Prostitute saga a case of justice denied

PUBLISHED : Saturday, 21 August, 2004, 12:00am
UPDATED : Saturday, 21 August, 2004, 12:00am

The full facts of the much-publicised arrests of two Hong Kong residents for visiting prostitutes in Guangdong are not yet known. But there is one certainty. The affair has highlighted the arbitrary and unfair nature of the mainland's system of administrative detention.

This important issue has been somewhat clouded as a result of the identity of the first alleged offender to be detained - Democratic Party Legco election candidate Alex Ho Wai-to.

Concerns were initially raised that his arrest in Dongguan last Friday might have been part of a mainland-inspired political conspiracy. Then, as that began to appear less likely, attention turned to the implications for the Democrats at the polls.

But the most disturbing aspect of the affair is the way in which people such as Mr Ho - and the Hong Kong policeman who was arrested in similar circumstances - are treated under the system of administrative detention.

If both men are guilty - and at least in the case of Mr Ho this is still a matter of some dispute - then they have behaved stupidly. They have put themselves in a situation that risked damage to their respective reputations and careers, as well as to their liberty.

But the punishment meted out to them is extremely harsh and the manner in which it was imposed unjust. It is a poor advertisement for the mainland's efforts to develop a legal system based on the rule of law.

Both seem to have been sentenced either to a period of re-education through labour or another administrative penalty called custody and education. Mr Ho was given six months. Police Constable David Liu Hong-man received 15 days.

The difference in the length of the sentences is one obvious sign of the arbitrary way in which they are imposed. There does not appear to be a clear basis for deciding how serious the punishment should be in each case. It seems that the usual penalty is a fine.

Then there are the arrests themselves. These too are completely arbitrary. Visits to prostitutes are commonplace in cities across the mainland. Only a small percentage of those involved find themselves under arrest.

But the most worrying aspect of the system is that these sentences are imposed by the police - without any need for a trial. The police act as judge and jury. Custodial sentences of up to three years, with a possible one-year extension, can be imposed. There is no access to a lawyer, no public hearing, no presumption of innocence or ability to put forward a defence.

A right of appeal to a court is available, but this is a cumbersome process and it is rarely used. Each year hundreds of thousands of people are packed off to camps for minor offences under the re-education-through-labour scheme. And whether they are guilty or innocent, there is little they can do about it.

Pressure has rightly been building on the mainland for this system - introduced in 1957 - to be scrapped. This is partly due to the violent death of an inmate last year.

But opponents also argue - with justification - that the system lacks proper legal foundations and runs contrary to China's constitution.

It is a mechanism that is wide open to abuse. Corrupt policemen can impose and pocket fines and those with a grudge are able to despatch their enemies off to camps. No doubt, it also proves useful in cracking down on dissent.

There are some questions that need to be clarified concerning the circumstances in which Mr Ho and Constable Liu are being held. The Hong Kong government should do all it can to establish the true position.

But whatever the fate of these two Hong Kong residents may be, steps should be taken by the mainland to scrap administrative detention. It is outdated, unfair and incompatible with the mainland moves towards a system based on the rule of law.