT FOR HUMAN RIGHTS

Section 1 Respect for the Integrity of the Person, Including Freedom From:

a. Arbitrary or Unlawful Deprivation of Life

There were no reports that the government or its agents committed arbitrary or unlawful killings.

b. Disappearance

There were no reports of politically motivated disappearances.

c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

The Basic Law prohibits torture and other forms of abuse, and the government generally observed the prohibition in practice. In the first half of the year, there were 189 allegations of assault by police officers on persons in detention. As of June, 81 of the officers had been investigated with results endorsed by the Independent Police Complaints Council (IPCC); the rest were pending at year's end. Investigations found one case to be unsubstantiated, five to be false, and 10 to be not pursuable; the remaining 65 allegations were withdrawn. Forty-two cases of assault by police officers on persons not in custody were filed, with 26 pending investigation as of June. Investigations into the remaining 16 were endorsed by the IPCC, with four cases found not pursuable and 12 complaints withdrawn.

Police use of strip searches during detentions of protesters and criminal suspects prompted public complaints and a formal LegCo query. Media reported concerns about, and the legislature raised questions regarding, police use of strip searches. An IPCC review of one case led the Police Department's Complaints Against Police Office (CAPO) to rule in July that repeated searches conducted each time an individual entered and departed a holding facility were incorrect. In response the police revised the guidelines for conducting both regular searches and searches involving removal of some or all of the detained person's garments.

Prison and Detention Center Conditions

Prison conditions generally met international standards, and the government permitted visits by independent human rights observers and the media; however, there were no requests during the year. For the first six months of the year, the average prison occupancy rate was 96 percent. Overcrowding occurred in some prisons, particularly in maximum security prisons, which operated at an average occupancy rate of 112 percent.

d. Arbitrary Arrest or Detention

The law prohibits arbitrary arrest or detention, and the government generally observed these prohibitions.

Role of the Police and Security Apparatus

Civilian authorities maintained effective control over the police, and the government had generally effective mechanisms to investigate and punish abuse and corruption.

There were no reports of impunity involving the security forces during the year. On July 12, LegCo passed a bill granting a statutory basis to the existing IPCC, which is charged with overseeing the CAPO. The IPCC has a number of authorities to monitor investigations undertaken by CAPO, including the authority to raise questions regarding investigations and to request investigative documents. IPCC members and observers are also empowered to attend any interview conducted by the police concerning a reportable complaint and observe the collection of evidence by the police in the investigation of a reportable complaint at any time and without prior appointment. However, human rights activists and some legislators expressed concern that all IPCC members are appointed by the chief executive and that the IPCC's lack of power to conduct independent investigations limits its oversight capacity. While the UN Committee Against Torture "welcomed the enactment of the Independent Police Complaints Council Ordinance...and the new Guidelines on Searching of Detained Persons," it "recommended that Hong Kong continue to take steps to establish a fully independent mechanism mandated to receive and investigate complaints on police misconduct."

Arrest and Detention

Suspects were apprehended openly with warrants based on sufficient evidence and issued by a duly authorized official. Suspects must be charged within 48 hours or released, and the government respected this right in practice. There is a functioning bail system, and detainees are allowed prompt access to a lawyer and family members. The law provides accused persons with the right to a prompt judicial determination.

e. Denial of Fair Public Trial

The law provides for an independent judiciary, and the government generally respected judicial independence in practice. The judiciary, underpinned by the Basic Law's provision that the common law tradition be maintained, provided citizens with a fair and efficient judicial process. The courts may interpret those provisions of the Basic Law that address matters within the limits of the SAR's autonomy. The courts also interpret provisions of the Basic Law that touch on mainland government responsibilities or on the relationship between the central authorities and the SAR. However, before making final judgments on these matters, which are not subject to appeal, the courts must seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress (NPCSC). The Basic Law requires that courts follow the NPCSC interpretation of Basic Law provisions, although judgments previously rendered are not affected. As the final interpreter of the Basic Law, the NPCSC also has the power to initiate interpretations of the Basic Law.

The NPCSC's mechanism for interpretation is its Committee for the Basic Law, composed of six mainland and six Hong Kong members. The chief executive, the LegCo president, and the chief justice nominate the Hong Kong members. Human rights and lawyers' organizations expressed concern that this process, which can supersede the Court of Final Appeal's power of final adjudication, could be used to limit the independence of the judiciary or could degrade the court's authority.

Trial Procedures

The law provides for the right to a fair public trial, and an independent judiciary generally enforced this right in practice. Trials are by jury except at the magistrate court level. An attorney is provided at the public's expense if defendants cannot afford counsel. Defendants can confront and question witnesses testifying against them and present witnesses to testify on their behalf. Defendants and their attorneys have access to government-held evidence relevant to their cases. Defendants have the right of appeal.

Defendants enjoy a presumption of innocence except in official corruption cases. Under the Prevention of Bribery Ordinance, a current or former government official who maintains a standard of living above that commensurate with his official income, or who controls monies or property disproportionate to his official income, is guilty of an offense unless he can satisfactorily explain the discrepancy. In practice the courts upheld this ordinance. Court is conducted in either Cantonese or English, the SAR's two official languages.

Political Prisoners and Detainees

There were no reports of political prisoners or detainees.

Civil Judicial Procedures and Remedies

There is an independent and impartial judiciary for civil matters and access to a court to bring lawsuits seeking damages for, or the cessation of, human rights violations.

f. Arbitrary Interference with Privacy, Family, Home, or Correspondence

The law prohibits such actions, and the government generally respected these prohibitions in practice.

The Office of the Privacy Commissioner for Personal Data works to prevent the misuse, disclosure, or matching of personal data without the consent of the subject individual or the commissioner. Certain exemptions allow authorities to transfer personal data to a PRC body for safeguarding the security, defense, or international relations of the SAR and for the prevention, detection, or prosecution of a crime.

The use of covert surveillance and the interception of telecommunications and postal communications can be granted only to prevent or detect "serious crime" or protect "public security." A 2006 law established a two-tiered system for granting approval for surveillance activities, under which surveillance of a more intrusive nature requires the approval of a judge, and surveillance of a less intrusive nature requires the approval of a senior law enforcement official. Applications to intercept telecommunications must involve crimes with a penalty of at least seven years' imprisonment, while applications for covert surveillance must involve crimes with a penalty of at least three years' imprisonment or a fine of at least HK$1 million (approximately $128,000).

Section 2 Respect for Civil Liberties, Including:

a. Freedom of Speech and Press

The law provides for freedom of speech and of the press, and the government generally respected these rights in practice.

The Code of Ethics of the Hong Kong Journalists Association (HKJA) states that "a journalist shall not lend himself/herself to the distortion or suppression of the truth because of advertising or other considerations." However, reports of media self-censorship continued during the year. Most media outlets were owned by businesses with interests on the Mainland, which led to claims that they were vulnerable to self-censorship. The Hong Kong University Public Opinion Program reported that an average of 45.8 percent of polled respondents believed that news media practiced self-censorship, down 3 percent from 2007. According to a 2007 Lingnan University survey, 29.5 percent of respondents within the industry said they practiced self-censorship. In its July annual report, the HKJA expressed concern that rising nationalism could threaten press freedom. The HKJA report noted a growing reluctance on the part of many media outlets to address mainland issues that were sensitive to the government in Beijing. These included matters of national security, including dissident and separatist activities, as well as human rights issues, corruption, and allegations of illegal land transfers and sales.

Although Secretary for Security Ambrose Lee stressed that the right of protest during the 2008 Olympics and the right of persons from abroad to travel to Hong Kong to participate in those protests would be honored, he faced criticism for stating that those seen as seeking to disrupt the Olympics would be barred from entry to the SAR. In advance of Olympic events and the Olympic torch relay, some critics of the PRC were barred, including Western critics of PRC policy on Darfur.

On April 29, Zhang Yu, secretary-general of the Independent Chinese PEN Center, who was traveling to Hong Kong to chair a World Press Freedom Day conference and participate in other human rights activities, was denied permission to enter.

The publication or importation of print or other media is subject to regulation by provisions to safeguard the interest of readers, as in the case of obscene print materials and other media not regulated by the Broadcasting Ordinance.

Controversy continued over the independence of government-owned and -operated Radio Television Hong Kong (RTHK). In 2007 a government-appointed review panel recommended that a new public service broadcaster be established, but the panel did not comment on the future of RTHK. Several media groups criticized the findings, noting that RTHK was already widely accepted as an independent public broadcaster. Media groups criticized the composition of the panel, none of whose members were public broadcasting experts. The panel's findings were widely interpreted as a threat to media freedom. At year's end, although a new program director had been appointed, the government had not decided the fate of RTHK.

International media organizations operated freely. Foreign reporters needed no special visas or government-issued press cards. The independent media were active and expressed a wide variety of views without restriction.

Internet Freedom

There were no government restrictions on access to the Internet or reports that government monitored e-mail or Internet chat rooms. Commercial Internet service was widely available, including a number of government-supplied wireless (WiFi) "hot spots" and public and commercial venues in which WiFi or other access was provided at no charge to visitors and customers. Individuals and groups could engage in the peaceful expression of views via the Internet, including by e-mail.

Academic Freedom and Cultural Events

There were generally no restrictions on academic freedom and cultural events.

b. Freedom of Peaceful Assembly and Association

The law provides for freedom of assembly and association, and the government generally respected these rights in practice. The government routinely issued the required permits for public meetings and demonstrations.

Some activists alleged instances of police using any physical contact between protesters and police as a basis to detain protesters on charges of assaulting police. In July a magistrate dismissed the case of an activist detained in 2007 on charges of interfering with and assaulting police officers. Media reported that video footage taken by a witness showed aggressive police behavior, while the activist himself remained calm and did not initiate physical contact with police. The activist further reported to media that officers assaulted him and others detained at the scene and at the police station.

c. Freedom of Religion

The law provides for freedom of religion, and the government generally respected this right in practice.

Societal Abuses and Discrimination

No major societal abuses or acts of religious discrimination, including anti-Semitic acts against the small Jewish community, were reported during the year.

For a more detailed discussion, see the 2008 International Religious Freedom Report at www.state.gov/g/drl/irf/rpt.

d. Freedom of Movement, Internally Displaced Persons, Protection of Refugees, and Stateless Persons

The law provides residents freedom of movement, freedom of emigration, and freedom to enter and leave the territory, and the government generally respected these rights in practice, with some prominent exceptions. Although the SAR is not party to the 1951 Convention on Refugees, the government cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) and other humanitarian organizations in providing temporary permission to enter the SAR and assistance to internally displaced persons, refugees, returning refugees, asylum seekers, stateless persons, and other persons of concern.

Most residents easily obtained travel documents from the SAR government; however, limits on travel to the Mainland were sometimes imposed by the mainland government on outspoken political figures.

Government policy was to repatriate undocumented migrants who arrive from the Mainland, and authorities were not able to consider them for refugee status under the "one country, two systems" framework. During the first half of the year, 1,352 migrants were repatriated to the Mainland. The government does not recognize the Taiwan passport as valid for visa endorsement purposes, although convenient mechanisms exist for Taiwan passport holders to visit Hong Kong.

The law does not provide for, and the government did not use, forced exile.

PRC authorities do not permit some Hong Kong human rights activists and most prodemocracy legislators to visit the Mainland. An exception to this general practice occurred following the Sichuan earthquake, as LegCo President Rita Fan led a delegation including democratic legislators normally barred from the Mainland to view quake sites and reconstruction efforts.

Protection of Refugees

The 1951 UN Convention relating to the Status of Refugees and its 1967 protocol do not extend to Hong Kong, and the SAR has no temporary protection policy. The director of immigration has discretion to grant refugee status or asylum on an ad hoc basis, but only in cases of exceptional humanitarian or compassionate need. The Immigration Ordinance does not provide foreigners the right to have asylum claims recognized. The government's practice was to refer refugee and asylum claimants to a lawyer or the UNHCR. In November the UN Committee Against Torture expressed concern that there was "still no legal regime governing asylum and establishing a fair and efficient refugee status determination procedure."

In 2006, due to budget cuts, the UNHCR stopped providing financial support to individuals awaiting status assessment. In response the government began offering limited allowances to adult claimants through its Social Welfare Department. As of November 30, approximately 2,879 persons were receiving assistance-in-kind, based on the needs assessed by professional workers, under the government support program. The UNHCR worked with potential host country representatives to resettle persons designated as refugees.

A July court of appeal decision found current policies regarding detention of persons seeking relief from removal to be at odds with the Bill of Rights Ordinance, because the grounds by which the director of immigration made determinations that a person should be detained were not sufficiently "certain and accessible."

The High Court ruled in favor of six applicants for relief from removal under the Convention Against Torture; they had challenged the SAR's process for handling their applications in a December 2007 case. The High Court found the SAR's process flawed in that it made no provision for applicants to have counsel present during completion of their application questionnaires (including free counsel for those unable to afford their own). The court also struck down the system of having one officer conduct the interview portion of the application while another officer made the decision to grant or deny relief without firsthand contact with the applicant. The court further determined that the appeal process must grant both the opportunity for an oral hearing with officials making the determination and access by the applicant to any external advice given to the Security Bureau or Immigration Department in making a determination on the application.

Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government

The right of residents to change their government peacefully is limited by the Basic Law, which provides for the selection of the chief executive by an 800-person election committee (composed of individuals who are directly elected, indirectly elected, and appointed). The Basic Law provides for the direct election of 30 of the 60 LegCo members and the inclusion of appointed members to the elected district councils. The approval of the chief executive, two-thirds of the LegCo, and two thirds of Hong Kong's delegates to the Mainland's National People's Congress (NPC) is required to place an amendment of the Basic Law on the agenda of the NPC, which has the sole power to amend the Basic Law.

Elections and Political Participation

In March 2007 the Chief Executive Election Committee selected incumbent Donald Tsang. In April 2007 Tsang was appointed as chief executive, and the mainland government approved his new cabinet in June 2007.

On September 7, Hong Kong voters in six geographic constituencies elected 30 legislators, half of the total LegCo, in elections that were generally free and fair. A record number of candidates, both party affiliated and independent, contested the elections. Concerns were raised over the use of exit polling data by organizations with political party affiliations to assist parties in directing their supporters to support particular candidates. Use of polling is not illegal if the data is not publicly released prior to the close of the polls; however, the question was raised whether polling activities in support of particular political parties should be recognized as an official election expense subject to the monetary limits and reporting requirements of the law.

The other 30 seats in the LegCo were elected by 28 functional constituencies (FCs), which represent key economic and social sectors. The 28 FCs represent only 230,000 voters, less than the electorate in a single geographic constituency. Of this number of voters, 150,000 are represented by the three largest FCs, while the four smallest have less than 200 voters. FCs set their own voting rules, with some allowing heads of corporations to vote on behalf of their companies. Persons with interests in more than one sector represented by an FC may thus be able to cast three or more votes (one in their geographic constituency and one in each FC for which they meet eligibility requirements). Fourteen FC seats were returned uncontested, which spurred critics to renew calls that the FCs be abolished in the process of establishing a LegCo elected by universal suffrage.

As of October 31, the Independent Commission Against Corruption (ICAC) had received 108 complaints related to the LegCo elections on September 7. Of these, approximately 60 percent concerned corrupt conduct and 30 percent to illegal conduct.

The Basic Law substantially limits the ability of the legislature to influence policy by requiring separate majorities among members elected from geographical and functional constituencies to pass a bill introduced by an individual member. Another Basic Law provision prohibits the LegCo from putting forward bills that affect public expenditure, political structure, or government policy. Bills that affect government policy cannot be introduced without the chief executive's written consent. The government has adopted a very broad definition of "government policy" to block private member bills, and the president of LegCo has upheld the government's position.

District councils are responsible for advising the government on matters affecting the well-being of district residents, the provision and use of public facilities, and the use of public funds allocated for local public works and community activities. The District Council Ordinance gives the chief executive authority to appoint 102 of 529 of the district councilors, and he exercised this power in practice.

Hong Kong sends 36 delegates to the NPC. Four pandemocratic candidates were among the 50 candidates for the NPC, but none was selected by the NPC electoral committee for the 36-member Hong Kong delegation.

Women were elected to seven of the 30 directly elected LegCo seats and four of the 30 functional constituency seats. Women made up between 17 and 23 percent of the membership in the major political parties. Four political parties or movements represented in the LegCo were headed by women, and several women were party vice chairs. More than one-third of civil servants were women, and four of the 22 most senior government officials were women.

There is no legal restriction against non-Chinese standing for electoral office or participating in the civil service, although some positions require that the office holder have legal right of abode only in Hong Kong. There were no ethnic minorities in the LegCo, but there were a number of ethnic minorities in senior civil service positions.

Government Corruption and Transparency

There were isolated reports of government corruption, and the government sought to combat official corruption through the Prevention of Bribery Ordinance and the ICAC.

By the end of September, the ICAC had received 2,549 reports of corruption (a 5 percent decrease over the same period in 2007), of which 743 were related to the government (an increase of 2 percent from 2007). The ICAC completed 285 prosecutions involving 246 individuals (an increase of 6 percent over 2007).

The SAR requires government officials to declare their financial investments--annually for the 27 most senior civil service positions and biennially for approximately 3,100 senior working-level officials. Policy bureaus may also impose additional reporting requirements for positions seen as having a greater risk of conflict of interest.

The law provides for access to government information with exceptions that are narrowly defined and could be appealed; in practice such information was provided to both citizens and noncitizens.

Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights

A wide variety of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials were generally cooperative and responsive to their views. Prominent human rights activists critical of the mainland government also operated freely and maintained permanent resident status in Hong Kong.

Section 5 Discrimination, Societal Abuses, and Trafficking in Persons

The law provides that all residents are equal, and the government enforced these rights in practice.

Women

Violence against women continued to be a problem, although the government took measures against it. The Statute Law (Miscellaneous Provisions) Bill criminalizes marital rape, and the Crimes Ordinance expressly states that "unlawful sexual intercourse" could be applied both outside and inside the bounds of marriage. From January to June, 47 rape cases and 683 indecent assault cases were reported to the police.

The government regarded domestic violence against women a serious concern and took effective measures to prevent and prosecute offenses. Between January and June, there were 3,103 cases of spousal battery and 408 cases of child abuse reported to the Social Welfare Department, which receives reports from the police, social workers, the Health Department, and volunteer organizations. The Domestic Violence Ordinance allows victims to seek a three-month injunction, extendable to six months, against an abuser. The ordinance does not criminalize domestic violence directly, although abusers may be liable for criminal charges under other ordinances, including the Crime Ordinance and the Offences Against the Person Ordinance. The government enforced the law and prosecuted violators, but sentences typically consisted only of injunctions or restraining orders.

On August 1, Hong Kong's Domestic Violence (Amendment) Ordinance took effect. It expands the scope of previous law to cover molestation between married couples and heterosexual cohabitants, former spouses or cohabitants, and immediate and extended family members. The revised law provides better protection for victims under age 18, allowing them to apply for an injunction in their own right, with the assistance of an adult guardian, against molestation by their parents, siblings, and specified immediate and extended family members. The new law also empowers the court to require the abuser to attend an antiviolence program. In cases where the abuser caused bodily harm, the court may attach an authorization of arrest to an existing injunction, and both injunctions and authorizations for arrest can be extended to two years under the new law.

The government maintained programs that provide intervention and counseling to batterers. There were eight Integrated Family Service Centres and Family and Child Protective Services Units, which offered services to domestic violence victims and batterers. The government also continued its publicity campaign to strengthen families and combat violence and increased public education on the prevention of domestic violence.

Prostitution is legal, but there are laws against activities such as public solicitation, causing or procuring another to be a prostitute, living on the prostitution of others, or keeping a vice establishment.

The Sex Discrimination Ordinance prohibits sexual harassment of women seeking employment or already working in an organization. As of July 31, 51 complaints of sexual harassment had been reported to the Equal Opportunity Commission (EOC).

The law prohibits discrimination based on gender. According to the results of the General Household Survey conducted by the Census and Statistics Department, there were 1,659 men for every 1,000 women employed as professionals in the July-September period. Approximately 22 percent of judicial officers and judges were women.

While the law treats men and women equally in terms of property rights in divorce settlements and inheritance matters, in practice women faced discrimination in employment, salary, welfare, inheritance, and promotion. Women reportedly formed the majority of the working poor and those who fall outside the protection of labor laws.

The government established a Women's Commission as an advisory body for policy making, while the EOC oversaw enforcement of the Sex Discrimination Ordinance. A number of nongovernmental organizations (NGOs) were also active in raising problems of societal attitudes and discrimination against women.

Children

The government supported children's rights and welfare through well-funded systems of public education, medical care, and protective services.

From January to June, there were 427 child abuse cases reported to the Social Welfare Department: 238 involved physical abuse (referring to victims younger than 14 years of age), and 125 involved sexual abuse (referring to victims younger than 17 years of age). The Domestic Violence Ordinance mandates substantial legal penalties for acts of child abuse such as battery, assault, neglect, abandonment, sexual exploitation, and child sex tourism, and the government enforced the law.

The government provided parent education programs, including instruction on child abuse prevention, in all 50 of the Department of Health's maternal and child health centers. It also provided public education programs to raise awareness of child abuse and alert children about how to protect themselves. The Social Welfare Department provided child psychologists for its clinical psychology units and social workers for its family and child protective services units. The police maintained a child abuse investigation unit and a child witness support program. A law on child care centers helped prevent unsuitable persons from providing child care services.

Social service providers and the media tracked a rise in the incidence of "compensated dating" among minor girls. The majority of cases appeared to involve teenage girls, both above and below the age of consent, who advertised escort services that might include sex, either to support themselves or for extra pocket money. However, in September police raided the operations of a syndicate employing both minors and women of legal age involved essentially in prostitution services. Some women involved in the trade reported being beaten or abused by clients. In response to this trend, police began monitoring Internet chat rooms and Web sites used by both individuals and syndicates to advertise services, with officers assigned to gather evidence against the operations and determine the techniques used by syndicates to recruit the girls.

Trafficking in Persons

There is no consolidated antitrafficking law; however, various laws and ordinances allow law enforcement authorities to take action against traffickers. Despite robust efforts by the SAR government to stop such activities, Hong Kong was a point of transit and destination for a small number of persons trafficked for sexual exploitation from the Mainland and Southeast Asia. The SAR government stated that it was difficult to identify trafficking victims from among the larger group of illegal immigrants.

Nearly all trafficking victims initially came to Hong Kong willingly to engage in prostitution. Most came from rural areas of the Mainland, Thailand, or the Philippines on 14-day tourist visas, although a very small number entered using forged documents. The overwhelming majority were women, although an increasing number of young men came to work as homosexual prostitutes. While many came on their own, some were lured by criminal syndicates and promises of financial rewards but faced circumstances of debt bondage. Syndicates sometimes held passports and travel documents until debts were paid.

Provisions in the Immigration Ordinance, the Crimes Ordinance, the Employment Ordinance, and other relevant laws enable law enforcement authorities to take action against trafficking in persons. The Security Bureau, which also combats migrant trafficking and oversees the police, customs, and immigration departments, enforces antitrafficking laws. The courts can impose heavy fines and prison sentences of up to 14 years for activities such as arranging passage of unauthorized entrants, arranging entrance or exit of a person for the purpose of prostitution, and aiding and abetting any person to use forged, false, or unlawfully obtained travel documents. Law enforcement officials received special training on handling and protecting victims and vulnerable witnesses, including victims of trafficking.

There were no reports that government officials participated in, facilitated, or condoned trafficking, and no officials were prosecuted, convicted, or sentenced to time in prison or were removed from their duties for trafficking during the year.

The government provided legal aid to those taking legal action against an employer and immunity from prosecution for those assisting in the investigation and prosecution of traffickers. The Social Welfare Department and local NGOs provided an array of social services to victims of trafficking. The government also tried to prevent trafficking by distributing pamphlets and other public messaging campaigns, in a wide range of languages, on workers' rights.

The State Department's annual Trafficking in Persons Report can be found at www.state.gov/g/tip.

Persons with Disabilities

The law prohibits discrimination against persons with physical and mental disabilities in employment, access to health care, or the provision of other state services, and the government effectively enforced these provisions. In the first seven months, the Labour Department's Selective Placement Division found jobs for 1,512 job seekers with disabilities out of 2,091 on the register. As of March the government employed 3,225 civil servants with disabilities, out of a total workforce estimated at 155,000.

Nevertheless, instances of discrimination against persons with disabilities persisted in employment, education, and the provision of some public services. The Disability Discrimination Ordinance calls for improved building access and sanctions against those who discriminate. Despite inspections and the occasional closure of noncompliant businesses under the Buildings Ordinance, access to public buildings (including public schools) and transportation remained a serious problem for persons with disabilities.

The EOC sponsored a variety of activities to address discrimination against persons with disabilities, including offering youth education programs, distributing guidelines and resources for employers, carrying out media campaigns, and cosponsoring seminars and research.

National/Racial/Ethnic Minorities

Although 95 percent ethnic Chinese, Hong Kong is a multiethnic society with persons from a number of ethnic groups recognized as citizens or legal permanent residents of the SAR. Discrimination based on race is prohibited by law, and the EOC oversees implementation and enforcement of the Race Discrimination Ordinance passed during the year. The Race Relations Unit, which is subordinate to the Constitutional and Mainland Affairs Bureau, served as secretariat to the Committee on the Promotion of Racial Harmony and implemented the committee's programs. The unit also maintained a hotline for enquiries and complaints concerning racial discrimination.

Opponents of the new Race Discrimination Ordinance believed that it lacked the clear statements of applicability to government agencies found in the Sex Discrimination Ordinance and similar legislation. The government argued in turn that the law, if broadened in some areas, could affect the government's ability to function, including in areas meant to correct societal inequities, and might open the government up to litigation. The government further argued that, in areas not covered by the Race Discrimination Ordinance, the Hong Kong Bill of Rights Ordinance provided sufficient guarantees.

While English and Cantonese are the two official languages, persons not fluent and literate in Cantonese faced tremendous challenges in seeking employment and in choice of education. The Constitutional and Mainland Affairs Bureau sponsored a "Cross-Cultural Learning Programme for Non-Chinese Speaking Youth" through grants to NGO service providers.

Other Societal Abuses and Discrimination

There were no reports of societal violence or discrimination based on sexual orientation. Human rights activists expressed concern that while the new Domestic Violence (Amendment) Ordinance covers unmarried heterosexual partnerships, it does not extend the same protection to homosexual partnerships.

There were no reports of societal violence or discrimination against persons with HIV/AIDS.

Section 6 Worker Rights

a. The Right of Association

The law provides for the right of association and the right of workers to establish and join organizations of their own choosing. Trade unions must register under the Trade Unions Ordinance and must have a minimum membership of seven persons for registration. At the end of June, there were 782 registered trade unions, comprising 739 employee unions, 19 employers' associations, and 24 mixed organizations of employees and employers. In the first half of the year, 13 new unions were registered and six unions were deregistered upon request.

According to a 2008 International Trade Union Confederation (ITUC) survey, almost 25 percent of Hong Kong's labor force was unionized.

The 1997 Employment and Labor Relations (Miscellaneous Amendments) Ordinance bans the use of union funds for political purposes, requires the chief executive's approval before unions can contribute funds to any trade union outside of the SAR, and restricts the appointment of persons from outside the enterprise or sector to union executive committees.

Work stoppages and strikes are legal. There are some restrictions on this right for civil servants. Although there is no legislative prohibition of strikes, in practice most workers had to sign employment contracts that typically stated that walking off the job is a breach of contract, which could lead to summary dismissal. In addition there is no legal entitlement to reinstatement in the case of unfair dismissal.

b. The Right to Organize and Bargain Collectively

The law provides for the right to organize, and this right was implemented in practice; however, it does not guarantee the right to collective bargaining. The 1997 Employment and Labor Relations (Miscellaneous Amendments) Ordinance does not provide a legal framework for trade unions to engage employers in collective bargaining. In all but a few specific trades, unions were not powerful enough to force management to engage in collective bargaining. The government did not engage in collective bargaining with civil servants' unions. According to the ITUC report, only 1 percent of the workforce was covered by collective agreements, and these were not legally binding.

The Workplace Consultation Promotion Unit in the Labour Department facilitated communication, consultation, and voluntary negotiation between employers and employees. Tripartite committees for each of the nine sectors of the economy included representatives from some trade unions, employers, and the Labour Department.

There is no provision guaranteeing reinstatement of workers dismissed because of their trade union membership.

There are no export processing zones in the SAR.

c. Prohibition of Forced or Compulsory Labor

The law prohibits forced or compulsory labor, and there were no reports that such practices occurred. Although the law does not specifically prohibit forced or compulsory labor by children, there were no reports that such practices occurred.

d. Prohibition of Child Labor and Minimum Age for Employment

The Employment of Children Regulations prohibits employment of children under the age of 15 in any industrial establishment. Children 13 and 14 years of age may work in certain nonindustrial establishments, subject to conditions aimed at ensuring a minimum of nine years of education and protection of their safety, health, and welfare. The Labour Department conducted regular workplace inspections to enforce compliance with the regulations. During the first half of the year, the Labour Department conducted 74,451 inspections and discovered five suspected violations of the Employment of Children Regulations. The regulations limit work hours in the manufacturing sector for persons 15 to 17 years of age to eight hours per day and 48 hours per week between 7 a.m. and 7 p.m. They also prohibit overtime in industrial establishments with employment in dangerous trades for persons less than 18 years of age.

e. Acceptable Conditions of Work

There is no statutory minimum wage except for domestic workers of foreign origin. Aside from a small number of trades where a uniform wage structure exists, wage levels customarily are fixed by individual agreement between employer and employee and are determined by supply and demand. Some employers provided workers with various kinds of allowances, medical treatment, and subsidized transport. The average wage provided a decent standard of living for a worker and family. Two-income households were the norm. There are no regulations concerning working hours, paid weekly rest, rest breaks, or compulsory overtime. Workweeks of up to 60 hours and more were not uncommon.

The Occupational Safety and Health Branch of the Labour Department is responsible for safety and health promotion, enforcement of safety management legislation, and policy formulation and implementation. The Factories and Industrial Undertakings Ordinance, the Occupational Safety and Health Ordinance, the Boilers and Pressure Vessels Ordinance, and their 35 sets of subsidiary regulations regulate safety and health conditions. During the first half of the year, the Labour Department's Occupational Safety and Health Branch conducted 58,872 workplace inspections. There were 889 convicted summonses, resulting in fines totaling HK$6,596,450 (more than $850,000). Although worker safety and health continued to improve, serious problems remained, particularly in the construction industry. In the first quarter of the year, the Labour Department reported 9,438 occupational injuries, including 3,359 classified as industrial accidents. In the same period, there were eight fatal industrial accidents. Employers are required under the Employee's Compensation Ordinance to report any injuries sustained by their employees in work-related accidents. There is no specific legal provision allowing workers to remove themselves from dangerous work situations without jeopardy to continued employment.

The minimum wage for foreign domestic workers was HK$3,580 per month (approximately $460). The standard workweek was 48 hours, but many domestic workers worked much longer hours. The standard contract law requires employers to provide foreign domestic workers with housing, worker's compensation insurance, travel allowances, and food or a food allowance in addition to the minimum wage, which together provide a decent standard of living. Foreign domestic workers can be deported if dismissed. Labor groups reported that the 200,000 foreign domestic workers were still vulnerable to extensive rights and contract violations. During the first six months of the year, four employers were convicted for labor law maltreatment violations under the Employment Ordinance relating to the employment of foreign domestic workers. During the first seven months of the year, 101 foreign domestic workers filed criminal suits, 47 of which were against employers, for other types of maltreatment, including rape, indecent assault, and injuring and serious assault.

The Dalai Lama and other observers expressed concern that development projects and other central government policies disproportionately benefited non-Tibetans and continued to promote a considerable influx of Han, Hui, and other ethnic groups into the TAR. The opening of the Qinghai-TAR railroad in 2006 increased migration of non-Tibetans into the TAR. The government reported the railroad carried 1.5 million passengers in 2007, approximately half of whom were non-tourists.

Residents lacked the right to play a role in protecting their cultural heritage, including their environment. In 2007 the TAR government revised the TAR Cultural Relics Protection Regulations, asserting ownership over religious relics and monasteries. In recent years the government attempted to restore some temples and other physical vestiges of Tibetan Buddhism and culture that were damaged or destroyed before and during the Cultural Revolution.

Tibetan and Mandarin are official languages in the TAR, and both languages appear on public and commercial signs. Mandarin was widely spoken and was used for most official communications. The illiteracy rate among Tibetans was more than five times higher (47.6 percent) than the national average (9.1 percent), according to 2000 census data. In many rural and nomadic areas, children received only one to three years of Tibetan-language education before continuing their education in a Mandarin-language school. According to official figures, the illiteracy rate was 15 percent at the end of 2005. However, the illiteracy rate for this group was much higher in some areas. According to a 2006 report by the Xinhua News Agency, a looser definition of literacy was used for Tibetan speakers than for Mandarin speakers in rural Tibet. Tibetan-speaking peasants and nomads were considered literate if they could read and write the 30 letters of the Tibetan syllabary and read and write simple notes. Mandarin-speaking nomads and herders were considered literate if they could recognize 1,500 Chinese characters.

The government established a comprehensive national Tibetan-language curriculum, and many elementary schools in Tibetan areas used Tibetan as the primary language of instruction. Tibetan students also were required to study Chinese, and Chinese generally was used to teach certain subjects, such as arithmetic and science. In middle and high schools--even some officially designated as Tibetan schools--teachers often used Tibetan only to teach classes in Tibetan language, literature, and culture and taught all other classes in Chinese.

As a practical matter, proficiency in Mandarin was essential to qualify for higher education. China's most prestigious universities provided instruction only in Mandarin, while the lower-ranked universities established to serve ethnic minority students only offered Tibetan-language instruction in courses focused on the study of the Tibetan language or culture. At the minority universities, Tibetans and other ethnic minority students typically achieved high proficiency in Mandarin, since much of the curriculum, such as computer and business courses, was in Mandarin.

Leading universities generally required English language proficiency for matriculation. Most graduates of Tibetan schools, however, learned only Mandarin and Tibetan and were thus unable to attend the better universities. This resulted in a shortage of Tibetans trained in science and engineering and, consequently, a near total reliance on imported technical specialists from outside the TAR to work on development projects inside the TAR.

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Human Rights (2009)



 

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