Tag: Hong Kong Bar Association

Up-skirt and Non-consensual Sexual Photography to be Criminalised

The Security Bureau published on the 8 January 2021 the public consultation report on the proposed introduction of offences of voyeurism, intimate prying and non-consensual photography of intimate parts and related offences, summarising the consultation outcome.

The Government earlier proposed to introduce the following six new criminal offences and consulted the public’s views thereon:

(1) voyeurism (i.e. observing or recording of intimate acts for the purpose of obtaining sexual gratification);
(2) intimate prying (i.e. observing or recording of intimate acts irrespective of the purpose);
(3) non-consensual photography of intimate parts for the purpose of obtaining sexual gratification;
(4) non-consensual photography of intimate parts irrespective of the purpose;
(5) distribution of surreptitious images obtained from the above-mentioned acts; and
(6) non-consensual distribution of intimate images where consent was previously given for taking such images but not for subsequent distribution.

During the three-month public consultation over 200 submissions were received, including from the Law Society of Hong Kong, the Hong Kong Bar Association, the Equal Opportunities Commission and the Office of the Privacy Commissioner for Personal Data; other groups/organisations which are concerned with sexual offences; and individual members of the public.

“The majority of the submissions received expressed strong support for the legislative proposals and some of them have also offered constructive views on specific proposals.” A spokesman for the Security Bureau said. “Subject to the drafting progress, the target is to submit the amendment bill to the Legislative Council in the second half of this legislative year.”

The public consultation report can be downloaded here www.sb.gov.hk/eng/special/voyeurism/index.htm

image: Raymond Limantara

HK Bar Association: NSL Erodes High Degree of Autonomy

Statement of the Hong Kong Bar Association:
The Law of the People’s Republic of China (“PRC”) on Safeguarding National Security in the Hong Kong Special Administrative Region (“HKSAR”)

1. The Law of the PRC on Safeguarding National Security in the HKSAR (“NSL”) was endorsed and adopted in the Mainland on 30 June 2020 and then promulgated by the Chief Executive so as to come into force in the HKSAR at 11 pm on the same day. The Hong Kong Bar Association is gravely concerned with both the contents of the NSL and the manner of its introduction.

2. Nobody in the HKSAR had seen so much as a draft or accurate summary of the NSL before its entry into force. In addition to the total absence of meaningful consultation, lawyers, judges, police and Hong Kong residents were given no opportunity to familiarise themselves with the contents of the new law, including the serious criminal offences it creates, before it came into force.

3. The NSL has so far only been published in Chinese language, rendering its contents inaccessible to many interested stakeholders. The omission of a contemporaneous authentic English version of the law is unusual given that a bilingual legal system operates in Hong Kong.

4. The NSL is a national law adopted under the Constitution of the People’s Republic of China (“PRC”) and the Basic Law. As stated in the instrument of promulgation signed by the Chief Executive, the NSL has been applied in Hong Kong under Article 18 of the Basic Law. The choice of this procedure, rather than any amendment to the Basic Law under Article 159, indicates that the Basic Law continues to operate with full force and effect. Yet the NSL contains numerous provisions that appear to be inconsistent with the provisions of the Basic Law.

5. Article 62 of the NSL states that the NSL shall prevail in the event of any inconsistency with the “local laws of the HKSAR”. This would appear to embrace all Hong Kong Ordinances, including the Hong Kong Bill of Rights Ordinance (Cap. 383), the function of which is to implement the International Covenant on Civil and Political Rights. The Basic Law itself, however, is a national law adopted by the National People’s Congress (“NPC”) under the PRC Constitution. It should be assumed that the NSL will be applied in a manner that is fully consistent with the Basic Law. How this is to be achieved, given the apparent inconsistencies between the NSL and the constitutional guarantees laid down in the Basic Law, is a matter that needs urgently to be addressed by the HKSAR Government.

6. It is incumbent upon the Chief Executive, who says that she was also in the dark about details of the law until yesterday, to clearly, fully and quickly explain to the general public how she sees the NSL working and what areas of life it may encroach upon.

7. A thorough study of the new law is needed to see how it may work and what effect it will have on existing laws and the justice system. However, the following issues and Articles of the NSL are of particular concern and it is right to address them now, albeit provisionally.

8. Where the central authorities decide to exercise jurisdiction in a given case, suspects can be removed to face trial in Mainland China. This is not extradition (where a person is removed to face trial for an offence in the receiving jurisdiction), and the usual judicial controls over extraditions appear not to apply. Mainland criminal procedures will be applied in such cases, in accordance with Articles 55-57, and this raises concern as to whether the rights of the accused to fair trial will be adequately protected or respected.

9. The power of interpretation is vested in the Standing Committee of the NPC. This has the potential to undercut the independent exercise of judicial power by the Courts of the Region (Articles 80 and 85 of the Basic Law).

10. The independence of the judiciary is undermined. The Chief Executive designates a list of approved judges for national security cases (Article 44). Appointment is on a yearly basis. Judges chosen by the executive can be removed from the list if their words or deeds endanger national security (Article 44).

11. Some people are held out to be above the reach of local law. The personnel of the Mainland National Security Agency (“NSA”) are meant to perform duties in accordance with law and not infringe the rights and interests of people and other organizations (Article 50), but the conduct of NSA and its personnel in the execution of their duties in accordance with law is not subject to local jurisdiction (Article 60).

12. The Special National Security Police Unit (“Special NS Unit”) is meant to apply the current law in carrying out its duties (Article 43), but then it enjoys a range of powers that go beyond those available under the existing laws (Article 43). Judicial control over covert surveillance is removed.

13. There is a reversal of presumption of bail (Article 42). The provision of mandatory minimum sentences strips away judicial discretion in sentencing. The right to trial by jury can be taken away by the Secretary for Justice on certain grounds without any residual discretion in this regard being left with the Courts of the HKSAR (Article 46).

14. The newly established National Security Council is said to be exempt from judicial review (Article 14).

15. Four groups of criminal offences are created. These are widely drawn and absent a clear and comprehensive array of publicly accessible guidelines and basic safeguards as to legal certainty and fair treatment, are capable of being applied in a manner that is arbitrary, and that disproportionately interferes with fundamental rights, including the freedom of conscience, expression and assembly:

(1) Secession (Article 20) can be committed with or without violence. This gives rise to concern whether this might operate to prohibit mere speech or any peaceful advocacy.

(2) Subversion (Article 22) requires the threat or use of force or “other unlawful means” (such as an unlawful assembly) to do one of the defined acts, which include serious interference with or obstruction of the authority of the HKSAR (Article 22(3)), and attacking government facilities rendering them unable to perform their functions normally (Article 22(4)). This gives rise to concern whether media criticisms or picketing might be caught under these provisions.

(3) Terrorist acts (Article 24) are vaguely defined. Supporting terrorists or terrorist activities (Article 26) is widely drawn and covers any person providing materials, labour services, transport, venue support, assistance and convenience to terrorist organisations or terrorist acts. It is uncertain whether the prosecution must prove that the accused knew that the person receiving such services is a terrorist.

(4) Colluding with foreign forces (Article 29) is vaguely defined. It covers directly or indirectly accepting a subsidy or support from a foreign organization with a view to carrying out hostile actions against the HKSAR (Article 29(4)). This gives rise to concern whether certain existing activities of academics, NGOs and media organizations which were lawful or not unlawful in the past might now be outlawed by these provisions.

16. Taken together, these and other provisions of the NSL operate to erode the high degree of autonomy guaranteed to the HKSAR under the Basic Law and the Sino-British Joint Declaration, and to undermine core pillars of the One Country Two Systems model including independent judicial power, the enjoyment of fundamental rights and liberties, and the vesting of legislative and executive power in local institutions. The Hong Kong Bar Association calls on the Chief Executive to reaffirm these foundational values of the HKSAR, and to commit her Government to applying the NSL in a manner that is fully consistent with the Basic Law and Hong Kong Bill of Rights.

Dated 1 July 2020

Hong Kong Bar Association

Declaration by CHRF on 5th Anniversary of Umbrella Movement

Five years ago, on this very same day, the 28th of September, CY Leung’s Government shot 87 tear gas bombs to Hong Kong people in the Harcourt Road, Admiralty, marking the start of 79 days of the Umbrella Movement. Polls show that 1.2 million Hong Kong people had participated in the Umbrella Movement.

The aim of Umbrella Movement was to fight for a genuine universal suffrage, including the right to nominate, right to elect and right to be elected.

Unfortunately, 5 years have passed, and we still don’t have the real universal suffrage.

Some people described that the Umbrella Movement ended in failure. But is it true that the movement that we all supported and participated in, had achieved nothing?

We’ve asked a lot of people, how would they describe the last five years. A lot of them said: “powerless” and “hopeless”.

Especially after the “Fishball Movement”, many people thought that “peaceful” protests no longer work, and “brave” protests could not succeed.

LEADERS of BOTH Umbrella AND Fishball movement were jailed. Hong Kong seemed to be facing a dead end.

We spent 5 years soaked in these hopelessness and powerlessness. Without mass protests, the HKSAR Government disqualified lawmakers, passed evil laws, and had done all the unimaginable things to destroy our system.

No one would have thought that, in 2019, another evil bill, the Extradition Bill, that was so blatantly and daringly attempted to be pushed through by Carrie Lam and pro-Beijing lawmakers, would start this huge “Anti-Extradition Bill Movement”.

Since June this year, 1 million, then 2 million, then again 1.7 million people took to the street in just three-month period. Surely, it is because of the arrogance and inability of Carrie Lam’s Government. But more importantly, it is because of YOU, who had participated in the Umbrella Movement, who had stayed with us in those 79 days, decided TO BE BACK to the streets again.

Together with the new generation of young protesters who were inspired to join this year, we created marvellous scenes of almost ONE-THIRD of our whole population came out to “fight against the tyranny and for democracy”. Five years after the Umbrella Movement, Hong Kong people once again made ourselves proud, and amazed the world.

We EVOLVED from the hopelessness and powerlessness, and stand up again STRONGER. Our new generation of protesters are wiser, smarter, with more energy and strategies, bravely resisting the persecution of Beijing and HK Governments.

We LEARNT from both Umbrella Movement and Fishball Movement, and EVOLVED to a new form of protest that is more united, more flexible, and finally SUCCESSFUL MADE Carrie LAM to withdraw the Extradition Bill.

However, “Five Demands, not one less”. As our five demands are not all heard and responded, WE CANNOT CLAIM THIS MOVEMENT SUCCESSFUL. But we are closer.

“NOT SPLITTING, STAY UNITED” is not only a slogan, but wisdom that evolved from our valuable past.

Social movement is created by stories after stories written by us. What we are facing NOW is only one chapter, 2 million is only a record waiting to be broken. The next chapter WILL ONLY BE BETTER AND BRIGHTER.

Let’s continue to fight for REAL UNIVERSAL SUFFRAGE. Fight for ALL 5 DEMANDS.

香港人加油，Hongkongers, soldier on!

Civil Human Rights Front
28 September 2019

Hong Kong Bar Association Statement on Police Violence

The Hong Kong Bar Association (HKBA) released a statement on Police action in relation to the protests against the extradition law.

1. The fundamental duties of the Police Force are to protect the life, safety and well-being of residents, to safeguard public order, and to bring offenders before the courts for them to be dealt with in accordance with due process. It is an important part of our system which defends and upholds the Rule of Law.

2. There is, however, evidence that some elements in the Police Force have fallen below their usual high standards of conduct. In the past few months there has been a great deal of television and video footage showing police officers using excessive force to disperse protesters and in making arrests. Excessive crowd dispersal techniques have included the indiscriminate use of tear gas (including inside an MTR station) and the shooting of crowd control projectiles at shoulder height level or above at close range. Beatings upon arrests are apparent and have been widespread.

“riot police launching indiscriminate attacks without any apparent lawful excuse and using pepper spray on passengers inside a train compartment or hitting them with batons, especially since the officers in question left the train carriage afterwards without making any arrests.”

3. Video footage from the Prince Edward MTR station last Saturday night show riot police launching indiscriminate attacks without any apparent lawful excuse and using pepper spray on passengers inside a train compartment or hitting them with batons, especially since the officers in question left the train carriage afterwards without making any arrests.

4. Members of HKBA who have assisted arrested persons have experienced obstruction at police stations where arrested persons were denied timely access to legal assistance and representation. Arrested persons have also complained of abuses suffered during detention, many of whom required hospitalization or other non-trivial medical treatments.

5. There have been other violations of the Police General Orders such as the failure of police officers to display any form of identification which fosters a sense of impunity and lack of accountability. The various explanations that have been proffered to justify this – such as there being “no room” on the uniform of the Special Tactical Squad to display proper identification – are unconvincing to say the least.

6. It is paramount that whatever difficult or provocative circumstances that the Police Force may have to face, they must respect the constraints that are placed on them by the Police General Orders, and the law generally, which ensure professionalism, especially with respect to the use of force that is no more than proportionate in the circumstances.

7. The HKBA condemns any abuse of power by the Police Force. As disciplined professionals equipped with public authority and lethal and non-lethal weaponry, any unwarranted or excessive use of force against members of the public, be they protesters or ordinary passers-by or residents in housing estates, cannot be condoned. The incidents described above have greatly reduced public confidence in the Police Force. An independent inquiry will offer the truth that the public and the police deserve and may restore public confidence in our Police Force.

Hong Kong Bar Association 3rd September 2019

Hong Kong Bar Association on Zhang Xiaoming’s Speech

Further reaction to Zhang Xiaoming’s speech on Saturday when he stated that Hong Kong’s Chief Executive enjoys a special legal position that puts him above the legislature and judiciary. The Hong Kong Bar Association said in an eight-page statement in both Chinese and English that the role of Hong Kong’s chief executive was clearly defined in the city’s mini-constitution and could not be said to be above the law.

Here is the Press Statement of HKBA – English – 14 September, 2015 in full.