Puja Kapai Interviewed on Hong Kong and the Torture Convention (JUST ASIA)

Puja Kapai was recently interviewed by the Asian Human Rights Commission's JUST ASIA programme.  The caption for the interview read as follows:

This week, to mark the International Day in Support of Victims of Torture, celebrated annually on June 26, Just Asia has a special report on Hong Kong’s plan to withdraw from the UN Convention against Torture.

  The reason for such a withdrawal is a misguided attempt to address the rise in torture protection claimants in Hong Kong and block“fake” refugees, as well as solve the issue of illegal workers.

  Just Asia speaks to three prominent persons in the city to discuss their views. Puja Kapai is the Director of Hong Kong University’s Centre for Comparative and Public Law; Mark Daly is a human rights lawyer with Daly and Associates; as is Patricia Ann Ho. The three discuss how such a withdrawal will impact Hong Kong’s international standing, Hong Kong’s human rights protections, and whether it will truly make a difference to the city’s numerous torture claimants.

New Issue of Asia-Pacific Journal on Human Rights and the Law - Special Section on Torture

ASIA-PACIFIC JOURNAL ON HUMAN RIGHTS AND THE LAW

Editors-in-Chief: Simon NM Young and Kelley Loper

Publisher: Brill, Leiden

2016, Vol. 17, Issue 2

Special Section on Torture 

Introduction: Special Section on Post 9/11 Perspectives on Torture 179
Cynthia Banham

Forced Confession as a Ritual of Power: The Case of Diyarbakır Military Prison in Turkey 185
Yeşim Yaprak Yıldız

Reading Hobbes’s Sovereign into a Burmese Narrative of Police Torture 199
Nick Cheesman

Permission to Torture: Reflections on Post 9/11 Erosion of Human Rights through a Cold War Counterinsurgency Lens 212
Michael Humphrey

Sliding off Torture’s Halo of Prohibition: Lessons on the Morality of Torture Post 9/11 227
Adam Henschke

Transferring Responsibility? The Influence and Interpretation of International Law in Australia’s Approach to Afghan Detainees 240
Sean Richmond

Articles

Searching for the Elusive? Examining the Right to Health’s Status in the Pacific 257
Jennifer Y Kallie, Claire E Brolan and Nicola C Richards

Reaction to Chief Executive's Remark that Hong Kong Could Quit Torture Convention (SCMP)

"Hong Kong could quit torture convention, says CY"
Jennifer Ngo and Christy Leung
South China Morning Post
14 January 2016

Chief Executive Leung Chun-ying says Hong Kong will unilaterally withdraw from an international convention on torture “if it is needed”, sparking criticism that such a move would undermine the city’s standing in the world .

     Leung’s unprecedented comments – which followed his announcement of a wholesale review of the current system for dealing with claims for refugee status and asylum in his policy address – are understood to have caused consternation among officials in the policy department responsible for such matters.

     A source with a knowledge of the review said officials were “completely surprised and shocked” by Leung’s comments . It is also unclear how, if at all, Hong Kong can withdraw from an international convention given that it is not a sovereign state.

     At a press conference after his address, Leung was asked by a journalist if the city needed to ditch its commitments under the United Nations Convention Against Torture.

     Leung responded: “We will consider the issue from different aspects, such as law enforcement and the law itself. You asked if there is a need to quit the international agreement: if it is needed, we will do so.”

     The reaction was swift with critics saying such a move would weaken human rights in the city at a time where Hongkongers are sensitive to any erosion of freedoms and rights, especially in light of the mystery surrounding missing booksellers.

     Kelley Loper, director of the human rights programme in the faculty of law at the University of Hong Kong, said pulling out of the convention would send a signal that Hong Kong thinks it acceptable to torture people.

     Puja Kapai, professor of law at the HKU and a former barrister at the High Court, said to withdraw from such an international treaty would have a major impact in the region. “It would cement the feeling that there are deliberate steps being taken to roll back on human rights in Hong Kong,” she said.

     Human rights lawyer Mark Daly called the chief executive’s comments shocking and showed a “dangerous and irresponsible attitude”. He said: “This is unravelling human rights and the rule of law ... principles that make Hong Kong an international city.”

     Hong Kong ratified the convention before the 1997 handover and China is also a signatory since 1986. Under the Immigration Ordinance, asylum seekers may lodge non-refoulement claims on grounds including torture, inhuman or degrading treatment or punishment, and persecution because of the convention.

     Another HKU law professor, Michael Davis, said pulling out of the convention would mean no refuge for those who need it in the city, as Hong Kong is not under the UN Convention of Refugees.

     In the policy address, Leung said there will be a comprehensive review of the strategy of handling non-refoulement claims, including a review of the Immigration Ordinance.

"Rights groups alarmed by Hong Kong chief executive's remarks on pulling out of UN torture treaty"
Racquel Carvalho, Jennifer Ngo and Christy Leung
South China Morning Post
15 January 2016

Experts have warned that Hong Kong cannot unilaterally pull out of the United Nations Convention Against Torture, after Chief Executive Leung Chun-ying raised eyebrows by declaring the city would do it “if needed”.

     Rights groups are alarmed at the prospect of Hong Kong abandoning the treaty signed by 158 of 193 UN member states after Leung announced a comprehensive overhaul of the current system for dealing with refugee status and asylum to stamp out alleged widespread abuse.

     “It would be an extreme measure – and very rare – for any state to withdraw from their commitments under international human rights law,” said Kelley Loper, director of the human rights programme at the University of Hong Kong’s Faculty of Law. Only China can withdraw from the convention, not Hong Kong on its own, Loper noted. “China would need to make the request on behalf of the state, not a particular part of the state,” she said. Loper pointed out that Beijing would have to give one year’s notice to the UN if it were to pull out. The convention also stipulates any commitments made before such a withdrawal must be met.

     She also explained that even if the central government rejected the convention, Hong Kong’s Basic Law and Bill of Rights duties would still apply. “Hong Kong also has a duty not to return anyone to face a serious risk of torture or other forms of cruel, inhuman or degrading treatment or punishment under the International Covenant on Civil and Political Rights, which has been entrenched into Hong Kong domestic law,” she said.

     Piya Muqit, executive director of Justice Centre, warned that if Hong Kong were to withdraw “it would join the ranks of repressive regimes such as Zimbabwe, the Central African Republic and North Korea”.

     The controversy comes two months after the Committee Against Torture, which monitors implementation of the convention, expressed concern over the Hong Kong’s portrayal of “all claimants in need of protection as abusers of the system”.

     The current system of screening asylum seekers started in March 2014, and there is a backlog of 10,922 cases , with 5,400 people having been screened so far. Chief Secretary Carrie Lam Cheng Yuet-ngor said yesterday the government receives around 400 new torture claims every month, with costs to taxpayers of HK$600 million a year.

     Puja Kapai, professor of law at the University of Hong Kong and a former barrister at the High Court, said the chief executive’s declarations reflected the government’s short-sightedness. “When you discover abuse or loopholes in a system, you work to plug the gap. You do not throw out the baby with the bath water,” she said. Kapai also criticised the timing of Leung’s comments, in light of the missing bookseller mystery. She said “As we await news on the facts surrounding the disappearance of Lee Bo, such a withdrawal would foment further distrust and deepen paranoia harboured against the government.”

     Hong Kong does not resettle asylum seekers, as it is not a signatory to the UN Refugee Convention, but is obligated to screen torture claims.

    A government source said officials were shocked by Leung’s remarks, as it was not discussed with related law enforcement agencies. “We have never heard of it before. We also find the remarks contradictory to the policy address, as Leung just pledged to add manpower to speed up screenings of asylum claims,” the source said. The chief executive has left them puzzling over how to handle current torture claims.

More recently, Simon Young joined a panel on the RTHK 3 radio programme, Backchat, to discuss the issue on 16 March 2016.  Click here to listen to the debate.

Cross-border Implications of Chinese Police Brutality

The recent trial of the men who attacked news editor, Kevin Lau, raised the issue of police brutality on the Chinese mainland in cross-border criminal cases. Without a fugitives surrender agreement, there is little law to govern the capture and return of suspects from the mainland to Hong Kong. Important legal questions remain unclear. Do suspects enjoy Basic Law rights while being questioned by mainland officers? What are the consequences in Hong Kong if those rights are violated? Common law rules of evidence require that a confession given to a person in authority must be proven to be voluntary to be admissible, meaning proof of the absence of threats, inducements and oppression when the statement was taken. A statement taken in Hong Kong may appear to be voluntary but can still be excluded if oppression from the mainland interrogation taints the Hong Kong investigation. 

     Beyond excluding confession evidence, which the prosecution may not need, are there other implications for the criminal trial? At one time common law courts paid little attention to police violence unless the conduct compromised the quality of the evidence or violated a defendant’s right to silence. Courts now show greater concern with how cases have been investigated and pursued. Judges have a duty to ensure “that the integrity of the judicial system is not compromised” and that the “administration of justice is not brought into disrepute” (HKSAR v Muhammad Riaz Khan (2012) 15 HKCFAR 232, [18]). Serious police illegality or misconduct may amount to “an affront to the public conscience” and require the criminal proceedings to be judicially stayed, meaning permanently suspended (HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133, [149]).

     While the law here is still developing, recent Canadian cases have held that police brutality can amount to an abuse of process warranting a stay of proceedings. In R v Bellusci [2012] 2 SCR 509, the defendant prisoner was charged with intimidating a guard; the charge was stayed because the guard in revenge had grievously assaulted the prisoner, who was handcuffed and shackled. In R v Tran (2010) 103 OR (3d) 131 (CA), very serious home invasions charges were stayed where the defendant, after turning himself in, was beaten by two officers who broke Tran’s jaw and tried to conceal their misconduct. In a robbery case, R v Singh, 2013 ONCA 750, the court wrote: “society cannot tolerate – and the courts cannot permit – police officers to beat suspects in order to obtain confessions”. Three officers were involved in the beating and one said to the defendant, “sorry…It’s part of my job”, to which the court said, “It is not.” Cases have also accepted that police brutality can justify a reduction in sentence (R v Nasogaluak [2010] 1 SCR 206).

     Following the approach of these cases would be a strong affirmation of judicial integrity and the rule of law. But the greater hurdle in any case will be to convince the court that the abuse did in fact take place.  Written by Simon Young.  An edited version of this article was published in the South China Morning Post on 22 September 2015 with the online heading of "Upholding the rule of law: abuse of defendants no longer 'part of the job'".

Was the assault on Ken Tsang by Hong Kong police officers "torture"?

Some have described the October 15th assault by Hong Kong police officers on protester and Civic Party member, Ken Tsang, as an offence of "torture", which under Hong Kong law carries a maximum sentence of life imprisonment.  The TVB video clip  (WSJ website) shows a man whose hands are bound behind his back lying on the ground while several police officers repeatedly kick and hit him for less than four minutes.  While the circumstances seen in this clip are highly suggestive of a criminal offence, it is unlikely to be torture.  It remains unclear what happened to Tsang after he was taken into police custody and detention.  These circumstances would need to be taken into consideration before coming to a final view on the matter.

     Article 1(1) of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) defines torture as follows:

"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."  

In summary, the definition involves five elements: (i) the pain or suffering inflicted must be severe; (ii) the infliction of severe pain or suffering must be intentional; (iii) the infliction must have an official character to implicate the state; (iv) the infliction must be for a specified purpose; and (v) there is the lawful sanctions exception.

     Hong Kong enacted the offence of torture in s. 3 of the Crimes (Torture) Ordinance (Cap. 427) (CTO), which came into force on 21 January 1993.  There has yet to be a prosecution for this offence  and any such prosecution would require the specific consent of the Secretary for Justice (s. 4).  The CTO defines torture in a substantively different way than Art. 1(1) of CAT.  The offence is committed if a "public official or person acting in an official capacity...intentionally inflicts severe pain or suffering on another in the performance or purported performance of his or her official duties".  It is a defence to prove one had "lawful authority, justification or excuse" for the conduct.  In comparison to Art. 1(1), there is no specific purpose requirement, nor mention of liability by "consent or acquiescence" but here normal principles of party liability would apply to extend liability beyond the principal offender(s).  Section 3 also confers a wider defence than the "lawful sanctions" exception in Art. 1(1).  In its concluding observations (as recent as 2009), the UN Committee Against Torture recommended that Hong Kong abolish this defence because it is inconsistent with the position that the CAT "does not authorize any possible defense for acts of torture".  Given this incongruence with international law, a court is likely to interpret the defence of "lawful authority, justification or excuse" in a restrictive manner.  As the officers were public officials who were delivering an arrestee into custody at the time and acting without any apparent excuse or justification, the only real issue is whether the assault by the police was such as to constitute "severe pain or suffering" under s. 3(1) of the CTO.  

     In referring to what constitutes "cruel, inhuman or degrading treatment or punishment" (CIDTP) within Art. 3 of the Hong Kong Bill of Rights, the Court of Final Appeal held that "a very high threshold must be surmounted" (Ubamaka Edward Wilson, Secretary for Security (2012) 15 HKCFAR 743, [172]).  Ill-treatment that meets the "minimum level of severity" would be expected to involve "'actual bodily injury or intense physical or mental suffering' or mistreatment of an intensity 'capable of breaking an individual's moral and physical resistance'" ([182] citing from R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 at [53-55] (HL)).  In trying to distinguish "torture" from "inhuman or degrading treatment or punishment" in Art. 3 of the European Convention on Human Rights, the European Court of Human Rights has said that torture should involve ill-treatment of a greater degree of severity.  The "special stigma" of "torture" should only attach to "deliberate inhuman treatment causing very serious and cruel suffering" (Al Nashiri v Poland [2014] ECHR 833 at [508] (24 July 2014)).  

     In Ireland v UK [1978] ECHR 1, the European Court did not find prolonged sensory deprivation techniques used on detainees as constituting torture. However these techniques (involving wall-standing, hooding, subjection to noise, deprivation of sleep, deprivation of food and drink) constituted inhuman and degrading treatment.  It was not until 1996 (in Aksoy v Turkey [1996] ECHR 68), that the European Court found “torture” for the first time in a case involving “Palestinian hanging" (being strung up by the arms, tied together behind one’s back) and electrocution of the genitals ([14] & [23]).   

     More recent cases have shown that the line between 'torture' and 'inhuman or degrading treatment or punishment' is not easy to draw.  In Ochelkov v Russia [2013] ECHR 312 (11 Apr 2013), the applicant was arrested and taken to the police station. When he was released the evening of the following day, he went to the hospital and was diagnosed with a closed cranio-cerebral injury, concussion, and multiple injuries to the head, back, arms and chest ([85]).  He remained in hospital for 12 more days and had treatment in the surgery department ([85]).  The applicant claimed that while in police custody, he was tied to a chair whereupon officers hit him on the head with a chair leg, kicked him in various parts of the body and punched him in the face ([11]).  The ill-treatment lasted more than a hour.  In the end the applicant lost consciousness.  The Court found that the applicant was "beaten up by police officers and that as a result of those beatings he sustained injuries", that there were no circumstances which might have necessitated the use of violence on the applicant, that the applicant did not resist arrest, attempt to escape, refuse to comply with lawful orders or threaten the officers, that the use of force by the police was retaliatory in nature and aimed at forcing the applicant to submit, and that the treatment caused mental and physical suffering but no long-term damage to health ([95]).  The Court, however, concluded that the treatment amounted to "inhuman and degrading treatment" but did not find "torture" ([96]).  

     By contrast, torture was found in another not too dissimilar case.  In Belousov v Ukraine [2013] ECHR 1104 (7 Nov 2013), the applicant was arrested from his hostel on suspicion of sexual abuse of two young girls.  Seven hours later, when accompanied by police who were conducting a search of his room, he was seen "limping, stooping [with] bruises and swelling on his face" and "clothes were dirty and wrinkled" ([17]).  The Court accepted the applicant's version of events, that "the police officers handcuffed him, punched him in various parts of his body, strangled him, squeezed his genitals and painfully twisted his arms urging [him] to confess" ([62]).  The injuries that resulted were "soft tissue swelling, numerous bruises and scratches on various parts of his body, in particular, face and groin area" ([67]).  The Court also noted that the treatment "was administered behind closed doors by a number of police officers whose violence the applicant had no means of resisting", that the physical pain must have been "exacerbated by feelings of helplessness, acute stress and anxiety" and that "the treatment was intentional, lasted for several hours in a row and was aimed at extracting" a confession from him ([67]).  It concluded that the treatment amounted to torture ([68]).

     As the severity of the assault on Ken Tsang (as seen in the video clip) was less severe in terms of duration, manner and injuries than the treatment in both the Ochelkov and Belousov cases, it is safe to conclude that the assault on Tsang did not amount to torture.

     In Hong Kong there is no specific criminal offence to inflict CIDTP.  Such conduct would come within the offences in the Offences Against the Person Ordinance (Cap. 212) (OAPO).  It would seem from the video clip and injuries sustained by Tsang that there is a reasonable prospect of conviction for the offence of assault occasioning actual bodily harm (s. 39 OAPO) and if the injuries are severe enough inflicting grievous bodily harm or wounding (s. 19 OAPO). It is doubtful there is enough evidence to prove an intention to cause grievous bodily harm, thereby ruling out the more serious offence in s. 17.  Written by Simon N.M. Young.