On July 7, the Legislative Council’s Security Panel was briefed on the proposals of the Security Bureau and the Correctional Services Department (CSD) to amend the Prison Rules (Cap 234A). This will be achieved through subsidiary legislation, which requires a context.

The Hong Kong National Security Law (2020) imposes a constitutional responsibility upon the Hong Kong Special Administrative Region to continue to improve the legal system and enhance the national security enforcement mechanisms for safeguarding national security in Hong Kong. This is necessary to prevent, suppress, and punish acts and activities that endanger national security effectively. If the Security Bureau is to stay ahead of the game, it needs to keep its processes under ongoing review.

After all, the Prison Rules have undergone few changes over recent decades, and nobody should be surprised that it has now become necessary to review them in light of changed circumstances.

Although the proposals address some elementary matters, such as prisoners accessing private food and wearing their own clothes, the principal reforms aim to improve the arrangements for outsiders, including lawyers, doctors, and chaplains, to visit persons in custody (PICs), and for inmates to contact outsiders. They will apply to all correctional institutions and all categories of PICs (including convicted offenders and persons awaiting trial). 

The CSD will generally only allow visits if they facilitate the rehabilitation of inmates and their reintegration into society. With this in mind, the proposals have five “key purposes”, involving (a) safeguarding national security; (b) crime prevention; (c) rehabilitation; (d) safeguarding any individual’s safety; and (e) maintaining the security, good order, and discipline of the prison. If there are concerns associated with any of these factors, the CSD can limit or prohibit an ordinary prison visit (or a visit by a chaplain), which is hardly surprising. 

As things stand, legal and religious visits are not covered by the arrangements governing regular visits, and this can be problematic. A chaplain, for example, can visit a prisoner “at all reasonable times”, which lacks specificity. A tightening up of access rights is undoubtedly overdue, as the CSD would be the first to acknowledge from its own hard experiences.

That said, it is reassuring that the proposals have been vetted to ensure compliance with Hong Kong’s human rights obligations.

The need for proper controls of prison visits is also recognized elsewhere. In Australia, Canada, and the United States, for example, authorities are empowered to either prevent individuals from visiting PICs altogether, taking into account concerns over national or prison security, or to impose restrictions on their visits.

The Prison Rules, designed to ensure the proper running of correctional institutions, are of long standing. However, if they are to remain fit for purpose, they require periodic updating, not least in the interests of safeguarding national security. Regardless of whether an inmate is a convicted offender or a detained suspect awaiting trial, similar considerations arise over the integrity of their contacts with outsiders.     

As recent events have demonstrated, the CSD cannot be too careful. After the failure of the insurrection of 2019-20, attempts were made by convicted subversives and others to radicalize the prison population and engender hatred of the authorities.

As the Security Bureau’s briefing paper explained, there have been cases in which “the visiting mechanism was abused by some people using ‘humanitarian relief’ as a pretext to visit”. In reality, their fundamental objective was “influencing persons-in-custody with soft tactics” to incite resistance against the CSD or arouse hatred against the authorities in Beijing and Hong Kong.

After the insurrection, the CSD adopted measures to neutralize attempts by convicted fanatics to politicize its institutions. They included patriotic teaching, psychological counseling, and improved monitoring, and most PICs now have little or no time for political troublemakers. Even serial malcontents like Joshua Wong Chi-fung are understood to have no serious following among their fellow inmates, who are being gradually rehabilitated.

As the Hong Kong Bill of Rights Ordinance (Cap 383) explains, “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” If malign individuals, under the guise of routine prison visits, attempt to negatively influence a PIC or facilitate some unauthorized endeavor, their reform will obviously be imperiled, particularly if there is a national security angle.

The alternative of doing nothing is a nonstarter, and everybody who believes in a properly managed penitentiary system that also protects the community should welcome the reforms

Therefore, the Security Bureau aims to modernize the Prison Rules, with a tightening of the visiting criteria for specific lawyers, doctors, and chaplains. The overall idea is to safeguard national security, prevent crime, and maintain order and discipline among the PICs, all laudable objectives. Anybody believed to have base motives for visiting an inmate will face exclusion (if the courts agree), which is welcome.

In one notorious incident in 2023, for example, a PIC surreptitiously handed over unauthorized articles to his legal adviser during a legal visit for removal from the prison. Both were subsequently convicted of removing items without the CSD’s approval.

Although the amendments will enable CSD officers to restrict visits to inmates by designated lawyers and doctors on grounds of national security, the power is not unlimited. They will have to obtain a magistrate’s warrant, which a PIC will be able to challenge on appeal. The secretary for security, Chris Tang Ping-keung, told legislators that before a warrant could be issued, the magistrate would need to be satisfied that the application was legally justified. 

This mechanism will provide an extra layer of protection, often lacking elsewhere. For example, in New Zealand, New South Wales, and the US, correctional authorities can restrict an inmate’s access to individual legal representatives on security grounds without court approval.

By way of background, the Safeguarding National Security Ordinance (S79) entitles a police officer to make an application to a court if national security might be endangered to restrict an arrested person’s access to a particular legal representative while in police detention. The Security Bureau’s proposals involve amending the Prison Rules to enable a magistrate, on application by a CSD officer, to issue a warrant denying a PIC any such access in three specific circumstances.

They arise if the magistrate has reasonable grounds for believing (a) the PIC’s connection with the legal representative concerned will endanger national security or cause bodily harm to somebody; (b) the PIC has benefited from an offense and their connection with the legal representative will hinder the recovery of the proceeds; or (c) the PIC’s connection with the legal representative will pervert or obstruct the course of public justice.

In other words, the magistrate will only deny access to a particular legal representative or doctor (medical practitioners will be subject to a parallel regime) if there are genuine concerns, which must be evidenced. The triggering circumstances, therefore, are grounded in common sense and are unobjectionable. 

Although the changes also enable the CSD to ban PICs from contacting a specified barrister, solicitor, or someone from the same law firm, this is again subject to judicial oversight, with a magistrate’s warrant being the prerequisite.

If, as the briefing paper explained, prisoners were able to use legal visits to exchange information with “external forces” and “other members of his or her syndicate” to pervert the course of justice, threaten personal safety or endanger national security, there could be “irreversible consequences”, which must be guarded against.

However, the changes will not affect the ability of inmates to access confidential legal advice and consult other lawyers (and doctors) of their choice. This is reassuring, as the Basic Law guarantees residents not only confidential legal advice but also the services of their chosen lawyers (Art 35).

It was undoubtedly with the in-built legal safeguards in mind that one legislator, Regina Ip Lau Suk-yee, who chairs the New People’s Party, called the proposals reasonable and consistent with the need to uphold national security and the Basic Law’s human rights obligations.

Although the proposals also enable the CSD to prohibit a prison visit by a particular chaplain if national security — or any of the other “key purposes” — could be undermined, there is no blanket ban on clerical access. Religious belief is underpinned by the Basic Law (Art 32), and the change will not affect a prisoner’s access to spiritual counseling or services conducted by other approved chaplains or organizations. In other words, the system is aligned to international norms.

Unfortunately, in challenging times, even clerics cannot always be trusted to focus on their core duties, and there is a danger that a few might abuse their ministry. Indeed, other jurisdictions are also alert to this situation and have acted. For example, New Zealand, New South Wales and Western Australia allow their correctional authorities to impose restrictions and conditions on religious visits in the interests of prison discipline, good order, and security.  

The Security Bureau, having ascertained the views of the legislators, intends to finalize the subsidiary legislation expeditiously. Although it will become operational once gazetted, it is subject to negative vetting by the Legislative Council. It will then be open to legislators, for good cause, to make amendments.

Once the proposals are enacted, the Security Bureau says they will “meet the needs of safeguarding national security and modern correctional institution management”, which is reassuring. Indeed, it is often said that safety is no accident, and existing mechanisms cry out for improvement. The alternative of doing nothing is a nonstarter, and everybody who believes in a properly managed penitentiary system that also protects the community should welcome the reforms.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.

The views do not necessarily reflect those of China Daily.