Rapport intérimaire - Rapport No. 405, Mars 2024

Cas no 3406 (Région administrative spéciale de Hong-kong) - Date de la plainte: 17-MARS -21 - Actif

Allegations: The complainant organizations 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. 228. The Committee last examined this case (submitted in March 2021) at its March 2023 meeting, when it presented an interim report to the Governing Body [see 401st Report, approved by the Governing Body at its 347th Session, paras 298–322]. 
2. 229. The International Trade Union Confederation (ITUC) sent additional observations and new allegations in a communication dated 23 October 2023.
3. 230. The Government sent its observations in a communication dated 22 January 2024.
4. 231. China has declared the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), applicable in the territory of the Hong Kong Special Administrative Region (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. 232. At its March 2023 meeting, the Committee made the following recommendations [see 401st Report, para. 322]:
   • (a) The Committee firmly 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 the court hearings.
   • (b) With reference to the ITUC’s new allegations, the Committee requests the Government to indicate whether Messrs Joe Wong, Leo Tang and Chung Chung-fai are under investigation. Observing that Mr Lee is serving his prison sentence, the Committee requests the Government to indicate whether he is under additional investigation in connection with the requirements of the Societies Act Order.
   • (c) Noting the Government’s indication that the respective hearings in cases of Ms Carol Ng and Ms Winnie Yu were scheduled for 3 and 8 November 2022, the Committee urges the Government to provide full and detailed information on the outcome of the judicial procedure and to transmit copies of the relevant court judgments. In the event the hearing in the case of Ms Yu has not yet taken place, the Committee requests the Government, to take measures to ensure that she is released pending trial. The Committee further requests the Government to confirm that Mr Cyrus Lau is no longer under investigation.
   • (d) The Committee once again 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 and to provide detailed information on all steps taken to that end. It firmly requests the Government, in consultation with the social partners, to monitor and provide information on the impact that the National Security Law has already had and may continue to have on the exercise of freedom of association rights so that the Committee has available to it all necessary information to examine the impact of this legislation in practice. The Committee also firmly urges the Government to provide the Committee of Experts on the Application of Conventions and Recommendations (CEACR), to which it refers the legislative aspects of this case, with detailed information on any legislative developments.
   • (e) The Committee reiterates its previous request and expects the Government to provide information on the engagement 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.

B. The complainant’s new allegations

1. 233. In its communication dated 23 October 2023, the ITUC informs that on 18 October 2022, the Court of Appeal upheld the conviction of Mr Lee Cheuk Yan and seven other Hong Kong Confederation of Trade Unions (HKCTU) members and labour activists for breaching the ban on public assembly under the Disease Prevention and Control (Prohibition of Group Gathering) Ordinance (Cap. 599G) by holding a May Day protest in 2020.
2. 234. The ITUC indicates that the use of the National Security Law (NSL) bail procedure has resulted in the excessive prolongation of the preventive detention of many of the 47 democrats arrested on subversion charges since 28 February 2021. The trial of the 47 democrats began on 6 February 2023 and was adjourned until 27 November 2023. Amongst them, two trade unionists, Ms Carol Ng and Ms Winnie Yu were charged with conspiracy to commit subversion for taking part in the primary election of the democrats to stand in the Legislative Council Election in 2020 representing their unions.
3. 235. The ITUC alleges that on 9 March 2023, the national security police arrested Ms Elizabeth Tang, General Secretary of the International Domestic Workers’ Federation (IDWF) and wife of Lee Cheuk Yan, on suspicion of “colluding with a foreign country or external elements to endanger national security”. Ms Elizabeth Tang had moved to the United Kingdom of Great Britain and Northern Ireland after the HKCTU disbanded and was returning to visit her imprisoned husband. She was released on 11 March 2023 on a cash bail of 200,000 Hong Kong dollars, with her phone and passport confiscated. She is required to regularly report to the police, making it impossible for her to travel and fully carry out her role as an international trade union leader. On the same day, her sister, Ms Marilyn Tang, who was also the director of the Trade Union Education Centre under the disbanded HKCTU, and lawyer Frederick Ho were arrested for allegedly removing evidence from Ms Elizabeth Tang’s home. They were released on bail and charged with allegedly perverting the course of justice on 25 September. Within a month of these arrests, at least a dozen trade union and labour activists including ex-HKCTU staff had been taken by national security police officers from their home for questioning about their liaisons with international counterparts.
4. 236. The ITUC further alleges that in an attempt to silence the dissident diaspora, on 3 July the HKSAR Government issued arrest warrants for eight Hong Kong activists, including the former general secretary of the defunct HKCTU, Mr Mung Siu Tat Christopher, accusing them of committing offences under the NSL. Mr Mung moved to the United Kingdom in September 2021 out of concern for his personal safety, amid a wave of dissolution of civil society organizations threatened by a smear campaign by Chinese state media. Through the UK-based Hong Kong Labour Rights Monitor, Mr Mung Siu Tat publishes online reports on the labour and trade union situation in Hong Kong, attends international trade union meetings and submits comments to UN treaty bodies. Mr Mung Siu Tat was charged with alleged secession under section 21 of the NSL for a speech he made at an international meeting in Paris in June 2022. Mr Mung and other relocated Hong Kong activists are wanted by the HKSAR Government on a 1 million Hong Kong dollars (US$127,700) bounty. The national security police have also taken in the family of Mr Mung’s elder brother and sisters-in-law in Hong Kong for questioning.
5. 237. The ITUC recalls that since May 2021, the Registry of Trade Unions (RTU) and the Secretary of Societies have used provisions under the Trade Union Ordinance (TUO) and the Societies Ordinance (SO) to impose information surveillance and outright deregistration on targeted independent trade unions. The labour authorities argued that these actions were part of the HKSAR Government’s new duties under the NSL. The speeches and commentaries criticizing the NSL’s legislation and the HKSAR Government’s anti-COVID-19 measures, the solidarity campaigns calling for the release of imprisoned trade unionists, the June 4 commemorations and the foreign liaison of these unions were targeted. Letters of inquiry from the RTU, under section 10 of the TUO, were sent to: the Hong Kong White Collar (Administration and Clerical) Connect Union (HKWCCU) in December 2021; the Hong Kong Financial Industry Employees General Union (HKFIEGU) in December 2021; and the Hong Kong Journalists Association (HKJA) in January 2022, requesting an explanation of their activities since 2019. Warning letters were also sent to the Hospital Authority Employees Alliance (HAEA) in September 2021, the Environmental Education and Ecological Conservation Workers’ Union on 11 March 2022, and the Hong Kong Music Industry Union on 7 March 2022, as well as the Accounting Bros’ Sis Labour Union, the Construction Site Workers General Union, the Bar Bending Industry Workers Solidarity Union and the Catering and Hotels Industries Employees General Union, the New World First Bus Company Staff Union and the Citybus Limited Employees Union between January and August 2022. They were accused of violating sections 10(1)(b), 33 and 34 of the TUO, which prohibits activities outside the union’s stated objectives, as well as the use of trade union funding on activities with “political purposes”, both of which could lead to deregistration proceedings.
6. 238. The ITUC further recalls that on 17 February 2022, four former officers of the HKCTU were requested by the Secretary for Societies to provide detailed information about the defunct union under section 15 of Cap. 151 of the Societies Ordinance. Mr Lee Cheuk Yan, (who is currently in prison), Mr Joe Wong, Mr Leo Tang, and Mr Chung Chun Fai were asked to provide information on the union’s activities in 2019 and 2020; its membership, finances, affiliations, and its cooperation with a list of international trade unions and solidarity organizations. On 31 March 2022, they were detained by the national security police for failing to provide this information. Except for Mr Lee Cheuk Yan, the three leaders were released the next day after surrendering their travel documents. Over the next two days, Chinese state-owned newspaper Wen Wei Po accused the defunct union of “still being active” and a threat to national security, and more former members of the defunct union were named. On 1 November 2022, Joe Wong, Leo Tang and Chung Chun Fai were found guilty by the courts and fined.
7. 239. The ITUC indicates that in May 2022, the Secretary of Labour and Welfare inserted a catch-all offence of “(an offence) endangering national security” in the amended Social Workers Registration Ordinance (SWRO) under schedule 2, section 5. The offence is not defined in the amendment. Registration will be refused or cancelled if a social worker has been convicted of the offence. The same provision was being considered by the Labour Department to add to schedule 1 of the TUO under section 17(3) to impose a five-year ban or prohibition from taking office in a trade union. The Hong Kong Social Workers’ General Union fears that the broad scope of the new offence allows for arbitrary interpretation that threatens social workers from assuming their legitimate role of defending social justice and human rights as protected under the SWRO. Their normal work to assist clients and criticize government policies, as well as participate in international exchange and receive foreign funding etc., could fall foul of the amended schedule. The ITUC recalls that similarly, the Labour Department requires a declaration for trade union registration, effective from 19 September 2022, which obliges the union to pledge that it will not ”endanger national security” or engage in activities “contrary to the interests of national security”. The required declaration is broadly open to arbitrary interpretation, which could trigger deregistration proceedings under the TUO.
8. 240. The ITUC alleges that the overtly broad NSL and its application have had a chilling effect, leading to a wave of dissolution of trade unions and civil society organizations, estimated at 65 in 2021 alone, including the largest professional teachers’ union and the HKCTU. The number of trade unions that were dissolved in 2022 reached 11,733. The ITUC refers to the following examples that illustrate the pattern of trade union dissolution as a result of judicial and non-judicial harassment by the Hong Kong authorities and Chinese state media. On 13 April 2022, the Hong Kong Journalists Association (HKJA) called an extraordinary general meeting to give the executive committee the power to dissolve the union. At the time, three independent news outlets had been forced to close and more than 20 journalists were facing charges of sedition, subversion and collusion. Members of the Hong Kong Journalists Association (HKJA) have worried about the crackdown on independent journalism and their personal safety since 2019, following intensive smear campaigns against the union and its president. In April 2022, Chinese state-owned newspapers, Takung Po and Wen Wei Po, named seven independent trade unions that were affiliates of the HKCTU, accusing them of trying to revive the defunct union. The Community Care and Nursing Home Workers General Union and the Confederation of Tertiary Institutes Staff Unions subsequently disbanded after assessing the risks to their leaders. On 12 May 2022, the HKCTU Education Foundation Limited decided to dissolve itself due to unmitigated political risks and concerns for the safety of its members. The Education Foundation had been vilified by two newspapers, which accused it of receiving foreign donations from international trade unions and solidarity organizations.
9. 241. The ITUC further alleges that the NSL has been used to arrest 260 people, including human rights defenders, pan-democrats, protesters, citizens and students; 161 have been charged, amongst them four are trade unionists, including Mung Siu Tat who has relocated to the United Kingdom. Of the 161 people charged, 79 have been convicted. The ITUC indicates that the HKSAR Government has revealed that local legislation on national security under section 23 of the Basic Law is expected to be completed by the end of 2024, and that further legislation is planned to “plug the loopholes in national security”. The ITUC alleges that examples to illustrate the rapid deterioration of the environment for free exercise of fundamental rights and civil liberties are numerous. The Hong Kong Women Workers’ Association was pressured by the police to ‘voluntarily’ withdraw from holding a demonstration that had been approved for International Women’s Day in 2023. The police had cited messages posted by unknown individuals on the organization’s Facebook page to claim that “some violent groups” were trying to join the demonstration and threatened that the organization should bear the consequences. Former president of the defunct HKCTU, Mr Joe Wong, and union member Mr Denny To, were questioned after notifying the police of their intention to hold the May Day rally. On 26 April 2023, Mr Joe Wong reportedly went missing for a few hours and had an emotional breakdown. He was believed to have been taken away by the national security police and later announced the cancellation of the rally without giving a reason. There was a heavy police presence on 4 June and 1 July 2023, preceded by threats from the police to warn the public against gathering for commemorations or protests on both days. On the eve of 1 July 2023, the anniversary of the handover, members of the League of Social Democrats, the only surviving pan democratic political group, were summoned by the national security police and the group subsequently decided not to organize a demonstration. In addition, a number of activists, civil society organizations and trade unions have had their assets and bank accounts frozen under the NSL’s Implementing Rules.
10. 242. According to the ITUC, in a further attempt to restrict access to funding for civil society organizations and initiatives, including trade unions, the HKSAR Government is seeking to impose strict regulations on crowdfunding activities in Hong Kong. According to the consultation paper released in December 2022, the Government plans to require the registration of crowdfunding platforms under a Crowdfunding Affairs Office (CAO), which will have broad administrative and prosecutorial powers (paragraphs 2.6 and 2.23). Detailed information will be required for registration and crowdfunding activities will be subject to close scrutiny, censorship, intervention and de-legalisation (paragraph 2.11–14) without judicial oversight if the CAO has “reason to believe that the continued conduct of the activity will jeopardise the public interest, public safety or national security” (paragraph 2.22). The Special Rapporteur has expressed concerns about the potential ramifications of the discretionary powers the CAO may have on the rights to freedom of opinion, expression, freedom of peaceful assembly and association. The restrictions on funding, especially foreign funding, may have a disproportionate impact on human rights organizations.
11. 243. The ITUC requests the CFA to call on the HKSAR Government to: respect and fully implement the conclusions and recommendations of the ILO supervisory bodies in law and practice, including those regarding the NSL; release all arrested and imprisoned for the exercise of civil liberties including freedom of assembly, expression, press and association and those participating in pro­democracy activities; and drop all charges related to the activities of independent trade unions or trade unionists in the exercise of their right to join or enjoy the solidarity of international workers’ organizations. Given the rapid deteriorations and severe impact of the NSL in curtailing the rights protected under the Convention, and the prolonged preventive detention of the trade union leaders, the ITUC urges the Committee to declare this case “serious and urgent” and to recommend a direct contact mission so that the ILO can engage with the HKSAR Government on the various ways in which it violates basic principles of freedom of association in law and practice.

C. The Government’s reply

1. 244. In its communication dated 22 January 2024, the HKSAR Government points out that the legal proceedings in respect of some of the cases mentioned in this case are still ongoing. Given the legal principle of sub judice, no one should, and it is inappropriate for any person to, comment on or even attempt to interfere with the cases concerned. Whether the criminal charges against the individuals involved in those cases are established would be decided by the judiciary of the HKSAR based on independent and fair adjudication. The HKSAR Government further points out that fundamental rights and freedoms are fully protected in the HKSAR in accordance with the Basic Law of the HKSAR of the People’s Republic of China (PRC); thus, the Committee should fairly and objectively perform its duties, respect the independent adjudication power of the HKSAR courts, and prevent anyone from abusing the Committee’s mechanism to interfere with the ongoing legal proceedings in the HKSAR.
2. 245. The HKSAR Government reiterates the information it had previously provided on the background of the adoption of the NSL and in particular, that it was enacted to restore stability and security which Hong Kong residents had been unable to enjoy during the period of unrest between June 2019 and early 2020, and to ensure improvement in the exercise of rights and freedoms by the citizens and the return to their peaceful and prosperous lives. The HKSAR Government emphasizes that section 4 of the NSL clearly provides that human rights shall be respected and protected in safeguarding national security in the HKSAR and that section 5 of the NSL provides that the principle of the rule of law shall be adhered to in preventing, suppressing, and imposing punishment for offences that endanger national security. These freedoms, however, are not absolute and to protect national security or public safety, public order, and the rights and freedoms of others, etc., reasonable and necessary restrictions may be imposed on the exercise of such rights, as provided for in the NSL. The HKSAR Government therefore disagrees that there has been any crackdown on civil liberties with the adoption of the NSL in 2020. Furthermore, the NSL provides for 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 the actus reus and mens rea of the offence before the defendant may be convicted by the court.
3. 246. As for the Implementation Rules, the HKSAR Government indicates that they also clearly set out in detail: the powers to take the various measures, the procedural requirements, the circumstances that must be met, and the conditions for approval, and so on. The purpose is to ensure that when relevant officers apply the measures, the objective of effectively preventing, suppressing and imposing punishment for any act or activity that endangers national security can be achieved, while the NSL requirement to respect and protect human rights and to safeguard various rights and freedoms, can be complied with. The HKSAR Government informs that technical amendments were made to the Implementation Rules which are effective as of 15 December 2023. Under schedule 3 of the Implementation Rules, the Secretary for Security of the HKSAR may issue a ‘freezing notice’ to freeze offence-related property. The freezing notice serves the purposes of preserving the property in question so that a confiscation or forfeiture order may be obtained (and enforced) in the future; thereby preventing the use of the property in financing or assisting any offence that endangers national security; and prevents any dealings with the property in a manner which may prejudice an ongoing investigation or proceedings concerning an offence that endangers national security. The amendments put it beyond doubt that a freezing notice issued under schedule 3 is valid while the proceedings to which it relates are pending and remains so until the conclusion of the proceedings. The amendments reflect the purposes of the freezing notice regime and can more effectively avoid the national security risks arising from improper dealings with offence-related property by the defendants in cases concerning offences endangering national security before conclusion of the proceedings. After the amendments, the property right of the suspects and defendants of cases concerning offences endangering national security remains protected in accordance with the law. Persons affected by the freezing notices may apply to the court for the revocation of the notices or for the grant of a licence or variation of a licence for dealing with the property under the Implementation Rules. The licence regime already strikes an appropriate balance between the prevention and suppression of acts or activities endangering national security and the protection of property rights.
4. 247. The HKSAR Government strongly deplores the attempt to smear the actions taken by HKSAR law enforcement agencies by conflating criminal activities with lawful trade union activities and misrepresenting the proper law enforcement actions as ones targeting trade unionists. The HKSAR Government points out that a clear distinction must be drawn between legitimate trade union activities and unlawful acts committed by people who happen to be trade unionists. It is entirely legitimate for the latter to be subject to the criminal law of the HKSAR and to be dealt with accordingly. Under the fundamental principle of the rule of law and equality before the law, any suggestion that persons (such as trade unionists) or organizations with certain backgrounds should be immune from legal sanctions for their illegal acts and activities is tantamount to granting such persons or organizations privileges to break the law and is totally contrary to the spirit of the rule of law. The HKSAR Government considers the demand to release certain people who have been arrested, detained or sentenced, on account of the fact that those defendants happen to be trade union representatives, unreasonable. The HKSAR Government stresses that acts and activities that endanger national security could bring very serious consequences. Prompt action must be taken to prevent and suppress such acts and activities effectively.
5. 248. The HKSAR Government indicates that since the legal proceedings or investigations of some of the cases mentioned in the present case are still ongoing, no one should comment thereon given the legal principle of sub judice. The HKSAR Government further indicates that while it is inappropriate for it to confirm or deny whether a person is under investigation – in order to avoid jeopardizing any anticipated or ongoing investigation – it nevertheless, provides the following information to enable CFA to have a better understanding of the cases in question. For the case concerning Ms Carol Ng and Ms Winnie Yu, the HKSAR Government recalls that they were arrested, and each charged with one count of “conspiracy to commit subversion” on 28 February 2021. Ms Winnie Yu pleaded not guilty to the charge while Ms Carol Ng pleaded guilty. They were respectively committed to the Court of First Instance for trial and sentence. The trial (with other defendants) commenced on 6 February 2023. On 29 November 2023, the Court began hearing closing submissions with 10 days reserved. A verdict is pending as of the end of 2023. Ms Winnie Yu was granted bail once by the Court of First Instance on 28 July 2021, but was rearrested on 7 March 2022 for violating the bail conditions. The magistrate accordingly revoked Ms Yu’s bail on 8 March 2022. On 20 April 2022, the Court of First Instance refused Ms Yu’s bail application. Ms Elizabeth Tang was arrested on 9 March 2023 for suspected collusion with a foreign country or with external elements to endanger national security, contravening section 29 of the NLS. She was granted bail on 11 March 2023.
6. 249. As concerns the HKCTU, the HKSAR Government indicates that in February 2022, the police requested the organization to hand over documents related to its operations, activities, income and expenses in accordance with sections 15 and 16 of the SO. The police took law enforcement actions on 31 March 2022 on account of HKCTU’s failure to furnish the Societies Officer with the information required. Relevant premises were searched on the authorization of a court warrant. Three people, namely, Mr Tang Kin Wa, Mr Chung Chung Fai and Mr Wong Nai Yuen, were subsequently summoned for the offence of failure to comply with notice to furnish information under the SO. They pleaded guilty at the Eastern Magistracy in November 2022 and were each fined HK$8,000.
7. 250. With regards to the leaders of the General Union of Hong Kong Speech Therapists (GUHKST), Ms Lai Man Ling, Ms Yeung Yat Yee Melody, Mr Ng Hau Yi Sidney, Mr Chan Yuen Sum Samuel and Mr Fong Tsz Ho, were sentenced to 19 months’ imprisonment on 10 September 2022 on charges of “conspiracy to print, publish, distribute, display and/or reproduce seditious publication”, the HKSAR Government indicates that some of the defendants had lodged appeals against their convictions and sentences, but all of the appeals were later withdrawn.
8. 251. Ms Marilyn Tang was arrested on 11 March 2023, suspected of entering premises twice before the police’s search and seizing Ms Elizabeth Tang’s laptop and mobile phone. Ms Marilyn Tang was charged under the offence of perverting the course of justice on 24 March 2023. She was convicted – based on her own guilty plea – and sentenced to six months’ imprisonment on 21 December 2023.
9. 252. As for the actions taken in accordance with the law by the police to list persons at large as wanted persons, the HKSAR Government indicates that they were taken by the National Security Department of the Police against persons who have fled overseas and are suspected of having continued to commit offences under the NSL, including “incitement to secession” under section 21, “subversion” under section 22, “incitement to subversion” under section 23, and “collusion with a foreign country or with external elements to endanger national security” under section 29, thereby seriously endangering national security. The acts and activities endangering national security of the persons concerned include:
   • (1) urging foreign countries to impose “sanctions” against Government officials, personnel of the Judiciary and prosecutors of the HKSAR;
   • (2) meeting foreign politicians and government officials to call for “sanctions” or blockades, and other hostile activities against the PRC and the HKSAR;
   • (3) advocating “Taiwan independence”, “Hong Kong independence” and overthrowing the basic system of the PRC established by the Constitution of the PRC; and
   • (4) inciting others to overthrow the body of central power of the PRC and the body of power of the HKSAR with unlawful means (or even “force”).
10. 253. As regards the arrangement for granting of bail and pre-trial detention, the Hong Kong Court of Final Appeal has made clear that the cardinal importance of safeguarding national security and preventing and suppressing acts endangering national security, explains why more stringent conditions to the granting of bail in relation to offences endangering national security have been introduced under the NSL. The court elaborated that in applying section 42(2) of the NSL when dealing with bail applications in cases involving offences endangering national security, the judge must first decide whether there are “sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security”. The judge makes a decision after considering all matters relating to the granting or refusal of bail. At the same time, the Court of Final Appeal ruled that as far as possible, section 42(2) of the NSL is to be given a meaning and effect compatible with the rights, freedoms and values guaranteed by sections 4 (protection of human rights) and 5 (adherence to the rule of law) of the NSL. If the defendant is dissatisfied with the magistrate’s decision on bail (including the decision on bail conditions or revocation of bail), he or she may apply to the Court of First Instance of the High Court for review or variation. The Court of First Instance will similarly consider and decide on the application in strict accordance with the NSL and relevant local laws. The HKSAR Government points out that several defendants have been released on bail after the courts duly considered the requirements stipulated in the NSL and relevant local laws. For example, some defendants who were charged with conspiracy to commit subversion are currently free on court bail. As mentioned above, Winnie Yu was also once released on bail but had her bail revoked by the court following her violation of bail conditions.
11. 254. Regarding the inclusion of offences endangering national security in the Social Workers Registration Ordinance, the HKSAR Government explains that social workers shoulder professional responsibility towards their service users, who are people in need of help in the society. As their relationship is built on trust, social workers could potentially exert significant influence on their clients. Permitting persons convicted of offences that endanger national security to discharge the duties of social workers would put the interest of their clients at stake and tarnish the professional image of social workers. It is therefore, important to include offences endangering national security in schedule 2 of the Social Workers Registration Ordinance to underline their seriousness, and to ensure that a person convicted of any offence specified in the schedule will not be entitled to be or continue to be a registered social worker. These specified offences include, but are not limited to, the offences of “secession”, “subversion”, “terrorist activities” and “collusion with a foreign country or with external elements to endanger national security” established in the NSL, and the offences of “treason” and “sedition” in the Crimes Ordinance. As threats to national security may vary in character and it is not feasible to list all such offences in schedule 2, the above formulation is adopted to ensure effective discharge of the HKSAR’s duty under the NSL to prevent, suppress and impose punishment for offences that endanger national security.
12. 255. The HKSAR Government expresses its firm commitment to upholding trade unions’ rights to organize activities to promote and defend the occupational interests of their members. It refutes the allegation that the right to freedom of association has been drastically curbed since the enactment of NSL and indicates that trade union rights in Hong Kong are strong and fully intact after the implementation of the NSL. The marked increase of 56.5 per cent of registered trade unions and trade union federations from 928 as at December 2019 to 1,452 as at November 2023 bears testimony to HKSAR residents’ free exercise of the rights to freedom of association and to organize.
13. 256. According to the HKSAR Government, the Registry of Trade Unions (RTU) administers the TUO to foster sound trade union management and trade unionism. The operations of a trade union must comply with the NSL, the TUO and its regulations, other relevant Laws of Hong Kong, and the registered trade union rules. Promoters of trade unions intending to apply for registration under TUO are required to sign a declaration confirming that all the purposes and objects of the trade unions are lawful, and that the trade unions will not perform or engage in any acts or activities that may endanger national security or otherwise be contrary to the interests of national security and/or are in contravention of the TUO, their regulations or other relevant legislation of Hong Kong. If a trade union contravenes the relevant laws or its rules, the RTU will follow up accordingly. Depending on the circumstances, the RTU may give verbal advice or issue inquiry/advisory/warning letters to the trade union concerned, and/or refer the case to relevant law enforcement agencies. In case of serious non-compliance, the RTU may cancel the trade union’s registration in accordance with the law.
14. 257. The HKSAR Government provides the following information regarding certain trade unions mentioned in the new allegations:
    • - The Hong Kong White Collar (Administration and Clerical) Connect Union (HKWCCU) was blatantly used for purposes inconsistent with its objects or rules. After objective and prudent assessments, the RTU issued a “Notice of Intention to Cancel the Registration of a Trade Union” to the HKWCCU on 16 December 2022, as a means of informing it of the RTU’s intention to cancel its registration. Under the TUO, any voting member of the HKWCCU was entitled to appeal to the Court of First Instance against the notice. No appeal was lodged within the statutory 28-day deadline. The registrations of the HKWCCU was cancelled on 17 February 2023. The entire process was fair, open and just, with guaranteed channels for lodging appeals;
    • - The Hong Kong Financial Industry Employees General Union (HKFIEGU) and the Hospital Authority Employees Alliance (HAEA) respectively passed a resolution for dissolution at their general meetings on 8 January 2022 and 24 June 2022 in accordance with their union rules and initiated voluntary dissolution of their own accord. The Hong Kong Professional Teachers’ Union (HKPTU) is undergoing relevant proceedings of its voluntary dissolution. The voluntary dissolutions of the HKFIEGU and HAEA were registered by the RTU on 28 March 2022 and 24 March 2023 respectively. The above trade unions enjoyed full autonomy in deciding and proceeding with their dissolution process without any interference from the RTU; and
    • - The RTU made inquiries with the Hong Kong Journalists Association (HKJA) in respect of its activities which were suspected to be inconsistent with its objects or rules. The RTU considered the HKJA’s replies and relevant facts in an objective and prudent manner before taking legitimate follow-up action in accordance with the TUO.
15. 258. The HKSAR Government reiterates its previous indications concerning the increase in the number of registered unions and the process of registration and appeal against RTU decisions. On dissolution of a trade union, the trade union concerned must obtain the consent of sufficient voting members as specified in its union rules. The entire process of deciding and proceeding with dissolution is initiated by the trade union concerned and free from any interference from the RTU. Concerning organizations that had ceased operation or been dissolved, the HKSAR Government considers that one should not speculate the reasons behind the decisions of individual organization to cease operation or dissolve.
16. 259. The HKSAR Government will continue to progressively improve labour rights and benefits in the light of overall socio-economic development through tripartite consultations, considering the interests of employees and employers. As regards the Committee’s request to monitor and provide information, in consultation with the social partners, on the impact of the NSL, the HKSAR Government appreciates that during the discussion at the Committee on the Application of Standards at the Conference in June 2021, the employee and employer representatives from the HKSAR shared the view that the Hong Kong National Security Law is necessary for restoring the HKSAR’s stability. The HKSAR Government reiterates that one must observe the law in force in exercising his or her rights, including the freedom of association and right of peaceful assembly. Any arrest and prosecution is directed against the criminal act, while the political stance, background or occupation of the person(s) concerned is irrelevant. The HKSAR Government reiterates that Mr Lee Cheuk Yan was prosecuted in connection with the unauthorized assemblies on 18 August 2019, 31 August 2019, 1 October 2019 and 4 June 2020, for breaching the social distancing measures imposed in light of the COVID-19 pandemic on 1 May 2020, and for contravening the Air Navigation (Hong Kong) Order 1995 and obstructing a public officer on 1 January 2021. The unlawful acts involved had nothing to do with the activities of trade unions nor defending labour rights. The HKSAR court, which enjoys independent adjudicating power, has made rulings and convicted Mr Lee in all six cases. This proves that the prosecution actions were fully justified by facts and legal reasons. The Hong Kong Alliance in Support of Patriotic Democratic Movements of China (Alliance), which the HKSAR Government points out is not a trade union, and three related individuals, including Mr Lee as the Chairperson of the Alliance, were charged on 9 September 2021 with the offence of “incitement to subversion” under sections 22 and 23 of the NSL. Mr Lee was brought to the West Kowloon Magistrates’ Courts for mention on 10 September 2021. Mr Lee pleaded not guilty before the magistrate, who committed him to the High Court for trial. Mr Lee’s application for bail was denied by the High Court in December 2022. Mr Lee is remanded in custody pending trial with a date yet to be fixed. As the legal proceedings or investigations of some of the cases mentioned in this case are still ongoing, no one should comment thereon given the legal principle of sub judice.
17. 260. The HKSAR Government reiterates its previous indications concerning the non-political character of restrictions on group gatherings in public places, established to reduce the risks of transmission of COVID-19 and the enforcement measures taken accordingly. It further informs that the restrictions under the Prevention and Control of Disease (Prohibition on Gathering) Regulation were lifted from 29 December 2022 onwards, and the concerned Regulation as a public health emergency regulation expired on 31 March 2023 at midnight.
18. 261. In respect of the proposed public meeting and procession organised by the Hong Kong Women Workers’ Association in March 2023 and the proposed public meeting and procession organized by Mr Wong Nai Yuen, ex-chairperson of the HKCTU in May 2023, the police received notifications from the respective organizers that the public order events would not be held. The police respect the decisions of the organizers.
19. 262. The HKSAR Government indicates that it will continue to comply with all its obligations under Convention No. 87 and provide timely responses and maintain communication with the ILO in this regard. The HKSAR Government submits that the allegations against the HKSAR are untrue and unsubstantiated. The HKSAR Government has continued to improve the employment rights and benefits of employees in the HKSAR. The freedoms and rights of trade union officials to organize activities to promote and defend the occupational interests of trade union members, have been and will continue to be, fully protected in accordance with the law. There is absolutely no retrogression or infringement of the rights and freedoms of association in the HKSAR. The isolated incidents quoted by the ITUC are associated with either suspected unlawful activities not related to the exercise of trade union rights in accordance with the law, or voluntary decisions of the trade unions concerned without interference from the HKSAR Government. In consideration of the above, the HKSAR Government firmly objects to ITUC’s request to declare the case as “serious or urgent” or to send a direct contacts mission to the HKSAR. It calls on the Committee to consider putting an end to the examination of this Case.

D. The Committee’s conclusions

1. 263. The Committee recalls that this case involves allegations of 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, and prosecution, sentencing and imprisonment of trade union leaders for their participation in demonstrations.
2. 264. The Committee notes the additional information and new allegations submitted by the complainant and the HKSAR Government’s reply. Concerning the previously arrested and prosecuted trade unionists the Committee notes the following information:
   • - The ITUC submits that on 18 October 2022, the Court of Appeal upheld Mr Lee Cheuk Yan’s conviction for participation in a May Day rally in 2020. The Committee recalls that this sentence was issued for breach of COVID 19 restrictions on gatherings in public places and provided for 14 days imprisonment suspended for 18 months. In view of the information previously submitted to it, the Committee notes that by October 2022, Mr Lee completed serving his sentence of 20 months imprisonment for charges of participation in four unauthorized demonstrations. Nevertheless, the Committee notes that he was not released and remains in preventive detention pending trial on the NSL related charge of "incitement to subversion" regarding which, the Committee recalls, he has pleaded not guilty. The Committee notes the HKSAR Government's indication that the date of Mr Lee’s trial is not yet fixed.
   • - Ms Carol Ng, former chairperson of the HKCTU, has remained in preventive detention since her arrest in January 2021. Her trial on charges of conspiracy to commit subversion started on 6 February 2023. The HKSAR Government indicates that she pleaded guilty and adds that the court began hearing the closing submissions on 29 November 2023 and the verdict was pending at the end of 2023.
   • - Ms Winnie Yu, former chairperson of the Hospital Authority Employees Alliance (HAEA) also arrested in January 2021, was initially released on bail on 28 July 2021 but was rearrested on 7 March 2022 for having violated her bail conditions and has remained in preventive detention since then. The Committee notes the ITUC’s allegation that her rearrest for violating the bail conditions related to her online criticism of the hospital authority’s handling of the COVID-19 outbreak. The HKSAR Government indicates that she reapplied for bail, but her application was rejected on 20 April 2022. She is being tried alongside Ms Ng and 45 other individuals and the verdict was pending at the end of 2023. The HKSAR Government indicates that she pleaded not guilty.
   • - Messrs Joe Wong, Leo Tang and Chung Chung-fai, respectively the former chairperson, vice-chairperson and treasurer of the HKCTU who were interrogated on 31 March 2022 for having failed to provide information to the Societies Officer in accordance with the Societies Act Order, were, according to the complainant, released the next day after surrendering their travel documents. The Committee notes that the HKSAR Government and the complainant both indicate that they were found guilty in court and fined on 1 November 2022. The HKSAR Government indicates the amount of the fine as HK$8,000 (US$1,023).
   • - Concerning the former leaders of the General Union of Hong Kong Speech Therapists (GUHKST), Ms Lai Man Ling, Ms Yeung Yat Yee Melody, Mr Ng Hau Yi Sidney, Mr Chan Yuen Sum Samuel and Mr Fong Tsz who were sentenced to 19 months’ imprisonment on 10 September 2022 on charges of “conspiracy to print, publish, distribute, display and/or reproduce seditious publication”, the HKSAR Government indicates that some of them had initially lodged appeals, which they later withdrew.
3. 265. The Committee recalls that in its previous recommendations concerning the present case, it had firmly urged the HKSAR Government to take measures to ensure that Mr Lee Cheuk Yan is not prosecuted and not imprisoned for having exercised legitimate trade union activities. The Committee notes the HKSAR Government’s affirmation that the unlawful acts for which Mr Lee was convicted were unrelated to the activities of trade unions or defending labour rights, and an independent court convicted him. The HKSAR Government further affirms that the charges of “incitement to subversion” currently pending against Mr Lee, are related to his role as the chairperson of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China which is not a trade union. The Committee notes however that the HKSAR Government does not provide information concerning the concrete actions that have entailed the pending charges against Mr Lee. It therefore firmly 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 also urgently requests the HKSAR Government to provide precise information concerning the activities that have entailed Mr Lee's latest indictment, as well as any development concerning the proceedings, including the court judgment once rendered.
4. 266. The Committee further notes that Mr Lee has remained in preventive detention since October 2022, without interruption after the 20 months that he had previously spent in prison serving sentences for participation in unauthorized demonstrations. The Committee notes that the charges pending against Mr Lee are based on the NSL and hence a special, stricter bail procedure is applied to them. The Committee notes that the HKSAR Government confirms that the Hong Kong Court of Final Appeal has made clear that because of the cardinal importance of safeguarding national security, more stringent conditions apply to the grant of bail in relation to NSL offences. However, the HKSAR Government indicates that the Court has also ruled that as far as possible, section 42(2) of the NSL is to be given a meaning and effect compatible with the rights, freedoms and values guaranteed by sections 4 and 5 of the NSL concerning protection of human rights and adherence to the rule of law. Recalling that “preventive detention should be limited to very short periods of time intended solely to facilitate the course of a judicial inquiry” and that "although the exercise of trade union activity or the holding of trade union office does not provide immunity as regards the application of ordinary criminal law, the continued detention of trade unionists without bringing them to trial may constitute a serious impediment to the exercise of trade union rights” [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 140 and 144], the Committee notes that Mr Lee has been charged with “incitement to subversion” on 14 September 2022, and that according to the HKSAR Government the date of his trial is not yet fixed. The Committee therefore requests the HKSAR Government to take all possible measures to enable Mr Lee’s release pending his next trial and to facilitate a speedy decision of his case.
5. 267. Regarding the proceedings against Ms Yu and Ms Ng, the Committee notes the HKSAR Government’s indication that the Court started hearing final submissions by the end of November 2023. It also notes that Ms Yu and Ms Ng have remained in preventive detention respectively since March 2022 and January 2021, which constitute protracted periods of preventive detention. The Committee urges the HKSAR Government to provide full and detailed information on the outcome of the proceedings and to transmit a copy of the judgment, which it trusts will be rendered expeditiously.
6. 268. The Committee further notes that the ITUC submits allegations of new cases of arrest and/or prosecution of trade unionists, to which the HKSAR Government replies:
   • - The ITUC alleges that Ms Elizabeth Tang, the General Secretary of the International Domestic Workers’ Federation (IDWF) was arrested on 9 March 2023 on suspicion of collusion with a foreign country to endanger national security. On 11 March 2023 she was released on a bail of HK$200,000 (US$25,580). Her phone and passport were confiscated, and she is required to regularly report to the police. The Committee notes that the HKSAR Government confirms the arrest and release on bail of Ms Tang, as well as the suspicion against her to have breached section 29 of the National Security Law concerning collusion with a foreign country or with external elements to endanger national security.
   • - In relation to Ms Elizabeth Tang’s arrest, the ITUC alleges that her sister Ms Marilyn Tang – former director of the trade union education centre under the HKCTU – and her lawyer Mr Frederick Ho were both arrested. The ITUC states that they were released on bail and charged with “perverting the course of justice” on 25 September 2023 for allegedly removing evidence from Ms Elizabeth’s home. The HKSAR Government indicates that Ms Marilyn was suspected of having entered the premises twice before the police’s search and confirms her arrest on 11 March 2023 and her release on bail as well as her charges. The HKSAR Government adds that on 21 December 2023, she was convicted on her own guilty plea and sentenced to six months’ imprisonment.
   • - The ITUC alleges that on 3 July 2023 an arrest warrant was issued against Mr Mung Siu Tat Christopher – former general secretary of the HKCTU – who lives abroad, on charges related to the NSL. The complainant alleges that this charge is related to what Mr Mung Siu Tat has said in a speech in Paris in 2022 and that the HKSAR Government has put a bounty of HK$1 million (US$127,700) on him. The HKSAR Government indicates that these decisions are taken by the national security department of the police, against persons suspected of continuing to commit offences under the NSL and specifies that the persons concerned had urged foreign countries to impose sanctions, advocated Taiwan and Hong Kong’s independence and the overthrow of the basic system of the PRC.
7. 269. The Committee notes the HKSAR Government's indication that Ms Elizabeth Tang is suspected of “collusion with a foreign country or with external elements to endanger national security”, without however indicating the actions that have generated this “suspicion”. The Committee recalls that in one of its previous examinations of the present case, it had expressed the expectation that the HKSAR Government ensure that the NSL 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 [see 395th Report, para. 173(c)]. Noting that Ms Tang is the general secretary of an international trade union, a role that requires constant interaction with international and foreign organizations and entities, the Committee requests the HKSAR Government to ensure that no charges are brought against Ms Tang for legitimate trade union activities and to provide detailed information on any judicial measures taken, or decisions adopted concerning her.
8. 270. The Committee recalls that in its last examination of this case, it had requested the HKSAR Government, in consultation with the social partners, to monitor and provide information on the impact that the National Security Law has already had and may continue to have on the exercise of freedom of association rights so that the Committee has available to it all necessary information to examine the impact of this legislation in practice. [see 401st Report, para. 322(d)]. The Committee notes that the HKSAR Government indicates that the Hong Kong National Security Law is necessary for restoring the HKSAR’s stability and reiterates that one must observe the law in force in exercising his or her rights, including the freedom of association and right of peaceful assembly. The HKSAR Government affirms that any arrest and prosecution are directed against the criminal act, while the political stance, background or occupation of the person(s) concerned are irrelevant. The Committee regrets that the HKSAR Government provides no information on measures taken to consult the social partners concerning this critical issue or to monitor the impact of the NSL on the exercise of freedom of association rights. It therefore reiterates its previous request.
9. 271. The Committee notes that the ITUC alleges that the Labour Department of the HKSAR requires the organizations applying for registration to make a declaration or a pledge not to endanger national security or engage in activities contrary to the interests of national security. The ITUC alleges that these declarations are open to arbitrary interpretation and could trigger de-registration proceedings. The Committee notes that the HKSAR Government confirms that these declarations are required and indicates that if a trade union contravenes the relevant laws or its own rules, the Registry of Trade Unions (RTU) will follow up accordingly. Depending on the circumstances, the RTU may give verbal advice or issue inquiry/advisory/warning letters to the trade union concerned, and/or refer the case to relevant law enforcement agencies. In case of serious non-compliance, the RTU may cancel the trade union's registration.
10. 272. The Committee further notes the allegations of the ITUC concerning the measures taken by the Registry of Trade Unions (RTU) against independent unions between December 2021 and August 2022, namely the communication of letters of inquiry and sending of warning letters to three and nine unions respectively. The ITUC alleges that these measures targeted activities such as speeches and commentaries criticizing anti-COVID measures and NSL legislation; commemoration of 4 June; solidarity campaigns calling for release of imprisoned unionists and, foreign liaison of the targeted organizations. The unions were accused of violating sections of the TUO prohibiting activities outside their stated objectives and use of union funding on political activities. The ITUC states that both accusations can lead to de-registration of the organizations concerned. The Committee notes that the HKSAR Government provides information concerning the three organizations that had allegedly received the RTU letters of inquiry: (1) the RTU cancelled the registration of the Hong Kong White Collar (Administration & Clerical) Connect Union (HKWCCU), considering that the organization was used for purposes inconsistent with its objects or rules; (2) the Hong Kong Financial Industry Employees General Union decided in full autonomy to dissolve itself and, (3) the RTU made inquiries concerning the activities of the Hong Kong Journalists’ Association (HKJA) which were suspected to be inconsistent with its objects or rules. The HKSAR Government further indicates that that the RTU considered the HKJA's replies and relevant facts before taking follow-up action without however providing further information concerning the “follow-up actions” taken or envisaged.
11. 273. The Committee notes the ITUC allegation concerning the “rapid deterioration of the environment for the free exercise of fundamental rights and civil liberties”, especially the right to demonstration in 2023. The ITUC alleges that the police pressured the Hong Kong Women Workers’ Association not to hold a demonstration for International Women’s Day and that Messrs Joe Wong and Denny To, former HKCTU members, were questioned after notifying their intention to hold a May Day rally. The complainant alleges that on 26 April, Mr Wong disappeared during a few hours, after which the cancellation of the rally was announced. The complainant finally refers to heavy police presence on the days of 4 June and 1 July preceded by warnings against gatherings for commemoration on both days. The Committee notes the HKSAR Government’s reply concerning the International Women’s Day and the May Day rallies, indicating that in both cases, the police received notifications from the respective organizers that the public order events would not be held. The police respect the decisions of the organizers.
12. 274. Noting the information provided by the complainant and the HKSAR Government the Committee 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, in so far 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 expects that the RTU will evaluate the lawfulness of union activities taking into account the organizations’ rights stated above, in line with relevant national legislation in force, the principles of freedom of association and its obligations under international law. It further requests the HKSAR Government to provide information on the follow-up actions taken with respect to the HKJA and to communicate a copy of the decision concerning the cancellation of registration of the HKWCCU. The Committee further requests the HKSAR Government to indicate whether the RTU has taken any measures concerning the nine organizations that have allegedly received RTU “warning letters”.

The Committee’s recommendations

1. 275. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following:
   • (a) The Committee firmly urges the HKSAR 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 urgently requests the HKSAR Government to provide precise information regarding the activities that have entailed Mr Lee’s indictment for “incitement to subversion”, as well as concerning the developments of the proceedings against him, including the Court’s judgment once rendered. It further urges the HKSAR Government to take all possible measures to enable Mr Lee’s release pending his next trial and to facilitate a speedy decision of his case.
   • (b) The Committee urges the HKSAR Government to provide full and detailed information on the outcome of the trial of Ms Carol Ng and Ms Winnie Yu and to transmit a copy of the judgment, which it trusts will be rendered expeditiously.
   • (c) The Committee requests the HKSAR Government to ensure that no charges are brought against Ms Elizabeth Tang for legitimate trade union activities and to provide detailed information on any judicial measures taken or decisions adopted concerning her.
   • (d) The Committee once again urges the HKSAR Government, in consultation with the social partners, to monitor and provide information on the impact that the National Security Law has already had and may continue to have on the exercise of freedom of association rights so that the Committee has available to it all necessary information to examine the impact of this legislation in practice.
   • (e) The Committee expects that the Hong Kong Registry of Trade Unions (RTU) will evaluate the lawfulness of union activities taking into account the organizations’ right to demand the basic freedoms to exercise their activities in line with relevant national legislation in force, the principles of freedom of association and its obligations under international law. The Committee requests the HKSAR Government to provide information on the follow-up actions taken with respect to the Hong Kong Journalists’ Association, and to communicate a copy of the decision concerning the cancellation of registration of the Hong Kong White Collar (Administration and Clerical) Connect Union. The Committee further requests the HKSAR Government to indicate whether the RTU has taken any measures concerning the nine organizations that have allegedly received “warning letters”.