Interim Report - Report No 397, March 2022

Case No 3406 (China - Hong Kong Special Administrative Region) - Complaint date: 17-MAR-21 - Active

Allegations: The complainants allege intimidation and harassment of workers in the context of public protests in 2019, a crackdown on civil liberties with the adoption of the National Security Law in 2020, the prohibition of public gatherings under the Prevention and Control of Disease (Prohibition on Group Gatherings) Regulation, adopted as part of the anti-COVID-19 measures in 2020 and prosecution of trade union leaders for their participation in demonstrations

1. 142. The Committee last examined this case (submitted in March 2021) at its June 2021 meeting, when it presented an interim report to the Governing Body [see 395th Report, approved by the Governing Body at its 342nd Session, paras 122–173]. 
2. 143. The complainants sent additional observations and new allegations in a communication dated 4 October 2021.
3. 144. The Government of China transmitted the observations of the Government of the Hong Kong Special Administrative Region, China (HKSAR) in a communication dated 29 January 2022.
4. 145. China has declared the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), applicable in the territory of the HKSAR with modifications. It has declared the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), applicable without modifications.

A. Previous examination of the case

1. 146. At its June 2021 meeting, the Committee made the following recommendations [see 395th Report, para. 173]:
   • (a) The Committee requests the Government to ensure that trade unionists are able to engage in their activities in a climate free of violence and intimidation and within the framework of a system that guarantees the effective respect of civil liberties.
   • (b) The Committee urges the Government to take all appropriate measures to ensure that Mr Lee is not imprisoned for having participated in a peaceful demonstration defending workers’ interests.
   • (c) The Committee expects that the Government will ensure that the National Security Law will not be applied with respect to normal trade union and employer organization interactions and activities, including as regards their relations with international organizations of employers and workers. The Committee further requests the Government, in consultation with the social partners, to monitor and provide information on the impact that the Law has already had and may continue to have on the exercise of freedom of association rights to the CEACR, to the attention of which it draws the legislative aspects of this case.
   • (d) Noting the complainants’ indication that the case of Ms Carol Ng and Ms Winnie Yu was adjourned to 31 May 2021, the Committee requests the Government to provide full and detailed information on the outcome of the judicial procedure and, bearing in mind the allegations, on guarantees of due process, as well as to transmit copies of the relevant court judgments. Given the length of their detention awaiting trial and the absence of any indication that their liberty would create a public danger, the Committee requests the Government, should they still be held in preventive detention, to take measures to ensure that they may be released pending trial. The Committee further requests the Government to provide information on the situation of Mr Cyrus Lau.
   • (e) The Committee requests the Government to engage with all the social partners concerned in respect of the application of the Prevention and Control of Disease (Prohibition on Group Gatherings) Regulation in practice.

B. The complainants’ additional allegations

1. 147. In their communication dated 4 October 2021, the complainants provide an update on the application of the National Security Law (NSL) and charges against trade unionists, and submit new allegations of prosecution of trade union leaders, interference in trade union activities, and deregistration and forced self-dissolution of trade unions.
2. 148. The complainants recall that Mr Lee Cheuk Yan, the General Secretary of the Hong Kong Confederation of Trade Unions (HKCTU) and the Chairperson of the Hong Kong Alliance in Support of Patriotic Democratic Movements in China (Hong Kong Alliance), is currently serving a 20-month sentence on charges related to the alleged unauthorized public assemblies in 2019. The complainants indicate that he has pleaded not guilty to two charges of organizing and inciting others to participate in the unauthorized candlelight vigil on 4 June 2020 (the trial was to take place on 1 November 2021), and faces two additional prosecutions related to the protest to demand the release of political prisoners in mainland China on 1 January 2021, as well as charges of obstructing a police officer and breaking the Air Navigation (Hong Kong) Order, 1995, over the release of a balloon during a New Year’s Day protest.
3. 149. The complainants further allege that on 25 August 2021, Mr Lee (currently in jail) was served notice by the National Security Department of the Hong Kong Police to submit information under article 43 of the NSL and Schedule 5 (Rules on Requiring Foreign and Taiwan Political Organizations and Agents to Provide Information by Reason of Activities concerning Hong Kong) of the Implementation Rules for article 43 of the NSL (“Schedule 5”), which regulate submission of information for the purpose of investigating national security crimes. The complainants explain that the current inquiry relates to the activities of the Hong Kong Alliance. The police demanded that Mr Lee provide full information on all the Alliance’s activities, finances, foreign sources of funding and relations with organizations outside the HKSAR, as well as the personal details of all members since the group’s founding in 1989, with the deadline of 7 September 2021. The penalty for not providing complete information or providing false information includes a fine of 100,000 Hong Kong dollars and a jail term from six months to two years. The complainants also allege that the Hong Kong Alliance as well as its executive committee members, including Messrs Lee, Albert Ho, Chow Hang Tung and four others, have already been designated as foreign agents by the police under Schedule 5. The complainants explain that section 1(a) of the said Schedule 5 defines a foreign agent as a person who carries out activities in the HKSAR and “is directly or indirectly directed, directly or indirectly supervised, directly or indirectly controlled, employed, subsidized or funded by a foreign government or foreign political organization, or accepts monetary or non-monetary rewards from a foreign government or foreign political organization; and carries on all or part of the person’s activities for the benefit of a foreign government or foreign political organization”.
4. 150. The complainants indicate that on the day of the deadline (7 September 2021), Mr Lee and other executive committee members issued statements refusing to comply with the police’s demands and challenged the designation of the Hong Kong Alliance as a foreign agent. On 8 September 2021, Mr Lee and the Hong Kong Alliance (as a legal person) were prosecuted for inciting subversion under articles 22 and 23 of the NSL, defined as acts “to organize, plan, commit or participate in subverting state power, that is overthrowing or undermining the basic system of the People’s Republic of China established by the PRC constitution, or overthrowing the body of central power of the PRC”, for having organized the candlelight vigil on 4 June 2021, mourning those killed in the 1989 Tiananmen crackdown. On 9 September 2021, the police proceeded to freeze the Alliance’s assets and bank account and shut down the 4 June Memorial Museum. The organization’s website has been removed at the request of the police under section 7(2) of Schedule 4 (Rules on Removing Messages Endangering National Security and on Requiring Assistance) of the Implementation Rules for article 43 of the NSL.
5. 151. The complainants explain that the HKCTU has been a member organization of the Hong Kong Alliance since its creation in 1989. Trade unions participated in the Alliance’s activities, including the annual candlelight vigil on 4 June. Not only do these new national security charges further impede Mr Lee in performing his trade union activities but they also add to the climate of fear, persecution and elimination of democratic space in the HKSAR, seriously obstructing workers in the exercise of their freedom of association rights.
6. 152. The International Trade Union Confederation (ITUC) and the International Transport Workers’ Federation (ITF) indicate that the trial against 47 activists, including Ms Carol Ng and Ms Winnie Yu, ex-Chairpersons of the HKCTU and the Hospital Authority Employees’ Alliance (HAEA) respectively on charges of conspiracy to subvert state power for participating in the primary election in July 2020 was postponed on 31 May, 8 July and 23 September 2021 and scheduled for 29 November 2021 at the request of the prosecutor. Ms Carol Ng remains remanded. Ms Winnie Yu was released on 28 July 2021 on conditional bail that imposes a curfew, weekly reporting to the police, harsh restrictions on her speech, actions and contacts with anyone with a link to a foreign government, as well as a prohibition from taking part in all kinds of election. The complainants indicate that Mr Cyrus Lau, Chairperson of the Nurses Trade Union, is still under investigation. If convicted, those charged face life in prison.
7. 153. The complainants further allege that criminal charges were laid against the executives of the General Union of Hong Kong Speech Therapists (GUHKST) and that the organization’s assets were frozen. The ITUC and the ITF allege in that respect that on 22 July 2021, five executives of the GUHKST were arrested by the National Security Department of the Hong Kong Police. Their phones, computers and trade union leaflets were taken away by the police. The next day, the union Chairperson and Vice-Chairperson, Li Wenling and Yang Yiyi were prosecuted, remanded and denied bail on charges of conspiracy to print, publish, distribute, display and/or copy seditious publications under sections 10(1)(c), 159A and 159C of the Criminal Offences Ordinance. The other three leaders were granted bail. The publications referred to are three picture books for children published by the union in 2020. These stories were based on the pro-democratic protests and labour strike of healthcare workers in 2019 and 2020. The police considered that the publications incited hatred against the Government and the judiciary, promoting violence and provoking non-compliance with the laws. A freeze on the bank account and assets of the union authorized under the NSL has been imposed. The complainants indicate that on 30 August 2021, the designated national security judge applied article 42 of the NSL to revoke the bail that had been granted to the other three union executives. All five union executives were taken into custody pending the next hearing on 24 October 2021.
8. 154. The complainants further allege increased interference in trade union activities, harassment and pressure on trade unionists. They allege, in particular, that the Civil Service Bureau is said to have received 10,000 anonymous reports of suspected violations of the NSL. A national security hotline has been established by the police to receive anonymous complaints. Trade unions are not informed and are thus unable to assist their members in this respect.
9. 155. Furthermore, according to the complainants, four teachers have been deregistered by the Education Bureau since 2019 following anonymous allegations about the teachers’ discussions in liberal studies classes, or expression of their political opinions in private. The teachers were obliged to censor their students’ speeches and behaviours under the Education Bureau’s new guidelines to integrate national security into the curriculum after February 2021.
10. 156. In addition, the complainants allege that in March 2021, four organizers of the HAEA delivering public speeches on precautions about vaccinations and privacy protection of the Government’s COVID-19 digital tracker were cordoned off by police officers. They were asked to provide their IDs, had close-up pictures taken and were videotaped. Furthermore, according to the complainants, trade unions organizing member-exclusive screenings of films were requested by the Office for Films, Newspapers and Articles Administration to provide details and approvals.
11. 157. The ITUC and the ITF further allege that the police continued to use the Prevention and Control of Disease (Prohibition on Group Gatherings) Regulation (Cap. 599G) to ban the 2021 May Day rally organized by the HKCTU. Between May and August 2021, members of the HKCTU, the HAEA, the GUHKST and other unions had been harassed, cordoned off, compelled to produce their IDs to be recorded, photographed and videotaped or ticketed by police officers to prevent them from communicating trade union messages to the public by setting up street booths, under the prolonged ban on public gatherings under the Regulation.
12. 158. The complainants furthermore allege that on 30 March 2021, the Government amended the previous practice of free public access to the Companies Registry’s database by blocking access to the full data of companies and their ownership. According to the complainants, new firms will thus be allowed to withhold key information from being listed in the Registry. The Hong Kong Journalists’ Association, the HKCTU and 44 trade unions protested the change because they viewed it as impairing journalistic and corporate research crucial to the right to information and provision of trade union services to members, including meaningful consultations, good faith negotiations, wage claims, trade union campaigns, litigations and collective bargaining.
13. 159. In this connection, the complainants allege that on 5 May 2021, Ms Choi Yuk Ling, an investigative journalist and member of the Hong Kong Journalists’ Association, was found guilty and fined 6,000 Hong Kong dollars for violating the Road Traffic Ordinance. Ms Choi was conducting a research through the publicly available database for her documentary film on police accountability in handling public protests. Access to such information is relevant for trade union assessment of the protests.
14. 160. The complainants further allege that independent trade unions in the HKSAR have been subjected to a systematic and relentless stigmatization and vilification campaign. Various authorities, including the Hong Kong and Macau Affairs Office of the PRC State Council, the Liaison Office of the Central People’s Government in HKSAR, and the Secretary of Security of the HKSAR, have publicly labelled the targeted independent unions as political organizations and not legitimate trade unions. A large number of false investigative stories have been aired presenting legitimate trade union activities, their participation in social movements and solidarity with international organizations, including international trade unions, as anti-government activities and acts of collusion with foreign forces to threaten national security. The complainants refer to the following examples of the state media’s coverage on trade unions:
    • On 30 and 31 July 2021, the Chinese state-owned Xinhua News and the People’s Daily in Beijing aired an item about the Hong Kong Professional Teachers’ Union (HKPTU) in which the trade union was called a political organization, condemned for its long-term participation in the local democratic movement, accused of “inciting” teachers and students to join the anti-extradition protests and general strikes in 2019 and called it “a tumour to be removed”. The union’s insistence on autonomy in education and opposition to the revision of the syllabus of liberal studies were labelled as anti-Government. The HKPTU has been a target of similar media attacks throughout August 2021. Later materials by the same media organizations included calls on members to quit the HKPTU and on the authorities to criminally investigate the organization.
    • The same media organizations aired materials on the HKCTU and its international affiliations and contacts, including with the ITUC. These affiliations were presented as evidence of collusion with foreign agents and foreign anti-China organizations. The HKCTU was accused of receiving foreign funding, specifically in the context of organizing “anti-China” campaigns in 2019 and 2020, instigating unlawful labour strikes and supporting the creation of “radical” anti-Government trade unions. On 3 September 2021, the HKCTU and its leaders were attacked by Xinhua News and the People’s Daily for affiliating with the ITUC and participating in its activities. The 13 September 2021 headline stories reasserted many of these accusations and aired close-up pictures of HKCTU leaders from internal trade union meetings and private gatherings with friends.
    • Asia Monitor Resource Centre, a Hong Kong-based regional labour organization, was accused of being controlled by the former staff of the HKCTU to act as a foreign agent to channel funds from the United States of America and other sources to conduct anti-China activities over the past 26 years.
    • The Hong Kong Journalists’ Association was called a “seedbed of fake journalists that impeded police operations in the protests in 2019” and the union’s activities to promote press freedom in schools were called infiltrations to intoxicate students with wrong ideologies. On 15 September 2021, the Secretary for Security urged the union to disclose its membership and income sources.
    • A number of trade unions formed during the anti-extradition bill protests in 2019 were named and their activities were labelled as political and of an anti-Government character; leaders of the Hong Kong Social Workers’ General Union were called protectors of the rioters blocking the police operations in the 2019 protests.
15. 161. According to the complainants, the anti-union campaign by the state media creates a situation of extreme insecurity for the leaders and members of the affected trade unions, posing a threat to their lives and property. It also amounts to threats and harassment of trade unionists and their organizations, seriously undermining and hampering the ability of the trade unions to organize their activities and to liaise with their partners without fear of attacks, arrest and prosecution. Trade unions fear for the security of their members.
16. 162. The complainants further allege that in addition to the above, the Government continues to use its discretionary powers under the Trade Union Ordinance (TUO) and the NSL to dismantle the trade union movement. According to the complainants, under the TUO (sections 7, 10, 17, 18, 27, 34, 37 and 38), the Registrar of Trade Unions enjoys wide discretionary power to: scrutinize trade union by-laws, activities and finances; inspect trade union accounts; and refuse to register or deregister a trade union. They allege in this respect that since May 2021 the authorities are abusing section 10(1)(b)(iii) of the TUO to open deregistration proceedings against independent trade unions while demanding an excessive amount of information from trade union organizations and in manner that unreasonably intrudes into trade union confidentiality. The complainants explain that section 10(1)(b)(iii) allows the cancellation of a trade union registration if “the trade union is being used, or has at any time since registration been used, for any unlawful purpose or for any purpose inconsistent with its objects or rules”. According to the complainants, the labour authorities argue that these actions are part of the Government’s new duties under the NSL.
17. 163. The complainants allege that on 23 July 2021, the Registrar of Trade Unions summoned the GUHKST to provide, before the deadline of 13 October 2021, detailed information about its activities. The authorities specifically demanded full details of the union’s participation in the public assemblies on 12 and 19 January 2020. These assemblies were calling for international pressure and sanctions over the suppression of the 2019 protests. The union was also asked to provide full information on its participation in the trade union referendum joined by 33 unions to collect members’ opinions on the adoption of the NSL, speeches made by the union, as well as the union goals posted on its website declaring support for public justice, human rights and universal values. At the same time, suspecting that the union is being used for unlawful purposes or purposes inconsistent with its objects or rules (section 10(1)(b)(iii) of the TUO), the Registrar initiated the GUHKST deregistration procedure.
18. 164. The complainants also allege that on 3 September 2021, the Registrar of Trade Unions summoned the HAEA to disclose the funding, decision-making procedures and role of the individual office bearers in relation to some of its activities, including: the HAEA’s strike to demand occupational safety and health measures for its members in public hospitals and border control with China to prevent collapse of the public healthcare system; the participation of its Chairperson, Ms Winnie Yu, in the democrats’ primary election in July 2020; its public activities to commemorate the 2019 protests, as well as to raise queries in respect of the digital security of the Government’s COVID-19 track app and the health risks of the Sinovac-CoronaVac vaccine; private screenings organized in 2021 on the rule of law; and the letter writing campaign for Ms Yu in 2021. The HAEA responded that its activities are in line with the union goals and they should be protected under the Basic Law and Convention No. 87. The Registrar initiated the HAEA deregistration pursuant to section 10(1)(b)(iii) of the TUO.
19. 165. The complainants allege that the above-described anti-union campaign by the authorities, interference in trade union activities, harassment of trade unionists and restrictions on public access to information has led to a condition of judicial and investigative harassment and a climate of fear and intimation compelling trade unions to dissolve their structures. Trade unions are not able to freely organize their activities and they fear for the security and safety of their members. As a result, the following trade union organizations have triggered internal dissolution procedures:
    • The HKCTU: On 19 September 2021, its executive committee announced its decision to propose the dissolution of the organization as a result of the impossibility of organizing trade union activities and administration and fear for personal security and safety of its leaders and members. A final decision to disband the HKCTU was taken at an emergency general meeting held on 3 October 2021.
    • The HKPTU: On 10 August 2021, the leadership of the largest independent trade union of 95,000 members with a 48-year history, announced its intention to invoke the dissolution procedure as a result of tremendous pressure and systematic attacks by the authorities and the state-owned media. Prior to this decision, the HKPTU made several efforts to satisfy the authorities. In March 2021, the HKPTU withdrew its participation in social movement organizations such as the Civil Human Rights Front (CHRF) and the Hong Kong Alliance. The HKPTU also disaffiliated from the HKCTU and from Education International “to focus on education and members’ welfare”, as demanded by the authorities. However, the attacks by the authorities continued. On 1 August 2021, the Hong Kong Education Bureau announced the non-recognition of the HKPTU and ceased all working relations with it. On 16 August 2021, the Secretary of Security pledged to pursue legal accountability for the crimes committed by any individuals or disbanded organizations and further accused the HKPTU of political action and inciting and instilling “wrong” ideologies among teachers and students.
    • The Union of New Civil Servants (UNCS): In January 2021, following the Civil Service Bureau’s introduction of the new oath of loyalty required of all regular and contractual civil servants based on the content of the NSL, the Union decided to dissolve itself. The UNCS considered that the oath would leave no space for the union and its members to freely express opinions, make speeches or freely conduct its activities. The Government demanded 180,000 regular civil servants to take an oath and sign a declaration of loyalty to the Chief Executive and the Government in December 2020 to reflect the content of the NSL in their work and private conduct. The declaration and its annexes mirror the legal offences in the NSL to restrict civil servants’ speech, conduct and behaviour at work and in private. The determination of what constitutes a breach of the oath is up to the interpretation of the Chief Secretary. Leaders of the UNCS protested the oath requirement and the union disbanded itself in January 2021 before the deadline for returning the declarations. By April 2021, 129 civil servants who refused to sign the declarations had been suspended or terminated.
    • Medicine Inspires (a professional organization of medical professionals and doctors formed in 2015 to advocate policies, human rights and represent the medical profession in functional constituency elections) took a decision to dissolve itself on 30 June 2021. The organization has opposed the excessive use of tear gas causing serious damage to protesters and the intrusions of the police in hospital wards during the 2019 protests.
20. 166. According to the complainants, as of July 2021, other disbanded unions include the Hong Kong Pharmaceutical and Medical Device Union, the Hong Kong Educators Alliance, the Frontline Doctors’ Union, the Financial Technology Professional Services Personnel Union, the Hong Kong Teaching and Research Support Staff Union and the Next Media Trade Union.
21. 167. The complainants allege that in a similar way, the authorities have forced other civil society organizations that have a long history of cooperation with independent trade unions to cease activities in the HKSAR or to dissolve:
    • In September 2021, following the smear campaign in the media, the Asia Monitor Resource Centre (AMRC) announced that it was given no choice but to cease operation in the HKSAR by the end of September 2021.
    • The CHRF, which was formed in 2002 as a platform for 48 civil society and labour organizations, including the HKCTU, announced on 13 August 2021 that it will disband itself after three months of intensive attacks by the state media accusing it of receiving foreign funding to instigate anti-Government activities. The CHRF refused to provide information demanded by the police about its registration, finances, the rallies organized since 2006, and the petition to the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on the International Human Rights Day in 2020.
    • On 5 September 2021, the Hong Kong Alliance decided to invoke the dissolution procedure under enormous pressure from the prosecution of the organization and its leaders for inciting subversion. The organization has become paralysed with all of its executive committee members facing prosecution and in custody.
22. 168. The complainants conclude by expressing serious concerns at the acute decline in respect for civil liberties and freedom of association in the HKSAR. The complainants consider that as a result of the concerted persecution campaign, the trade union movement in the HKSAR is currently seriously undermined and will cease to exist without the intervention of the Committee.

C. The Government’s reply

1. 169. In its communication dated 29 January 2022, the Government of China transmits the reply of the HKSAR Government to the complainants’ allegations in this case. At the outset, the latter underlines its following key position: (1) the NSL, or any law in the HKSAR, applies equally to every person. The NSL fully protects the democratic governance and the rule of law in the HKSAR; (2) freedom of association and the right to organize, as well as rights of trade unions are fully protected by law. One must observe the law in force in exercising the right of peaceful assembly. Any law enforcement actions taken by the HKASR law enforcement agencies are based on evidence, are carried out strictly in accordance with the law and have nothing to do with the political stance, background or occupation of the persons or entities concerned; (3) the HKSAR Government has put in place restrictions on group gatherings in public places through the Prevention and Control of Disease (Prohibition on Group Gatherings) Regulation, which seeks to combat the COVID-19 pandemic with a view to protecting public health. No political considerations have ever come into play; and (4) the isolated incidents referred to by the complainants about individual trade unions are associated with either suspected unlawful activities unrelated to the exercise of trade union rights, or voluntary decisions of the trade unions concerned without any interference from the HKSAR Government.
2. 170. In reply to the Committee’s recommendations and the complainants’ allegations, the HKSAR Government submits the following. Regarding the NSL, the HKSAR Government emphasizes that the new legislation did not amend any provision of the Basic Law of the HKSAR. All human rights provisions of the Basic Law have remained untouched. According to the HKSAR Government, the NSL clearly stipulates that human rights shall be respected and protected in safeguarding the HKSAR national security; the rights and freedoms, including the freedoms of assembly, procession and demonstration, which HKSAR residents enjoy under the Basic Law and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law. Any measures or enforcement actions taken for safeguarding national security must be in line with the above principles. All persons shall observe the requirements under the law, and shall not endanger national security or public safety, public order or the rights and freedoms of others, etc. in exercising their rights. At the same time, article 2 of the NSL stipulates that the provisions in articles 1 and 12 of the Basic Law on the legal status of the HKSAR are the fundamental provisions in the Basic Law and no institution, organization or individual in the HKSAR shall contravene these provisions in exercising their rights and freedoms.
3. 171. The HKSAR Government denies that actions have been taken against individuals as trade unionists or trade union leaders or against organizations for being trade unions and their “lawful trade union activities”.
4. 172. The HKSAR Government reaffirms that freedom of association and the right to organize in the HKSAR are guaranteed under the Basic Law. Article 27 of the Basic Law stipulates that HKSAR residents “shall have freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions; and to strike”. Article 18 of the Hong Kong Bill of Rights, as set out in the Hong Kong Bill of Rights Ordinance, also guarantees that “[e]veryone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests”. That said, while such rights and freedoms should be respected and protected, they are not absolute. They may be subject to restrictions that are provided by law and are necessary for pursuing legitimate aims such as the safeguarding of national security or public order. The safeguarding of national security and the preservation of the constitutional order of “One Country, Two Systems” are matters of fundamental importance as stipulated in article 2 of the NSL and long recognized by the courts of Hong Kong. The HKSAR Government indicates that it will continue to progressively improve labour rights and benefits in the light of overall socio-economic development through tripartite consultations, taking into account the interests of employees and the affordability of employers.
5. 173. The HKSAR Government further indicates that it is a universal principle that one must observe the law in force while exercising one’s right to peaceful assembly. The exercise of such rights conferred by law is by no means a reason or excuse for committing illegal acts. Similar to other jurisdictions, the HKSAR has put in place statutory regulations regarding public meetings and processions. The purpose of such regulations is to facilitate the smooth conduct of lawful and peaceful public meetings and processions in an orderly manner on the one hand, and to protect the rights of other members of the public and road users while ensuring public order and public safety on the other. The police handles applications for public meetings or processions in strict accordance with the statutory requirements.
6. 174. Regarding the prosecution and charges laid against Mr Lee Cheuk Yan, the HKSAR Government indicates that he was prosecuted in connection with the unauthorized assemblies that took place on 18 and 31 August 2019, 1 October 2019 and 4 June 2020, and for breaching the social distancing measures imposed by law in light of the COVID-19 pandemic on 1 May 2020. The unlawful acts had nothing to do with the activities of trade unions nor with defending labour rights. The Hong Kong court, which exercises independent judicial power, has found him guilty in all five cases.
7. 175. The HKSAR Government further explains that in order to effectively prevent, suppress and investigate offences endangering national security (in particular the offence of collusion with a foreign country or with external elements to endanger national security), law enforcement officers need to obtain relevant information about certain foreign or Taiwanese political organizations and foreign or Taiwanese agents. In this regard, pursuant to section 3 of Schedule 5, the Hong Kong police issued written notices to the directors of the Hong Kong Alliance (including Mr Lee) to request provision of information. The notice was addressed to Mr Lee in his capacity as a director of the Hong Kong Alliance and was not issued to him in his capacity as a trade union leader, nor did the issuance of such notices connote any allegations of the recipients’ wrongdoing or commission of any offence. As such, it is only when a recipient fails to comply with the notice with no valid explanation provided to the court would he/she be committing an offence. The Government points out that the Hong Kong Alliance was not a trade union. It was a company registered in the HKSAR with a political agenda of ending the leadership of the Communist Party of China, which amounted to overthrowing the basic system of the People’s Republic of China and the body of its central power with a view to subverting the state power. As for other enforcement actions against the Hong Kong Alliance mentioned by the complainants, the Government points out that none of them had anything to do with “lawful trade union activities”. It indicates, moreover, that as the legal proceedings are still ongoing, it is inappropriate for any person to comment on such cases as it is a matter sub judice.
8. 176. As regards Ms Carol Ng, Ms Winnie Yu and Mr Cyrus Lau, the HKSAR Government emphasizes that the matters involved are not concerned with “trade union activities” as suggested by the complainants; rather, these individuals are suspected of attempting to conspire to obtain the majority of seats in the Legislative Council of the HKSAR through manipulation, with a view to recklessly and blindly voting down all the funding applications from the HKSAR Government to the Legislative Council and the Budget, forcing the resignation of the Chief Executive of the HKSAR, bringing the HKSAR Government to a complete standstill, as well as seeking to paralyse the HKSAR Government and seriously interfere in, disrupt and undermine the performance of its duties and functions. These acts have nothing to do with trade union and/or labour rights and benefits, and would also be considered unacceptable in other countries across the globe.
9. 177. The HKSAR Government informs the Committee that Ms Carol Ng, arrested on 6 January 2021 and charged by the police on 28 February 2021, saw her bail application denied by the court on 20 December 2021 (the “Reasons for Decision” has yet been handed down as at 31 December 2021). She will appear in the West Kowloon Magistracy on 27 January 2022. Regarding Ms Winnie Yu, who was arrested on 6 January 2021 and charged by the police on 28 February 2021, the HKSAR Government indicates that she was granted bail by the court on 28 July 2021 and will appear in the West Kowloon Magistracy on 27 January 2022. Regarding Mr Cyrus Lau, arrested on 6 January 2021, the HKSAR Government indicates that no charge has been laid as at 31 December 2021 and that police bail was granted to him.
10. 178. Regarding the arrangement for the granting of bail, the HKSAR Government refers to the judgment of the Hong Kong Court of Final Appeal in an appeal case concerning article 42(2) of the NSL, which noted that there are other common law jurisdictions (e.g. Canada, Australia, etc.) where, in respect of certain classes of offences, not only is there no burden of proof on the prosecution to establish grounds for refusing bail, but a burden is placed on the accused to establish why continued detention, rather than release on bail, is not justified. The Government indicates that the court, after considering the requirement of article 42 of the NSL and other legislative provisions, granted bail to some of the defendants, including Ms Winnie Yu. The HKSAR Government concludes that the above demonstrates that the judiciary has been acting independently on the issue of granting bail in accordance with the law.
11. 179. The HKSAR Government further points out that the NSL has clearly stipulated four categories of offences that endanger national security, namely secession, subversion, terrorist activities, and collusion with a foreign country or with external elements to endanger national security. The prosecution has the burden to prove beyond reasonable doubt that the defendant has the actus reus and mens rea of the offence before the defendant may be convicted by the court. Law-abiding entities, including trade unions and their members, will not unwittingly violate the law. Thus, the NSL does not affect the legitimate rights of Hong Kong residents to exercise freedom of speech, including criticizing government policies or policies and decisions made by officials.
12. 180. Referring to the principles of rule of law and equality before the law, the Government considers that the requests for dropping the charges against certain trade unionists and unconditionally release them are unfounded. It further considers that such demands are not only a gross disrespect for the rule of law, but also are in blatant violation of international law and the basic principle of non-intervention. The HKSAR will continue to handle every case in a fair, just and impartial manner in accordance with the law.
13. 181. Regarding the allegation involving the Chairperson and the executive committee members of the GUHKST, the HKSAR Government explains that they were charged for conspiring to print, publish, distribute, display or reproduce seditious publications on suspicion of being involved in publications which glorify unlawful acts, bring hatred against the HKSAR Government and the administration of justice, and incite other people to commit violence, all of which are not lawful trade union activities.
14. 182. Regarding the civil service, the HKSAR Government indicates that as the backbone of the Government, the civil service serves the community and contributes to the effective governance, stability and prosperity of the HKSAR. All civil servants are required to take an oath or sign a declaration that they will uphold the Basic Law, bear allegiance to the HKSAR, be dedicated to their duties and be responsible to the HKSAR Government. The declaration requirement was also extended to all government staff appointed on non-civil service terms on or after 1 July 2020. The Basic Law is the constitutional document for the HKSAR and enshrines in it the important concepts of “One Country, Two Systems”, “a high degree of autonomy” and “Hong Kong people administering Hong Kong”. It also prescribes the various systems to be practised in the HKSAR. The HKSAR Government considers that it is only natural that civil servants should uphold the Basic Law and bear allegiance to the HKSAR. Article 99 of the Basic Law states that “Public servants must be dedicated to their duties and be responsible to the Government of the Hong Kong Special Administrative Region.” The contents of the oath/declaration thus represent what has consistently been the basic duty of civil servants and non-civil service government staff under the Basic Law and introduce no additional requirement for government employees. The core values and standards of conduct expected of civil servants remain the same before and after the introduction of the requirement for civil servants to take the oath or sign the declaration. The requirement serves the purpose of enhancing civil servants’ awareness of the expectations and responsibilities brought on them by their official positions and further safeguarding and promoting the core values that should be upheld by civil servants, and ensuring the effective governance of the HKSAR Government.
15. 183. The HKSAR Government indicates that a great majority of government employees (including over 170,000 civil servants, and more than 18,000 full-time and 8,000 part-time serving non-civil service government staff) have duly signed and returned the declaration, and only a small number of officers refused to do so. Since these officers refused to acknowledge acceptance of what has been the very basic duty of government employees all along, the HKSAR Government has, based on the facts of each case, terminated their service. Taking the oath or signing the declaration would not affect the civil rights of government employees. According to the Basic Law and the Hong Kong Bill of Rights Ordinance, government employees, like other members of the public, enjoy freedoms of speech, peaceful assembly and association. However, as in other jurisdictions, these rights are not absolute. When exercising such rights, one must bear in mind the need to safeguard national security, public peace and order, and the need to comply with other laws. For government employees, when they exercise these rights, they must also be aware of the responsibilities and requirements brought on them by their official positions. The HKSAR Government denies the allegation that the Civil Service Bureau of the HKSAR Government has “received 10,000 anonymous reports of suspected violations of the NSL”.
16. 184. Regarding the education sector in particular, the HKSAR Government indicates that the social turmoil in 2019 had an unprecedented impact on and brought challenges to the whole society. The Education Bureau received 269 related complaints involving allegations of teachers’ misconduct from mid-2019 to end-2020. Teachers have the responsibility of teaching the correct concepts, providing students with correct information and nurturing in them positive values, with a view to fostering their healthy personal growth and contributing to the development of our society. The HKSAR Government considers that it is totally unacceptable for teachers to impart to students distorted and biased views or concepts inconsistent with the constitutional status of a region or country, or be involved in acts with harmful or adverse effects on their growth. Based on evidence as well as the nature and severity of the misconduct cases, persons found not fit and proper to teach will have their teacher registration cancelled. The HKSAR Government points out that the public generally and reasonably expects teachers to serve as role models for their students.
17. 185. As to the concerns regarding the application of the Prevention and Control of Disease (Prohibition on Group Gatherings) Regulation, the Government points out that similar to many overseas jurisdictions, restrictions on group gatherings in public places is put in place through legislation in view of the COVID-19 pandemic. This is one of the measures for social distancing, aiming to reduce the risks of transmission of COVID-19 in the community. No political considerations have ever come into play. Enforcement actions against breaches of social distancing measures are based on evidence and in strict accordance with the law. Such enforcement actions are directed against the act itself and have nothing to do with whether the person(s) concerned are trade unionists. Persons issued with fixed penalty tickets for contravening the social distancing measures may dispute liability for the offence in accordance with the statutory mechanism. From time to time, the HKSAR Government has adjusted the restriction in relation to group gatherings taking account of the latest developments of the pandemic.
18. 186. The HKSAR Government indicates that the Registrar of Trade Unions made an enquiry with the HAEA in respect of its activities which were suspected to be inconsistent with its objects or rules. On 12 June 2021, the police issued fixed penalty tickets to participants at the street booth set up by HAEA at Mongkok Road pedestrian footbridge for breach of social distancing requirements. The enforcement actions against breaches of the social distancing requirements are based on evidence and in strict accordance with the law. Such enforcement actions are directed against the criminal act itself, and have nothing to do with the background, political stance or occupation of the person(s) concerned, including whether the person(s) concerned are trade unionists.
19. 187. Regarding the screening of films, the Government indicates that under the Film Censorship Ordinance, any person who intends to exhibit a film shall submit the film to the Film Censorship Authority for approval. For the purposes of the Ordinance, “exhibition” means the screening of films in Hong Kong at, among others, any public place or any place to which a person has access by reason of the fact of being a member of an association. Screening of films by any organization, including trade unions, at a place to which a member has access by being a member of that association hence falls under the purview of the Ordinance. The Office for Film, Newspaper and Article Administration of the HKSAR Government, as the agency responsible for the enforcement of the Ordinance, is duty bound to inspect the place of exhibition in accordance with the information (date, time, venue of exhibition, etc.) provided by the holder of a certificate of approval issued by Film Censorship Authority to ensure that the relevant legislative requirements are met.
20. 188. Regarding the public access to information, the HKSAR Government explains that to enhance protection of sensitive personal information while maintaining the transparency, openness and effectiveness of the Companies Registry, the HKSAR Government has implemented by phases a new inspection arrangement under which the usual residential addresses of directors in the Registry will be replaced by their correspondence addresses, while their full personal identification numbers (“IDNs”) will be replaced by partial IDNs for public inspection. All other director and company information in the Registry are not affected and will continue to be readily available for public search. Similar practices are common among many common law jurisdictions such as the United Kingdom of Great Britain and Northern Ireland or Australia for protection of sensitive personal information. The HKSAR Government considers that the complainants’ allegation that the new arrangement is “blocking access to the full data of the company and ownership” is unfounded and biased. Specified persons including public and law enforcement officers, practising lawyers and accountants, and other professionals who have statutory duties to carry out anti-money laundering and counter-terrorist financing responsibilities are given authorized access to full information of company directors to ensure legal and due diligence compliance, including those involving labour rights. The civil proceedings at the Labour Tribunal or the Minor Employment Claims Adjudication Board in the HKSAR, as well as the services and functions of the Labour Department of the HKSAR Government in respect of protection of labour rights and benefits will not be affected and the Labour Department will have authorized access for carrying out its public functions when necessary. The HKSAR Government considers to be unfounded the complainants’ allegation that the new arrangement will impair wage claims and other labour right protection activities.
21. 189. Concerning Ms Choy Yuk Ling’s case, the HKSAR Government indicates that the police acted upon complaints that someone had published personal information of a car thereby infringing personal privacy. After an in-depth investigation, Ms Choy was prosecuted on two counts of “knowingly making a false statement in a material particular for the purpose of obtaining a certificate under the Road Traffic Ordinance”, as she had used the information obtained for a purpose that was not compliant with what she declared in the online application. Ms Choy was convicted in open court and was fined 6,000 Hong Kong dollars. She has filed an appeal and the judicial proceedings are still ongoing. The HKSAR Government emphasizes that any law enforcement actions made by the police are based on evidence and are in strict accordance with the law in force. The background, political stance or occupation of the person(s) concerned is not a factor for consideration. It would be contrary to the rule of law to suggest that people or entities of certain sectors or professions could be above the law.
22. 190. Regarding the alleged deregistration of trade unions, the HKSAR Government indicates that the TUO provides for clear and robust statutory safeguards to afford full protection to the rights of employees to form and join trade unions, and the rights of trade unions to formulate and execute trade union activities freely. Trade union rights in HKSAR are strong and as intact as ever, and have not been jeopardized in any way. An increase of 66.2 per cent in the number of registered trade unions from 928 as at 31 December 2019 to 1,542 as at 31 December 2021 bears testimony to the free exercise of the rights and freedoms of association in the HKSAR. And, as before, a registered trade union with the authorization of a general meeting can become a member of an organization of workers, employers or a relevant professional organization established in a foreign country. Trade unions should ensure that their administration and activities are in compliance with the TUO and their rules, so that the interests of both the unions and their members are safeguarded.
23. 191. The HKSAR Government points out that the primary functions of trade unions are to promote and defend the occupational interests of their members, rather than engaging in activities which are unlawful and inconsistent with the trade unions’ objects or rules. Organizations engaging in unlawful activities under the disguise of trade unions are simply not bona fide trade unions. The main objectives of trade unions formed by government employees and registered under the TUO are to promote understanding and cooperation between the HKSAR Government as the employer and its employees, and to liaise and discuss with the HKSAR Government on matters affecting the well-being of government employees. The requirement of taking an oath or signing a declaration would not have any impact on these unions’ communication with the HKSAR Government in accordance with their constitutions. As with other trade unions, trade unions formed by government employees may be established or dissolved of their own accord in accordance with the provisions of the TUO.
24. 192. Regarding the GUHKST, the HKSAR Government indicates that since its registration, the GUHKST had been blatantly used for purposes inconsistent with its objects or rules. The HSKAR Government points out that the Registrar of Trade Unions followed due process in investigating and subsequently cancelling the GUHKST’s registration. The Registrar invited the GUHKST to provide written representations on the suspected activities undertaken by it from 2019 to 2021, particularly about the use of the trade union for the purposes inconsistent with its objectives or rules but received no response from it by the statutory deadline. The HKSAR Government further points out that the Registrar’s decision to cancel GUHKST’s registration was made after objective and prudent assessments. In issuing its cancellation notice, the Registrar specifically drew the GUHKST’s attention to its right to appeal under the TUO. As no appeal was lodged by the GUHKST within the statutory 28-day deadline, the registration of the GUHKST was cancelled on 13 October 2021. The HKSAR Government considers that the entire process was fair, open and just, with channels for lodging appeals guaranteed.
25. 193. The HKSAR Government further indicates that the HKPTU had claimed itself a professional education organization. In the past decades, the Education Bureau had allowed it to participate in the discussion, coordination and conduct of education-related activities alongside other educational bodies. However, the remarks and deeds of the HKPTU in recent years were invariably inconsistent with what was expected of the education profession, rendering it no different from a political body in essence. In the social turmoil from mid-2019 to 2020, some students or even teachers were swayed to take part in violent and unlawful activities. Instead of shouldering the responsibility of the education profession by guiding or dissuading them, the HKPTU added fuel to fire, contrary to the fundamental principles of education and at the expense of students’ well-being. It engaged in political propaganda under the guise of being a professional education organization. For instance, in the “Occupy Central” movement, the HKPTU: published teaching resources with content on civil disobedience for all teachers to teach their students; launched territory-wide class and teaching boycott by teachers, dragging schools into politics; and openly promoted books that glorify violence. In view of the HKPTU failing to live up to the expectations of a professional education organization, the Education Bureau announced cessation of working relations with it on 31 July 2021. The HKSAR Government points out that the HKPTU initiated voluntary dissolution of its own accord, without any interference from the Registrar of Trade Unions and to that effect passed a resolution for dissolution at its general meeting of members’ representatives on 11 September 2021 in accordance with its union rules.
26. 194. The HKSAR Government further indicates that on 16 January 2021, the Union for New Civil Servants announced its decision to dissolve itself. The notice of dissolution submitted by the trade union was registered on 3 May 2021. The entire dissolution process was free from any intervention from the authorities. The Frontline Doctors’ Union, the Financial Technology Professional Services Personnel Union, the Hong Kong Teaching and Research Support Staff Union, the Next Media Trade Union, the Hong Kong Pharmaceutical and Medical Device Industries Employees General Union and the Hong Kong Educators Alliance either initiated dissolution of their own accord or requested to be deregistered voluntarily without any interference from the Registrar of Trade Unions. Of these six trade unions, the deregistrations of the first four were registered between August and September 2021, while the dissolution processes of the remaining two are still ongoing.
27. 195. The HKSAR Government indicates that the Registrar promotes sound trade union management and responsible trade unionism in accordance with the TUO. As evidenced by the marked increase in registered trade unions, the Registrar has facilitated, instead of discouraged the establishment of trade unions. Under the TUO, the requirements for applying for registration of a trade union are objectively specified and the Registrar is obliged to register all eligible applications. In the event of refusal of any application for registration of a trade union or cancellation of the registration of a trade union, the TUO requires the Registrar to inform the applicant trade union of the ground for refusal or cancellation. The TUO further sets out the channels for appealing against the decisions of the Registrar. Thus, the HKSAR Government considers that the registration regime under the TUO is transparent and objective, providing full protection of trade union rights.
28. 196. The HKSAR Government trusts that in light of the above, the Committee will appreciate that trade union rights in the HKSAR have in no way been jeopardized, nor has there been any decline of respect for civil liberties and freedom of association. It points out that a clear difference must be drawn between legitimate trade union activities protected by the TUO and unlawful acts committed by people who happen to be trade unionists. The suspected unlawful acts by the persons in question have nothing to do with the exercise of trade union rights, and hence law enforcement actions legitimately taken against them should not be baselessly and wrongfully alleged as an affront to trade union rights which have all along been, and will continue to be, rigorously protected by law in the HKSAR.
29. 197. In conclusion, the HKSAR Government trusts that the above facts and information have addressed the Committee’s concerns. The HKSAR Government submits that all actions taken by it are reasonable and justified and that there is no retrogression or infringement of the rights to organize and freedoms of association in the HKSAR. The allegations against the HKSAR are baseless and unfounded. The isolated incidents referred to by the complainants are associated with either suspected unlawful activities not related to the exercise of trade union rights, or voluntary decisions of the trade unions concerned without any interference from the HKSAR Government. The HKSAR Government continues to improve the employment rights and benefits of employees in the HKSAR. Trade unions officials’ freedoms and rights to organize activities to promote and defend the occupational interests of trade union members have been, and will continue to be, fully protected. The HKSAR Government appeals to the Committee to consider putting an end to the examination of this case.

D. The Committee’s conclusions

1. 198. The Committee recalls the following previously examined set of allegations: (1) heavy police repression during the anti-extradition protests in 2019 and the sentencing of Mr Lee, the General Secretary of the HKCTU, to imprisonment in connection with organizing and participating in assemblies demanding the withdrawal of the extradition bill and universal suffrage in 2019; (2) the adoption of the National Security Law (NSL) constitutes an unprecedented crackdown on civil liberties; (3) the arrest, in January 2021, of pro-democracy activists and politicians, including Ms Carol Ng, Chairperson of the HKCTU and two other trade union leaders, in connection with political party primary polls held in 2020 and the subsequent charges of conspiracy to commit subversion under the new NSL; (4) the ban on public gatherings introduced by the Prevention and Control of Disease (Prohibition on Group Gatherings) Regulation in March 2020, adopted without prior consultations; and (5) the arrest and conviction of and suspended sentence imposed on Mr Lee, for having organized a demonstration on Labour Day on 1 May 2020, in violation of the Regulation, to protest against the Regulation and to call for further anti-COVID-19 assistance measures.
2. 199. The Committee notes that by a communication dated 4 October 2021, the ITUC and the ITF submit new information and additional allegations of what they consider a concerted prosecution campaign against trade unions following the adoption of the NSL. In particular, they allege that the charges levelled against trade union leaders, interference in trade union activities and deregistration of trade unions by the Registrar and the general climate of infringement of trade union rights led several trade unions to self-dissolution.
3. 200. The Committee recalls from the previous examination of the case that Mr Lee Cheuk Yan, the General Secretary of the HKCTU and the Chairperson of the Hong Kong Alliance, was sentenced to a total of 20 months’ imprisonment under the Public Order Ordinance in connection with organizing and participating in two unauthorized but peaceful assemblies in August 2019. The Committee recalled in this respect that freedom of assembly and freedom of opinion and expression were a sine qua non for the exercise of freedom of association [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 205]. It further recalled that the arrest and sentencing of trade unionists to long periods of imprisonment on grounds of the “disturbance of public order”, in view of the general nature of the charges, might make it possible to repress activities of a trade union nature [see Compilation, para. 157]. The Committee urged the Government to take all appropriate measures to ensure that Mr Lee was not imprisoned for having participated in a peaceful demonstration defending workers’ interests.
4. 201. The Committee notes with grave concern the complainants’ allegation that Mr Lee also faces the following additional prosecutions and charges: (1) two charges of organizing and inciting others to participate in an unauthorized candlelight vigil on 4 June 2020 (the trial was scheduled for 1 November 2021); (2) two additional prosecutions related to the protest to demand the release of political prisoners in mainland China on 1 January 2021; (3) charges of obstructing a police officer and breaking the Air Navigation (Hong Kong) Order 1995 over the release of a balloon during a New Year’s Day protest; and (4) prosecution for inciting subversion under articles 22 and 23 of the NSL for having organized the candlelight vigil on 4 June 2021, mourning those killed in the 1989 Tiananmen crackdown. The complainants also indicate that the police served notice to Mr Lee, as well as to eight other executives of the Hong Kong Alliance to submit, pursuant to article 43 of the NSL, information on activities outside the HKSAR in relation to the Alliance or face a fine and jail term from six months to two years and that Mr Lee and other executive committee members refused to comply with this demand.
5. 202. The Committee notes the HKSAR Government’s indication that: (i) in order to effectively prevent and suppress offences endangering national security, law enforcement officers need to obtain relevant information about certain foreign or Taiwanese political organizations and foreign or Taiwanese agents; (ii) pursuant to article 43 of the NSL, the police issued written notices to the directors of the Hong Kong Alliance (including Mr Lee) requesting information; (iii) the notice was not issued to Mr Lee in his capacity as a trade unionist, nor does the issuance of such notice necessarily connote wrongdoing or the commission of any offence; and (iv) it is only when the recipient fails to comply with the notice with no valid explanation provided to the court that legal sanctions are imposed. The HKSAR Government points out that the Hong Kong Alliance is not a trade union and should not be treated as such. It indicates, moreover, that as the legal proceedings are still ongoing, it is inappropriate for any person to comment on such cases as it is a matter sub judice.
6. 203. The HKSAR Government further indicates that Mr Lee was prosecuted in connection with the unauthorized assemblies that took place on 18 and 31 August 2019, 1 October 2019 and 4 June 2020, and for breaching the social distancing measures imposed by law in light of the COVID-19 pandemic. Mr Lee was found guilty in all five cases, which for the HKSAR Government means that the prosecution’s actions were fully substantiated. The HKSAR Government considers that all calls for dropping of charges and his release are unfounded, disrespect the rule of law and are contrary to the principle of non-interference under international law.
7. 204. The Committee recalls from the previous examination of the case and the relevant court decisions examined on that occasion, that the events in August 2019, for the participation in which Mr Lee is currently serving a 20-month prison sentence, were peaceful. The Committee recalls that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike, public meetings or processions, particularly on the occasion of May Day [see Compilation, para. 156]. The Committee further recalls that the ultimate responsibility for ensuring respect for the principles of freedom of association lies with the Government [see Compilation, para. 46]. Regarding the HKSAR Government views on non-interference, the Committee recalls that by virtue of its Constitution, the ILO was established in particular to improve working conditions and to promote freedom of association in the various countries. Consequently, the matters dealt with by the Organization in this connection no longer fall within the exclusive sphere of States and the action taken by the Organization for the purpose cannot be considered to be interference in internal affairs, since it falls within the terms of reference that the ILO has received from its Members with a view to attaining the aims assigned to it [see Compilation, para. 2]. The Committee once again urges the Government to take all appropriate measures to ensure that Mr Lee is not prosecuted and not imprisoned for having exercised legitimate trade union activities and requests the Government to provide information on all measures taken to that end. The Committee further urges the Government to provide detailed information on the remaining charges levelled against Mr Lee and the outcome of all court hearings.
8. 205. The Committee further recalls that Ms Carol Ng, ex-Chairperson of the HKCTU, Ms Winnie Yu, ex-Chairperson of the HAEA and Mr Cyrus Lau, Chairperson of the Nurses Trade Union, along with other activists, were arrested in January 2021 in connection with political party primary polls held in 2020 and that on 28 February 2021, charges of conspiracy to commit subversion under the NSL were brought against Ms Carol Ng and Ms Winnie Yu and others, while Mr Cyrus Lau was still under investigation. The Committee noted that the case of Ms Carol Ng and Ms Winnie Yu was adjourned to 31 May 2021 and requested the Government to provide full and detailed information on the outcome, and bearing in mind the allegations, on the guarantees of due process, as well as to transmit copies of relevant court judgments. Given the length of their detention awaiting trial and the absence of any indication that their liberty would create a public danger, the Committee requested the Government, should they still be held in preventive detention, to take measures to ensure that they may be released pending trial. The Committee further requested the Government to provide information on the situation of Mr Cyrus Lau who was still under investigation at the time of the lodging of the present complaint.
9. 206. The Committee understands from the information provided by the complainants and the HKSAR Government that after being postponed on several occasions, the case of Ms Carol Ng and Ms Winnie Yu was rescheduled to 27 January 2022. It further notes that Ms Winnie Yu was released on bail on 28 July 2021. The Committee further notes that according to the complainants, Mr Cyrus Lau is still under investigation, while the Government indicates that no charges have been laid against him and that the police bail was granted to him.
10. 207. The Committee deplores that Ms Carol Ng continues to be detained since being arrested in January 2021 and that her case, together with the case of Ms Winnie Yu, has not been tried yet and recalls in this respect that justice delayed is justice denied [see Compilation, para. 170]. Noting the Government’s indication that their case was adjourned to 27 January 2022, the Committee requests the Government to provide full and detailed information on the outcome of the judicial procedure and to transmit copies of the relevant court judgments. The Committee further requests the Government to provide information on the situation of Mr Cyrus Lau and to indicate whether he is still subject to investigation.
11. 208. The Committee notes that the complainants also allege the arrest, on 22 July 2021, of five executives of the GUHKST in relation to the publication of picture books for children published by the union with stories based on pro-democratic protests of healthcare workers in 2019 and 2020. The complainants indicate that while three trade union leaders were initially granted bail, the union Chairperson and Vice-Chairperson were denied bail pending the hearing scheduled for 24 October 2021. The respective bails of the three trade unionists were subsequently revoked as well.
12. 209. The Committee notes the Government’s indication that the GUHKST’s Chairperson and executive committee members were charged with conspiring to print, publish, distribute, display or reproduce seditious publications which glorify unlawful acts, bring hatred against the HKSAR Government and the administration of justice, and incite other people to commit violence, which are not lawful trade union activities. The Committee recalls that on many occasions, the Committee has emphasized the importance of the principle affirmed in 1970 by the International Labour Conference in its resolution concerning trade union rights and their relation to civil liberties, which recognizes that the rights conferred upon workers’ and employers’ organizations must be based on respect for those civil liberties which have been enunciated in particular in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights, and that the absence of these civil liberties removes all meaning from the concept of trade union rights [see Compilation, para. 68]. The Committee recalls that the resolution “places a special emphasis on the following civil liberties, as defined in the Universal Declaration of Human Rights, which are essential for the normal exercise of trade union rights: (a) the right to freedom and security of person and freedom from arbitrary arrest and detention; (b) freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers; (c) freedom of assembly; (d) the right to a fair trial by an independent and impartial tribunal; (e) the right to protection of the property of trade union organizations”. Expressing the firm expectation that the Government will ensure full respect of the above and noting the complainants’ indication that the hearing was scheduled for 24 October 2021, the Committee requests the Government to provide full and detailed information on the outcome and transmit copies of the relevant court judgments.
13. 210. In connection with all of the above instances of arrest and detention of trade unionists, the Committee is bound to recall that measures designed to deprive trade union leaders and members of their freedom entail a serious risk of interference in trade union activities and, when such measures are taken on trade union grounds, they constitute an infringement of the principles of freedom of association [see Compilation, para. 124].
14. 211. The Committee notes that the complainants allege that the following acts qualify as interference, harassment and an anti-union campaign: (i) the freezing of the GUHKST accounts and assets as well as seizure of trade union leaders’ phones, computers and trade union leaflets in relation to the above-described publication for children based on pro-democratic protests and labour strike of healthcare workers in 2019 and 2020; (ii) the establishment by the police of a national security hotline to receive anonymous complaints without providing trade unions with information and thus making them unable to assist their members; (iii) the deregistration of teachers by the Education Bureau following such anonymous allegations; (iv) the obligation imposed on teaches to censor students’ speeches and behaviours under the Education Bureau’s new guidelines; (v) an obligation imposed on civil servants to take an oath and sign a declaration of loyalty, mentioned in article 6 of the NSL, making it impossible to freely express opinions or join an organization or activities deemed by the authorities to be inciting discontent, aggravating social instability or undermining the capabilities of the Government; (vi) the amendment by the Government of previous practice of free public access to the Companies Registry’s database by blocking access to the full data concerning companies and their ownership, which, according to the complainants, impairs the provision of services by unions to their members, particularly as it affected the possibility of conducting meaningful consultations, good faith negotiations, collective bargaining, litigation, etc.; (vii) censorship by the Office for Films, Newspapers and Articles Administration; (viii) anti-union state-owned media campaigns; (ix) pressure on other civil society organizations, which collaborated with trade unions; (x) the use of the Prevention and Control of Disease (Prohibition on Group Gatherings) Regulation to ban the 2021 May Day rally by the HKCTU, as well other interference with trade union activities under the Regulation; and (xi) the designation of the Hong Kong Alliance and its executive committee members as foreign agents.
15. 212. The Committee notes the detailed information provided by the HKSAR Government on some of the above allegations. In general, the Government indicates that trade union rights as well as the trade union officials’ freedoms and right to organize activities to promote and defend the occupational interests of trade union members have been and will continue to be fully protected. The Committee notes, in particular, that the HKSAR Government explains with regard to the above that: (i) the Hong Kong Alliance is not a trade union; (ii) the GUHKST’s registration had been cancelled on 13 October 2021 for having conducted, since its establishment, activities which are inconsistent with its objectives and rules, in particular those in relation to the printing, displaying and distribution of publications which glorify unlawful acts, bring hatred against the HKSAR Government and administration of justice, and incite violence; (iii) it denies having received 10,000 anonymous complaints regarding the application of the NSL; (iv) with regard to the obligation imposed on civil servants to take an oath or sign the declaration of loyalty, the Government indicates that this would not affect the civil rights of government employees; (v) 269 complaints of teachers’ misconduct from mid-2019 to end-2020 have been received and questioned teachers compliance with their responsibility to teach correct concepts, provide correct information and nurture positive values, consistent with the constitutional status of the country; (vi) measures affecting public access to information were aimed at enhancing protection of sensitive personal information and in no way impact trade union rights; and (vii) under the Film Censorship Ordinance, any person who intends to exhibit a film (including trade unions, at a place to which members have access) shall submit the film to the Film Censorship Authority for approval. The HKSAR Government emphasizes that there is no infringement of the right to freedom of association and that the isolated incidents referred to by the complainants are associated with suspected unlawful activities not related to the exercise of trade union rights or voluntary decisions of the trade unions concerned without any interference from the Government. Regarding the Prevention and Control of Disease (Prohibition on Group Gatherings) Regulation, the HKSAR Government reiterates that it aims at combating the current pandemic.
16. 213. The Committee notes that while some of the alleged instances do not appear to involve infringement of trade union rights per se, others, such as the threat of a very broad determination of what constitutes improper conduct or behaviour of civil servants in practice that may encroach on basic civil liberties; the alleged state media anti-union campaign, to which the HKSAR Government did not reply; deregistration of teachers for imparting differing views and information; freezing of accounts and investigation of the GUHKST following the publication of children’s booklets depicting protests and labour strikes; as well as charges laid against trade union leaders, as examined above, provide a background against which the deregistration of several well-established and active trade unions took place. This background further sheds lights on the situation where not one, but several important unions decided, at about the same time, to cease to exist in order to protect their members and leaders.
17. 214. The Committee regrets that the HKSAR Government does not provide information on the reasons for the deregistration procedure initiated by the Registrar against the HAEA. The Committee notes, that according to the complainants, this followed the participation of some of its office bearers in activities such as the HAEA’s strike to demand occupational safety and health measures for its members in public hospitals and border control with China to prevent collapse of the public healthcare system; participation of its Chairperson, Ms Winnie Yu, in the democrats’ primary election in July 2020; its public activities to commemorate the 2019 protests, as well as to raise queries in respect of the digital security of the Government’s COVID-19 track app and the health risks of the Sinovac-CoronaVac vaccine; private screenings organized in 2021 on the rule of law; and the letter writing campaign for Ms Winne Yu in 2021. As regards the GUHKST, the Committee notes from the information provided by the complainants and the HKSAR Government that the union was deregistered following the publication of materials the Government considered subversive. The Committee recalls in this respect that the right of workers’ and employers’ organizations to express opinions through the press or otherwise is an essential aspect of trade union rights [see Compilation, para. 239] and that freedom of opinion and expression and, in particular, the right not to be penalized for one’s opinions, is an essential corollary of freedom of association, and workers, employers and their organizations should enjoy freedom of opinion and expression in their meetings, publications and in the course of their trade union activities [see Compilation, para. 235]. Notwithstanding the information provided by the HKSAR Government on the recent 62 per cent increase in the number of registered trade unions, the Committee recalls that in view of the serious consequences which dissolution of a union involves for the occupational representation of workers, it has considered that it would appear preferable, in the interest of labour relations, if such actions were to be taken only as the last resort, and after exhausting other possibilities with less serious effects for the organization as a whole [see Compilation, para. 981]. Furthermore, in a case involving the dissolution and suspension of trade union organizations in a country, the Committee expressed its deep conviction that in no case does the solution to the economic and social problems besetting a country lie in isolating trade union organizations and suspending their activities. On the contrary, only through the development of free and independent trade union organizations and negotiations with these organizations can a government tackle such problems and solve them in the best interests of the workers and the nation [Compilation, para. 980].
18. 215. The Committee notes the complainants’ allegation that due to the above-described climate of fear and intimidation trade unions are not able to freely organize their activities; fearing for the security and safety of their members, trade unions are compelled to dissolve their structures. The complainants indicate that on 3 October 2021, the HKCTU took the decision to disband itself. On 10 August 2021, the leadership of the HKPTU, the largest independent trade union of 95,000 members with a 48-year history, announced its intention to invoke the dissolution procedure as a result of tremendous pressure and systematic attacks by the authorities and the state-owned media. The complainants explain that prior to this decision, the HKPTU made several efforts to satisfy the authorities. In March 2021, the HKPTU withdrew its participation in social movement organizations such as the CHRF and the Hong Kong Alliance. The HKPTU also disaffiliated from the HKCTU and from Education International “to focus on education and members’ welfare”, as demanded by the authorities. Furthermore, as of July 2021, other dissolved unions include the Union of New Civil Servants, Medicine Inspires, the Hong Kong Pharmaceutical and Medical Device Union, the Hong Kong Educators Alliance, the Frontline Doctors’ Union, the Financial Technology Professional Services Personnel Union, the Hong Kong Teaching and Research Support Staff Union and the Next Media Trade Union.
19. 216. The Committee notes the above with deep concern. While observing the HKSAR Government’s position that the dissolution occurred following a free-will decision of the organizations concerned, the Committee points out that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Compilation, para. 84]. Furthermore, a free and independent trade union movement can only develop in a climate free of violence, threats and pressure, and it is for the Government to guarantee that trade union rights can develop normally [see Compilation, para. 87].
20. 217. In this connection, the Committee further recalls that for the contribution of trade unions and employers’ organizations to be properly useful and credible, they must be able to carry out their activities in a climate of freedom and security. This implies that, insofar as they may consider that they do not have the basic freedom to fulfil their mission directly, trade unions and employers’ organizations would be justified in demanding that these freedoms and the right to exercise them be recognized and that these demands be considered as coming within the scope of legitimate trade union activities [see Compilation, para. 75]. The Committee therefore firmly urges the Government to take all necessary measures to ensure in law and in practice the full enjoyment of trade union rights in a climate free of violence, threats and pressure in the HKSAR.
21. 218. While taking due note of the Government’s detailed explanation of its position that the adoption of the NSL in no way restricted the rights and freedoms in the HKSAR, the Committee deeply regrets to note that in spite of its request, no consultations appear to have taken place with the social partners on the negative effects that the application of the NSL is alleged to have on freedom of association and trade union rights in practice. The Committee notes that this legislative issue is being examined by the Committee of Experts on the Application of Conventions and Recommendations (CEACR) in the framework of the application of Convention No. 87 and was discussed by the Conference Committee on the Application of Standards in 2021.
22. 219. The Committee understands that the Regulation on the prohibition on group gatherings (Cap. 599G) under the Prevention and Control of Disease Ordinance is currently extended until 31 March 2022. The Committee expects the Government to engage with the social partners in respect of any potential new extension of the Regulation, taking into account the experience of its application in practice since its adoption.

The Committee’s recommendations

1. 220. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following:
   • (a) The Committee once again urges the Government to take all appropriate measures to ensure that Mr Lee Cheuk Yan is not prosecuted and not imprisoned for having exercised legitimate trade union activities and requests the Government to provide information on all measures taken to that end. The Committee further urges the Government to provide detailed information on the remaining charges levelled against Mr Lee and the outcome of all court hearings.
   • (b) Noting the Government’s indication that the case of Ms Carol Ng and Ms Winnie Yu was adjourned to 27 January 2022, the Committee requests the Government to provide full and detailed information on the outcome of the judicial procedure and to transmit copies of the relevant court judgments. The Committee further requests the Government to provide information on the situation of Mr Cyrus Lau and to indicate whether he is still subject to investigation.
   • (c) Noting the complainants’ indication that the hearing of the GUHKST leaders was scheduled for 24 October 2021, the Committee requests the Government to provide full and detailed information on the outcome and transmit copies of the relevant court judgments.
   • (d) The Committee firmly urges the Government to take all necessary measures to ensure in law and in practice the full enjoyment of trade union rights in a climate free of violence, threats and pressure in the HKSAR.
   • (e) The Committee expects the Government to engage with the social partners in respect of any potential new extension of the Regulation on prohibition on group gatherings (Cap. 599G) under the Prevention and Control of Disease Ordinance.