LCQ6: Comprehensive review on strategy of handling non-refoulement claims
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Question:
It has been reported that between last month and early this month, two cases of on-street armed conflicts involving dozens of men of South Asian descent occurred in the Sham Shui Po (SSP) District. Some of those men are suspected to have triad background, while some others are people who have lodged torture claims or non-refoulement claims under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (torture claimants), and have been granted temporary stay in Hong Kong by virtue of the recognizance forms, which were commonly known as "going-out passes", issued by the Immigration Department. Some residents of the SSP District have expressed worries about their personal safety due to the increasing number of criminal offences committed by people of South Asian descent, which has rendered the law and order situation in the SSP District deteriorating. In this connection, will the Government inform this Council:
(1) of the number of people of South Asian descent who were arrested each year from January 2015 to date, for suspected criminal offences and the number of such cases (broken down by type); among such people arrested each year, of the respective numbers of illegal entrants and torture claimants;
(2) whether the Police have uncovered in the past three years any case of illegal entrants or torture claimants of South Asian descent committing criminal offences under the manipulation of local triad gangs; if so, of the details and the measures taken by the authorities to tackle such situation; and
(3) as it has been reported that there has been a rising trend in the number of cases in which torture claimants of South Asian descent committed criminal offences such as handling stolen goods and drug trafficking, whether the authorities will consider afresh setting up closed camps for torture claimants, abolishing the issuance of recognizance forms to torture claimants, and reviewing the mechanism and conditions for vetting and approving legal assistance applications, so as to avoid such mechanism being abused by illegal entrants and bogus torture claimants?
Reply:
President,
In Hong Kong, all persons, regardless of their background, nationality or race, shall abide by the laws of Hong Kong. The Police are committed to maintaining law and order and combating crimes, thereby maintaining our status as one of the safest cities in the world.
On April 29, 2017, a case of gang fight took place in Sham Shui Po; another case of possession of offensive weapon by multiple persons took place on May 2. The Police attach great importance to the cases. The Crime Squad and Anti-Triad Unit of the relevant districts have been designated to conduct in-depth investigation into the cases. According to the latest information from the Police, in the first case, one man has been arrested for suspected wounding with intent to do grievous bodily harm; and five persons have been arrested in the other case for suspected possession of offensive weapon. Active investigation into the cases is still going on, and further arrests cannot be ruled out.
My reply to the various parts of Dr Hon Priscilla Leung's question is as follows:
(1) According to statistics of the Police, in 2015 and 2016, 4 476 and 4 703 non-ethnic Chinese (NEC) persons were arrested for suspected criminal offences, accounting for 13.3 per cent and 14.1 per cent of all persons arrested in the respective years. In the first four months of 2017, 1 453 NEC persons were arrested, representing 14.4 per cent of all persons arrested during the same period. The Police do not maintain further statistical breakdown of these arrestees by nationality or race.
Among all NEC persons arrested in 2015, 2016 and the first four months of this year, respectively 1 113, 1 506 and 491 were NEC persons on recognizance; most of them were non-refoulement claimants. The offences for which they were arrested include shop theft, serious drug offences, miscellaneous thefts, wounding and serious assault, serious immigration offences, forgery and coinage, disorder/fighting in public place and other serious crimes (including criminal damage, possession of offensive weapon, burglary, indecent assault, robbery and pickpocketing). A detailed breakdown is at Annex.
(2) In 2015, 2016 and the first four months of this year, respectively 23, 26 and 16 NEC persons on recognizance were arrested for triad offences. The Police have always been concerned with the situation of NEC persons committing crimes and taking part in triad activities in Hong Kong. To study the problem in a focused manner, and formulate relevant strategies and coordinate combating operations accordingly, the Police set up a task force in 2011 on NEC persons' participation in organised crimes and triad activities. Chaired by the Chief Superintendent of Police of the Organised Crime and Triad Bureau and consisting of representatives from the Criminal Intelligence Bureau and the Crime Wing of all regions, the task force is responsible for –
(i) monitoring the trend of NEC persons taking part in organised crimes and triad activities;
(ii) developing the Police's strategies for combating organised crimes and triad activities participated by NEC persons;
(iii) coordinating law enforcement operations for combating organised crimes and triad activities participated by NEC persons, such as planning targeted intelligence-led enforcement actions, carrying out high profile patrols at high-risk locations and stepping up inspections at liquor-licensed premises; and
(iv) strengthening the Police's system and process of criminal intelligence collection for enhancing the capability in gathering intelligence on triad societies.
(3) At present, sections 32 and 37ZK of the Immigration Ordinance (the Ordinance) stipulate that the Director of Immigration (the Director) may detain illegal immigrants during the removal procedures and the screening process of their non-refoulement claims respectively. In 2014, the Court of Final Appeal (CFA) ruled in a judicial review case that the Director's detention power is subject to the common law Hardial Singh principles. Accordingly, the Immigration Department (ImmD) cannot continue to detain an illegal immigrant if it cannot complete the removal procedures or the screening process within a reasonable time.
ImmD has formulated a detention policy on how such power will be exercised. For example, matters to be considered for detention include whether the person concerned has conviction(s) associated with crime(s) of serious or violent nature, whether there is doubt on his true identity and whether he has a record of absconding. The policy is available on ImmD's website for public access. Also, every detention case will be under regular review to ensure legality of all detention decisions.
If a person is considered not suitable for detention under the policy, ImmD will require him / her to enter into a recognizance under section 36 of the Ordinance in the prescribed form (commonly known as recognizance form or Form 8) in such amount and with such number of sureties as it reasonably requires. When a detained person enters into such recognizance, he may be released. Currently, most NEC persons granted recognizance are non-refoulement claimants, whom ImmD has to grant recognizance to according to the law and the above policy as ImmD cannot remove them within a short period of time.
Presently, NEC persons on recognizance include claimants pending screening by ImmD, rejected claimants who have lodged an appeal and claimants whose appeal has been rejected and are undergoing removal procedures. Ceasing the arrangement to grant them recognizance is unlikely to be consistent with the above CFA's ruling, which requires ImmD not to continue to detain an illegal immigrant if it cannot complete the removal procedures or the screening process within a reasonable time.
At present, most illegal immigrants (including claimants) detained by ImmD are placed in the Castle Peak Bay Immigration Centre, which has about 500 detention places. In 2017-18, the Government will create 35 posts for the Centre to strengthen its management.
We are also considering different measures from the from the legal, public security, and resources perspectives, including using existing prisons or penal institutions or recommissioning vacant ones to detain illegal immigrants and providing more effective operational support to detention facilities. The Government will further report to the Legislative Council when specific proposals are ready.
As regards publicly-funded legal assistance (PFLA) to claimants, the Government is required in another judicial review case in 2008 to provide legal assistance on public funds to non-refoulement claimants lack the means, otherwise we will be in breach of the high standards of fairness required in screening non-refoulement claims according to high standards of fairness. The Duty Lawyer Service (DLS) commenced a scheme in 2009 to provide PFLA to those claimants who pass DLS' means test and requires such assistance. The scheme does not have a merits test.
We are conducting a comprehensive review on the strategy of handling non-refoulement claims, including how to provide PFLA to claimants in a way that makes the screening process more effective and responsive to changes in the number of claims whilst continuing to meet with the legal requirement above. The Government will soon launch a pilot scheme to refer some claims directly to lawyers who are already qualified. The pilot scheme will reduce administrative work by paying a fixed legal fee and providing cash allowance instead of employing Court Liaison Officers, such that screening capacity can immediately increase and we can trial run a more flexible operation model at the same time. The Government will review the pilot scheme after one year, and will consider the most appropriate long-term arrangement.
Thank you, President.
Ends/Wednesday, May 24, 2017
Issued at HKT 16:15
Issued at HKT 16:15
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