對香港懲教院所使用單獨囚禁的分析和建議

民權法律中心

Introduction

Solitary confinement is an outdated and counterproductive practice that directly is causing Hong Kong’s social and economic development to slow down. It poses serious health risks to all prisoners who are subject to it, goes against any modern notion of human rights, flies in the face of research on how to most effectively administrate a prison, and contributes to severe social and economic losses, as it is harmful to prisoners’ rehabilitation and increases recidivism. As such, Society for Community Organization as instigated this report to investigate the issue related to the practice of solitary confinement and how Hong Kong from a policy standpoint should react to this information. This has culminated in this report and a call for a reformation of the current prison rules. We believe that this is an absolutely necessary step in assuring that Hong Kong maintains its current position as one of the leading territories in Asia in terms of social and economic development.

1.1 What is Solitary Confinement and how is it used in Hong Kong?

Solitary confinement refers to the act of placing a prisoner in a special housing unit, wherein the prisoner is segregated from other prisoners. In this small cell, the prisoner will be isolated for 22 or 23 hours a day – having only one hour of exercise outside the cell. The official grounds for solitary confinement in Hong Kong are broadly explained one of three reasons (for a more detailed analysis of the specific prison rules; please refer to Appendix 2):

1) Punishment: Isolation functions as a punishment for a prisoner’s misconduct following a disciplinary hearing1 via Prison Rule 63(B). This type of isolation cannot extend beyond 28 days (CSD, 2015).

2) Management: Isolation can also easily be used in the overall management of the prison, if it is seen as “desirable, for the maintenance of good order or discipline or in the interests of a prisoner” by the prison administration (CSD, 2015). This is 1 It should noted that although a disciplinary hearing is require, then disciplinary hearings does not include a impartial and independent third party. 5 usually imposed through an internal process governed by the administration or through a disciplinary hearing1 via Prison Rule 58, 68 or 68B (CSD, 2015). However, this type of isolation does not include any type of time limitation.

3) Protection: Isolation can also be used to protect prisoners such as sex offenders, police informants or prisoners who may be harmed by other prisoners. This is operated via Prison Rule 68A or 68B and also does not include any time limitation (CSD, 2015).

Conclusively, the prison rules on solitary confinement are extremely vague and underregulated – and there is no independent third-party reviewing the details of any cases. Due to the current structure of the prison rules, it is today way too easy for the prison administration to abuse and misuse solitary confinement. This has resulted in solitary confinement not only being grossly overused, but also abused and misused to punish prisoners in a destructive and unjust fashion. Even prisoners who make reasonable complaints about prison conditions or human rights issues are subject to being labelled as “troublemakers”, and in turn solitary confined (see case 1). If favourable, then it is far too easy for prison administration to completely avoid any type of disciplinary hearing or review in relation to a sentence of solitary confinement despite how harsh a punishment it is. This is possible via Rule 68B, which leaves the prisoner in solitary confinement without any real possibilities to appeal the cruel punishment.

As illustrated in Appendix 1, solitary confinement is a widespread practice in Hong Kong’s prisons. The estimated average number of solitary confinement cases in Hong Kong is at about 8.000 cases every year from 2000-2015. However, this is does not account for the total number, as the Correctional Services Department does not maintain data on solitary confinement under Rule 58, Rule 68 and Rule 68A of the prison rules. In reality, the real number of solitary confinement cases is likely to be well beyond 8.000 every year. On average this means that there is at least one person sent to solitary confinement once every hour of the day – 365 days a year.

The lack of data on solitary confinement is another serious concern to us, as it severely reduces transparency and increases the risks of abuse of solitary confinement. It adds to the notion that solitary confinement still is a rather unregulated and undocumented type of punishment that easily can be used in a corrupt or an unjustified manner. There is still a far too great number of people who remain in far too long periods confined solitarily. As for example in 2014, where about 500 cases of people in solitary confinement 6 lasted for a duration of between 72 hours and 4 months. This is beyond acceptable and does not benefit anyone. However, the duration of time in which people are subject to solitary confinement is yet another area that still remains undocumented and hidden from public eye.