UN Committee Against Torture Second Periodical Report

18th June 2004

Mr. John Dean

for Secretary for Home Affairs

Government Secretariat

31/F Southorn Centre

130 Hennessy Rd, Wanchai,

Hong Kong

Dear Mr. Dean,

UN Committee Against Torture

Second Periodical Report

We thank you for your letter dated 6 May 2004 asking for
comments on the matters which should be included in the forthcoming report
under reference. We have read the paper dated 7 May 2004 outlining topics
to be addressed.

The main issues that need to be addressed in the report

" The definition of torture. As indicated in paragraph
13 of your paper dated 7 May 2004 the current definition is problematical
because it suggests that torture can be inflicted under the law. The jurisprudence
on the subject says that torture cannot be inflicted on a person in any
circumstances. It is disappointing that the Administration cannot say
now that it will amend the relevant ordinance to bring the definition
into line with the definition of torture in UNCAT.

" As for paragraph 14 you should make it clear that
the protections of the Basic Law extend only to residents and non-residents
enjoy only those rights in the Basic Law which are conferred on them by
law. You should also make it clear that, from the several submissions
of counsel retained by him in the Court of First Instance, the Court of
Appeal and the Court of Final Appeal, that is the view of the Director
of Immigration that, because of the reservations in the ICCCPR as applied
to Hong Kong affecting immigration decisions, non-residents are not entitled
to the protections of the covenant as ICCPR as applied to Hong Kong.

" Looking at paragraphs 16 and 17, we are surprised
that no mention has been made of the deportation case Secretary for Security
v. Sathvekel Prabakar which had been heard in Court of Appeal over 12
months ago. In that case the Court of Appeal found that, contrary to the
statement in the previous report, the Director of Immigration and Secretary
for Security had not carried out a careful inquiry into the facts of a
case of a person claiming to have been tortured before making a deportation
order. The Secretary for Security appealed to the Court of Final Appeal
recently but the appeal was dismissed. We would expect you to report fully
on the Court of Final Appeal case, mentioning as well the court's observations
as to what a fair procedure in such cases entails, and what changes the
Security Branch proposes to introduce to avoid this happening again.

We would also expect you to inform the committee about
what practical assistance is given by non-governmental organizations in
helping persons who fear torture to make a claim to the appropriate authorities
as the government itself provides none and does not provide funding to
any organization to assist in such cases.

Philip J. Dykes, SC

18th June 2004

Hong Kong Bar Association