LC Paper No. CB(2) 94/99-00
(These minutes have been seen by the Administration)

Ref : CB2/H/5



Members present :

Dr Hon LEONG Che-hung, JP (Chairman)
Dr Hon YEUNG Sum (Deputy Chairman)
Hon Kenneth TING Woo-shou, JP
Hon James TIEN Pei-chun, JP
Hon David CHU Yu-lin
Hon HO Sai-chu, JP
Hon Edward HO Sing-tin, JP
Hon Cyd HO Sau-lan
Hon Albert HO Chun-yan
Hon Michael HO Mun-ka
Dr Hon Raymond HO Chung-tai, JP
Hon LEE Wing-tat
Hon LEE Cheuk-yan
Hon Martin LEE Chu-ming, SC, JP
Dr Hon David LI Kwok-po, JP
Hon LEE Kai-ming, JP
Hon Fred LI Wah-ming
Dr Hon LUI Ming-wah, JP
Hon NG Leung-sing
Prof Hon NG Ching-fai
Hon Mrs Selina CHOW LIANG Shuk-yee, JP
Hon Ronald ARCULLI, JP
Hon MA Fung-kwok
Hon James TO Kun-sun
Hon CHEUNG Man-kwong
Hon HUI Cheung-ching
Hon Christine LOH Kung-wai
Hon CHAN Kwok-keung
Hon Bernard CHAN
Hon CHAN Yuen-han
Hon CHAN Wing-chan
Hon CHAN Kam-lam
Hon Mrs Sophie LEUNG LAU Yau-fun, JP
Hon LEUNG Yiu-chung
Hon Gary CHENG Kai-nam
Hon SIN Chung-kai
Hon Andrew WONG Wang-fat, JP
Dr Hon Philip WONG Yu-hong
Hon WONG Yung-kan
Hon Howard YOUNG, JP
Hon Jasper TSANG Yok-sing, JP
Hon LAU Chin-shek, JP
Hon LAU Kong-wah
Hon Ambrose LAU Hon-chuen, JP
Hon Emily LAU Wai-hing, JP
Hon CHOY So-yuk
Hon TAM Yiu-chung, JP
Dr Hon TANG Siu-tong, JP
Hon Mrs Miriam LAU Kin-yee, JP
Hon Andrew CHENG Kar-foo
Hon SZETO Wah
Hon LAW Chi-kwong, JP
Hon FUNG Chi-kin

Members absent :

Hon Eric LI Ka-cheung, JP
Hon Margaret NG Ngoi-yee
Hon Ambrose CHEUNG Wing-sum, JP
Hon YEUNG Yiu-chung
Hon LAU Wong-fat, GBS, JP
Hon Timothy FOK Tsun-ting, JP

Public Officers attending :

Mrs Regina IP, JP

Secretary for Security

Mr Timothy TONG

Deputy Secretary for Security

Miss Cathy CHU

Principal Assistant Secretary (Security)

Ms Alice LAU

Principal Assistant Secretary (Constitutional Affairs)

Ms Salina YAN

Principal Assistant Secretary (Trade & Industry)

Mr David CHIU

Assistant Secretary (Security)

Clerk in attendance :

Mrs Justina LAM

Clerk to the House Committee

Staff in attendance :

Mr Jimmy MA, JP

Legal Adviser

Mr LAW Kam-sang, JP

Deputy Secretary General

Mrs Vivian KAM

Chief Assistant Secretary (Complaints)

Miss Mary SO

Senior Assistant Secretary (2)8

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1. The Chairman welcomed representatives from the Administration to the special meeting to discuss the problem of Hong Kong residents detained in the Mainland. He referred members to the following papers/documents which had been prepared for the special meeting -

1. a summary of reported cases of Hong Kong residents detained in the Mainland prepared by the Legislative Council (LegCo) Secretariat (LC Paper No. CB(2) 2048/98-99 dated 19 May 1999);

2. an information paper entitled "Hong Kong Residents Detained in the Mainland" provided by the Administration (LC Paper No. CB(2) 2129/98-99(01) dated 27 May 1999) ;

3. "Latest position of three unresolved cases" prepared by the Administration (LC Paper No. CB(2) 2129/98-99(02) dated 27 May 1999);

4. Administration's letter of 27 May 1999 tabled at the meeting (also issued vide LC Paper No. CB(2) 2162/98-99 dated 1 June 1999);

5. the letter from the House Committee Chairman to the Chief Executive (CE) regarding members' request for assistance to Hong Kong residents detained in the Mainland, and the reply from the CE's Office (LC Paper No. CB(2) 1877/98-99 dated 6 June 1999 and LC Paper No. CB(2) 1971/98-99 dated 19 May 1999); and

6. an information note on the functions and organization of the Beijing Office (LC Paper No. CB(2) 2063/98-99 dated 24 May 1999).

2. Referring to the summary of reported cases, the Chairman pointed out that not all of the cases provided by individual Members had been included. This was because some of these cases had not been reported in the press, and it was not clear whether the families of the detainees and/or the detainees themselves wished to have their plight made public.

3. The Chairman suggested that the meeting should focus on the policy aspect of resolving the problem of Hong Kong residents detained in the Mainland, and not individual cases. Members agreed. The Chairman reminded members that they would not be protected by the Legislative Council (Powers and Privileges) Ordinance if they spoke on individual cases outside the meeting.

4. The Chairman invited the Secretary for Security (S for S) to brief members on the Administration's papers. Referring members to paragraph 10 of the paper entitled "Hong Kong Residents Detained in the Mainland", S for S said that just prior to the meeting, she had received the Central Government's reply agreeing in principle to the establishment of a notification system. As regards how the system would operate, the Beijing Office was in the process of working out the detailed arrangements with the Central Government.

5. Regarding visits to Hong Kong residents under detention or in prison, S for S explained that the Hong Kong Special Administrative Region (HKSAR) Government had no authority to demand access to or communication with a Hong Kong resident detained in the Mainland. Nevertheless, the Beijing Office had been exploring with the relevant Mainland authorities whether, as a matter of policy or on compassionate grounds, SAR Government officials or family members could pay visits to the detainees.

6. S for S further said that the Administration was fully aware that Members were very concerned about the establishment of a direct complaint channel for Hong Kong residents. She explained that according to the Organic Law of the People's Procuratorate, the People's Procuratorate had the duty and power to oversee and supervise the proper functioning of the law enforcement agencies and judicial organs of the Mainland. It had the responsibility to receive complaints, in particular those relating to illegal or prolonged detentions. S for S also tabled a pamphlet entitled "The Promotional Work of the People's Procuratorate: Ten Major Points for Public Information" published by the People's Procuratorate of Guangdong Province (pamphlet also issued vide LC Paper No. CB(2) 2162/98-99 dated 1 June 1999).

7. S for S further informed members that according to a press release issued by the Xinhua News Agency, the Supreme People's Procuratorate sent out a circular on 27 May 1999 ordering all prosecution officials to "earnestly and responsibly handle reports, lawsuits and appeals by residents of Hong Kong, Taiwan, Macao and overseas Chinese". The directive also stated that "such a move is to faithfully ensure the legitimate rights of their rights and interests". Copies of the press release were tabled by S for S for members' information (copies also issued vide LC Paper No. CB(2) 2162/98-99 dated 1 June 1999).

8. As far as the Beijing Office was concerned, S for S said that the Office offered advice and information to Hong Kong residents who encountered specific problems. It was also working on a list of law firms in the Mainland for interested parties.

9. Referring to a number of cases recently received by the Complaints Division of the LegCo Secretariat, Mr CHEUNG Man-kwong said that all these cases involved Hong Kong residents being detained as "hostages" because of commercial disputes involving their employers. Although the families of the detainees had approached the relevant Hong Kong and Mainland authorities for assistance, their efforts had been to no avail. Mr CHEUNG asked what assistance had been provided by the Administration to safeguard the rights and safety of Hong Kong businessmen and their employees operating in the Mainland.

10. S for S responded that upon receiving requests for assistance or representations from family members of the detainees, the Administration would do the utmost in conveying such requests or representations to the relevant Mainland authorities. S for S explained that the SAR Government had no legal authority to demand the Mainland authorities to release the detainees. Moreover, it was difficult for the SAR Government to intervene as it did not have full details of the cases concerned. S for S reiterated that a notification system would be established so that the SAR Government would be informed promptly of any Hong Kong residents being detained in the Mainland, and that assistance could be rendered to the detainees or their family members.

11. Mr Kenneth TING enquired why the Mainland authorities would not inform the Hong Kong authorities of the essential details of cases involving Hong Kong residents detained in the Mainland, unless specific requests had been made by the detainees themselves. S for S explained that some detainees might not wish to have their detention made known.

12. Mr TING further asked whether the Beijing Office would undertake to co-ordinate the work of the relevant government departments and bureaux in providing assistance to family members of Hong Kong residents detained in the Mainland. S for S explained that requests for assistance were usually made to the Immigration Department (ImmD) first. The Department would interview the requesting parties to obtain a thorough understanding of the cases concerned, and then refer the cases to the relevant Mainland authorities through the Constitutional Affairs Bureau (CAB). In cases where the whereabouts of the Hong Kong residents detained in the Mainland were not known, the Security Bureau (SB) would liaise with the Interpol in Beijing to find out where and why the Hong Kong residents concerned had been detained. S for S pointed out that the Beijing Office was the Administration's major contact point in the Mainland. In fact, some requests for assistance had been made to the Beijing Office direct and the Office had been performing coordination work in this regard.

13. Mr LEE Wing-tat said that the SAR Government should urge the Central Government to set up a comprehensive mechanism for assisting Hong Kong residents detained in the Mainland. The mechanism should provide for automatic notification of detention, arrangement for visits to detainees and complaints channel. In his view, the existing arrangement of referring specific requests for assistance to the relevant Mainland authorities on a piecemeal basis was ineffective.

14. S for S responded that the proposed improvement measures outlined in the Administration's paper entitled "Hong Kong Residents Detained in the Mainland" were the result of a series of discussions with the Mainland authorities. S for S however pointed out that it would take some time for the relevant Mainland authorities throughout the country to become familiarized with the operation of the notification system, given the vast size of the country and the fact that the enforcement standards in different provinces and municipalities varied. She added that the notification system should not be automatic as some detainees might not wish to have their detention made known.

15. Mr Howard YOUNG enquired whether under the proposed notification system, the relevant Mainland authorities at the provincial and municipal levels would inform the SAR Government/the Beijing Office direct or the Central authorities through their own established channels, of the essential details of detention cases involving Hong Kong residents. In his view, it would be more effective if the relevant Mainland authorities at the provincial and municipal levels were required to inform the Central authorities of such details.

16. S for S replied that the Administration's thinking was that the relevant Mainland authorities should report the essential details of detention cases to a central office. She added that the SAR Government would discuss with the Central Government whether such reports would be made to the Beijing Office or an office of the Central Government or both.

17. In reply to Mr YOUNG's further enquiry as to what assistance was provided to Hong Kong residents detained or imprisoned in a foreign country, S for S said that any such assistance would be provided by the Chinese Embassy in the country concerned in accordance with the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations, and/or any additional bilateral agreement between China and the host country. In addition, in cases where Hong Kong residents were detained or imprisoned in a foreign country, officials of the Chinese Embassy concerned could visit the detainees.

18. Mr Howard YOUNG said that the assistance provided by the Beijing Office to Hong Kong residents detained in the Mainland should be no less than that provided by the British Embassies to Hong Kong residents detained in foreign countries prior to reunification, or by Chinese Embassies after reunification.

19. S for S replied that every effort would be made to provide as much assistance as possible to Hong Kong residents detained in the Mainland. She pointed out that prior to reunification, the assistance provided by the British Embassy in the Mainland to Hong Kong residents under detention was very limited. S for S added that the Beijing Office was discussing with the Mainland authorities the possibility of allowing officials of the SAR Government to visit Hong Kong residents detained in the Mainland. S for S pointed out that it would be difficult for such visits to be carried out on a frequent basis because of resource implications, particularly if a large number of detainees were involved.

20. Miss CHAN Yuen-han enquired whether there was a timetable for implementing the proposed improvement measures detailed in paragraph 10 of the Administration's paper entitled "Hong Kong Residents Detained in the Mainland". Miss CHAN further enquired about the number of requests for assistance received by the Administration, and the number of detainees returned to Hong Kong as a result of assistance rendered.

21. S for S responded that after reunification, the Administration had been successful in helping to resolve 13 cases, resulting in the release of 18 detainees who had subsequently returned to Hong Kong. She added that further details of these cases were set out in the Administration's letter of 27 May 1999 which was tabled at the meeting. S for S added that the Beijing Office was liaising with the offices of other provinces and municipalities in Beijing with a view to enlisting their cooperation in dealing with cases of Hong Kong residents detained in the Mainland. The Beijing Office was also drawing up a list of law firms in the Mainland which could provide legal assistance. On the question of the timetable for the implementation of the proposed improvement measures, S for S said that the Administration hoped to finalize the arrangements with the Mainland authorities as soon as possible.

22. Miss CHAN Yuen-han further said that the Administration should publicize the assistance which could be provided to Hong Kong residents detained in the Mainland. S for S responded that little publicity had been made because the number of requests for assistance received by the Administration had only averaged about one to two per month since reunification. However, following the recent media reports on the matter the number of such requests had increased. S for S added that the Administration would step up publicity on the assistance that could be rendered by the SARG.

23. Referring to paragraph 4 of the Administration's paper, Miss Emily LAU pointed out that the Criminal Procedure Law in China provided for considerable flexibility with regard to the maximum period of detention before trial. She asked whether the Administration would take up with the relevant Mainland authorities those cases where it appeared that the Hong Kong residents concerned had been unlawfully detained for prolonged periods.

24. S for S drew members' attention to paragraph 5 of the Administration's paper and explained that it was difficult for the Administration to determine whether the Mainland authorities had breached China's Criminal Procedure Law in detaining a Hong Kong resident as it did not have full details of the case. S for S said that the duty and power to supervise the proper functioning of the law enforcement agencies in the Mainland rested with the People's Procuratorate. As such, it would be more appropriate for the detainees or their family members to lodge complaints with the Supreme People's Procuratorate or engage Mainland lawyers for assistance.

25. Miss Emily LAU enquired about the circumstances under which CE would intervene in cases of Hong Kong residents detained outside Hong Kong. Miss LAU pointed out that CE had intervened in the detention of a prominent Hong Kong businessman, Mr LIM Por-yen, by the Taiwan authorities but had never done so for Hong Kong residents detained in the Mainland. S for S said that in the case of Mr LIM, CE had merely passed on a letter.

26. Miss Emily LAU further asked why the Administration considered it difficult for officials of the SAR Government to visit Hong Kong residents under detention or in prison in the Mainland periodically. S for S replied that about 200 to 300 Hong Kong residents were serving in prison in the Guangdong Province alone and additional resources would need to be provided if visits to Hong Kong residents detained, arrested or in prison in the Mainland were to be made on a regular basis.

27. Mrs Selina CHOW said that assistance currently provided by the Administration to Hong Kong residents detained in the Mainland was inadequate and ineffective, and less than that provided to a Hong Kong resident detained in a foreign country. Referring to paragraph 3 of the Administration's paper, Mrs CHOW said that the SAR Government should work out with the Central Government procedures or measures to ensure that cases involving Hong Kong residents put under residential surveillance or detained pending inquiries were in strict compliance with the Chinese laws and dealt with within a reasonable time.

28. Mrs Selina CHOW further said that given the vast size of the country, it would be very time consuming if all detention cases were referred to a central authority for follow-up. In her view, the Administration should establish a network of contacts with the provinces to facilitate direct liaison between the SAR Government and the local authorities concerned. She also considered that additional resources should be made available to provide assistance to family members of the detainees. Miss CHOY So-yuk expressed support for Mrs CHOW's views.

29. S for S said that the Administration would continue to explore ways to expand the scope of assistance provided to the detainees and their family members, which at present was limited. She informed members that at present the Police and the ImmD had close contact with authorities mainly in the Guangdong and Fujian Provinces. As for other provinces, assistance would have to be sought from the Interpol in Beijing. She added that efforts were being made to establish contact with other local authorities.

30. Mr LEE Cheuk-yan said that some Hong Kong residents had been detained by the Mainland authorities for up to five years before trial. Mr LEE pointed out that under Articles 124, 126, 127 and 128 of the Criminal Procedure Law of the Mainland, the maximum period of detention before trial was normally six months. He enquired whether attempts had been made by the Administration to seek clarifications from the Mainland authorities as to the legal basis for such prolonged detentions. S for S said that enquiries had been made and the replies given by the Mainland authorities were that the Hong Kong residents concerned had been detained in accordance with the Mainland laws.

31. Mr LEE Cheuk-yan further said that CE should personally bring the problem to the attention of Premier ZHU Rongji who had vowed to stamp out corruption in the Mainland. S for S reiterated that CE and the Chief Secretary for Administration had conveyed the concerns of Hong Kong people on the matter to the highest level of the Central People's Government during their visits to Beijing. S for S added that she herself had also raised similar concerns with the relevant authorities during her visits to the Mainland. S for S further pointed out that it was the policy of the Central People's Government to protect the rights of Hong Kong residents in the Mainland, and it regularly issued directives reminding the authorities at the provincial and municipal levels to observe the policy. The circular issued by the Supreme People's Procuratorate on 27 May 1999 was a case in point.

32. Mr Albert HO opined that the difficulties encountered by the Administration in rendering assistance to Hong Kong residents detained in the Mainland was due to the fact that no proper mechanism was established by the Mainland authorities to handle detention cases. He suggested that an office of the State Council of the Central People's Government should be given the responsibility of following up such cases. SB should monitor each and every detention case closely and seek the assistance of the State Council where necessary. Mr James TO concurred with Mr HO.

33. S for S responded that it was the ultimate aim of the Administration for a formal mechanism to be established and operational throughout the Mainland to deal with cases of Hong Kong residents detained in the Mainland. She added that the setting up of the Beijing Office had helped to facilitate the coordination of follow-up actions undertaken by SB, CAB, the Trade Department and the Trade Development Council (TDC) on detention cases.

34. Mr Andrew CHENG asked whether the Beijing Office would be given the power and resources to provide assistance to Hong Kong residents detained or encountering other types of problems in the Mainland. He added that there had been complaints that in seeking assistance, family members of the detainees had been referred by one government office to another. S for S responded that there was no question of the departments concerned not willing to help. She pointed out that SB, CAB and the Beijing Office worked closely together to offer assistance.

35. Mr Andrew CHENG and Mr James TIEN said that a support centre in the Guangdong Province should be set up to handle requests for assistance to Hong Kong residents detained in the Mainland. S for S responded that as the Beijing Office and offices of TDC were already involved in providing advice and assistance to Hong Kong residents, there was no need to set up support centres, particularly for the Guangdong Province with which the SAR Government had close contact.

36. Referring to a recent kidnapping case where the Mainland authorities assisted the United States in making arrests and rescuing the victim, Mr James TO enquired why the Administration had not sought similar assistance from the Mainland authorities to secure the release of those Hong Kong residents who were virtually held as "hostages" in the Mainland because of commercial disputes.

37. S for S replied that if an incident involved the kidnapping of a Hong Kong resident in the Mainland, mutual legal assistance could be sought to secure the victim's release. However, cases involving the detention of Hong Kong residents were quite different in that very often fraudulent commercial activities were suspected. It would be difficult for the SAR Government to seek mutual legal assistance in such cases. S for S further said that upon receiving complaints concerning possible abuse of power by Mainland officials, the Administration would refer such complaints to the Mainland authorities concerned for follow-up.

38. Mr Gary CHENG said that there were cases of Hong Kong residents who, although being acquitted by the Mainland courts, had continued to be detained in the Mainland. He enquired why the Administration had not actively sought to secure the release of the Hong Kong residents concerned. S for S reiterated that the SAR Government had no legal authority to demand the Mainland authorities to release the detainees. The most effective way to deal with such cases was to request the People's Procuratorate to strengthen its supervision of the law enforcement agencies.

39. Miss CHOY So-yuk expressed concern that Hong Kong residents would be deterred from working or doing business in the Mainland if the problem was not dealt with effectively. Miss CHOY suggested that some formal mechanism should be established under which the Administration could take a detention case to a higher authority direct, if a lower level of authority was involved in detaining the Hong Kong resident. A system should also be established whereby contact with the Mainland authorities would be escalated if response to a detention case was not received within a specified period. In addition, formal contacts should be established by the SAR Government with the relevant Mainland authorities at the provincial and municipal levels to facilitate liaison work on detention cases. Miss CHOY added that in very exceptional cases, it might be necessary to approach Premier ZHU Rongji. Mr Martin LEE expressed support for Miss CHOY's suggestions and urged that SB should follow up. S for S agreed to consider Miss CHOY's suggestions.

40. Dr LUI Ming-wah said that the most worrying cases were those where the Hong Kong residents concerned were held by local authorities, and their family members were not notified of the detention. He suggested that SB and the Beijing Office should each set up a specific support unit to coordinate follow-up work and establish closer liaison with the relevant authorities at the provincial and municipal levels. He believed that Members would be supportive of allocating more resources to SB and the Beijing Office. S for S replied that there were staff in SB specifically assigned to deal with detention cases, and the Beijing Office also followed up the cases. If additional resources were required for such work, they would have to be sought under the existing procedure for bidding resources.

41. Prof NG Ching-fai enquired about the number of cases of Hong Kong residents detained in the Mainland which had been handled by the Beijing Office since its establishment. S for S undertook to provide the figures.

42. The meeting ended at 3:50 pm.

Legislative Council Secretariat
14 October 1999