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Document #2042794
CECC – Congressional-Executive Commission on China (Author)
December 3, 2020
In August 2020, Chinese authorities arrested 12 Hong Kong residents in the South China Sea on allegations of illegal border crossing while they were en route to Taiwan, reportedly to seek asylum. All but one detainee had underlying criminal charges in Hong Kong connected to the ongoing protests in 2019, including one charge based on the new National Security Law that took effect in June 2020.[1] Authorities have been effectively holding the Hong Kong residents incommunicado, denying family visits and genuine legal representation, which raises human rights concerns. In November, near the three-month mark of the detention, Chinese University of Hong Kong students held a protest on campus, calling for democratic reform and showing support for the 12.[2] Hong Kong police later characterized the protest as a violation of the National Security Law, saying that students had used slogans and banners advocating Hong Kong independence.[3]
On August 23, 2020, China’s coast guard intercepted a speed boat in the South China Sea and arrested 12 individuals who were allegedly fleeing from Hong Kong to Taiwan to seek asylum.[4] The Wall Street Journal identified the detainees, reporting that they were held on suspicion of illegal border crossing and that all but one of them were also facing criminal charges in Hong Kong[5]—
|
Name[6] |
Age |
Sex |
Occupation |
Underlying Criminal Offense in Hong Kong |
|
Cheung Chun-fu |
23 |
Male |
Student |
“Linked to a raid that found a gun and bullets” |
|
Cheung Ming-yu |
21 |
Male |
Unemployed |
“Linked to a raid that found a gun and bullets” |
|
Yim Man-him |
22 |
Male |
Student |
“Linked to a raid that found a gun and bullets” |
|
Liu Tsz-man |
18 |
Male |
Student |
“Possessing materials for Molotov cocktails” |
|
Cheng Tsz-ho |
18 |
Male |
Technician |
“Possessing materials for Molotov cocktails” |
|
Tang Kai-yin |
31 |
Male |
Salesperson |
“Possessing materials for Molotov cocktails” |
|
Li Tsz-yin |
30 |
Male |
Construction surveyor |
“Rioting” |
|
Kok Tsz-lun |
19 |
Male |
Student |
“Rioting” |
|
Andy Li |
30 |
Male |
Programmer |
“Foreign collusion under the new National Security Law” |
|
Wong Wai-yin |
30 |
Male |
Engineer |
“Manufacturing explosives” |
|
Hoang Lam Phuc |
17 |
Male |
Student |
“Arson” |
|
Quinn Moon |
33 |
Female |
Job unknown |
Not charged |
The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights provide for freedom of internal movement and “the right to leave any country, including his own, and to return to his country.”[7]
Chinese authorities held the detainees at the Yantian District PSB Detention Center in Shenzhen municipality, Guangdong province, formally arresting them on September 30 for “illegally crossing the border.”[8] The case was transferred to the Yantian People’s Procuratorate on November 27, 2020.[9] Authorities reportedly denied legal counsel visits and pressured lawyers hired by family members to withdraw representation, resulting in at least five withdrawals.[10] While authorities said that the 12 individuals had retained government-appointed lawyers, they refused to disclose information about these lawyers.[11] The government’s response casts doubt on whether the detainees were in fact represented, according to lawyer Ren Quanniu.[12]
Ren, who was retained by Wong Wai-yin’s family, made a request to the PSB detention center to transfer his client to Hong Kong, asserting a jurisdictional objection on grounds that Wong was not a Chinese citizen or a foreigner with legal resident status in China.[13] The detention center officials, however, rejected Ren’s documentation evidencing his role as Wong’s legal representative.[14]
Lu Siwei, another lawyer retained by a detainee’s family, received a notice from the Justice Bureau in Chengdu municipality, Sichuan province, demanding that the law firm he worked at to surrender all of Lu’s case files covering the period beginning in February 2019.[15] Noncompliance could affect Lu’s ability to pass the annual examinations required by Chinese law,[16] and authorities reportedly have pretextually used this mechanism to suspend or revoke lawyers’ licenses to practice law.[17] Chinese legal scholar Teng Biao surmised that authorities could be using the demand for production to intimidate Lu or to learn about his strategy and evidence.[18]
Chinese authorities’ denial of legal representation and the use of intimidation tactics on the detainees’ lawyers violate the Basic Principles on the Role of Lawyers, which provides that—
(16) Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.[19]
Three of the twelve detainees have existing health concerns, but whether they are receiving adequate medical treatment is unknown, due to authorities’ denial of family and legal counsel visits.[20] Available sources confirmed that Tang Kai-yin has asthma and a skin condition, and Quinn Moon suffers from depression that requires regular medication.[21] The mother of Li Tsz-yin reported that she was unable to deliver medication to his son and further complained that the Hong Kong government failed to respond to the families’ request that their detained relatives be provided necessary medication.[22] Under the United Nations Standard Minimum Rules for the Treatment of Prisoners, detainees are entitled to communication with family and to adequate medical treatment.[23]
On November 19, 2020, families said they received letters from the detainees, all of whom emphasized that they were not beaten or tortured, and urged them not to cause trouble or accept media interviews.[24] While families recognized the detainees’ handwriting, they highlighted similarities in the contents of the letters and noted the use of simplified Chinese characters, a writing system that is not customarily used in Hong Kong.[25]
Against the backdrop of large-scale protests in 2019,[26] the arrest of these 12 individuals renewed concerns about Hong Kong residents being subject to mainland China’s criminal justice system,[27] especially in light of speculation that Hong Kong law enforcement had facilitated the arrests.[28] The newspaper Apple Daily reported that two aircraft operated by the Hong Kong Government Flying Service had been surveilling the subject speedboat on the day of the arrest, and democracy advocate Joshua Wong said that relevant flight records revealed the code name “P-OPS,” which he said indicates “police operations.”[29] The detainees’ families demanded the disclosure of the nature of the operation that day, but the Hong Kong government has not provided any response.[30] Chief Executive Carrie Lam denied any involvement by the Hong Kong Police Force on the day of the arrest.[31]
On October 10, 2020, Hong Kong police arrested four men and five women on the charge of “assisting offenders,”[32] for allegedly having helped the 12 individuals leave Hong Kong.[33] Among those arrested were Christina Tang Yuen-ching and Chung Suet-ying,[34] who previously had worked for former pro-democracy legislators.[35] The concern group “save12hkyouths” said on Twitter that information leading to the arrest of the nine people could have been obtained from the 12 detainees through torture during “secret interrogations.”[36]
In response to the arrests, United States Secretary of State Mike Pompeo issued a statement on September 11, 2020, expressing deep concern about the detainees being denied the right to counsel of their choosing; he further called on Chinese authorities to ensure due process.[37] On the following day, PRC Ministry of Foreign Affairs spokesperson Hua Chunying said on Twitter that the 12 individuals were “not democratic activists, but elements attempting to separate [Hong Kong] from China.”[38]
In the United Kingdom, more than 60 members of Parliament issued a letter recognizing that four of the detainees were holders of British National Overseas (BNO) passports and calling on the foreign secretary to urge Hong Kong and Chinese officials to return the detainees to Hong Kong “as a matter of natural justice” in light of due process concerns.[39] The letter further highlighted potential difficulties in offering consular assistance because the Chinese government does not recognize dual nationality.[40]
One of the detainees, Kok Tsz-lun, is a Portuguese passport holder.[41] The Consulate General of Portugal stated that contacts with Chinese officials regarding Kok were underway, noting however, that the Chinese government did not recognize Kok’s passport as evidence of his Portuguese nationality, thereby limiting or excluding consular assistance.[42]
[1] Zhonghua Renmin Gongheguo Xianggang Tebie Xingzhengqu Weihu Guojia Anquan Fa [Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region], passed and effective June 30, 2020.
[2] William Yang, “12 Gang ren qinbi xin zao zhiyi Zhongda biyesheng xiaonei youxing” [Handwritten letters by 12 Hong Kong people called into question, Chinese University of Hong Kong graduates held procession on campus], Deutsche Welle, November 20, 2020;
[3] William Yang, “12 Gang ren qinbi xin zao zhiyi Zhongda biyesheng xiaonei youxing” [Handwritten letters by 12 Hong Kong people called into question, Chinese University of Hong Kong graduates held procession on campus], Deutsche Welle, November 20, 2020;
[4] “Guangdong Haijingju chahuo yiqi feifa yuejing anjian zhuahuo 10 yu ren” [Guangdong Coastguard cracked an illegal border-crossing case and arrested over 10 people], China Daily, August 26, 2020; “Xianggang Bao’anju: Yi jiedao neidi tongbao, 12 ren bei caiqu xingshi qiangzhi cuoshi,” [Hong Kong Security Bureau: Circular from mainland has been received, 12 people have been imposed compulsory criminal measures], The Paper, August 28, 2020; “12 Gang ren song Zhong: Li Yuxuan jiaren fa Yingwen shengming xiang guoji qiuyuan: Tamen xuanze zui weixian de lu shi weiyi xiwang” [12 Hong Kong people sent to China: Andy Li’s family issues English declaration asking international community for help: The most dangerous path that they took was their only hope], Apple Daily, September 18, 2020.
[5] Wenxin Fan and John Lyons, “China Snatched the ‘Hong Kong 12’ Off a Speedboat, Giving Protest Movement New Life,” Wall Street Journal, October 7, 2020. See also Stray Cats Jimusho, “Untitled,” Facebook, September 27, 2020.
[6] Their Chinese names are— Andy Li (李宇軒); Cheung Chun-fu (張俊富); Cheung Ming-yu (張銘裕); Li Tsz-yin (李子賢); Kok Tsz-lun (郭子麟); Cheng Tsz-ho (鄭子豪); Liu Tsz-man (廖子文); Wong Wai-yin (黃偉然); Tang Kai-yin (鄧棨然); Yim Man-him (嚴文謙); Hoang Lam Phuc (黃臨福); Quinn Moon (喬映瑜).
[7] Universal Declaration of Human Rights, adopted and proclaimed by UN General Assembly resolution 217A (III) of December 10, 1948, art. 13; International Covenant on Civil and Political Rights (ICCPR), adopted by UN General Assembly resolution 2200A (XXI) of December 16, 1966, entry into force March 23, 1976, art. 12.
[8] “12 Gangren bei song Zhong jiashu fasheng 5 lushi shouya tuichu” [Families of 12 Hong Kong people sent to China speak out; 5 lawyers withdraw representation under pressure], Deutsche Welle, September 18, 2020; “Shenzhen jianfang yi shexian touyue bianjing zui pibu Li moumou, Huang moumou deng 10 ren” [Shenzhen procuratorate approves arrest of unidentified persons surnamed Li and Huang and 10 others on suspicion of illegally crossing the border], Xinhua, October 1, 2020; Zhonghua Renmin Gongheguo Xing Fa [PRC Criminal Law], passed July 1, 1979, amended and effective November 4, 2017, art. 322.
[9] Ling Yide, “12 Gang ren qiantao; Yantian Gong’anju: Anjian zhencha zhongjie 12 ren yisong jianchayuan qisu” [12 Hong Kong absconders; Yantian Public Security Bureau: Investigation has concluded; 12 people’s case transferred to procuratorate for prosecution], Hong Kong 01, November 27, 2020.
[10] “12 Gangren bei song Zhong jiashu fasheng 5 lushi shouya tuichu” [Families of 12 Hong Kong people sent to China speak out; 5 lawyers withdraw representation under pressure], Deutsche Welle, September 18, 2020.
[11] “Zhongguo dangju ju xiang shi’er beibu Gang ren jiashu pilu guanpai lushi xinxi” [Chinese government refuses to disclose information of government-appointed lawyers to families of the 12 arrested Hong Kong people], Voice of America, November 8, 2020.
[12] Mak Yin-ting, “Gang ren si zhou weneng jian duli lushi guoji he Gang ren faqi lianshu chu song ren hui Gang, bao renquan” [Hong Kong people still unable to meet with independent lawyers after four weeks, international and Hong Kong people initiated joint letter urging to return them to Hong Kong and to protect their human rights], Radio France Internationale, September 19, 2020.
[13] Mak Yin-ting, “Gang ren si zhou weneng jian duli lushi guoji he Gang ren faqi lianshu chu song ren hui Gang, bao renquan” [Hong Kong people still unable to meet with independent lawyers after four weeks, international and Hong Kong people initiated joint letter urging to return them to Hong Kong and to protect their human rights], Radio France Internationale, September 19, 2020.
[14] Mak Yin-ting, “Gang ren si zhou weneng jian duli lushi guoji he Gang ren faqi lianshu chu song ren hui Gang, bao renquan” [Hong Kong people still unable to meet with independent lawyers after four weeks, international and Hong Kong people initiated joint letter urging to return them to Hong Kong and to protect their human rights], Radio France Internationale, September 19, 2020.
[15] “Daili shier Gang ren renquan lushi Lu Siwei bei shencha” [Representative in Hong Kong 12 case, human rights lawyer Lu Siwei under scrutiny], Radio Free Asia, November 4, 2020.
[16] Ministry of Justice, Measures on Managing Lawyers’ Practice of Law [Lushi zhiye guanli banfa], issued July 18, 2008, amended September 18, 2016, effective November 1, 2016, art. 47.
[17] See, e.g., Wen Shan, “‘Shenyuan lushi’ huo bei diaoxiao zhizhao” [“Justice seeking lawyer” may have license revoked], Deutsche Welle, July 20, 2019; China Human Rights Lawyers Group, “Weather the Dark Storm, Persevere for Rule of Law in China—A 2019 New Year’s Message From the China Human Rights Lawyers Group,” China Change, December 31, 2018.[CMS 247159]
[18] Daili shier Gang ren renquan lushi Lu Siwei bei shencha” [Representative in Hong Kong 12 case, human rights lawyer Lu Siwei under scrutiny], Radio Free Asia, November 4, 2020.
[19] Basic Principles on the Role of Lawyers, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, art. 16.
[20] Amnesty International, “12 Hongkongers Formally Arrested in China,” Index: ASA 17/3213/2020 China, October 13, 2020.
[21] “12 Gang ren beikou Shenzhen Jiashu pan zhengfu jinkuai xiezhu anpai hui Gang” [12 Hong Kong people detained in Shenzhen, families hope government will promptly help make arrangements for their return to Hong Kong], Ming Pao, September 12, 2020; Awaits_aqua (@AquaAwaits), "Weiyi Nu beibu renshi Qiao Yangying huanyou yanzhong yiyu xu dingshi fuyao." [The only female detainee Quinn Moon has major depression, needs regular mediation.] Twitter, September 11, 2020.
[22] “12 Gang ren jiashu Zhonglianban qingyuan kusu Zhongqiujie bu kuaile qi zhuanjiao yuebing gei qinren pan zaori tuanju” [12 Hong Kong people’s families petition China Liaison Office, complaining in tears of sad Mid-Autumn Festival, hope to deliver mooncakes to families and to reunite soon], Voice of America, October 1, 2020.
[23] Standard Minimum Rules for the Treatment of Prisoners, adopted by the First UN Congress on the Prevention of Crime and the Treatment of Offenders, Geneva 1955, approved by the Economic and Social Council resolutions 663 C (XXIV) of July 31, 1957 and 2076 (LXII) of May 13, 1977, arts. 22–25, 37.
[24] William Yang, “12 Gang ren qinbi xin zao zhiyi Zhongda biyesheng xiaonei youxing” [Handwritten letters by 12 Hong Kong people called into question, Chinese University of Hong Kong graduates held procession on campus], Deutsche Welle, November 20, 2020; Tang Huiyun, “12 Gang ren bei kouya Shenzhen 100 ri xuesheng zhuzhi shengyuan jiashu pan zaori jie’an” [12 Hong Kong people detained in Shenzhen, students organize support group 100 days into detention, families hope case will conclude soon], Voice of America, December 2, 2020; "China to Charge 12 from Hong Kong Caught Fleeing by Boat," Reuters, November 27, 2020.
[25] William Yang, “12 Gang ren qinbi xin zao zhiyi Zhongda biyesheng xiaonei youxing” [Handwritten letters by 12 Hong Kong people called into question, Chinese University of Hong Kong graduates held procession on campus], Deutsche Welle, November 20, 2020; Tang Huiyun, “12 Gang ren bei kouya Shenzhen 100 ri xuesheng zhuzhi shengyuan jiashu pan zaori jie’an” [12 Hong Kong people detained in Shenzhen, students organize support group 100 days into detention, families hope case will conclude soon], Voice of America, December 2, 2020; "China to Charge 12 from Hong Kong Caught Fleeing by Boat," Reuters, November 27, 2020.
[26] Holmes Chan, “In Pictures: 12,000 Hongkongers March in Protest against ‘Evil’ China Extradition Law, Organisers Say,” Hong Kong Free Press, March 31, 2019;[CMS 250262] Legislative Council of the Hong Kong Special Administrative Region, “Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019,” accessed October 20, 2020, Explanatory Memorandum, para. 1(b);[CMS 249299] Legislative Council of the Hong Kong Special Administrative Region, “Legislative Council Brief: Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019,” SBCR 1/2716/19, March 2019, items 7(b), 13(b), 15(a)(ii), 17.[CMS 249280] See also Hong Kong Bar Association, “A Brief Guide to Issues Arising from the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019,” June 6, 2019;[CMS 249302] Michael C. Davis, “Debate over Hong Kong’s Proposed Extradition Law Devolves into a Scuffle in the Legislative Council,” Washington Post, The Monkey Cage, May 11, 2019.[CMS 249284]
[27] “[Texie] Heixiang weiquan ji: Shi’er Gang ren son Zhong neidi lushi, Xianggang jiashu yu xiezhu zhe binzhou yingjiu” [[Feature] Black box rights defense report: Twelve Hong Kong people sent to China, mainland lawyer, families in Hong Kong, and people offering assistance busy with rescue efforts], Stand News, September 18, 2020; Preetika Rana and Rachel Yeo, “Hong Kong Politician Attacked, as Violent Protests Continue,” Wall Street Journal, November 3, 2019.
[28] Zhen Shuji, “12 Gang ren song Zhong quancheng jun you jingfang kongzhong ‘husong’ Gangfu huangyan bei tibao” [Police were “escorting” 12 Hong Kong people in the air during the entire process of their being sent to the mainland, Hong Kong government’s lie exposed], Radio France Internationale, October 9, 2020.
[29] Zhen Shuji, “12 Gang ren song Zhong quancheng jun you jingfang kongzhong ‘husong’ Gangfu huangyan bei tibao” [Police were “escorting” 12 Hong Kong people in the air during the entire process of their being sent to the mainland, Hong Kong government’s lie exposed], Radio France Internationale, October 9, 2020; “Teshou chongshen ‘12 Gang ren’ an Gang jing mei renhe juese” [CE repeats that Hong Kong police did not have any role in the “12 Hong Kong people” case], Radio Television Hong Kong, October 6, 2020.
[30] “Huang Zhifeng chi Gangfu wei huiying sheju song Zhong 12 ren” [Joshua Wong criticized the Hong Kong government for not responding to allegations that it had entrapped the 12 Hong Kong people for the purpose of sending them to China], Vision Times, October 15, 2020; Zhen Shuji, “12 Gang ren song Zhong quancheng jun you jingfang kongzhong ‘husong’ Gangfu huangyan bei tibao” [Police were “escorting” 12 Hong Kong people in the air during the entire process of their being sent to the mainland, Hong Kong government’s lie exposed], Radio France Internationale, October 9, 2020.
[31] “Teshou chongshen ‘12 Gang ren’ an Gang jing mei renhe juese” [CE repeats that Hong Kong police did not have any role in the “12 Hong Kong people” case], Radio Television Hong Kong, October 6, 2020.
[32] Criminal Procedure Ordinance (Cap. 221), sec. 90.
[33] “Nine Arrested by Police for Assisting Offenders,” Radio Television Hong Kong, October 10, 2020.
[34] Their Chinese names are—唐婉清(Christina Tang Yuen-ching) and 鍾雪瑩 (Chung Suet-ying).
[35] “Nine Arrested for Assisting 12 HKers Fleeing to Taiwan,” The Standard, October 10, 2020; Ling Yide, “12 Gang ren qiantao: Beibu 9 ren yilan Changmao qian zhuli Tang Wanqing, Benmin qian Zhong Xueying beibu” [12 Hong Kong absconders: List of the 9 individuals, Long Hair’s former assistant Tang Wanwing and Hong Kong Indigenous member Zhong Xueying arrested], Hong Kong 01, October 10, 2020.
[36] Save12hkyouths (@save12hkyouths), "Early this morning (10 Oct), H OMG Kong Police arrested 9 H one Kong people for "assisting fugitives", accusing them of assisting the 12 HKers’ escape." Twitter, October 10, 2020.
[37] Michael R. Pompeo, U.S. Department of State, "The United States Expresses Concern Over Hong Kong Democracy Activists Held in Guangdong Province," September 11, 2020.
[38] “Hua Chunying cheng dalu jiehuo de 12 Gang ren shitu ba Xianggang fenli chu Zhongguo,” [Hua Chunying said the 12 people intercepted and arrested by mainland China attempted to separate Hong Kong from China], Radio France Internationale, September 13, 2020.
[39] Helen Davidson, "MPs Urge Dominic Raab to Demand China Return Detained Hong Kong Protesters," Guardian, October 22, 2020.
[40] Helen Davidson, "MPs Urge Dominic Raab to Demand China Return Detained Hong Kong Protesters," Guardian, October 22, 2020.
[41] Lusa, “Hong Kong Resident with Portuguese Passport Detained in Shenzhen—Consulate,” Macau News Agency, September 1, 2020.
[42] Lusa, “Hong Kong Resident with Portuguese Passport Detained in Shenzhen—Consulate,” Macau News Agency, September 1, 2020.
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