Informe provisional - Informe núm. 401, Marzo 2023

1. 298. The Committee last examined this case (submitted in March 2021) at its March 2022 meeting, when it presented an interim report to the Governing Body [see 397th Report, approved by the Governing Body at its 344th Session, paras 142–220]. 
2. 299. The International Trade Union Confederation (ITUC) sent additional observations and new allegations in a communication dated 31 March 2022 .
3. 300. The Government of China transmitted the observations of the Government of the Hong Kong Special Administrative Region, China (HKSAR) in communications dated June and 30 September 2022.
4. 301. China has declared the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), applicable in the territory of the HKSAR with modifications. It has declared the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), applicable without modifications.

A. Previous examination of the case

1. 302. At its March 2022 meeting, the Committee made the following recommendations [see 397th Report, para. 220]:
   • (a) The Committee once again urges the Government to take all appropriate measures to ensure that Mr Lee Cheuk Yan is not prosecuted and not imprisoned for having exercised legitimate trade union activities and requests the Government to provide information on all measures taken to that end. The Committee further urges the Government to provide detailed information on the remaining charges levelled against Mr Lee and the outcome of all court hearings.
   • (b) Noting the Government’s indication that the case of Ms Carol Ng and Ms Winnie Yu was adjourned to 27 January 2022, the Committee requests the Government to provide full and detailed information on the outcome of the judicial procedure and to transmit copies of the relevant court judgments. The Committee further requests the Government to provide information on the situation of Mr Cyrus Lau and to indicate whether he is still subject to investigation.
   • (c) Noting the complainants’ indication that the hearing of the GUHKST leaders was scheduled for 24 October 2021, the Committee requests the Government to provide full and detailed information on the outcome and transmit copies of the relevant court judgments.
   • (d) The Committee firmly urges the Government to take all necessary measures to ensure in law and in practice the full enjoyment of trade union rights in a climate free of violence, threats and pressure in the HKSAR.
   • (e) The Committee expects the Government to engage with the social partners in respect of any potential new extension of the Regulation on prohibition on group gatherings (Cap. 599G) under the Prevention and Control of Disease Ordinance.

B. The complainants’ additional allegations

1. 303. In its communication dated 31 March 2022, the ITUC indicates that the HKSAR arrested and interrogated four former leaders of the Hong Kong Confederation of Trade Unions (HKCTU), namely the former chairperson, Joe Wong; the former vice-chairperson, Leo Tang; the former treasurer, Chung Chung-fai; and the former general secretary, Mr Lee Cheuk Yan, still in prison for his trade union activities.
2. 304. According to the ITUC, the offices of the HKCTU were raided as well as the homes of some of the former leaders of the trade unions in the HKSAR. The ITUC alleges that the arrests and interrogation were linked to an inquiry by the National Security Department of the Hong Kong Police (the police) to obtain information on the operations, activities, finances, and international affiliation of the former HKCTU. The ITUC considers that these arrests and attempts to use the National Security Law (NSL) to retrospectively criminalize legitimate trade union activities, create an atmosphere of fear and intimidation and are indicative of a rapidly deteriorating human and labour rights situation in the HKSAR.

C. The Government’s reply

1. 305. By its communications dated June and 30 September 2022, the Government of China transmits the reply of the HKSAR Government to the ITUC new allegations and provides its observations on the Committee’s previous recommendations.
2. 306. Regarding the new allegations, the HKSAR Government emphasizes that all actions by the HKSAR law enforcement agencies were taken in strict accordance with the law, prompted by the actions of the individuals or entities concerned, and have nothing to do with their political position, background or profession. The HKSAR Government indicates, in particular, that the police took enforcement action on 31 March 2022 in respect of the HKCTU’s failure to provide the Societies Officer with the information required under sections 15 and 16 of the Societies Act Order (SO). The premises concerned were searched on the basis of a judicial warrant. Several people were questioned by the police but none of them were arrested in connection with this matter. The HKSAR Government explains that there are different regulatory regimes in the HKSAR for companies and trade unions. The HKCTU has been registered as a company under the SO and not as a trade union or trade union federation under the Trade Unions Ordinance (TUO). It is up to an organization to choose to be registered under either the SO or the TUO, provided that the relevant legal requirements are met. However, if an organization chooses to be registered under the SO, it must comply with the obligations under the SO, including providing such information as the Societies Officer may reasonably require for the performance of his or her functions, irrespective of whether its operation is of a trade union nature. The HKSAR Government explains that the right of trade unions to affiliate with foreign or international workers’, employers’ or relevant professional organizations is respected, it does not include foreign political organizations. The HKSAR Government considers in this respect that trade unions should limit the scope of their activities to the professional and trade union fields, and that trade union organizations should not engage in political activities in an abusive manner and go beyond their real functions by promoting essentially political interests. The HKSAR Government disagreed with the ITUC and refutes the allegation that the police “criminalize legitimate trade union activities” or “create an atmosphere of fear or intimidation for the free exercise of labour rights and civil liberties”.
3. 307. With regard to the Committee’s request to ensure that Mr Lee Cheuk Yan is not prosecuted and not imprisoned for having exercised legitimate trade union activities, the HKSAR Government indicates that he was prosecuted in connection with the unauthorized assemblies that took place on: (i) 18 August 2019 (for which he was sentenced to 12 months of imprisonment); (ii) 31 August 2019 (for which he was sentenced to six months of imprisonment, with two months running consecutively with case (i)); (iii) 1 October 2019 (for which he was sentenced to 18 months of imprisonment, with six months running consecutively with case (i)); and (iv) 4 June 2020 (for which he was sentenced to 14 months of imprisonment, running concurrently with cases (i) to (iii)). In total, Mr Lee was sentenced to 20 months of imprisonment. The HKSAR Government indicates that Ms Lee was also prosecuted for breaching the social distancing measures imposed by law in light of the COVID-19 pandemic on 1 May 2020 (for which he was sentenced to 14 days of imprisonment suspended for 18 months). The HKSAR Government indicates that the above unlawful acts had nothing to do with the activities of trade unions nor with defending labour rights. The Government further indicates that Mr Lee was also charged with “Incitement to Subversion”, contrary to articles 22 and 23 of the NSL, and on 14 September 2022, the West Kowloon Magistrates’ Courts committed the case to the court of first instance of the High Court for trial (hearing date is yet to be set). Mr Lee is remanded in custody pending trial.
4. 308. The HKSAR Government provides the following information on the judicial proceedings in cases regarding trade union leaders Ms Carol Ng, Ms Winnie Yu, Mr Cyrus Lau and officers of the General Union of Hong Kong Speech Therapists (GUHKST):
5. 309. As regards the Committee’s request to take all necessary measures to ensure in law and in practice the full enjoyment of trade union rights in a climate free of violence, threats and pressure in the HKSAR, the HKSAR Government reiterates that freedom of association and the right to organize in the HKSAR are unequivocally guaranteed under the Basic Law. Article 27 of the Basic Law stipulates that HKSAR residents “shall have freedom of association, of assembly, of procession and of demonstration; and 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, also guarantees that “[e]veryone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests”. Such rights and freedoms should be respected and protected, yet, according to the HKSAR Government, they are not absolute and may be subject to restrictions provided by law necessary for the protection of national security or public order. The HKSAR Government indicates that some rights and freedoms are not absolute, one must observe the law in force while exercising his/her right to peaceful assembly. The exercise of such rights and freedoms is by no means a reason or excuse for committing illegal acts. Similar to other jurisdictions, the HKSAR has put in place statutory regulation over public meetings and processions. The purpose of such regulation is to facilitate the smooth conduct of lawful and peaceful public meetings and processions in an orderly manner on the one hand, and to protect the rights of other members of the public while ensuring public order and public safety on the other. The police have all along been handling applications for public meetings or processions in strict accordance with the statutory requirements. The police are duty bound to take appropriate actions against illegal acts. Any arrest and prosecution are directed against the criminal acts, and have nothing to do with the political stance, background or occupation of the person(s) concerned. These law enforcement actions in accordance with the law targeting illegal acts should not be regarded as threats of any kind to trade unions and their leaders or members.
6. 310. The HKSAR Government attaches great importance to upholding the right of trade unions to organize activities, and to promote and defend the occupational interests of their members. However, freedom of association and the right to organize are not absolute and may be restricted by law in the interests of national security, public safety, public order and for the protection of the rights and freedoms of others. The HKSAR Government points out that under the TUO, a trade union is any combination the principal objects of which are, under its constitution, the regulation of relations between employees and employers, or between employees and employees, or between employers and employers. There are clear and robust statutory safeguards under the TUO to afford full protection of the rights of employees to form and join trade unions, and the rights of trade unions to formulate and exercise trade union activities. Trade union rights in the HKSAR are strong and intact as ever and have not been jeopardized in any way. The HKSAR Government points out an increase of over 60 per cent in the number of registered trade unions between 31 December 2019 and 31 August 2022, which, in its view, bears testimony to the free exercise of freedoms of association rights in the HKSAR. A registered trade union can become a member of an organization of workers, employers or a relevant professional organization established in a foreign country. Trade unions should ensure that their administration and activities are in compliance with the TUO and their rules, so that the interests of both the trade unions and their members are safeguarded. The primary functions of trade unions are to promote and defend the occupational interests of their members, rather than engaging in activities which are unlawful and inconsistent with the trade unions’ objects or rules. The HKSAR Government further points out that organizations engaging in unlawful activities under the guise of trade unions are simply not bona fide trade unions.
7. 311. In this respect, the HKSAR Government indicates that the GUHKST had been blatantly used for purposes inconsistent with its objects or rules since registration. The Registry of Trade Unions (RTU) of the Labour Department followed due process strictly in the investigation and subsequent cancellation of the GUHKST’s registration. In issuing its cancellation notice, the RTU specifically drew the GUHKST’s attention to its right to appeal under the TUO. The entire process is fair, open and just, with channels for lodging appeals guaranteed. The HKSAR Government further indicates that the Hospital Authority Employees Alliance (HAEA) passed a resolution for dissolution at its general meeting on 24 June 2022 in accordance with its union rules and initiated voluntary dissolution on its own accord. The HAEA enjoyed full autonomy in deciding and proceeding with its dissolution process without any interference from the RTU. The RTU promotes sound trade union management and responsible trade unionism in accordance with the TUO; it has facilitated instead of discouraged the establishment of trade unions. The requirements for applying for registration of a trade union are specified clearly in the TUO, and the RTU is obliged to register all eligible applications. In the event of refusal of any application for registration of a trade union or cancellation of the registration of a trade union, the TUO requires the RTU to inform the applicant/trade union concerned of the ground for refusal or cancellation. The TUO further sets out the channels for appealing against the decisions of the RTU. The registration regime under the TUO is transparent and objective, providing full protection of trade union rights.
8. 312. As regards the NSL, the HKSAR Government re-emphasises that the law was enacted to restore the enjoyment of rights and freedoms that the population was unable to enjoy during the period of serious violence that lasted between June 2019 and early 2020. The HKSAR Government highlights that article 4 of the NSL stipulates that human rights shall be respected and protected in safeguarding national security, while article 5 affirms the adherence to the principle of the rule of law and enforces the law against offences endangering national security. Any measures or enforcement actions taken for safeguarding national security must be in line with the above principles. The HKSAR Government further emphasizes that prompt action must be taken to prevent and supress acts and activities that endanger national security.
9. 313. As to the Prevention and Control of Disease (Prohibition on Gathering) Regulation (Chapter 599G of the Laws of the HKSAR), the HKSAR Government points out that similar to many overseas jurisdictions, with the emergence of the COVID-19 pandemic, restriction on group gatherings in public places is put in place through legislation. This is one of the measures for social distancing, aiming at reducing the risks of transmission of COVID-19 in the community. No political considerations have ever come into play. Enforcement actions against breaches of social distancing measures are based on evidence and in strict accordance with the law. Such enforcement actions have nothing to do with whether the persons concerned are trade unionists. Persons issued with fixed penalty tickets for contravening the social distancing measures may dispute liability for the offence in accordance with the statutory mechanism. From time to time, the HKSAR Government adjusted the restriction in relation to group gatherings taking account of the latest developments of the pandemic and has taken all reasonably practicable steps to communicate to the public and stakeholders the justifications for the latest measures in a timely and transparent manner. The HKSAR Government considers that under the overarching principles of 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. The HKSAR Government therefore considers that the requests for dropping the charges against certain defendants, who only so happened to be trade unionists, and unconditionally releasing them are unfounded. The HKSAR will continue to handle every case in a fair, just and impartial manner in accordance with the law.
10. 314. The HKSAR Government concludes by indicating that it will continue to progressively improve labour rights and benefits in the light of overall socio-economic development through tripartite consultations, taking into account the interests of employees and the affordability of employers.

D. The Committee’s conclusions

1. 315. The Committee recalls that this case involves the allegations of intimidation and harassment of workers in the context of public protests in 2019, a 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.
2. 316. The Committee recalls from the previous examination of the case that Mr Lee Cheuk Yan, the General Secretary of the HKCTU and the Chairperson of the Hong Kong Alliance, was sentenced to a total of 20 months’ imprisonment under the Public Order Ordinance in connection with organizing and participating in unauthorized but peaceful assemblies in August 2019, an assembly in 2020 for breaching the social distancing measures imposed by law in light of the COVID-19 pandemic. The Committee recalled in this respect that freedom of assembly and freedom of opinion and expression were a sine qua non for the exercise of freedom of association [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 205]. It further recalled that 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, para. 156] and 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]. The Committee urged the Government to take all appropriate measures to ensure that Mr Lee was not prosecuted and not imprisoned for having exercised legitimate trade union activities. The Committee notes with concern the Government’s indication that Mr Lee was charged with “Incitement to Subversion” under the NSL and that on 14 September 2022, the West Kowloon Magistrates’ Courts committed the case to the court of first instance of the High Court for trial; that the hearing date was yet to be set and that he remains in custody pending trial. The Committee recalls that it had previously addressed the issue of the NSL and its impact on freedom of association. On that occasion, it expected that the Government would ensure that the NSL did 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 requested the Government, in consultation with the social partners, to monitor and provide information on the impact that the NSL has already had and may continue to have on the exercise of freedom of association rights to the Committee of Experts on the Application of Conventions and Recommendations (CEACR) [see 395th Report, June 2021, para. 165]. The Committee firmly requests the Government, in consultation with the social partners, to monitor and provide information on the impact that the National Security Law has already had and may continue to have on the exercise of freedom of association rights, so that this Committee has available to it all necessary information to examine the impact of this legislation in practice. The Committee regrets that no further information has been provided by the Government regarding the charges against Mr Lee, the date of the court hearing or its outcome. With reference to the considerations above, the Committee firmly urges the Government to take all appropriate measures to ensure that Mr Lee is not prosecuted and not imprisoned for having exercised legitimate trade union activities and requests the Government to provide information on all measures taken to that end. The Committee further urges the Government to provide detailed information on the remaining charges levelled against Mr Lee and the outcome of the court hearings.
3. 317. The Committee notes the most recent ITUC allegations of arrest and interrogation of four former leaders of the HKCTU, namely Messrs Joe Wong, Leo Tang, Chung Chung-fai and Lee Cheuk Yan, as well as about the raid of the HKCTU offices and homes of its leaders. The Committee notes the Government’s reply thereon and its indication that while several people were questioned by the police on 31 March 2022 in respect of the HKCTU’s failure to provide the Societies Officer with the information required under sections 15 and 16 of the SO, none of them were arrested. The Committee requests the Government to indicate whether any of the mentioned trade unionists were currently under investigation. Observing that Mr Lee is serving his prison sentence, the Committee requests the Government to indicate whether he is under additional investigation in connection with the requirements of the SO.
4. 318. The Committee further recalls that Ms Carol Ng, ex-chairperson of the HKCTU, Ms Winnie Yu, ex-chairperson of the HAEA, and Mr Cyrus Lau, Chairperson of the Nurses Trade Union, along with other activists, 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 NSL were brought against Ms Carol Ng and Ms Winnie Yu and others, while Mr Cyrus Lau was still under investigation. The Committee notes the Government’s indication that on 1 June 2022, Ms Ng pleaded guilty before the magistrate, who committed her to the court of first instance for sentencing, that Ms Ng remained in custody pending sentence and that the court of first instance was to hold a hearing on 3 November 2022. The Committee further notes that according to the Government, on 1 June 2022, Ms Yu pleaded not guilty before the magistrate, who committed her to the court of first instance for trial, that Ms Yu remained in custody pending trial and that the court of first instance was to hold a hearing on 8 November 2022. Observing with regret that the Government provides no information as to whether the hearing took place and with reference to its previous examination of the case, the Committee once again 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 the detention awaiting trial and recalling that justice delayed is justice denied [see Compilation, para. 170], the Committee requests the Government, should Ms Yu still be held in preventive detention, to take measures to ensure that she is released pending trial. If the hearing took place, the Committee urges the Government to provide information on the outcome of the hearings in the cases of Ms Ng and Ms Yu. It further requests the Government to transmit copies of the relevant court judgments. While noting that the Government’s indication that Mr Cyrus Lau was required to report to the police on 16 September 2022 and that he was not facing any charges on the day of the Government’s September 2022 communication, the Committee requests the Government to confirm that Mr Cyrus Lau is no longer under investigation.
5. 319. The Committee notes the Government’s indication that leaders of the GUHKST – Lai Man Ling, Yeung Yat Yee Melody, Ng Hau Yi Sidney, Chan Yuen Sum Samuel and Fong Tsz Ho – were charged on 23 July 2021 with the “Conspiracy to Print, Publish, Distribute, Display and/or Reproduce Seditious Publication”. All five were convicted by the district court on 7 September 2022 and were sentenced to imprisonment for 19 months on 10 September 2022. The Committee recalls that the publications in questions are children’s books aimed at explaining to children the 2019 social events in the HKSAR. The Committee notes from the court decisions transmitted by the Government which examined whether these books had a seditious intention. The Committee notes that while the plot of the books is not recorded in the decision, the judge considered “that the publishers of the books clearly refuse[d] to recognize that PRC has resumed exercising sovereignty over HKSAR, nor [did] they recognize the new constitutional order in the Region, and lead the children to think that what the authorities both in PRC and HKSAR have done is wrong and illegitimate”. The Committee notes that while the defendants agreed that “the comments made in the books were mere criticism of the Government, or criticism of a political nature, even if some comments [were] vigorously and strongly worded”, they argued that they expressed “disapprobation of actions of the Government of HKSAR without exciting or causing public disorders by acts of violence”. They further argued that the “offence charge was unconstitutional on the ground that it was inconsistent with their freedom of expression, speech and publication, and/or freedom to engage in literary and artistic creation and other cultural activities guaranteed by the Basic Law and the Hong Kong Bill of Rights Ordinance”. The Committee recalls that the remits of courts should be determined by national legislation. The Committee’s role is confined to ensuring that any decisions taken are in line with the principles of freedom of association [see Compilation, para. 43]. The Committee once again emphasizes in this respect 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]. The Committee recalls that the resolution “places a special emphasis on the following civil liberties, as defined in the Universal Declaration of Human Rights, which are essential for the normal exercise of trade union rights: (a) the right to freedom and security of person and freedom from arbitrary arrest and detention; (b) freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers; (c) freedom of assembly; (d) the right to a fair trial by an independent and impartial tribunal; (e) the right to protection of the property of trade union organizations”. The Committee once again expresses the firm expectation that the Government will ensure full respect of the above.
6. 320. The Committee recalls that it had firmly urged the Government to take all necessary measures to ensure in law and in practice the full enjoyment of trade union rights in a climate free of violence, threats and pressure in the HKSAR. While taking due note of the Government’s detailed information on the legislative framework, which, in the Governments’ view, guarantees freedom of association and the right to organize in the HKSAR, the Committee once again deeply regrets to note that in spite of its request, no consultations appear to have taken place with the social partners on the negative effects that the application of the NSL is alleged to have on freedom of association and trade union rights in practice. The Committee therefore once again firmly urges the Government to take all necessary measures to ensure in law and in practice the full enjoyment of trade union rights in a climate free of violence, threats and pressure in the HKSAR and to provide detailed information on all steps taken to that end. The Committee also firmly urges the Government to provide the CEACR, to which it refers the legislative aspects of this case, with detailed information on any legislative developments.
7. 321. Further in this connection, the Committee recalls that it expected the Government to engage with the social partners in respect of any potential new extension of the Regulation on prohibition on group gatherings (Cap. 599G) under the Prevention and Control of Disease Ordinance. While noting the HKSAR Government’s indication that from time to time, the Government adjusted the restriction in relation to group gatherings taking into account the latest developments of the pandemic and has taken all reasonably practicable steps to communicate to the public and stakeholders the justifications for the latest measures in a timely and transparent manner, the Committee observes that nothing in the Government’s reply would indicate that it had engaged with the social partners in respect of amendments or extension of the Regulation. The Committee reiterates its previous request and expects the Government to provide information on the engagement with the social partners in respect of any potential new extension of the Regulation on prohibition on group gatherings (Cap. 599G) under the Prevention and Control of Disease Ordinance.