Civil Rights Observer’s Report on Torture and Cruel, Inhuman or Degrading Treatment or Punishment in the Policing of Protests

Civil Rights Observer publishes a report on “Policing Protests in Hong Kong: Torture and Cruel, Inhuman or Degrading Treatment or Punishment” on 12 May 2020. Civil Rights Observer interviewed 45 persons(1) who have been arrested or otherwise come under the control of the Hong Kong Police Force at protest sites from July to November 2019, as well as one witness. They had all suffered or witnessed unreasonable treatment before and/or while under the control of the police.

Seven case studies and quantitative analysis, evaluation of how the police actions violated international human rights law and domestic law, and policy recommendations are included in this report. The report will be disseminated to the United Nations and international civil society organisations.

Based on the testimonies, it is assessed that police actions amounted to cruel, inhuman and degrading treatment and punishment (CIDTP) in some cases. Two of these cases (Case 4 and 5) are particularly serious, if the police actions are proved to be true, that would be a prima facie case of torture. The unreasonable treatment the interviewees were subjected to included: severe assault, excessive force, sexual harassment or sexual assault, verbal humiliation, threat of force (such as threatening arrested person to unlock his phone or take a statement), body search not following guidelines (such as a body search involves removal of clothing or underwear with no reason given), delayed access to medical care and legal assistance. Many of them happened when the victims were under the de facto control of the police.(2) (See summary of the report in Annex.)

Torture and CIDTP is prohibited under international human rights law.(3) However, the Crimes (Torture) Ordinance in Hong Kong provides for a defence of lawful authority, justification or excuse under section 3(4). This has been criticised by the Human Rights Committee and the Committee against Torture as this section may in practice contain loopholes that might prevent effective prosecution and allow possible defences.(4)

Civil Rights Observer urges the Hong Kong government to propose legislative amendments in full conformity with CAT and abolish the defence contained in the Crimes (Torture) Ordinance. The government should also empower an independent body to carry out effective unannounced visits at all places of detention under the Hong Kong Police Force, and to safeguard the fundamental rights of detainees according to the Istanbul Protocol.

“We urge the Hong Kong government to establish a fully independent police complaints mechanism, to initiate investigations on acts of torture or ill-treatment, to duly prosecute the perpetrators with appropriate punishment and to provide full redress to the victims,” said Icarus Wong and Andrew Shum from Civil Rights Observer.

Full report on:

(1) These interviewees have approached Civil Rights Observer for assistance after the arrests or responded to the calls for interviews on Civil Rights Observer’s support platform.

(2) As pointed out by former Special Rapporteur on torture Manfred Nowak, if the victim is in a powerless situation, ie if they are detained or otherwise under the de facto control of a police officer, the use of physical or mental coercion is not permitted. Where the victim is not under the de facto control of another, if the use of force by a police officer is disproportionate and results in pain or suffering, it amounts to cruel or inhuman treatment or punishment. Acts aimed at humiliating the victim constitute degrading treatment or punishment even where severe pain has not been inflicted. Civil and Political Rights, Including the Questions of Torture and Detention: Torture and Other Cruel, Inhuman or Degrading Treatment. E/CN.4/2006/6.

(3) Article 7 of the International Covenant on Civil and Political Rights (ICCPR) has been domestically incorporated as Article 3 of the Hong Kong Bill of Rights Ordinance. Under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), governments should prevent acts of CIDTP are committed by, at the instigation of, or with the consent of a public official or other person acting in an official capacity (Article 16) and ensure all acts of torture are offences under its criminal law with appropriate penalties (Article 4).

(4) Human Rights Committee, Concluding observations on the third periodic report of Hong Kong, China, adopted by the Committee at its 107th session. CCPR/C/CHN-HKG/CO/3; Committee against Torture, Concluding observations on the fifth periodic report of China with respect to Hong Kong, China. CAT/C/CHN-HKG/CO/5.

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