Interim Report - Report No 395, June 2021

Case No 3406 (China - Hong Kong Special Administrative Region) - Complaint date: 17-MAR-21 - Active

Allegations: The complainants allege intimidation and harassment of workers in the context of public protests in 2019, crackdown on civil liberties with the adoption of the National Security Law in 2020, the prohibition of public gatherings under the Prevention and Control of Disease (Prohibition on Group Gatherings) Regulation, adopted as part of the anti-COVID-19 measures in 2020 and prosecution of trade union leaders for their participation in demonstrations

1. 122. The complaint is contained in communications dated 15 March and 5 May 2021 from the International Trade Union Confederation (ITUC) and the International Transport Workers’ Federation (ITF).
2. 123. The Government of China transmitted the observations of the Government of the Hong Kong Special Administrative Region (HKSAR) in a communication dated 8 May 2021.
3. 124. China has declared the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), applicable in the territory of HKSAR with modifications. It has declared the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), applicable without modifications.

A. The complainants’ allegations

1. 125. In their communication dated 15 March 2021, by way of background to the complaint, the ITUC and the ITF refer to the information submitted by the ITUC to Committee of Experts on the Application of Conventions and Recommendations (CEACR) in 2020 concerning events that occurred in 2019 and 2020 and allege intimidation and harassment of workers in the context of public protests, heavy police repression during the anti-extradition protests in 2019, unprecedented crackdown on civil liberties with the adoption of the National Security Law in July 2020 and the arrest of Mr Lee Cheuk Yan, General Secretary of the Independent Hong Kong Confederation of Trade Unions (HKCTU).
2. 126. According to the information provided by the complainants in their communications dated 15 March and 5 May 2021, Mr Lee received two jail sentences in connection with organizing and participating in assemblies demanding the withdrawal of the extradition bill and universal suffrage in 2019. As the General Secretary of the HKCTU, Mr Lee participated in those protest activities to represent the views of trade unions against the introduction of a law that threatens trade union freedoms and civil liberties – a legitimate trade union concern. The complainants indicate that on 1 April 2021, the District Court of the HKSAR found Mr Lee guilty under sections 17A(3)(b)(i) and 17A(3)(a) of the Public Order Ordinance for organizing and taking part in an unauthorized assembly that took place on 18 August 2019. The complainants further indicate that on 16 April 2021, the same Court found Mr Lee Chauk Yan guilty under section 17A(3)(a) of the Public Order Ordinance of taking part in unauthorized assembly on 31 August 2019. Following these two judgments, the Court sentenced Mr Lee Cheuk Yan to 14 months of unsuspended imprisonment. The complainant organizations consider that in its decisions, the Court interpreted the right to freedom of peaceful assembly guaranteed by Article 27 of the Hong Kong Basic Law and Article 17 of the Bills of Rights Ordinance, Cap 383, in a manner inconsistent with Hong Kong’s obligations under the principles of freedom of association under international labour standards and Convention No. 87. The Court found that criminalization of the unauthorized peaceful assembly that took place on 18 August 2019 was a legitimate and proportionate restriction of the freedom of peaceful assembly on the basis that such assembly could have caused serious traffic disruption. The complainants also point out the court failed to strike down as unconstitutional section 17A, which provides for an excessive maximum sanction of five years of imprisonment. The complainants transmit copies of the two above-mentioned decisions.
3. 127. The complainants further indicate that on 10 March 2021, Mr Lee was given a suspended jail sentence of 18 months and a fine of HKD5,000 (US$643) after the court convicted him and seven other opposition activists for organizing a demonstration during Labour Day on 1 May 2020. The eight persons who took part in the demonstration were protesting against the generalized prohibition of public gatherings of more than four persons introduced by the Prevention and Control of Disease (Prohibition on Group Gatherings) Regulation in March 2020, as part of anti-COVID-19 measures, and were calling for the creation of an unemployment assistance scheme to offer monthly subsidies to the jobless amid the COVID-19 pandemic.
4. 128. The complainants allege that the Regulation was introduced by the Government without any prior tripartite consultation. The ban on public gatherings has been extended multiple times; most recently, it has been again extended until 12 May 2021. The complainants consider that the ban has unreasonably limited the exercise of the fundamental labour and human right to assembly, including protest strikes, and imposed excessive penalties, thereby contravening the freedom of association principles contained in Convention No. 87. The complainants allege that the authorities continue to use it to block applications for public demonstrations. According to the complainants, as of 28 April 2021, two applications concerning organization of public procession on the occasion of May Day submitted by the HKCTU have been rejected. According to the complainants, the authorities ignored safety measures proposed by the HKCTU, such as marching in small groups with social distancing. The complainants argue that as a result, since the entry into force of the regulation, as well as of the National Security Law on 1 July 2020, there has been hardly any permitted public assembly or procession.
5. 129. The complainants further allege that in January 2021, the authorities arrested 55 pro-democracy activists and politicians in connection with political party primary polls held in 2020. According to the complainants, the authorities considered that the primaries were part of a strategy to overthrow the Government and subvert state authority. Three trade union leaders, Ms Carol Ng, Chairperson of the HKCTU, Ms Winnie Yu, Chairperson of the Hospital Authority Employees Alliance (HAEA) and Mr Cyrus Lau, Chairperson of the Nurses Trade Union, were arrested as part of the group. All three trade unionists took part in the primary polls with the support of their trade unions and as part of the trade unions’ activities to participate in political party activities to advance the economic and social interests of workers they represent. Ms Carol Ng was representing the Labour Party that was formed in 2011 by the HKCTU. The campaign platform expressed the socio-economic concerns facing workers and their members. On 28 February 2021, 47 out of the 55 pro-democracy activists and politicians arrested in January 2021, including Ms Carol Ng and Ms Winnie Yu, were charged with conspiracy to commit subversion under the new National Security Law. Mr Cyrus Lau is still under investigation. Those charged face life in prison if convicted.
6. 130. As of the time of the complaint, both Ms Carol Ng and Ms Winnie Yu were still kept in custody after a court hearing, which the complainants describe as chaotic and lacking in procedural fairness. According to the complainants, they were both denied bail, as were 30 other defendants. Their case was adjourned until 31 May 2021 because the prosecutors claimed they needed time to investigate further, even though the charges have already been laid. The complainants consider that charging the activists with the offence of “conspiracy to commit subversion” over organizing primary polls shows in the harshest terms that the National Security Law is being used to eliminate political pluralism rather than to maintain order. The complainants point out that the defendants are being charged under the draconian National Security Law adopted in July 2020. The complainants point out that this law has been widely criticized, including by the UN High Commissioner for Human Rights and by the UN Special Rapporteurs, for not complying with international human rights and standards, undermining democratic governance and the rule of law in the HKSAR.
7. 131. The complainants allege that the intense security pressure, surveillance and the ongoing prosecution of Ms Carol Ng and Ms Winnie Yu has led to their removal from their trade union leadership positions as the HKCTU President and Chairperson, respectively; after they had been denied bail, they resigned from their positions.
8. 132. The complaints allege that the human and labour rights of workers and trade union leaders in Hong Kong are deteriorating, civil liberties are under attack and trade union rights are seriously undermined and request the Committee to call on the authorities to respect civil liberties, trade union rights and freedom of association; to unconditionally release all those arrested or investigated for attempting to exercise their civic and trade union rights, including Mr Lee Cheuk Yan, Ms Carol Ng, Ms Winnie Yu and Mr Cyrus Lau, to drop the charges and provide guarantees for their safety; to review the laws enacted in the HKSAR to ensure their full compliance with international labour standards and human rights; and to ensure the right to due process and procedural fairness.

B. The Government’s reply

1. 133. By its communication dated 8 May 2021, the Government of China transmits the reply of the HKSAR Government to the complainants’ allegations in this case. The latter states at the outset that the complainants’ allegations in this case are completely untrue and entirely political in nature and summarizes the facts it considers relevant as follows: (i) the civil liberties, freedom of association, the right to organize as well as labour rights and benefits in the HKSAR are improving; (ii) trade union rights as well as the right to peaceful assembly are fully protected by law; (iii) the prohibition on group gathering under the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation (hereafter, the Regulation) seeks to combat the COVID-19 pandemic and to protect public health; and (iv) Hong Kong National Security Law fully protects the democratic governance and the rule of law in the HKSAR. The HKSAR Government further indicates its disagreement with the requests to drop the charges against certain trade union leaders and to unconditionally release them; as well as to review the Public Order Ordinance (POO), the Trade Unions Ordinance (TUO) and other relevant laws in the HKSAR.
2. 134. By way of background, the HKSAR Government indicates that since June 2019, a series of violent and illegal acts broke out in Hong Kong. Rioters used weapons (including bricks, metal rods, metal pellets, makeshift slingshots, arrows and bows, modified air guns, petrol bombs, high-powered laser pointers, corrosive substances and even improvised explosive devices) to launch attacks against police officers, police stations and vehicles, as well as innocent and defenceless members of the public, especially people with opposing political views. Rioters extensively blocked the roads and vandalized numerous shops, metro stations and other public facilities, posing unprecedented damage to the public safety and public order in Hong Kong. The police seized great quantities of explosives, firearms and ammunition in connection with the riotous acts. According to the police’s estimate, at least 5,000 petrol bombs were hurled by rioters during the violent incidents, with at least 10,000 petrol bombs seized. Explosives, including triacetone triperoxide, hexamethylene triperoxide diamine and radio-controlled improvised explosive devices, which are commonly used in deadly terrorist attacks around the world, were seized by the police. Six genuine firearms, including one AR15 rifle with large quantities of ammunitions were also found.
3. 135. The HKSAR Government indicates that the damage and obstruction caused to a large number of essential facilities were equally alarming: a total of 740 sets of traffic lights, 1,521 traffic bollards and 87 traffic signs were damaged; some 60 kilometres of railings and some 22,000 square metres of paving blocks on footpaths were illegally removed; 85 out of 93 heavy rail and 62 out of 68 light rail stations have been vandalized. Furthermore, over 2,800 injuries relating to mass gathering incidents were reported. Over 600 police officers were injured during operations. Two cases were particularly serious: in one case, occurred on 11 November 2019, an innocent member of the public suffered 40 per cent burns to his body after inflammable liquid was poured over him and he was set ablaze; in the second case, which took place on 13 November 2019, a 70-year-old cleaner was hit by a brick hurled by radicals and subsequently died.
4. 136. The HKSAR Government also points out that the spate of violent and illegal acts have caused significant disruptions to inbound tourism and consumption-related economic activities. In particular, the disruptions to the retail, restaurant and accommodation sectors as well as other tourists’ consumption expenditure due to the violent incidents are estimated to bring about possible economic losses of about HKD15 billion (US$1.9 billion) in total (in 2018 prices) in the third quarter of 2019, equivalent to about two per cent of the GDP in the third quarter of 2018.
5. 137. The HKSAR Government explains that the police have stringent guidelines on the use of force that are consistent with international human rights norms and standards. Police officers may use minimum force as appropriate only when such force is necessary and there are no other means to accomplish lawful duties. Police officers shall, where circumstances permit, give warnings prior to the use of force, and give the persons involved every opportunity, whenever practicable, to obey police orders before force is used. Once the purpose of using force is achieved, the police will cease to use it. The police makes a decision on the use of force taking due considerations of the circumstances and the actual needs.
6. 138. The HKSAR Government indicates that a holistic review of the public order events from June 2019 to March 2020 and a comprehensive record of the relevant facts are outlined in the Thematic Study conducted by the Independent Police Complaints Council (IPCC) published on 15 May 2020. Through rigorously reviewing a tremendous amount of information and cross-checking information obtained from different sources, the IPCC’s report seeks to help the public to ascertain the relevant facts. The HKSAR Government considers that the allegation of heavy repression by the police during the protests in 2019 is far from true.
7. 139. The HKSAR Government refutes the allegations of violations of civil liberties, freedom of association rights and the right to peaceful assembly and the alleged deterioration of labour and trade union rights. It considers that the allegations in this case ignore the fact that the rights and freedom conferred by the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Convention No. 87 are not absolute. The exercise of these rights has to be law-abiding; no one is above the law.
8. 140. The HKSAR Government points out that the arrests and the prosecution actions against certain persons meet the requirements of Convention No. 87 and have been carried out in accordance with the law. The Hong Kong courts, which enjoy independent judicial power, have convicted the defendants. In the HKSAR Government’s view, this demonstrates that the prosecution actions were fully supported by the facts, that the persons concerned had breached the law and that the suspected unlawful acts had nothing to do with trade union activities.
9. 141. The HKSAR Government further points out that the demonstrations or protests organized by or in which certain trade union leaders have participated, including protests against the proposed legislative amendments to the Fugitive Offenders Ordinance (“the extradition bill”) and generalized prohibition on public gatherings under anti-epidemic measures, and the so-called political party primary polls are not legitimate trade union activities. The HKSAR Government points out that the Committee is not mandated to examine allegations which are purely political in nature and thus considers that the Committee should not examine the present case. In the event that the Committee, after considering the applicable rules of procedure decides to examine the case, the HKSAR Government draws the Committee’s attention to the fact that freedom of association rights and the right to form trade unions are guaranteed under the Basic Law of the HKSAR. Article 27 of the Basic Law stipulates that Hong Kong residents shall enjoy freedom of association, the right and freedom to form and join trade unions, and to strike. Article 18 of the Hong Kong Bill of Rights, as set out in the Hong Kong Bill of Rights Ordinance (HKBORO) also guarantees that everyone shall have the right to freedom of association, including the right to form and join trade unions for the protection of his or her interests. However, these rights are not absolute.
10. 142. The HKSAR Government indicates that it promotes sound trade union administration and responsible trade unionism. Trade union members and officers enjoy a range of rights under the TUO, including the immunity from civil suits for certain acts done in contemplation or furtherance of a trade dispute. Moreover, it is lawful for trade union members, in contemplation or furtherance of a trade dispute, to attend a picket line in a peaceful and lawful manner. The HKSAR Government is committed to protecting employees against acts of anti-union discrimination and safeguarding their rights in this respect. Under the Employment Ordinance (EO), the rights of employees to trade union membership and to take part in trade union activities are adequately protected, and discrimination on account of employees’ participation in union activities is prohibited. Offenders, including both employers and persons acting on their behalf, are subject to prosecution and penalties. The HKSAR Government refutes the allegation that the right and freedom of Hong Kong residents to form and join trade unions are deteriorating and indicates that there were 1,355 registered employee unions as of 31 December 2020, representing an increase of 56.5 per cent from 866 a year earlier. Except for dissolution by or at the request of trade unions, no trade union has been de-registered.
11. 143. The HKSAR Government informs that as regards labour rights and benefits in general, it has been reviewing the relevant legislation through tripartite consultations with the social partners with a view to progressively improve labour rights and benefits in the light of overall socio-economic development. By way of example, it refers to the following measures implemented in recent years: with effect from 19 October 2018, the Labour Tribunal and courts of the HKSAR have been empowered to make a compulsory order for reinstatement or re-engagement of an employee upon unreasonable and unlawful dismissal without having to first secure the employer’s agreement; extension of paternity and maternity leaves, increase in number of statutory holidays; etc.
12. 144. Regarding the alleged criminal prosecution of certain trade union leaders, the Government explains that any public meeting with participants of more than 50 persons or any public procession with participants of more than 30 persons that are regulated under the POO may be conducted only if a notice has been given to the Commissioner of Police. The Commissioner (or his delegated officers) has to carefully examine each case based on all the relevant facts and circumstances. The Commissioner may only prohibit or object a public meeting or public procession if it is necessary in the interests of national security, public safety, public order or the protection of the rights and freedoms of others, and when those interests could not be met by the imposition of conditions. There is also an appeal system in place under the POO. If a person is aggrieved by the decision of the Commissioner to prohibit a public meeting, to object a public procession or to impose conditions on the holding of a public meeting or procession, he may lodge an appeal to the independent statutory Appeal Board on Public Meetings and Processions. The Appeal Board is chaired by a retired judge. It may confirm, reverse or vary the prohibition, objection or condition imposed by the Commissioner. The decision of the Appeal Board is also amenable to the challenge of judicial review. The Court of Final Appeal has held that the statutory requirement for notification under the POO is constitutional. It is required to enable the police to fulfil the proactive duty resting on the Government to take reasonable and appropriate measures to allow lawful demonstrations to take place peacefully. A legal requirement for notification is in fact common in jurisdictions around the world. The Court has further held that the Commissioner’s discretion under the POO to restrict the right of peaceful assembly for the purpose of public order satisfies both the “prescribed by law” requirement and the necessity requirement and is constitutionally valid. Hence, the Commissioner’s power under the POO to object to public processions on the ground of public order is consistent with the right of peaceful assembly protected under Article 17 of the Hong Kong Bill of Rights, which corresponds to Article 21 of ICCPR. The HKSAR Government further explains that in another case, the Court of Appeal held that every person must observe the law in force in exercising his or her right of peaceful assembly.
13. 145. The HKSAR Government indicates that the persons referred to in the complaint were prosecuted in connection with the unauthorized assemblies on 18 and 31 August and 1 October 2019, and 4 June 2020. In this respect, under section 17A(2) of the POO, where any public meeting or public procession takes place in contravention of the Commissioner’s prohibition or objection, or where three or more persons taking part in a public gathering refuse or willfully neglect to obey an order given by a police officer under the Ordinance, the public gathering shall be an “unauthorized assembly” in law. In respect of the unauthorized assembly on 18 August 2019, the Hong Kong District Court, after trial, found the seven defendants in the case guilty of “organizing an unauthorized assembly” and “knowingly taking part in an unauthorized assembly”. Together with the two defendants who pleaded guilty, the nine defendants were sentenced on 16 April 2021. The Government transmits a copy of the judgment and indicates that it will not provide comments on the judicial proceedings in other ongoing cases to safeguard the principle of fair trial. It indicates that in Hong Kong, any arrest and prosecution is directed against the criminal act and has nothing to do with the political stance, background or thoughts of the person(s) concerned; arrests and prosecutions are based on facts and evidence, and conducted in strict accordance with the law. It points out that the judicial independence of the HKSAR is stipulated in and protected by the Basic Law.
14. 146. Regarding the allegation that the Regulation unreasonably restricts the right to assembly, the HKSAR Government points out that on 11 March 2020, the World Health Organization declared the COVID-19 outbreak to be a pandemic. Given the public health emergency, at the end of March 2020, the HKSAR Government put in place the Regulation to restrict group gatherings in public places. This is one of the important elements of the overall measures for social distancing, aiming to reduce the risks of transmission of the disease in the community. No political considerations have ever come into play. The HKSAR Government points out that a similar practice has been adopted in other countries (such as the United Kingdom, Australia, Germany and Singapore) to minimize the risk of the virus spreading in the community. The current epidemic situation in the HKSAR is relatively under control, which is directly related to the HKSAR Government’s formulation and timely adjustment of social distancing measures (including through the Regulation).
15. 147. The HKSAR explains that according to the Regulation, the Secretary for Food and Health may, by notice published in the Gazette, prohibit group gatherings exceeding a certain maximum number of persons in public places within a specified period of not more than 14 days, except for specified exempted group gatherings. Moreover, the Regulation empowers the Chief Secretary for Administration to permit any group gathering if the Chief Secretary is satisfied that the gathering is necessary for the governmental operation; or because the exceptional circumstances of the case, otherwise serve the public interest of Hong Kong. The prohibition is only effective through a notice made by the Secretary for Food and Health published in the Gazette and each of the specified periods must not exceed 14 days. All along, the HKSAR Government has adjusted the restrictions in relation to group gatherings and timely announced the latest measures in accordance with the latest developments of the epidemic situation and risk assessments. The HKSAR Government further explains that if law enforcement officers find any group gathering in contravention of the Regulation, they will, in light of the circumstances, verbally explain the regulations, issue an advice or warning, or dismiss the gathering. If the prevailing circumstances require that fixed penalty tickets (FPTs) be immediately issued to persons participating in the prohibited group gathering, law enforcement officers will do so in accordance with the law and procedures. Persons issued with FPTs may dispute the liability for the offence in accordance with the mechanism provided for in the Regulation.
16. 148. Regarding the 1 May 2020 events, the HKSAR Government explains that the eight defendants in the case were suspected of breaching the Regulation and were summoned by the police for one count of “Participation in Prohibited Group Gathering”. All of them were convicted by the court on 10 March 2021. The magistrate pointed out that the defendants gathered at about the same time, interacted with each other during the demonstration, had the same demands and thus met with a “common purpose” and were regarded as belonging to the same group, even if the group was separated by 1.5 metres in the form of small groups. The court pointed out that the Constitution confers on the public the right of demonstration but such right was not absolute and could be subject to lawful restrictions. Despite repeated warnings from the police, the accused “failed to listen and had their own way”. It was apparent that they knowingly breached the law. Considering that the epidemic situation was yet to be contained at that time, the magistrate could not rationalize their acts. Thus, the defendants were convicted and sentenced to 14 days of imprisonment, suspended for 18 months.
17. 149. Regarding the situation of democracy and the rule of law following the implementation of the National Security Law, the HKSAR Government indicates that the HKSAR has a duty to enact laws for safeguarding national security under Article 23 of the Basic Law, but despite a lapse of over 23 years since reunification, it has failed to legislate to prohibit acts and activities endangering national security. Given the political situation in Hong Kong at that time, this task could not have been completed in the foreseeable future. This legal vacuum exposed the serious threats to national security faced by Hong Kong following a series of riots since June 2019. National security is a matter within the purview of the Central Authorities, which have the responsibility to safeguard national security. Hence, the Central Authorities can enact the Hong Kong National Security Law to provide for the legal system and enforcement mechanisms for the HKSAR to safeguard national security. The HKSAR Government points out that this responsibility is no different from that of various countries across the globe. Safeguarding national security through legislation is in line with the international practice. In view of the severe situation in Hong Kong at the time, with protestors becoming increasingly violent, there were growing signs of separatism and terrorism, seriously affecting the lawful rights and interests of Hong Kong residents. It was therefore necessary for the Central Authorities to take immediate steps to introduce measures for safeguarding national security in the HKSAR. As the highest organ of the State power with authority to oversee the implementation of the Constitution and to decide on the systems to be instituted in HKSAR under Article 62 of the Constitution, the National People’s Congress (NPC) adopted, on 28 May 2020, the Decision on Establishing and Improving the Legal System and Enforcement Mechanisms for the HKSAR to Safeguard National Security, entrusting the Standing Committee of the NPC (NPCSC) to formulate relevant laws on establishing and improving the legal system and enforcement mechanisms for the HKSAR to safeguard national security, in order to effectively prevent, suppress and impose punishment for secession, subversion, and organizing and carrying out terrorist activities, etc.
18. 150. The HKSAR Government indicates that before adopting the National Security Law, the NPCSC had, through different channels, gauged the views of the HKSAR Government and various sectors of the community in Hong Kong. Hence, the NPCSC has fully taken into account the views of the HKSAR, including its residents. As there was a pressing need to address the national security threats in the HKSAR and a consensus that the draft law should be introduced the soonest, the National Security Law was passed on 30 June 2020 after the draft law had been considered by the NPCSC in two sessions pursuant to the entrustment of the NPC and the Legislation Law of the PRC. The enactment of the National Security Law underwent a transparent process in compliance with the Legislation Law of the PRC and with the views of Hong Kong residents taken into account.
19. 151. According to the HKSAR Government, the entry into force of the National Security Law on 30 June 2020 has delivered immediate results. Hong Kong has emerged from chaos into stability, with a significant reduction in violent acts: the number of people arrested for offences in public order incidents in the first six months after the entry into force of the Law dropped by around 85 per cent; the number of cases for arson and criminal damage also dropped by around 75 per cent and 40 per cent, respectively; activists endangering national security either fled or announced their withdrawal; advocacy of “Hong Kong independence” subsided substantially; people’s rights were protected; and the economy and people’s livelihood could revive. In the HKSAR Government’s view, this testifies to the importance and necessity of the legislation for safeguarding national security. The National Security Law fully and faithfully implements the principles of “One Country, Two Systems” under which the people of Hong Kong administer Hong Kong with a high degree of autonomy. The HKSAR Government points out that the Law stipulates that human rights shall be respected and protected in safeguarding national security in the HKSAR; the rights and freedoms, including freedom of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the HKSAR residents enjoy under the Basic Law and the provisions of ICCPR and ICESCR as applied to Hong Kong shall be protected in accordance with law. Any measures or enforcement actions taken under the National Security Law must be in line with the above principle. All persons shall observe the requirements under the law, shall not contravene the fundamental provisions of the Basic Law, and shall not endanger national security or public safety, public order or the rights and freedoms of others in exercising their rights. The National Security Law further lays down legal principles for the protection of defendants, including the presumption of innocence, the prohibition of double jeopardy, the right to defense and other rights that parties in judicial proceedings are entitled to.
20. 152. Regarding the criminal cases related to the National Security Law referred to in the case, the HKSAR Government indicates that as the legal proceedings in the HKSAR are still underway, it is generally inappropriate to comment further on these cases. It emphasizes, however, that the matters involved are not labour issues, but rather suspected attempts of conspiring to obtain the majority of seats in the Legislative Council (LegCo) through manipulation, with a view to recklessly and blindly voting down all the funding applications from the Government to the LegCo and the Budget, forcing the resignation of the Chief Executive, bringing the HKSAR Government to a complete standstill, as well as seeking to paralyze the Government and seriously interfere in, disrupt and undermine the performance of government duties and functions, and compelling the Central People’s Government and the HKSAR Government.
21. 153. Regarding the request to drop charges against certain trade union leaders and to unconditionally release them, the HKSAR Government indicates that Hong Kong is a society that upholds the rule of law and equality before the law. It is a hypocritical argument of politics overriding justice for anyone to advocate privilege for certain groups of people, such as labour representatives, and contend that they are above the law and should be immune to legal sanctions despite violating the law. Article 63 of the Basic Law provides that prosecution is in the hands of the Department of Justice. No one should interfere or attempt to interfere with independent prosecutorial decisions. All prosecutorial decisions are based on admissible evidence, applicable laws and the Prosecution Code, without political consideration. Cases are not handled any differently owing to the political beliefs or background of the persons involved. Prosecutions would only be commenced if there is sufficient admissible evidence to support a reasonable prospect of conviction. Defendants are entitled to a fair and public hearing by an independent and impartial tribunal. The HKSAR will continue to handle every case in a fair, just and impartial manner, and act strictly in accordance with facts, evidence and the law.
22. 154. Regarding the request to review the POO, TUO and other relevant laws, the HKSAR Government reiterates that the Hong Kong courts have affirmed that the statutory scheme on public meetings and processions under the POO and the restriction of the right of peaceful assembly based on the public order ground is lawful and constitutional. The POO regulates matters in relation to assemblies and processions. The restrictions therein are consistent with the principles of the ICCPR. As such, the HKSAR Government considers it not necessary and has no plans to amend the POO. The demonstrations or protests referred to in this case were not legitimate trade union activities and the arrest and prosecution against them were not related to the TUO.
23. 155. The HKSAR Government reaffirms that the Basic Law and the HKBORO have all along guaranteed the right and freedom of Hong Kong residents to form and join trade unions. The rights of trade unions and employees to take part in trade union activities are adequately protected by the TUO and the EO. These rights and freedoms have remained intact and have not been affected in any way by the enactment of the National Security Law. The HKSAR Government will continue to progressively improve labour rights in the light of overall socio-economic development through tripartite consultations and taking into account the interests of employees and the affordability of employers. The HKSAR Government concludes by emphasizing that all the actions taken by it are reasonable and justified. Given that political matters which do not impair the exercise of freedom of association are outside the competence of Committee and that the Committee is not competent to deal with political matters, the HKSAR Government considers that the Committee should put an end to the examination of the complaint, which is purely political in character.

C. The Committee’s conclusions

1. 156. The Committee observes that the complainants, the ITUC and the ITF, refer to the following sets of allegations: (1) heavy police repression during the anti-extradition protests in 2019 and the sentencing of Mr Lee, the General Secretary of the HKCTU, to 14 months of imprisonment in connection with organizing and participating in assemblies demanding the withdrawal of the extradition bill and universal suffrage in 2019; (2) the adoption of the National Security Law in July 2020 constitutes an unprecedented crackdown on civil liberties; (3) the arrest, in January 2021, of pro-democracy activists and politicians, including Carol Ng, Chairperson of the HKCTU and two other trade union leaders, in connection with political party primary polls held in 2020 and the subsequent charges of conspiracy to commit subversion under the new National Security Law; (4) the ban on public gatherings introduced by the Prevention and Control of Disease (Prohibition on Group Gatherings) Regulation in March 2020, adopted without prior consultations; and (5) the arrest, conviction of and suspended sentence imposed on Mr Lee Cheuk Yan, the General Secretary of the HKCTU, for having organized a demonstration during Labour Day on 1 May 2020, in violation of the Regulation, to protest against the Regulation and to call for further anti-Covid-19 assistance measures.
2. 157. The Committee notes the HKSAR Government’s view that this case involves purely political considerations and thus is outside of the Committee’s mandate. The Committee recalls that it is not competent to consider purely political allegations; it can, however, consider measures of a political character taken by governments in so far as these may affect the exercise of trade union rights. The Committee observes that the allegations outlined above relate to civil liberties and recalls that on many occasions, it has emphasized the importance of the principle affirmed in 1970 by the International Labour Conference in its resolution concerning trade union rights and their relation to civil liberties, which recognizes that “the rights conferred upon workers’ and employers’ organizations must be based on respect for those civil liberties, which have been enunciated in particular in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights, and that the absence of these civil liberties removes all meaning from the concept of trade union rights”. Furthermore, for the contribution of trade unions and employers organizations to be properly useful and credible, they must be able to carry out their activities in a climate of freedom and security. This implies that, in so far as they may consider that they do not have the basic freedom to fulfil their mission directly, trade unions and employers organizations would be justified in demanding that these freedoms and the right to exercise them be recognized and that these demands be considered as coming within the scope of legitimate trade union activities [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 24, 68 and 75]. In the light of the above, the Committee will pursue its examination of the case.

Alleged police repression during the anti-extradition protests in 2019 and the arrest and sentencing of the HKCTU General Secretary

1. 158. Regarding the alleged heavy police repression during the anti-extradition protests in 2019, the Committee takes due note of the HKSAR Government’s detailed observations and in particular the Government’s indication that the level of violence and damage caused by the public protests was alarming and the police had a statutory duty to safeguard public order and public safety. The HKSAR Government indicates, in particular, that since June 2019, a series of violent and illegal acts broke out in Hong Kong. Rioters used weapons to launch attacks against police and public, blocked the roads and vandalized shops, metro stations and other public facilities and properties, posing unprecedented damage to the public safety and public order. The police seized great quantities of explosives, firearms and ammunition in connection with the riotous acts. Thousands of injuries and one death relating to mass gathering incidents were reported. The HKSAR Government also points out that the spate of violent and illegal acts have caused significant disruptions to inbound tourism and consumption-related economic activities. It further considers that the allegation of heavy repression by the police during the protests in 2019 is far from true and explains that the police have stringent guidelines on the use of force that are consistent with international human rights norms and standards. Police officers may use minimum force as appropriate only when such force is necessary and there are no other means to accomplish lawful duties. The HKSAR Government indicates that a holistic review of the public order events from June 2019 to March 2020 and a comprehensive record of the relevant facts are outlined in the Thematic Study conducted by the Independent Police Complaints Council (IPCC) published on 15 May 2020. Through rigorously reviewing and cross-checking information obtained from different sources, the IPCC’s report seeks to help the public to ascertain the relevant facts. The HKSAR Government points out that civil liberties, freedom of association, the right to organize as well as labour rights and benefits in the HKSAR are improving and that trade union rights as well as the right to peaceful assembly are fully protected by law.
2. 159. While taking due note of the information provided by the HKSAR Government, the Committee wishes to recall that the right to organize and to participate in public meetings, demonstrations and processions constitutes an important aspect of trade union rights. It recalls in this respect that the authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entailed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace [see Compilation, para. 217]. In this respect, while duly noting the information provided by the HKSAR Government that the IPCC carried out a holistic review of the public order events in 2019 and 2020 and that the allegations of heavy repression by the police were far from true, the Committee further observes from publicly available information that the foreign expert panel consisting of former police watchdogs convened by the IPCC to advise in the investigation resigned from its role stating that they “ultimately concluded that a crucial shortfall was evident in the powers, capacity and independent investigative capability of IPCC”. In view of the differing versions concerning the conduct of the demonstrations between the Government and the complainants and bearing in mind that the subject of this complaint concerns those demonstrations in which the trade unionists were involved and which are more fully described below when considering the relevant judicial decisions, the Committee requests the Government to ensure that trade unionists can engage in their activities in a climate free of violence and intimidation and within the framework of a system that guarantees the effective respect of the civil liberties of workers, employers and their organizations.
3. 160. The Committee further notes that Mr Lee was sentenced to 14 months of imprisonment for a number of offences against public order under the Public Order Ordinance in connection with organizing and participating in assemblies demanding the withdrawal of the extradition bill and universal suffrage in 2019. The Committee notes in this respect two decisions of the district court transmitted by the complainants and the Government. The Committee notes from the decision of 1 April 2021 that Mr Lee was found guilty of organizing and participating in an unauthorized event on 18 August 2019. It further notes from the decision dated 16 April 2021 that he was sentenced to six months of imprisonment for having participated in an unauthorized assembly on 31 August 2019. The Committee observes from both decisions that while both events were unauthorized, they were peaceful. It further observes from the 1 April 2021 decision that the judge considers that:
   • … it cannot be right that to arrest and prosecute is disproportionate in this case because no actual violence broke out. That would give the law no teeth and make a mockery of it. It cannot be right for an offender to argue that although his act was unauthorised, (unauthorised because the legitimate aim behind it is public order) but because it was ultimately peaceful and there was no violence he should not be arrested, prosecuted or convicted.
4. 161. The Committee recalls that freedom of assembly and freedom of opinion and expression are a sine qua non for the exercise of freedom of association [see Compilation, para. 205]. The Committee recalls that the arrest and sentencing of trade unionists to long periods of imprisonment on grounds of the “disturbance of public order”, in view of the general nature of the charges, might make it possible to repress activities of a trade union nature [see Compilation, para. 157]. It therefore urges the Government to take all appropriate measures to ensure that Mr Lee is not imprisoned for having participated in a peaceful demonstration defending workers’ interests.

Adoption of the National Security Law and arrest and detention of trade union leaders

1. 162. Regarding the allegation that the adoption of the National Security Law in 2020 constitutes an unprecedented crackdown on civil liberties, the Committee notes that the complainants refer to the ITUC observations on the application of Convention No. 87 in the HKSAR submitted to the CEACR in 2020. The Committee notes the following allegations made by the ITUC: (i) the law was passed just weeks after it was first announced, bypassing Hong Kong’s local legislature; (ii) the law is dangerously vague and broad and virtually anything could be deemed a threat to “national security” under its provisions; (iii) under the law “secession”, “subversion”, “terrorism” and “collusion with foreign forces” incur maximum penalties of life imprisonment; (iv) authorities have at their disposal a broad range of powers with absolutely no checks and balances to ensure the rule of law, respect for fundamental rights and due process and suspects can be removed to mainland China, handled within the mainland’s criminal justice system and tried under mainland law; (v) although the law includes a general guarantee to respect human rights, other provisions of the law could override these protections; (vi) article 62 provides the law with a prevailing status to override all other local laws of Hong Kong; and (vii) article 29 of the law poses threats to the right of trade unions in Hong Kong to freely associate and pursue solidarity activities with international organizations as it criminalizes “directly or indirectly receiving instructions, control, funding or other kinds of support from a foreign country or an institution” to commit certain acts with a view to, inter alia, “seriously disrupting the formulation and implementation of laws or policies by the Government of the Hong Kong Special Administrative Region or by the Central People’s Government, which is likely to cause serious consequences”.
2. 163. The Committee notes the HKSAR Government’s indication that the situation since June 2019 had evolved to such a state that the Central Authorities had no alternative but to step in and take action, with the HKSAR Government having failed for the past 23 years to enact its national security laws as required by Article 23 of the Basic Law to safeguard national security. The Government further indicates that: (i) different countries have their own national security laws and this law was no different; (ii) before adopting the law, the Standing Committee of the National People’s Congress had, through different channels, gauged the views of the HKSAR Government and various sectors of the community in Hong Kong; (iii) the establishment of the mechanism for safeguarding national security in the HKSAR would not undermine or replace the HKSAR’s existing legal system, and the judicial system continued to be protected by the Basic Law; and (iv) article 4 of the law mandated that human rights shall be respected and protected in safeguarding national security in the HKSAR, and that the rights and freedoms enjoyed by the HKSAR residents (including the right to freedom of association and to form and join trade unions under article 27 of the Basic Law of the HKSAR and Article 8 of the International Covenant on Economic, Social and Cultural Rights and Article 22 of the International Covenant on Civil and Political Rights as applied to Hong Kong) shall be protected in accordance with the law.
3. 164. While taking due note of the above, the Committee notes with concern the complainants’ allegation that pro-democracy activists and politicians, including three trade union leaders – Ms Carol Ng, Chairperson of the HKCTU, Ms Winnie Yu, Chairperson of the HAEA and Mr Cyrus Lau, chairperson of the Nurses Trade Union, were arrested in January 2021 in connection with political party primary polls held in 2020 and that on 28 February 2021, charges of conspiracy to commit subversion under the new National Security Law were brought against Ms Carol Ng and Ms Winnie Yu and others, while Mr Cyrus Lau is still under investigation. According to the complainants, those charged face life in prison, if convicted. The complainants explain that the three trade union leaders took part in the primary polls with the support of their trade unions and as part of the trade unions activities to participate in political party activities to advance the economic and social interests of workers they represent. Ms Carol Ng was representing the Labour Party that was formed in 2011 by the HKCTU. The campaign platform expressed the socio-economic concerns facing workers and their members. The Committee notes the HKSAR Government’s indication that as the legal proceedings in the HKSAR are still underway it will abstain from commenting on these cases except for pointing out that the matters involved are not labour issues, but rather suspected attempts of conspiring to obtain the majority of seats in the Legislative Council through manipulation, forcing the resignation of the Chief Executive, bringing the HKSAR Government to a complete standstill, as well as seeking to paralyze the Government and seriously interfere in, disrupt and undermine the performance of government duties and functions, and compelling the Central People’s Government and the HKSAR Government.
4. 165. As regards the National Security Law and its alleged impact on freedom of association, the Committee recalls that in exercising freedom of association rights, workers and their organizations should respect the law of the land, which in turn should respect the principles of freedom of association [see Compilation, para 66]. Thus, workers’ and employers’ organizations should have the right to organize their activities in full freedom and to formulate their programmes with a view to defending the occupational interests of their members, while respecting the law of the land. The Committee considers in this respect that workers should enjoy the right to peaceful demonstration to defend their occupational interests and that protests are protected by the principles of freedom of association only when such activities are organized by trade union organizations or can be considered as legitimate trade union activities as covered by Article 3 of Convention No. 87 [see Compilation, paras 208 and 210]. Furthermore, the Committee reaffirms the principle expressed by the International Labour Conference in the resolution concerning the independence of the trade union movement that governments should not attempt to transform the trade union movement into an instrument for the pursuance of political aims, nor should they attempt to interfere with the normal functions of a trade union movement because of its freely established relationship with a political party [see Compilation, para. 724]. In turn, the authorities should refrain from any interference which would restrict freedom of association and assembly or impede the lawful exercise thereof, provided that the exercise of these rights does not cause a serious and imminent threat to public order. The Committee also recalls that legislation prohibiting the acceptance by a national trade union of financial assistance from an international organization of workers to which it is affiliated infringes the principles concerning the right to affiliate with international organizations of workers. Trade unions and employers organizations should not be required to obtain prior authorization to receive international financial assistance in their trade union or entrepreneurial activities [see Compilation, paras 1046 and 1047]. The Committee expects that the Government will ensure that the National Security Law does not apply to normal trade union and employer organization interactions and activities, including as regards their relations with international organizations of employers and workers. The Committee requests the Government, in consultation with the social partners, to monitor and provide information on the impact that the Law has already had and may continue to have on the exercise of freedom of association rights to the CEACR, to the attention of which it draws the legislative aspects of this case.
5. 166. As regards the specific charges brought against the two trade union leaders Ms Carol Ng and Ms Winnie Yu, the Committee recalls that for the contribution of trade unions and employers’ organizations to be properly useful and credible, they must be able to carry out their activities in a climate of freedom and security. This implies that, insofar as they may consider that they do not have the basic freedom to fulfil their mission directly, trade unions and employers’ organizations would be justified in demanding that these freedoms and the right to exercise them be recognized and that these demands be considered as coming within the scope of legitimate trade union activities [see Compilation para. 75]. The Committee further recalls that the detention of trade unionists for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular. It is not possible for a stable industrial relations system to function harmoniously in the country as long as trade unionists are subject to arrests and detentions. While persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, the arrest of, and criminal charges brought against, trade unionists may only be based on legal requirements that in themselves do not infringe the principles of freedom of association [see Compilation, paras 123, 127 and 133].
6. 167. In the particular circumstances of this case, the Committee notes that both the response of the HKSAR Government and the information provided by the complainant concur in that Ms Carol Ng, Ms Winnie Yu and Mr Cyrus Lau are being investigated and/or prosecuted for their engagement in a political party primary process. While the Committee further observes that their description of this engagement differs and the Government specifically states that they are suspected of conspiring to obtain the majority of seats in the Legislative Council through manipulation, forcing the resignation of the Chief Executive and bringing the HKSAR Government to a complete standstill, the Committee trusts that the courts in their application of the law will take into account, as recalled above, that governments should not attempt to interfere with the normal functions of a trade union movement.
7. 168. With respect to the alleged preventive detention of the two trade union leaders Ms Carol Ng and Ms Winnie Yu, the Committee recalls that the preventive detention of leaders of workers’ and employers’ organizations for activities connected with the exercise of their rights is contrary to the principles of freedom of association [see Compilation, para. 137]. Given the length of their detention awaiting trial and the absence of any indication that their liberty would create a public danger, the Committee requests the Government, should they still be held in preventive detention, to take measures to ensure that they may be released pending trial.
8. 169. Noting the complainants’ indication that the case of Ms Carol Ng and Ms Winnie Yu was adjourned to 31 May 2021, the Committee requests the Government to provide full and detailed information on the outcome, and bearing in mind the allegations, on the guarantees of due process, as well as to transmit copies of relevant court judgments. The Committee further requests the Government to provide information on the situation of Mr Cyrus Lau who was still under investigation at the time of the lodging of the present complaint.

Ban on public gatherings introduced by the Prevention and Control of Disease (Prohibition on Group Gatherings) Regulation and arrest of a union leader

1. 170. The Committee further notes the complainant’s allegations that the ban on public gatherings introduced by the Prevention and Control of Disease (Prohibition on Group Gatherings) Regulation, which was adopted in March 2020 without prior consultations, violates freedom of association rights. The Committee notes that under the Regulation (Made by the Chief Executive in Council under section 8 of the Prevention and Control of Disease Ordinance), which came into operation on 29 March 2020:
   • a group gathering of more than four people is prohibited at a public space during a specified period;
   • the specified period may be determined by the Secretary for Food and Health in order to prevent, protect against, delay or otherwise control the incidence or transmission of the specified disease and that the specified period may not exceed 14 days;
   • if a prohibited group gathering takes place, a person who organizes, participates or allows the gathering commits an offence and is liable on conviction to a fine at level 4 and imprisonment for six months;
   • an authorized officer may disperse a gathering in a public place if the officer reasonably believes that the gathering is a prohibited group gathering or the gathering is a dispersible gathering (i.e. if the distance between any participant of a gathering in a public place and any participant of another gathering in the place is less than 1.5 metres, and the total number of participants of the gatherings is more than four, then each of the gatherings is a dispersible gathering). For the purposes of exercising this power, an authorized officer may give any order that the officer reasonably considers necessary or expedient; use any force that is reasonably necessary to disperse a gathering that the officer reasonably believes to be a prohibited group gathering; and enter any public place in which the officer reasonably believes that a prohibited group gathering or a dispersible gathering is taking place; and
   • a person who, without reasonable excuse, refuses or willfully neglects to obey an order given by an authorized officer commits an offence and is liable on conviction to a fine at level 4 and to imprisonment for six months.
2. The Committee notes that the Regulation is set to expire on 30 September 2021.
3. 171. The Committee regrets to note that the Regulation was allegedly adopted without prior consultations. While taking due note that the Regulations were adopted to address the consequences of the current public health emergency, the Committee wishes to recall the importance of the principle affirmed in 1970 by the International Labour Conference in its resolution concerning trade union rights and their relation to civil liberties, which recognizes that “the rights conferred upon workers’ and employers’ organizations must be based on respect for those civil liberties which have been enunciated in particular in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights, and that the absence of these civil liberties removes all meaning from the concept of trade union rights” [see Compilation, para. 68]. In order to ensure full consideration of the fundamental human rights that may be affected by emergency measures, the Committee emphasizes the vital importance that it attaches to social dialogue and tripartite consultation, not only concerning questions of labour law but also in the formulation of public policy on labour, social and economic matters and recalls in this respect that with the necessary limitations of time, the principles governing consultation remain valid during crises that require the taking of urgent measures [see Compilation, paras 1525 and 1527].
4. 172. The Committee further notes that Mr Lee was arrested and convicted for having organized a demonstration against the ban and to call for further Covid-19 assistance measures during Labour Day on 1 May 2020. The Committee notes that according to the complainants, Mr Lee was given a suspended jail sentence of 18 months and a fine of HKD5,000 (US$643). The Committee regrets the alleged penalties imposed for peaceful participation in demonstrations and more particularly for a demonstration on May Day, which represents a traditional form of trade union action for voicing demands of a social and economic nature and considers that the pandemic cannot be used to justify the use of excessive force when dispersing assemblies, nor the imposition of disproportionate penalties. The Committee recalls that the criminal prosecution and conviction to imprisonment of trade union leaders by reason of their trade union activities are not conducive to a harmonious and stable industrial relations climate. No one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike, public meetings or processions, particularly on the occasion of May Day [see Compilation, paras 155 and 156]. The Committee requests the Government to engage with all the social partners concerned in respect of the application of the Regulation in practice.

The Committee’s recommendations

1. 173. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to ensure that trade unionists are able to engage in their activities in a climate free of violence and intimidation and within the framework of a system that guarantees the effective respect of civil liberties.
   • (b) The Committee urges the Government to take all appropriate measures to ensure that Mr Lee is not imprisoned for having participated in a peaceful demonstration defending workers’ interests.
   • (c) The Committee expects that the Government will ensure that the National Security Law will not be applied with respect to normal trade union and employer organization interactions and activities, including as regards their relations with international organizations of employers and workers. The Committee further requests the Government, in consultation with the social partners, to monitor and provide information on the impact that the Law has already had and may continue to have on the exercise of freedom of association rights to the CEACR, to the attention of which it draws the legislative aspects of this case.
   • (d) Noting the complainants’ indication that the case of Ms Carol Ng and Ms Winnie Yu was adjourned to 31 May 2021, the Committee requests the Government to provide full and detailed information on the outcome of the judicial procedure and, bearing in mind the allegations, on guarantees of due process, as well as to transmit copies of the relevant court judgments. Given the length of their detention awaiting trial and the absence of any indication that their liberty would create a public danger, the Committee requests the Government, should they still be held in preventive detention, to take measures to ensure that they may be released pending trial. The Committee further requests the Government to provide information on the situation of Mr Cyrus Lau.
   • (e) The Committee requests the Government to engage with all the social partners concerned in respect of the application of the Prevention and Control of Disease (Prohibition on Group Gatherings) Regulation in practice.