For information
on 9 October 1997

Provisional Legislative Council
Panel on Security

Subcommittee to Examine Issues of
Overcrowding in Penal Institutions in Hong Kong Purpose

This paper provides information sought by Members to facilitate the Subcommittee of the Panel on Security to examine issues of overcrowding in penal institutions in Hong Kong.

Scenarios considered by the Administration to ease prison overcrowding and measures to reduce the prison population in particular non-violent or reformed prisoners

2. As explained in the Panel paper discussed on 18 September 1997, our strategy to deal with prison overcrowding is largely based on increasing the supply of penal places.

3. We have also considered measures which may lead to a reduction in the demand for penal places. However, one cardinal principle we have been following is that any measure purporting to reduce the demand for penal places must not compromise Government's resolve to tackle other law enforcement activities (e.g. law and order, immigration and customs control). In other words, we must not go soft on crime and criminals just because we want to ease prison overcrowding. We have to strike a right balance between getting possible substitutes for penal punishment and the need to fulfil the community's expectation to treat offenders of the law in a fair and yet secure manner.

Non-custodial options

4. At present, there are already non-custodial sentencing options available to the courts, such as probation order, suspended sentence, community service order, the Police Superintendents Discretion Scheme. The Discretion Scheme and the placement of some young offenders in institutions managed by the Social Welfare Department have reduced the proportion of juvenile offenders kept in penal institutions. Of course, it is up to the courts to decide whether or not to take these options.

5.We have considered the feasibility of other non-custodial options currently not available in Hong Kong, such as home detention, curfew, weekend detention and electronic monitoring, and concluded that these options are not suitable for Hong Kong because of technical difficulties (e.g. tampering of electronic devices) which are not easy to resolve or security threats to the community. Home detention confines an offender to his home, except for work and limited activity such as medical appointment. Curfew requires an offender to remain at a specified place for a specified period each day, depending on the offender's circumstances. Weekend detention requires an offender to serve a sentence of imprisonment on weekends and allows him to remain at liberty in the community during the rest of the week. Essential to the enforcement of these non-custodial measures is some means to check compliance, such as personal visits, phone calls and use of electronic monitoring devices. However, electronic devices may not be totally reliable due to problems such as tampering and malfunction. Moreover, an offender under electronic surveillance can still mingle with undesirable peers and gain access to drugs and vice activity. If the schemes are not controlled properly, they can pose security threats to the community.

Rehabilitation schemes

6.There are other schemes which are already in operation which have some side effects on prison overcrowding. Firstly, the introduction of the Long-term Prison Sentences Review Ordinance, brought into effect in June 1997, may have some side effect on reducing the demand for penal places. The ordinance provides an additional tool which may be used by the Long-term Prison Sentences Review Board to release suitable prisoners, subject to a period of supervision, before they have completed their sentences, or before their indeterminate sentences are converted to determinate ones. This arrangement is similar in spirit to parole systems in other countries. We must not lose sight that the main objective of this scheme is to help the rehabilitation of eligible prisoners, and it will only have a small side effect of reducing the pressure on penal accommodation.

7. Secondly, the Chief Executive is also empowered under the Prisoner (Release under Supervision) Ordinance to allow a prisoner to be released early subject to conditions. Again, the impact of this on prison overcrowding is small.

8. Thirdly, the demand for penal places is reduced by virtue of a remission system. Under the Prison Rules, a prisoner does not serve his full sentence and may only need to serve up to two-thirds of his sentence, subject to his industry and good conduct in prison. Any consideration for remission of sentence or early release must, among other things, take into account the prisoner's progress in terms of rehabilitation, his ability to reintegrate into society as well as the need to protect the community. The current arrangements have suitably taken into account those elements. It would not be in the best interest of prisoners and the community to release prisoners early solely for the primary purpose of relieving prison overcrowding.

Review of imprisonment of illegal workers from the Mainland

9.The majority of the Mainland illegal immigrants (IIs) found in Hong Kong are repatriated without prosecution. Only those who have committed criminal offences or have engaged in illegal employment are prosecuted. The policy of prosecuting IIs found in employment was introduced in 1988, as a deterrent in response to increasing pressures of IIs coming to Hong Kong to seek employment. The purpose of imprisonment is to send a clear deterrent message to those attempting to enter Hong Kong illegally to seek employment that they would need to pay a price for their action. That price is imprisonment. The Administration has no control over the length of sentence, which is a matter for the courts. Mainland IIs sentenced for taking up illegal employment account for about 5% of the total penal population (i.e. about 600 inmates).

10. Although some people may think that our existing policy does not have any deterrent effect, the downside of abolishing the policy should not be overlooked. Abandoning or relaxing our tough policy towards IIs found working in Hong Kong might relieve prison overcrowding by about 5%. However, it is likely that any change in the policy, however small, so soon after the transition will send the wrong signal to snakeheads and potential IIs, and will encourage an unacceptable influx of IIs into Hong Kong to seek employment. This will not only have an adverse impact on our border control but would also be a matter of grave concern to the labour constituency in Hong Kong.

Transfer of prisoners to their places of origin

11. The Transfer of Sentenced Persons Ordinance, which came into effect in June 1997, regulates the transfer of sentenced persons to their own countries to serve their sentences. The objective is to facilitate the rehabilitation of prisoners by returning them to an environment free of language and cultural barriers and where their friends and relatives can visit them on a regular basis.

12. The ordinance stipulates that transfers require the prior consent of three parties, namely, the prisoner himself, the authorities in the receiving country and the authorities in the sending country. A prisoner in Hong Kong who wishes to be transferred must submit an application to the Correctional Services Department. Since 1989, 25 prisoners have been transferred to their home countries. We cannot impose a transfer without the prisoner's agreement and the agreement of the authorities in his country. There may be some side effect on prison overcrowding if there are transfers, but again, this is a side benefit and the impact on prison overcrowding is small and we do not have control on whether a prisoner would wish to be transferred.

Security Bureau
October 1997