Torture of British HK Consulate Employee Simon Cheng: A Legal Response

It has recently been announced that former British Hong Kong Consulate staff member Simon Cheng, who reported being tortured on his return from a trip to mainland China in August 2019, has been granted political asylum in the United Kingdom.

Mr Cheng has revealed that he was subject to physical and psychological torture by Chinese officers, aimed at procuring a false admission that the UK was behind the democracy demonstrations in Hong Kong. Mr Cheng bravely detailed the actions of those who tortured him, despite the obvious risks to himself.

Mr. Cheng was employed at the British consulate as a trade and investment officer. On 8 August 2019, on his return from a business trip to the Chinese mainland, Mr. Cheng was intercepted by security officers at West Kowloon rail station and taken into police custody where he was detained for 15 days.

During his detention, Mr. Cheng was repeatedly interrogated while restrained in a ‘tiger chair’ designed to prevent movement, by as many as 15 men, and for up to 48 hours at a time. He was also denied sleep, shackled in a spread eagle position causing acute joint pain, made to squat for prolonged periods of time and beaten if he moved, shackled, blindfolded, and hooded and intimidated psychologically, including by being played a song featuring lyrics describing permanent separation from family members.

During this ordeal, the questioning of Mr Cheng focused on his role in the democracy protests and he reports seeing other Hong Kong protesters during his time in custody. He was eventually forced to plead guilty to soliciting prostitution – a charge which experts note is commonly employed by Chinese authorities to try to humiliate detainees and prevent public support.

Mr Cheng explained that he decided to speak out about his torture in order to highlight the grave extent of the impact of Chinese rule on Hong Kong citizens’ freedoms – the impetus behind the protests. British Foreign Secretary Dominic Raab expressed support for Mr. Cheng as well as outrage at the “disgraceful” treatment he underwent. Additionally, Mr. Raab has summoned the Chinese ambassador, and outlined his desire for those responsible to be held to account.

Whilst the detention and torture of Mr Cheng was clearly a political outrage it was also a breach of international law. The prohibition against torture is well established under customary international law as a jus cogens prohibition, allowing for no exceptions. This prohibition has been set out in a number of international treaties including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ratified by China in 1988. Despite this, China has repeatedly failed to stop torturing Government critics or ‘shown any willingness to adopt the independent experts’ recommendations to eradicate torture and ill-treatment in detention.’ 1

As well as being contrary to the highest principles of international law, the conduct that Mr Cheng reported is also unlawful in English law. Section 134 of the Criminal Justice Act 1988 provides that ‘A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.’ As can be seen, s134 provides for universal jurisdiction for this offence meaning that no matter where torture takes place, the English Courts have jurisdiction.

This offence is likely to cover all those who took part in the treatment of Mr Cheng in detention, including those who initially detained and transferred him and those with responsibility over the detention centre where he was held.

To bring a prosecution under s134 the Attorney General must provide consent for a prosecution to be initiated. Permission is also needed from the Director of Public Prosecutions for an arrest warrant to be issued. Mr Cheng’s account of his treatment appears to satisfy the evidential threshold needed to obtain such permissions. Given that Mr Cheng was working for the UK government when the torture took place the public interest test likewise appears to be satisfied in this instance.

Now that Mr Cheng has been granted political asylum in the UK and is relatively safe from Beijing’s reach, the British police ought to take a full account from him as to what took place. Once this was done proceedings for the offence under s134 should commence.

Admittedly China would be very unlikely to extradite those who took part in or facilitated the mistreatment of Mr Cheng upon an extradition request from the United Kingdom. However, proceedings for the treatment of Mr Cheng, and international arrest warrants against those who took part in that treatment or facilitated it, would at least show that such conduct will have practical consequences in limiting the ability of those responsible to travel abroad. Most importantly however, it would send a strong message about the UK’s opposition to China’s deplorable use of torture against those in custody. ■

Michael Polak

Barrister, Church Court Chambers and Director

Justice Abroad

Rumer Ramsey

Masters Student Vrije Universiteit Amsterdam

Michael Polak is a barrister practising in criminal, international, and human rights law at Church Court Chambers. Michael is also a Director at Justice Abroad which helps people who need assistance dealing with legal proceedings overseas and co-ordinator of Fuel Our Frontline an initiative to get essential groceries to frontline NHS staff during the Coronavirus crisis. Michael is committed to helping the junior Bar reach their potential as well as promoting the rule of law around the world.

Rumer Ramsey is an International Technology Law Masters student at Vrije Universiteit Amsterdam, where her studies include the impact of emerging technologies on human rights. She is the Associate Chief Editor of the Amsterdam Law Forum, which is a student-run law journal specialising in international law. Rumer also holds a Bachelor in English Literature from the University of Bristol, and a Graduate Diploma in Law from BPP University.

1. https://www.hrw.org/news/2015/12/09/china-un-reviewslams-lack-progress-torture