Legislative Council

LC Paper No. CB(2)2110/98-99

Ref: CB2/H/S/2/98

Introduction

1. This paper gives a brief account of past discussions by Members on the problem of Hong Kong residents detained in the Mainland and the Administration's response on each occasion.

The Former Legislative Council

Council sitting on 20 October 1993

2. A written question relating to the arrest of Ming Pao reporter, Mr XI Yang, was raised by Hon Emily LAU.

3. In his reply, the then Secretary for Home Affairs informed Members that the British Embassy in Beijing had, at the request of the Hong Kong Government, asked the Chinese authorities to clarify the offences with which Mr XI was being charged with and the legal procedures to which he would be subject. The Embassy and the Hong Kong Government had also urged the Chinese authorities to allow Mr XI to receive visits from his colleagues, family members and legal representative.

Council sitting on 26 January 1994

4. An oral question was raised by Hon LAU Chin-shek regarding the detention in China of a number of Hong Kong residents who were deployed by their employers to work in China and who allegedly had been detained as "hostages" because of business conflicts between their employers and manufacturers in China.

5. In his reply, the then Secretary for Security (S for S) informed Members that the Administration had well-established channels for raising such cases with the Chinese authorities. Representations had been carried out in Hong Kong through the Political Adviser's Office, and in some cases also through the Foreign and Commonwealth Office in London and the British Embassy in Beijing.

Council sitting on 6 July 1994

6. An oral question was raised by Dr HUANG Chen-ya regarding the detention of Hong Kong residents as a result of commercial disputes in China.

7. In his reply, S for S said that the Administration had made repeated requests to the Chinese authorities for clarification of the legal basis for the detentions and for access for the detainees' families, legal representatives and colleagues. In some cases, representations had been made through the Foreign and Commonwealth Office in London and in others through the British Embassy in Beijing. S for S also told Members that the Administration had pressed hard for clarification of the legal basis for detentions and for assurances that they were consistent with Chinese law. However, S for S admitted that the Administration had not received a satisfactory response.

8. In his answers to supplementary questions, S for S also made the following points -

1. the Hong Kong Government had not taken up the problem through the Joint Liaison Group as it was not a matter which was related to the transfer of sovereignty; and
   
   
2. in all cases involving detentions of Hong Kong residents in China, representations were made in Hong Kong through the Political Adviser's Office to the New China News Agency, and in many cases these were followed up by further representations in Beijing and sometimes also representations in London.

Council sitting on 10 May 1995

9. The motion of "that this Council urges the Government to take a serious view of the detention of Hong Kong businessmen in the Mainland and to take measures to safeguard the interests and safety of our businessmen" was moved by Dr HUANG Chen-ya for debate at the Council sitting on 10 May 1995.

10. In his speech made during the debate, S for S said that there were difficulties in rendering consular type of assistance to Hong Kong residents in the Mainland. There were also legal boundaries beyond which the Hong Kong Government could not act. However, S for S pointed out that despite the difficulties, the following steps had been taken in the past -

1. clarification was sought from the authorities concerned of the circumstances under which such Hong Kong residents had been detained;
   
   
2. assurance was sought that the detention had been in strict compliance with Chinese law;
   
   
3. access to detainees by their family members and their legal representations was requested; and
   
   
4. assurance was sought that the welfare of the Hong Kong resident detained was looked after properly.

11. S for S further informed Members that there were well-established channels for raising such cases with the Chinese authorities. Representations were initially carried out in Hong Kong by the Political Adviser's Office with the New China News Agency in Hong Kong. Where appropriate, the British Government also raised the matter through the British Embassy in Beijing. Particularly serious cases where the persons concerned had been detained for long periods had also been raised at ministerial level. Members were told that the Secretary for State raised several specific cases with Vice Premier QIAN Qichen on 18 April 1995.

12. The motion moved by Dr HUANG Chen-ya was carried at the Council sitting.

Provisional Legislative Council (PLC)

Meeting of Panel on Constitutional Affairs (CA Panel) on 3 October 1997

13. In the course of deliberating the issue of relations between the Hong Kong Special Administrative Region (HKSAR) Government and the Central People's Government and other Mainland authorities, concerns were expressed by some Panel members about the assistance available to HKSAR residents encountering problems, especially those arising from property development defaults or financial disputes, in the Mainland.

14. The Secretary for Constitutional Affairs (SCA) responded that the HKSAR Government had to examine each case before deciding on the steps to be taken. Where necessary, the Constitutional Affairs Bureau would raise the matter with the Hong Kong and Macau Affairs Office, which would liaise with the Mainland authorities concerned. However, for cases involving only business disputes, it would be difficult for the HKSAR Government to intervene unless personal freedom was endangered.

Meeting of CA Panel on 13 October 1997

15. Again in deliberating the issue of relations between the HKSAR Government and the Central People's Government and other Mainland authorities, a Panel member questioned what assistance could be provided by the HKSAR Government to aggrieved HKSAR residents encountering problems in Mainland.

16. In response, SCA explained the redress channels available, as follows -

1. applying for judicial review in cases involving Mainland law-enforcement agencies;
   
   
2. complaining to the administrative authority at a higher level in cases of disputes with individual Government officials;
   
   
3. taking civil action in the courts or relevant arbitration centres in cases of personal disputes; and
   
   
4. approaching Hong Kong deputies to the National People's Congress (NPC) for assistance.

17. SCA also pointed out that under the "One Country, Two Systems" principle, the SAR Government should not intervene in the legal and administrative systems of the Central People's Government. The SAR Government therefore could only play a limited role and would when appropriate refer complaints received to the appropriate authorities in the Mainland for follow-up. The Chairman of the CA Panel suggested that the SAR Government could consider providing funding for the Hong Kong deputies to the NPC to set up offices in the Mainland to handle relevant complaints from HKSAR residents and to refer them to the NPC if appropriate. SCA agreed to consider the feasibility of the suggestion but reminded the Panel that the NPC was not part of the political structure in Hong Kong.

PLC meeting on 22 October 1997

18. A written question on Hong Kong permanent residents serving sentences in the Mainland was raised by Dr LAW Cheung-kwok.

19. In his reply, S for S pointed out that the SAR Government had a limited role to play in helping these permanent residents in terms of legal assistance. However, the SAR Government was liaising with the Central People's Government on the general question of how best to assist SAR residents in distress in the Mainland. S for S added that there was no arrangement for the transfer of sentenced persons between Hong Kong and the Mainland.

PLC meeting on 12 November 1997

20. An oral question was asked by Mr Paul CHENG on whether there were established channels through which Hong Kong businessmen and investors could seek advice and assistance when they encountered problems in respect of their economic activities in the Mainland.

21. In reply, SCA said that given the "One Country, Two Systems" principle there was the question of whether the Government should or could intervene in private business disputes involving the administrative, legal and judicial systems in the Mainland. The SAR Government therefore had a very limited role to play in doing anything substantive.

22. SCA however pointed out that the 11 branch offices of the Trade Development Council (TDC) in the Mainland stood ready to make use of their expertise and their network of contacts to offer advice and assistance to those who seek help. The SAR Government, particularly the Trade Department, kept a close watch on issues which might have industry-wide impact. SCA added that the Administration was liaising with the Central People's Government to explore whether there was any scope for assisting or otherwise advising specific complainants of the venues available in the Mainland for them to pursue their cases.

23. In reply to a supplementary question, the Secretary for Trade and Industry (STI) stressed that assisting Hong Kong entrepreneurs' import as well as export to the rest of the world including the Mainland, was a function mandated by the Hong Kong Trade Development Council Ordinance for the Hong Kong TDC to discharge. He further pointed out that if difficulties Hong Kong businessmen encountered had industry-wide impact i.e. they were not related to a particular case or an individual company, the TDC and the SAR Government would convey these problems to the relevant departments in the Mainland.

Joint meeting of the CA Panel and Public Service Panel on 25 March 1998

24. In the course of deliberating the role and functions of the Beijing Office, a Member asked whether the Beijing Office would provide assistance to aggrieved HKSAR businessmen involved in commercial disputes in the Mainland. SCA responded that commercial disputes were normally very complicated which should be resolved by legal means. The Beijing Office would offer support services to the aggrieved persons, such as providing information on channels for seeking redress in the Mainland and other case-neutral information which would facilitate their follow-up action with the Mainland authorities.

PLC meeting on 25 March 1998

25. An oral question was raised by Hon James TIEN on assistance to Hong Kong businessmen encountering legal problems in the Mainland. Mr TIEN also specifically asked whether substantial progress had been made since 12 November 1997 when SCA informed Members that the Administration was discussing with the Central People's Government the offer of assistance to Hong Kong businessmen who encountered difficulties involving law and administrative regulations in the Mainland (paragraph 22 above refers).

26. In his reply, SCA said that legal problems should be resolved through legal means. Apart from lawyers in the Mainland, there were also practising Mainland lawyers who had been registered in Hong Kong. SCA again pointed out that the 11 branch offices set by the TDC in the Mainland also provided Hong Kong businessmen or companies with information and advice on possible problems they might encounter in doing business in the Mainland or the implementation of laws and regulations relevant to trade and industry.

27. SCA also stressed that under the principle of "One Country, Two Systems", the SAR Government should not intervene in such issues which should be resolved under the Mainland's administrative, legal and judicial systems there. SCA added that the Administration would still explore with the Central People's Government to see if there was room for offering assistance to Hong Kong businessmen without violating that principle. He informed Members that the Administration had been liaising with the Central People's Government since September 1997 and contacts had been maintained on a monthly basis, in the form of correspondence or face-to-face discussions. The issue was still under careful consideration and a final decision was yet to be reached. SCA said that the Administration would follow through with the exploration.

The Legislative Council

Council meeting on 9 September 1998

28. An oral question was raised by Dr Hon LUI Ming-wah on whether the Government would consider playing a coordinating role in establishing a support centre in Hong Kong and at the same time consulting with the Central People's Government on the setting up of an organization in the Mainland to provide the relevant assistance.

29. In his reply, STI pointed out that the Trade Department (TD) and the TDC had all along been maintaining close contacts with relevant authorities in the Mainland in order to collect information on law, administration and regulation in respect of business operations in the Mainland for distribution to Hong Kong businessmen. In addition, the 11 offices set up by the TDC in the Mainland could also provide information and liaison services for as well as recommend professionals to Hong Kong businessmen with a view to helping them solve problems relating to law and regulation.

30. STI also said that the Administration considered the existing services provided by the TD and TDC in this respect adequate. There was no need to establish a separate support centre in Hong Kong. Nevertheless, relevant government departments could assist in trying to find out the appropriate complaint channels or make referrals to relevant authorities as requested by the complainant.

31. In his reply to supplementary questions, STI pointed out that the Mainland had its own laws. Under the principle of "One Country, Two Systems", the SAR Government was not in a position to interfere in matters relating to the administration and law enforcement of the Mainland, nor was it right for it to do so.

Council meeting on 13 January 1999

32. An oral question on detention of Hong Kong residents in the Mainland was raised by Hon MA Fung-kwok.

33. In her reply, S for S explained that the Immigration Department would provide practical assistance such as arranging for the next of kin to be informed of the arrest. The Security Bureau would coordinate action with other government departments as necessary in providing all possible assistance to family members and friends of the person detained. The Constitutional Affairs Bureau was responsible for referring the family members' or friends' request for assistance and subsequent enquiries to the relevant Mainland authorities, which might include the Hong Kong and Macau Office and the relevant central and provincial/municipal authorities.

34. S for S also provided the following statistics on requests for assistance from Hong Kong residents detained or imprisoned in the Mainland relating to the period from 1 July 1997 to 31 December 1998 -

	Resolved	Outstanding	Total
Total	10(12)	16(19)	26(31)

Figures in brackets denote number of persons involved

35. S for S also made the following points in her replies to supplementary questions -

1. if Hong Kong residents were detained over a long period of time, or could not contact their relatives and friends, or were unable to gain access to legal defence, the detainees themselves or their relatives and friends, or their lawyers should file a request with the relevant Mainland authorities;
   
   
2. there was no mechanism at the moment for the SAR Government to request the various provincial or municipal authorities in the Mainland to inform the SAR Government as soon as they learnt about Hong Kong residents being detained on account of civil or criminal proceedings. However, the SAR Government could consider bringing up such a mechanism with the Mainland authorities; and
   
   
3. if complaints were received, the SAR Government could certainly refer them to the Hong Kong and Macau Affairs Office of the State Council and request follow-up action.

Council meeting on 28 April 1999

36. A written question on the case of Mr LOK Yuk-shing was raised by Hon Emily LAU.

37. In the reply, S for S informed Members that the Mainland authorities had been requested to deal with the matter fairly and expeditiously in accordance with the relevant laws of the Mainland. Furthermore, the Administration was liaising with the relevant authorities to establish a notification system for Hong Kong residents detained or imprisoned in the Mainland, so that relevant parties could be informed of the situation of the detainees, and assistance rendered to them or their family members at the earliest opportunity.

House Committee meeting on 30 April 1999

38. The problem of Hong Kong residents detained in the Mainland was raised at the House Committee meeting on 30 April 1999. A letter was sent to the Chief Executive immediately after the meeting requesting him to raise the case of Mr LOK Yuk-shing with President JIANG Zemin at the '99 International Horticultural Exposition. Members also agreed to hold a special meeting on 28 May 1999 to discuss the problem with the Administration.




Legislative Council Secretariat
25 May 1999

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