LCQ5: Provision of assistance to Hong Kong residents detained or imprisoned overseas
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Question:
Mr Tang Lung-wai, a Hong Kong permanent resident who was convicted of drug possession and given a heavy sentence of 40 years' imprisonment in the Philippines, has so far served 17 years of his sentence and is currently applying for an appeal. Mr Tang's legal representative came to Hong Kong last month to give members of the public an account of the progress of the appeal. The legal representative stressed that there were a lot of questionable points in the case. It has been reported that over 5 000 copies of a book written by Mr Tang in the prison have been sold in just a few months and as many as 8 000 people have expressed concerns on Mr Tang's social media account. Some members of the public have even set up a concern group on the incident. The concern group held a number of street signature campaigns, with more than 20 000 people signing to show their support. It is learnt that Mr Tang has reproached the SAR Government for "showing a total disregard of his existence". I have written to the President of the Philippines requesting an expeditious review of the judgment. Besides, some members of the public have criticised that although the Transfer of Sentenced Persons Ordinance (TSPO) came into operation in as early as 1997 and the SAR Government and the Philippine Government have signed a transfer of sentenced persons agreement (TSPA), so far no Hong Kong permanent residents imprisoned in the Philippines have been transferred back to Hong Kong to serve their remaining sentences. The TSPO and TSPA indeed exist in name only. In this connection, will the Government inform this Council:
(1) given that Mr Tang's case of imprisonment has aroused widespread concern, whether the Chief Executive will review the relevant policy which has been adopted for over a decade but has been criticised as ineffective, and urge the State Ministry of Foreign Affairs to render more assistance to Mr Tang, including urging the Philippine authorities to give a fair and expeditious trial of Mr Tang's appeal case; if so, of the details; if not, the reasons for that;
(2) as Mr Tang has revealed that a number of prisoners in the Philippines who are waiting for transfer back to Hong Kong to serve their remaining sentences have been suffering from serious mental and health problems, of the number of Hong Kong permanent residents currently imprisoned in the Philippines who have applied for transfer back to Hong Kong to serve their sentences under TSPO; whether the authorities know their age and health conditions; whether the SAR Government has, by appealing to the State Ministry of Foreign Affairs for intervention or by other means, pressed the Philippine Government to provide specific information on those sentenced persons; and
(3) given that quite a number of members of the public have criticised the SAR Government for persistently washing its hands of the matter on the excuses that the incident involved foreign affairs and that the judicial system in the place concerned should be respected, whether the Government has assessed if the incident has undermined public confidence in the Government, causing members of the public to worry that the Government will just watch with folded arms in case false allegations are made against them in places outside Hong Kong; if it has assessed, of the outcome; if not, whether it will make such an assessment expeditiously?
Reply:
President,
The Government of the Hong Kong Special Administrative Region (HKSAR) has always attached great importance to cases in which Hong Kong residents are detained or imprisoned overseas. It attaches importance to the legal rights of these Hong Kong people and is committed to providing assistance to them. My consolidated reply to the questions raised by Hon Tse is as follows:
In general, when the HKSAR Government receives requests for assistance from Hong Kong residents who are detained or imprisoned overseas, or when the Chinese Diplomatic and Consular Missions (CDCMs) inform the Assistance to Hong Kong Residents Unit (AHU) of the Immigration Department about Hong Kong residents being detained or imprisoned overseas, AHU will liaise with the Office of the Commissioner of the Ministry of Foreign Affairs of the People's Republic of China in the HKSAR (OCMFA), CDCMs and other relevant departments to understand the cases. In light of the nature and circumstances of individual cases as well as the wishes of the assistance seekers, AHU will provide practicable and appropriate assistance, which includes visiting the subjects by CDCMs or providing information on local lawyers and translators; informing the subjects' families in Hong Kong of their detention upon requests and in accordance with their wishes, so that their families can make relevant arrangements; and approaching relevant authorities of the local government through CDCMs to convey the wishes of the subjects and their families as well as to make enquiries on case progress, or arrangements for communication with and visits by their families. The HKSAR Government and CDCMs are obliged to respect and abide by the local judicial systems when following up on the requests for assistance.
In respect of the case mentioned in the question, upon receipt of the request for assistance in 2003, AHU has maintained contact with OCMFA and the Chinese Embassy in the Philippines (the Embassy) to provide practicable assistance to the subject or his family according to their requests as far as possible. Over the years, upon receiving a request for assistance from the subject or his family, AHU would, having regard to the circumstances and nature of the request, immediately follow up on the case or make relevant arrangements through the Embassy. Attaching great importance to the case, the Embassy had not only sent officials to visit the subject and provide him with daily necessities and food for several times, but also approached the local judicial authorities to understand the case progress as well as to urge for prompt, fair and impartial hearings in accordance with the local laws. Moreover, the Embassy had, according to the subject's wishes, assisted in conveying to the Philippine Government his requests numerous times, which include ensuring the subject is provided with the basic necessities in prison and translation services in relation to the case. Besides, the Embassy had also co-ordinated with the local Chinese to assist the subject to employ an interpreter.
The HKSAR Government is committed to providing assistance to Hong Kong residents in distress outside Hong Kong and has established an effective communication mechanism with OCMFA and CDCMs on such matters. The HKSAR Government also conducts review from time to time, with a view to rendering better support to Hong Kong residents in distress outside Hong Kong and their families.
With regard to Hon Tse's question on the arrangement for the transfer of sentenced persons, the Transfer of Sentenced Persons Ordinance (Cap. 513) (TSPO) provides for the transfer mechanism of sentenced persons between the HKSAR and other territories. The HKSAR Government may handle the applications for the transfer of sentenced persons in accordance with TSPO and the transfer of sentenced persons agreements (TSPA) or other ad-hoc bilateral arrangements it made with other territories. Under these TSPAs or arrangements, a total of 35 sentenced persons have been transferred back to Hong Kong to serve their remaining sentence over the past five years (September 2012 to September 2017).
In general, there are three prerequisites for every transfer application, i.e. the tripartite consent from the HKSAR Government, the government of the jurisdiction concerned, and the sentenced person himself/herself, none of which is dispensable. The HKSAR Government has to obtain the required documents of the relevant transfer application (such as information on the offence(s) committed and the sentence, whether the legal proceedings are completed, etc.) from the government of the jurisdiction concerned and the written consent of the local government before proceeding with the transfer procedure. The transfer procedure may only begin when the sentenced person is not involved in further legal proceedings in relation to the offence or any other offences in the jurisdiction concerned.
The HKSAR and the Philippines have signed a TSPA. We are currently processing seven applications from Hong Kong residents sentenced in the Philippines for transfer back to Hong Kong to serve their remaining sentences. The seven applicants are aged from 46 to 70. On receipt of these applications, the HKSAR Government has been handling them in accordance with TSPO and the TSPA signed between the governments of the HKSAR and the Philippines. According to the TSPA, if a Hong Kong resident sentenced in the Philippines applies for transfer back to Hong Kong to serve his / her remaining sentence, the Philippine Government has to provide the HKSAR Government with specified information on the sentenced person concerned, including the legal documents relating to his /her conviction and sentence, the length of sentence already served and the remaining sentence, etc.
Regarding the above cases, the HKSAR Government has approached relevant authorities of the Philippine Government several times either directly or via the Embassy to obtain the documents required for the cases concerned. We are still awaiting the Philippine Government's documents and reply as to whether it gives consent to the transfer. The HKSAR Government will continue to follow up on these cases with the Philippine Government through various practicable channels with a view to obtaining the essential information required and confirming the consent of the Philippine Government as soon as possible, so as to proceed with the transfer procedures. We will also continue to monitor the cases and maintain close liaison with OCMFA as well as the Embassy in providing the subjects with all practicable assistance.
Thank you, President.
Ends/Wednesday, October 18, 2017
Issued at HKT 15:48
Issued at HKT 15:48
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