Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Abolition of Forced Labour Convention, 1957 (No. 105) - China - Hong Kong Special Administrative Region (Ratification: 1997)

Article 1(a) of the Convention. Imposition of prison sentences involving the obligation to work as a punishment for expressing certain political views or views ideologically opposed to the established political, social or economic system. The Committee previously noted the following legislative provisions, under which penalties of imprisonment (involving compulsory prison labour, pursuant to section 38 of the Prison Rules) may be imposed:

• -printing, publishing, selling, distributing, importing, etc., of seditious publications or uttering seditious words (section 10 of the Crimes Ordinance, Cap. 200);
• -various violations of the prohibition on printing and publication (sections 18(i) and 20 of the Registration of Local Newspapers Ordinance, Cap. 268; regulations 9 and 15 of the News Agencies Registration Regulations, Cap. 268A; regulations 8 and 19 of the Newspaper Registration and Distribution Regulations, Cap. 268B; regulations 7 and 13 of the Printed Documents (Control) Regulations, Cap. 268C);
• -various contraventions of regulations of public meetings, processions and gatherings (section 17A of the Public Order Ordinance, Cap. 245).

The Committee noted that, in its concluding observations regarding the report of Hong Kong, China, the UN Human Rights Committee expressed concern about the application in practice of certain terms contained in the Public Order Ordinance, such as “disorder in public places” (as provided for by section 17B) and “unlawful assembly” (as provided for by section 18), which may facilitate excessive restriction on civil and political rights. It also expressed concern about the increasing number of arrests of, and prosecutions against, demonstrators.

The Committee notes the Government’s repeated statement in its report that freedom of the press, as well as freedom of opinion and expression are protected under the Basic Law and the Hong Kong Bill of Rights Ordinance (Cap. 383). The Government once again indicates that no cases relating to the application of the Convention have been brought before the courts.

However, the Committee notes that, in its concluding observations of 3 February 2016, the UN Committee against Torture (CAT) expressed its concern at consistent reports of massive detentions of persons in the context of demonstrations and the alleged restriction to the detainees’ legal safeguards. According to the information provided by the Government to the CAT, 511 persons were arrested in connection with an assembly that followed an annual march on 1 July 2014 (CAT/C/CHN-HKG/CO/5, paragraph 12). The CAT also expressed its concern at consistent reports of excessive use of tear gas, batons and sprays against protesters during the 79-day protest of the so-called “umbrella” or “occupy” movement in 2014, as well as at consistent reports that police resorted to violence against more than 1,300 people, and around 500 were subsequently admitted to hospitals (paragraph 14).

The Committee also notes that, on 18 August 2017, a court decision was handed down against three persons in relation to the mass demonstration in 2014 for inciting others to take part in an unlawful assembly, or for taking part in an unlawful assembly under section 18 of the Public Order Ordinance. During the first instance, three defendants respectively received 80 hours’ community service, 120 hours’ community service and three weeks’ imprisonment with probation for one year. Upon the application of the Public Prosecutors for the review of the case, the Court of Appeal considered that the sentences of the first instance were inadequate and could not possibly reflect the gravity of the offences. It therefore sentenced the three defendants to 6–8 months’ imprisonment respectively.

The Committee once again recalls that Article 1(a) of the Convention prohibits punishment by penalties involving compulsory labour, including compulsory prison labour, of persons who, without having recourse to violence, express political opinions or views opposed to the established political, social or economic system. It also points out that the protection conferred by the Convention is not limited to activities expressing or manifesting opinions diverging from established principles; even if certain activities aim to bring about fundamental changes in state institutions, such activities are covered by the Convention, as long as they do not resort to, or call for, violent means to these ends. The Committee therefore urges the Government to take the necessary measures to ensure that, both in law and in practice, no sanctions involving compulsory labour can be imposed as a punishment for holding or expressing political views. In order to ascertain that the above provisions are not applied to acts through which citizens seek to secure the dissemination and acceptance of their views, the Committee requests the Government to continue to provide information on their application in practice, supplying copies of court decisions defining or illustrating their scope.

The Committee is raising other matters in a request addressed directly to the Government.