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Judicial CP - January 1989
New York Times, 25 January 1989
Hong Kong Journal
A Victorian Relic, Flogging, Arouses New DistasteBy Barbara Basler
Special to the New York Times
HONG KONG, Jan. 24 – Eight times last year, petty criminals were led into a bare room in the old Lai Chi Kok Prison where, stripped naked from the waist down, their hands and feet bound, they were forced to bend over a thick leather bar as they were beaten by a prison guard using a long rattan cane.
Despite continuing protests from human-rights groups, the British Colonial Government of Hong Kong still permits corporal punishment for male offenders for a number of crimes, and last year young men 13 to 27 years old were taken to Lai Chi Kok and flogged.
A prison official acknowledged that those beaten often scream and sometimes bleed.
"There is a medical practitioner present at the floggings," he said. "And if the prisoner faints or is not healthy enough to take all the strokes, he can order the punishment postponed."
Ban Urged by Rights Group
The number of strokes cannot exceed 18 for adults and 6 for children under 14 years old. Children are permitted to have their parents present at the caning, or flogging as it is commonly called here.
The punishment is permitted for a number of crimes ranging from drug possession to robbery or assault, and can be ordered in lieu of or in addition to prison. In one important instance – possession of a weapon – the law mandates that an offender be given a minimum sentence of six months in prison or a flogging. Magistrates, the judicial officials who preside over the lower criminal courts where flogging is ordered, have complained that to spare a young offender prison time, they must order him whipped.
In the last few years the number of people flogged has been as high as 21. But in 1987 it dropped to one, so rights groups were disturbed by the increase to eight last year.
In November, the United Nations Human Rights Committee asserted that Hong Kong's use of flogging was in violation of the International Covenant on Civil and Political Rights, and urged that it be outlawed. The Hong Kong Government has begun a review of the issue.
'No Need to Change' Laws
But after several similar reviews of the corporal punishment laws in the last few years, Hong Kong "found no need to change them," according to Nancy Law, Principal Assistant Secretary with the Security Branch, which oversees Government legal policy.
No official reason has been given for continuing a punishment that was abandoned in Britain long ago.
While a small but increasingly vocal number of Hong Kong residents have been lobbying for more democracy, for more civil rights, such groups have generally been unconcerned with the issue of corporal punishment. For example, the Bar Association of Hong Kong, which has been advocating legal and political changes that would give the colony a "truly democratic system," has not taken a stand against flogging.
"It's not an issue we are involved with," a bar official said.
Miss Law of the Security Branch said: "We do not have to give a reason for keeping a law in place. We only give explanations when we change a law."
'Cruel and Degrading'
Privately, British officials say that the Chinese, who make up 98 per cent of Hong Kong's population, prefer a sterner justice, and that local laws reflect their preferences. But some British and Chinese lawyers question whether the Government really has a clear mandate for continuing the floggings.
Ian MacCallum, a lawyer and chairman of the human rights group Justice, said his group had been pressing for the abolition of flogging for many years "because it is a cruel and degrading punishment." The Executive Council – a handful of community leaders appointed by the Governor, Sir David Wilson – would have to approve the change.
But Mr. MacCallum said: "The Government's attitude is that there is no great public outcry against flogging, and therefore, most people must favor it. They like to think that it's a majority."
A prominent Hong Kong lawyer, Daniel R. Fung, said there was a "widely held perception among the British establishment that the Chinese prefer some form of authoritarian government – stern but benevolent – and that is what they are giving them."
Too Little Pressure for Change
"I don't say this cynically," he said. "I think they really believe they are giving the people what they want, but without elections, without democracy, they can't really know what the people want."
He said that he did not believe there was a large constituency in favor of flogging, but that without "enormous public pressure for change, the Government assumes the status quo is satisfactory."
Some magistrates have criticized the punishment as cruel and barbaric and have repeatedly asked that it be abolished or made totally discretionary.
"The pressure isn't just coming from outside," a Hong Kong lawyer said.
Is It a Majority View?
Henry Litton, another widely respected lawyer, said that flogging was a "Victorian relic of a bygone age," but he contended that to say the Chinese favor flogging was "too simplistic."
"I think the problem is that certainly the more conservative elements in the Chinese community favor these measures, and they tend to be more vocal, and their views tend to get more attention," he said.
Moreover, the periodic public debate over the question of canings shows that even some British residents support the punishment.
The wife of a British lawyer, for example, said: "If one's property has been seriously damaged or if, God forbid, one's children have been injured or robbed, what's wrong with caning those responsible? I think it's a fine idea."
Gradual Move Toward Revisions
Mr. MacCallum conceded that "the local population of Hong Kong does tend to favor fairly draconian punishments," which, he added, was why the colony still has a death penalty, and why homosexuality is still on the books as an offense punishable by life imprisonment.
But he pointed out that the death penalty is automatically reversed on appeal to the high court in Britain, where the death penalty was abolished in 1968. Moreover, he said, Hong Kong rarely prosecutes homosexuals, "unless it is something really offensive, something, say, involving children," and no one can remember anyone being sentenced to life in prison for homosexuality.
With China preparing to take over the territory in 1997, Mr. MacCallum said, "there is a gradual move toward reforming some of these harsher laws."
Mr. Fung agreed that "a lot of people are going on about judicial house cleaning, saying we ought to eliminate flogging, the death penalty and other hard laws" because the Chinese will certainly use them with more frequency and impunity than the British.
But he said: "Even if you assume the new government will be wonderfully benevolent, that is still no reason for maintaining these controversial punishments. A government ought to lead its people, not pander to them."
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