Statutory Powers and Monitoring of the Hong Kong Police Force

We present Chapters 1-7 and Appendix 2 of the report here. For the full report which also contains footnotes, please refer to the documents below:

  • PDF of the complete report, including all appendices (English, Chinese - Please note the sizes of the PDF files are rather big, i.e. >100 MB)
  • Main report and Appendix 2 (Google Doc)
  • Appendix 1: Evidence
    • June 10 - July 28, 2019 (Google Doc)
    • August 2 - August 10, 2019 (Google Doc)
    • August 11 - October 2, 2019 (Google Doc)
    • October 2019 (PDF) and November 2019 (PDF)(Disclaimer: please note that this piece of additional evidence was collected by a group of volunteers supporting the movement, not by the core team members of the NOPAID editorial group. We are grateful to have consensus from the team that they allow us to put this piece of supplementary information on our website next to the original main report and appendices. Also kindly note only basic quality check was conducted before publish due to resource and manpower constraints.)

Editors’ Foreword

When work to compile this report began in July, Hong Kong had just witnessed a horrific terrorist attack. An organized gang in white T-shirts, most of them carrying offensive weapons, assembled at the Yuen Long MTR station and carried out indiscriminate attacks on innocent passengers and journalists. Amid the mayhem, civilians, regardless of their age and gender, desperately tried to escape the barrage of fists and canes. Some of them were mobbed and beaten up, faces covered in blood, while some others were rendered unconscious. Their pleas for help, however, fell on deaf ears. Two uniformed police officers appeared at the scene only to leave immediately after. Emergency calls made to the “999” emergency hotline by thousands of citizens to report the incident went unanswered. At one point, the Yuen Long police station even pulled down its shutters to block concerned citizens from seeking help. The police eventually showed up, but by then all attackers already left the scene.

The Yuen Long Terrorist Attack (July 21 Incident) spurred rumors of collusion between the Hong Kong Police Force (“HKPF”) and local triad gangs. On the same day, the Chief Executive (“CE”) Carrie Lam Cheng Yuet-ngor and several high-ranking government officials held a press conference condemning the vandalization of the national emblem on the building of the Liaison Office of the Central People’s Government in Hong Kong. The personal safety and security of Hong Kong citizens were the least of their concerns, and they paid scant attention to the legal responsibilities and abuse of power of the HKPF. None of the questions raised by the press was directly addressed. Daily press conferences held by the HKPF evaded questions from the media regarding such issues, which further fuelled anger among citizens.

In the past, Hong Kong used to be seen as the world's premier financial hub. Its success was due in no small part to its well-established legal system independent from mainland China and various civil liberties enjoyed by the region, including the freedom of speech and freedom of the press. To those who are familiar with Hong Kong, the scene at Yuen Long MTR station would seem astoundingly surreal and beyond belief. When we first started working on this report in early July, we merely intended to make an objective analysis of the law enforcement situation by the HKPF and the regulatory framework in place. No one could have anticipated that the situation would deteriorate so rapidly: the July 21 Incident, the August 31 Incident, undercover police participating in the protests in order to arrest protesters and first-aiders, reports of torture of detainees at the San Uk Ling Holding Center (accused of being a “concentration camp” where extrajudicial punishments were carried out) and visits from lawyers and Justices of the Peace were denied. We are gravely concerned not only about the abuses of power by the HKPF that run contrary to the expectations of the Hong Kong people, but also whether the existing checks and balances are sufficient to regulate the behavior of the HKPF, and whether the Department of Justice is conducting prosecutions in a fair and unbiased manner. Clearly, the core of the problem is not merely misconduct of individual HKPF officers, but rather the unprecedented governance crisis caused by the erosion of the rule of law.

Even after countless rallies and conflicts, the government reluctantly withdrew the extradition bill, but remained deaf to all the other demands of the Hong Kong people. Calls for an independent inquiry into the HKPF were repeatedly ignored or denied. In response to this, we started this effort to gather publicly available information on suspected police abuses, explain the existing law on policing and how they are suspected to be violated, and the current supervisory framework. Although we lack the legal power to summon witnesses, we tried to base everything in this report on objective evidence. We hope our conclusions would be indisputable to a reasonable reader. In the end, we do not know how much impact this report could bring, but we hope every bit of effort would be of assistance to Hong Kong.

23 July 2019

(Amended in September to reflect current status)

To the People of Hong Kong

1 Executive Summary

A summary of the Independent Investigation Report follows: -

Statutory Powers of the Hong Kong Police Force (“HKPF”)

  • The HKPF has access to massive manpower and financial resources, and wields considerable executive power. The purported objectives and values of the HKPF are written down in the open, but when it comes down to handling actual mass events, the actions of the police leave a lot to be desired.
  • Even though the Basic Law grants Hong Kong residents the rights to freedom of speech and freedom of assembly, the HKPF could impose undue restrictions using their statutory powers. Since police officers enjoy extensive statutory powers while performing their duties, it is not hard to conclude that when police officers are suspected of abusing their powers or breaching the law while on duty, there would hardly be any accessible channel for citizens to seek redress under existing law. The problem would only be aggravated if the HKPF and high-ranking officials continue to ignore the issue or even commend the police for their transgressions.

Complaints Against Police and Regulatory Framework over Police Powers

  • Issues in the existing complaint mechanism:
    • The Complaints Against Police Office (“CAPO”) is not independent of the HKPF. Many citizens find it difficult to trust a system that leaves the investigation of complaints of police abuse in the hands of police officers themselves.
    • The Independent Police Complaint Council (“IPCC”) lacks the statutory power to summon witnesses for cross-examination and has an unsatisfactory track record in investigating large-scale events.
    • The Office of The Ombudsman does not have the right to investigate police misconduct.
    • Complaints filed to the Civil Service Bureau concerning police officers are generally referred back to the CAPO; the success rate of complaints against the civil servants concerned is extremely low.
    • The current trust crisis makes it difficult for citizens to believe that the police officers breaching the law would receive appropriate punishment.

Evidence of Suspected Police Transgressions While on Duty

  • As shown in the video footages gathered from online sources, the HKPF seems to be repeatedly breaching Police General Orders (PGOs) and other laws throughout the movement. We have found cases where the police are suspected to be involved in physical abuse (possibly constituting an offence under the Offences against the Person Ordinance), refusal to show the Police Warrant Card while performing their duties, obstruction of the press, etc. The videos we have seen suggest that the transgressions were not merely caused by negligence, but rather by deliberate actions by some members of the HKPF. The situation deteriorated as the conflicts escalated. This indicates an alarming absence in the checks and balances over police authority. The rule of law would be seriously undermined should the situation continue to worsen, and may lead to disastrous consequences.
  • Some of the video footage circulated on the internet is incomplete and is not necessarily admissible evidence in court. Also, due to constraints in time and resources, the authenticity of each video footage could not be verified individually, and as such may not necessarily present the whole truth. However, from the increasing trend of the number of video clips we have collected and the suspected abuse of power by the HKPF reflected in those clips, we have reason to believe that what this report reveals is only the tip of an iceberg.

Recommendations and Conclusions

  • In view of the current situation, merely establishing an independent investigation committee would no longer be able to satisfy all the demands of the public.
  • A thorough reform of the Police Force from within is the only way to regain public trust.
  • Any department monitoring the police must be reformed to exist independently of the HKPF, and must be granted with sufficient regulatory powers to thoroughly investigate suspected police transgressions.
  • The government turned a blind eye to the misconduct and dereliction of duties of the police, and refused to carry out a fair and just investigation, which is an abscondment of its duty to uphold the rule of law. The crux of the matter lies with the political system, and, therefore, all of the “Five Demands” must be met.

2 Preface

2.1 The HKPF is the largest department within the Hong Kong Special Administrative Region (“HKSAR”) Government. According to the 2017 Annual Report of the HKPF, it employed more than 35,000 police officers, auxiliary police officers and civilian staff. The scale and importance of its law enforcement authority within the HKSAR Government is self-evident. In recent years, the HKSAR Government has been driven by its own political agenda, refusing to open up to criticism and public opinion. Supported by a majority in the Legislative Council consisting of non-democratically elected councillors, the government is able to pass any controversial bill without duly consulting the public, or even bypassing the Legislative Council’s usual procedures. In the past, Hong Kong citizens have generally been peaceful and rational in expressing their demands, but the government has repeatedly refused to meaningfully address them, and instead kept using the HKPF as a tool to suppress dissent. As a result, the relationship between the police and citizens has worsened considerably in recent years, and conflicts surged.

2.2 In early-2019, the HKSAR Government proposed the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill. This caused widespread uproar from all sectors of the society. Politicians and businesspeople had expressed reservations with the bill, believing that its implementation would ruin judicial independence under the framework of "One Country, Two Systems" as guaranteed in the Basic Law. Since Hong Kong exists as an administrative region under the sovereign rule of the People's Republic of China, there were concerns that the HKSAR Government would not be able to object to extradition requests by the mainland authorities. Despite facing waves of opposition, the government refused to withdraw the bill. In June, Hong Kongers rallied in opposition to the extradition bill in record numbers, with one million people marching on the streets on June 9, followed by two million on June 16. These largely peaceful and rational protests have failed to change the mind of the government. Some protesters chose to take their own lives as they lose faith in the future. Others took on more aggressive protest tactics, hoping to gain international attention and to put pressure on the government to make concessions.

2.3 Before July, the government had been adamant in passing the bill. With the support of pro-establishment legislators, the government circumvented the usual legislative process of first establishing a Bills Committee, and instead attempted to submit the bill directly for the second reading and third reading. The protests came, one wave after another, with increasing number of participants. They were ignored by the government, which only dispatched the police to control and forcibly disperse the crowds. On June 12, some members of the HKPF apparently used excessive force on protesters and breached the Police General Orders (“PGOs”) on multiple occasions in front of local and international media. The issue of whether there are sufficient checks and balances over police powers is brought to public attention. Even so, the CE and the Secretary for Security kept justifying the police’s enforcement and emphasizing their support for the HKPF. On the contrary, the doubts raised by the media and citizens were all shelved and no further follow-up actions were taken.

2.4 Under the current framework, if members of the public have grievances against the police, they can only file complaints to the Complaints Against Police Office (“CAPO”) and The Independent Police Complaint Council (“IPCC”). In July 2019, IPCC held a press conference and announced that they would take the initiative to investigate into the police's dispersal operation on June 12 and the storming of LegCo Complex during July 1-2. It is reported that the investigation report will be submitted within six months. However, the IPCC has long been criticized for its biased composition and limited statutory power, rendering the regulatory framework over the HKPF ineffective. The IPCC, dubbed by the press as a “toothless tiger”, has been ineffective in handling cases that involve the entire police force, not to mention complaints against Gazetted Officers (including the Commissioner of Police (“CP”)). We believe that an independent and impartial report representing the voices of citizens can provide a basis for in-depth discussion and understanding of the problems observed in the operations of the HKPF. We sincerely hope that this report would provide objective facts for all interested parties and serve as a useful reference for further research and analysis.

2.5 To ensure the authenticity and credibility of this report, we focus on compiling factual materials for future reference and try to avoid subjective judgments and inferences. Sources are included whenever possible for independent verification. The main content of this report is arranged into the following four chapters: Chapter 3 outlines the legal authority of the HKPF, explaining the expected behavior of the police when performing their duties. Police behavior is strictly regulated even when they are performing law enforcement duties. Chapter 4 describes the current complaint mechanism of the HKPF and attempts to analyze its deficiencies and possible grey areas. Chapter 5 provides a compilation of evidence of suspected abuse of power of the HKPF since June 2019 from the submitted data. Chapter 6 concludes the report with our recommendations.

3 Statutory Powers of the Hong Kong Police Force

3.I Basic Information

3.1 The Hong Kong Police Force (“HKPF”), subordinate to the Security Bureau of the HKSAR Government, is the largest government department (21% of all civil servants by end-2017), as well as the largest disciplined service in Hong Kong. The CP is one of the principal officials of the government, and is nominated by the Chief Executive (“CE”) and appointed by the State Council of the People's Republic of China. The appointment is published in the Government Gazette. According to the statistics of the United Nations Office on Drugs and Crime in 2013, Hong Kong had an average of 4,500 police officers per million people, one of the highest police-to-civilian ratio around the world. Its financial expenditure increased significantly by about 30% from HK$14.6 billion in 2013 to HK$18.8 billion in 2018. The HKPF states that its vision is to ensure "Hong Kong remains one of the safest and most stable societies in the world", and their common purpose is stated as follows:-

  • Upholding the rule of law
  • Maintaining law and order
  • Preventing and detecting crime
  • Safeguarding and protecting life and property
  • Working in partnership with the community and other agencies
  • Striving for excellence in all that we do
  • Maintaining public confidence in the Force

3.2 Police officers, as civil servants, are always expected to serve the Hong Kong citizens. One can easily see that the common purpose stipulated by the HKPF is rather people-based, noting three out of ten in the Chinese version are directly linked up to the term "citizens" (市民). Such high standard likewise reflects the fact that the top management, when formulating these guidelines, was fully aware of the importance of discipline given tremendous enforcement power of the HKPF. (Note that the first common purpose is to require its officers to uphold the rule of law, and the sixth is to strive for excellence). It will be detrimental to the society at large if those who go astray and intentionally break the law are the law enforcement officers themselves. In addition, the HKPF should have its priorities set in line with the interests of citizens. Should the police act against its policing philosophy and let the relationship with the public worsen, the common purpose, no matter how noble it looks, will only become fragile and empty words from the public’s point of view.

3.3 Values of the HKPF are listed as follows:-

  • Integrity and Honesty
  • Respect for the rights of members of the public and of the Force
  • Fairness, impartiality and compassion in all our dealings
  • Acceptance of responsibility and accountability
  • Professionalism
  • Dedication to quality service and continuous improvement
  • Responsiveness to change
  • Effective communication both within and outwith the Force

3.4 In June 2001, the discussion paper released by the Panel on Security of the Legislative Council clearly stated that the HKPF “attaches great importance to the character and integrity of police officers”. The HKPF claims that it “has all along sought to embed a professional ethic as well as integrity at the core of its policing philosophy. All members of the Force are required to be fully aware of and observe such philosophy in order to maintain a high level of personal integrity. The HKPF has implemented a series of IM (integrity management) measures over the years to ensure the integrity of all police officers, and formulated in early 2009 the Integrated IM Framework”.

3.5 In December 2009, the HKPF published a set of behavioral guidelines for its officers in order to further promote the values of “integrity and honesty”. Police officers are to follow the said guidelines at all times, regardless of whether they are on duty or not. Police officers are encouraged to take into account the below factors prior to any action: (i) whether the action or behavior is lawful; (ii) whether it is in accordance with the values of the HKPF; (iii) whether it will undermine public confidence in the HKPF, and (iv) whether it can be justified if the police officer is called upon to do so. Although these guidelines are not legally binding, and officers who violate any of the guidelines do not necessarily face any internal investigation or disciplinary actions, the guidelines could, and would, be used as a reference point for the public to assess the conduct of individual police officers. Given that police officers are law enforcement officers, conduct that deviates from the established guidelines and actions that display hostility to the general public are enough to stir up social unrest. If the government decides to turn a blind eye to these situations and not remedy them in time, or even fabricate excuses for the officers’ misconduct, violations of the guidelines will eventually become a normal practice of the HKPF. Not only will it sabotage the long-established image of the HKPF, the authority and legitimacy of the HKPF will also be heavily undermined, thereby turning Hong Kong into a police state eventually.

3.II Relevant Laws and Regulations

3.II.1 Fundamental Rights and Freedoms

3.6 According to the Basic Law, Hong Kong citizens enjoy a range of fundamental rights and freedoms. Some of these rights and freedoms are particularly relevant to the protection of citizen’s rights against unlawful exercise of police powers:

3.7 Article 27 of the Basic Law states that:

"Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike."

3.8 Article 28 of the Basic Law states that:

"The freedom of the person of Hong Kong residents shall be inviolable.

No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited."

3.9 Article 29 of the Basic Law states that:

"The homes and other premises of Hong Kong residents shall be inviolable. Arbitrary or unlawful search of, or intrusion into, a resident's home or other premises shall be prohibited."

3.10 These rights and freedoms are however not absolute. In other words, the law may validly create restrictions limiting such rights (i.e. the government or the police may in certain instances restrict the exercise of such rights). In general, courts will apply a “proportionality test” (see Hysan Development Co Ltd v Town Planning Board) to see whether such a restriction:

  1. pursues a legitimate aim;
  2. is rationally connected to that legitimate aim;
  3. is no more than is reasonably necessary to accomplish that legitimate aim; and
  4. strikes a fair balance between the general interest of the community and the rights of the individual encroached upon.

If any restriction on such rights cannot pass the “proportionality test”, such a restriction will be unconstitutional (i.e. unlawful).

3.II.2 Police Duties

3.11 Section 10 of the Police Force Ordinance (“PFO”) (Cap. 232) sets out the duties of the police. They are:

  1. preserving the public peace;
  2. preventing and detecting crimes and offences;
  3. preventing injury to life and property;
  4. apprehending all persons whom it is lawful to apprehend and for whose apprehension sufficient grounds exists;
  5. regulating processions and assemblies in public places or places of public resort;
  6. controlling traffic upon public thoroughfares and removing obstructions therefrom;
  7. preserving order in public places and places of public resort, at public meetings and in assemblies for public amusements, for which purpose any police officer on duty shall have free admission to all such places and meetings and assemblies while open to any of the public;
  8. assisting coroners to discharge their duties and exercise their powers under the Coroners Ordinance (Cap. 504);
  9. assisting in carrying out any revenue, excise, sanitary, conservancy, quarantine, immigration and alien registration laws;
  10. assisting in preserving order in the waters of Hong Kong and in enforcing port and maritime regulation therein;
  11. executing summonses, subpoenas, warrants, commitments and other process issued by the courts;
  12. exhibiting informations and conducting prosecutions;
  13. protecting unclaimed and lost property and finding the owners thereof;
  14. taking charge of and impounding stray animals;
  15. assisting in the protection of life and property at fires;
  16. protecting public property from loss or injury;
  17. attending the criminal courts and, if specially ordered, the civil courts and keeping order therein;
  18. escorting and guarding prisoners;
  19. executing such other duties as may by law be imposed on a police officer.

3.12 According to R v To Kwan Hang and Another, "Every duty carries with it the power to perform that duty". In other words, the police has and may exercise the power to perform those duties mentioned above from time to time as the occasion requires.

3.13 We will discuss below some of the powers conferred on the police that are particularly relevant to the recent events in Hong Kong.

(i) Power to Stop, Detain and Search

3.14 Police officers have powers to stop, detain and search any person who acts in a suspicious manner in a public place (PFO s54(1)). They also have powers to stop, detain and search any person in a public place, vessel or conveyance that they reasonably suspect of having committed or about to commit or intending to commit any offence (PFO s54(2)). In these situations, a police officer may stop a person to demand proof of his/her identity for inspection, detain a person for a reasonable period to enquire whether or not the person is suspected of committing any offence at any time, and if necessary, to perform a search on the person.

3.15 For persons acting suspiciously, a police officer may search the person for anything that may present a danger to the police officer. For persons that a police officer reasonably suspects of having committed an offence or is about to or intending to commit an offence, the police officer may search the persons for anything likely to be of value to the investigation of any offence that the persons being searched have committed, or reasonably suspected to about to commit or intending to commit. The police officer can detain the person for such period as reasonably required for such a search.

(ii) Power of Arrest

3.16 Section 50(1) of the PFO provides that: "It shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of— (a)any offence for which the sentence is fixed by law or for which a person may (on a first conviction for that offence) be sentenced to imprisonment; or (b)any offence, if it appears to the police officer that service of a summons is impracticable."

3.17 Section 50(2) of the PFO provides that if the person to be arrested forcibly resists the endeavour to arrest him or attempts to evade the arrest, then a police officer or other person may use "all means necessary" to effect the arrest.

3.18 In accordance with Section 51 of the PFO, after an arrest is made by a police officer, the arrested person should be delivered to a police station.

3.19 Note that the language here is different from that of a similar provision in s101A of the Criminal Procedure Ordinance (“CPO”) (Cap. 221), which says that the force used must be "reasonable".

Level of Force

3.20 The difference between "reasonable force" and "all means necessary" may be illustrated in a case like this: Peter steals a loaf of bread from the supermarket. He has committed theft, which has a maximum sentence of 10 years (see s.9, Theft Ordinance (Cap 210)). A uniformed police officer sees Peter stealing and apprehends Peter. Peter shrugs free and runs away very quickly. The police officer realizes he cannot catch up. If he pulls out his gun and tries to shoot Peter, it is probably not "reasonable force" but it seems that according to PFO s50(2), the use of such force can be justified as "all means necessary", since otherwise the police officer cannot apprehend Peter.

3.21 Of course, this is a hypothetical scenario and it is not alleged that police officers usually make such unreasonable use of force. However, in extraordinary situations where a police officer decides, against common sense and good judgment, to literally employ "all means necessary" to effect an arrest, the suspect may have no legal recourse for any injury incurred due to the operation of PFO s50(2). (Note however that s50(2) must be interpreted in light of the basic rights and freedoms guaranteed in the Basic Law (see above), and it is possible that the courts may favor an approach that protects the rights of the suspect rather than this strict and literal interpretation.)

Power to Enter Premises to Effect Arrest

3.22 If any police officer has reason to believe that any person to be arrested has entered into or is in any place, the police can demand the person in charge of the place to allow him into the place (PFO s50(3)). If the person in charge does not comply, he/she may be guilty of obstructing a police officer in the due execution of his duty (see below for further discussion of obstruction offences). Even if the person in charge of the place does not comply, the police may nonetheless enter the place forcefully (e.g. by breaking any door or window) if a warrant may be issued but obtaining it would afford the person to be arrested an opportunity to escape (PFO s50(4)).

Power to Detain and Bail

3.23 Upon arrest and being brought to a police station, the person may be detained for investigation, but only for a reasonable period of time.

3.24 If the arrested person is to be detained, the police should bring the person before a magistrate "as soon as practicable" (PFO s52(1)). Note that there is a commonly accepted understanding that the police should not detain the person for more than 48 hours from the time of arrest, but the PFO does not specify such a time limit (except in cases where the arrested person may be deported). However, if one refers to other law enforcement agencies, their powers conferred by statute only allow for detention for not more than 48 hours. See for example:

  • S.26(a)(ii) Immigration Ordinance, Cap. 115
  • S.10A(6) Independent Commission Against Corruption Ordinance, Cap. 204
  • S.17C(2) Customs and Excise Service Ordinance, Cap. 342

3.25 It may then be inferred that detaining a suspect for more than 48 hours would fall foul of the "as soon as practicable" requirement. However, it must be stressed that the police have no automatic right to detain a suspect for 48 hours after his/her arrest. It is also conceivable that in some extreme situations more than 48 hours is required before the suspect can be properly dealt with. The amount of time the police may detain a suspect ultimately depends on the circumstances of each case.

(iii) Power to Discharge on Recognisance

3.26 There will be cases where the alleged offence concerned may not be so serious (as determined by the officer in charge), and/or the suspect poses a low flight risk (e.g. a HK permanent resident with fixed place of abode and stable employment, a person with clear criminal record, etc.), and/or that the suspect poses a low threat to public safety. In such circumstances the police have the power pursuant to PFO s52(1) to offer to release the suspect on “court bail” for the matter to be brought up before a magistrate in a future time and date to answer his/her charge(s).

3.27 There will be other cases where it is not reasonable for the police to expect to complete an investigation into the matter before the suspect is brought before a magistrate. The officer may then, pursuant to PFO s52(3), offer to release the suspect on “police bail”, which means that the person is released from detention upon entering into a recognizance to return to the police station at a date and time in future.

3.28 In exchange for the conditional release of the arrested person either to appear in court or to report back to the police station in the future, the police may impose / demand certain bail conditions from the arrested person, which may involve (1) deposit of an amount of money; or (2) provision of a surety. In colloquial terms this is called posting ‘bail’. The recognisance can be of cash consideration, or a “self-recognisance”, which does not require payment, but is a promise by the arrested person to pay a certain amount if he fails to report back as requested.

3.29 The amount of money the officer requests to be deposited from the arrested person and/or his surety must be determined having regard to all the circumstances, including the seriousness of the alleged offence, the circumstances of such person and the day or the time at which such sum is to be deposited (PFO s52(3A)(a) PFO).

(iv) Search and Seizure of Property With and Without Warrant

3.30 As mentioned above, there are certain circumstances where a police officer may search a person pursuant to PFO s54. According to section 50(6) of the PFO, when a police officer arrests a person, he/she may search the person or in the place of arrest for articles or chattels. The police may then take possession of any such items found. The item to be seized has to be, in his reasonable suspicion, of value to the investigation of any offence that the person has committed or is reasonably suspected of having committed.

3.31 The scope of search and seizure of items without warrant is thus limited to items found on the arrested person and in the vicinity of the scene of arrest, and is subject to the test of relevancy. There is no statutory provision to suggest that the police officer has to justify / provide reasons for any such seizure to the arrested person.

The Search Warrant

3.32 Pursuant to PFO s50(7), the police may apply for, and obtain from a magistrate, a search warrant where there is reasonable cause to suspect that there is in any building, vessel or place any article or chattel which is likely to be of value to the investigation of any offence that has been committed, or that is reasonably suspected to have been committed or to be about to be committed or to be intended to be committed, (a) to enter and if necessary to break into or forcibly enter such building, vessel or place and to search for and take possession of any such article or chattel which may be found therein; and (b) to detain, during such period as is reasonably required to permit such a search to be carried out, any person who may appear to have such article or chattel in his possession or under his control and who, if not so detained, might prejudice the purpose of the search.

3.33 The search warrant issued by a magistrate is one of the two lawful bases for a police officer to enter into private premises, with the other being police power to enter without warrant to apprehend suspects under PFO ss50(3)&(4) (see discussion above).

3.34 The application for a warrant is considered by evidence “on oath” (PFO s50(7)). In practice, the investigating officer swears an affidavit to spell out the reasonable cause of his suspicion that the proposed destination building / vessel in the search warrant contains articles or chattels of value to the investigation.

3.35 As the warrant confers the lawful authority for the police to enter into the target building / vessel, a police officer cannot exercise powers which are beyond the scope of the warrant. In other words, an officer with a search warrant in hand is not given carte blanche authority to enter any private premises at will to conduct his investigation. A warrant must specifically and unambiguously mention the target address and scope of search (e.g. suspected offence, types of items of interest and records corresponding to the time period of the suspected offence under investigation). The scope of a warrant is not immune to challenge if it is too wide.

3.36 The timing of the obtaining and execution of a search warrant is also important. As a magistrate is only able to determine whether to grant a warrant based on the affidavit before him/her, as time lapses between the time of the affidavit and the time of execution of the search warrant, there may be a material change in circumstances. What was a “reasonable cause” to suspect at the time of the affidavit may no longer still apply when the police officer executes the search warrant. For warrants that do not explicitly impose a time limit for its execution, the courts will imply a condition that the warrant must be executed within a reasonable time (Keen Lloyd Holdings Ltd and others v Commissioner of Customs and Excise and another).

Obtaining of Personal Data / Samples from Arrested Persons

3.37 Pursuant to PFO s59, the police may take and retain the following personal data from the arrested person:- (a) photographs, finger-prints, palm-prints and the weight and height measurements of that person; and (b) sole-prints and toe-prints of that person (if the officer has reason to believe that such prints would help the investigation of any offence).

3.38 Pursuant to PFO s59A, a police officer may also obtain, if the arrested person consents and a magistrate’s approval is obtained pursuant to PFO s59B, an “intimate sample” from the arrested person (dental impression, urine sample, blood sample, etc.) for forensic analysis. “Non-intimate samples” (e.g. buccal swab) may be obtained without the arrested person’s consent under PFO s59C. An officer may use such force as is reasonably necessary for the purposes of taking or assisting the taking of a non-intimate sample (PFO s59C(8))

(v) Maintaining Public Order

3.39 According to section 17(1) of the Public Order Ordinance (“POO”) (Cap. 245), any police officer may prevent the holding of, stop or disperse any public meeting or procession that is unauthorized (i.e. public gatherings of which notification is required but has not been given to the police, or public gatherings that have been objected to by the police, or those held in contravention to conditions imposed).

3.40 Section 17(2) allows any police officer of or above the rank of inspector, if he/she reasonably believes that the public gathering is likely to cause or lead to a breach of the peace, to prevent the holding of, or vary the place or route of any public gathering (except those held exclusively for religious purposes), even if notification was given to the police. Section 17(2) also allows any police officer of or above the rank of inspector to stop or disperse any meeting, gathering or procession whatsoever or wheresoever, if he/she reasonably believes that it is likely to cause or lead to a breach of the peace.

3.41 The level of force the police may use under these subsections is "such force as may be reasonably necessary" (POO s17(3)(a)).

3.42 In addition, under s17(4), a police officer of or above the rank of inspector may close off access to public places if he/she has reason to believe that an unauthorized public gathering is likely to take place in such areas, and according to s17(6), may use "such force as may be reasonably necessary" to prevent any person from entering into or remaining in the closed areas.

3.43 Moreover, section 45 of the POO authorizes any police officer to use such force as may be necessary—

  1. to prevent the commission or continuance of any offence under this Ordinance;
  2. to arrest any person committing or reasonably suspected of being about to commit or of having committed any offence under this Ordinance; or
  3. to overcome any resistance to the exercise of any of the powers conferred by this Ordinance.

3.44 Section 46(1) of the POO restricts the use of any force authorized under the POO to be not greater than is reasonably necessary for its purpose.

3.II.3 Protections to Police in the Due Execution of Their Duties

3.45 The law provides additional powers and protections to police in the due execution of their duties. For example, section 36(b) of the Offences Against the Person Ordinance (“OAPO”) (Cap. 212) makes it an offence for any person that "assaults, resists, or wilfully obstructs any police officer in the due execution of his duty or any person acting in aid of such officer" with a maximum sentence of imprisonment for 2 years. Note that the offence of obstructing a "police officer" carries a heavier maximum sentence than the offence for obstructing a "public officer", the latter of which is 6 months' imprisonment or a fine of HK$1,000 (s23 Summary Offences Ordinance (Cap. 228)).

3.46 In addition, section 63 of the PFO makes it an offence (with a maximum sentence of imprisonment for 6 months and a maximum fine of HK$5,000) for any person to:

  • assault or resist any police officer acting in the execution of his duty
  • aid or incite any person so to assault or resist such officer
  • refuse to assist any such officer in the execution of his duty when called upon to do so
  • by the giving of false information with intent to defeat or delay the ends of justice, wilfully mislead or attempt to mislead any such officer

3.47 Note that there is an overlap between OAPO s36(b) and PFO s63 regarding assaulting or resisting a police officer. Suspects will be charged under either section at the discretion of the prosecution, depending on the circumstances and severity of the case.

3.48 To prevent impersonation of police officers, section 21 of the Summary Offences Ordinance forbids any person to wear any police uniform (or any clothing that closely resembles police uniform) that he/she is not entitled to wear. In addition, section 24 of the Summary Offences Ordinance forbids unauthorized possession of any articles that form part of the police uniform.

3.II.4 Unlawful Use of Force

3.49 Any person, whether a police officer or not, commits an offence if he/she assaults another person without lawful excuse. The law entrusts the police with special powers (see above) to perform their duties, and thus the public expects that police officers will always act lawfully while performing their duties. Any unlawful assault on citizens would be considered a serious breach of that trust. Generally speaking, the fact that a person convicted of a crime is a police officer is an aggravating factor when the court is considering a sentence (HKSAR v Hui Man Tai).

3.50 The basic form of assault is "common assault". It includes all levels of violence, including all forms of unlawful physical contact that does not necessarily result in physical harm (e.g. touching). It also includes any behavior that causes another to apprehend the immediate use of unlawful violence. Any person who is convicted of common assault is liable to imprisonment for 1 year (OAPO s40).

3.51 Assaults that result in more serious injuries are often called "aggravated assaults". The Offences Against the Person Ordinance defines a couple of such offences:

3.52 Where an unlawful assault causes death, the offender may be convicted of manslaughter or murder depending on the circumstances. The maximum sentence of manslaughter is imprisonment for life (OAPO s7). Murder carries a mandatory life sentence (OAPO s2).

3.II.5 Police Discipline

3.53 As police officers are given special powers to perform their duties, they are expected to always act in a disciplined and lawful manner.

3.54 First, they are expected to always obey the law. This is not only a duty of police officers, but also a basic duty of every person in civil society.

3.55 Second, pursuant to s26 of the PFO, when a police officer takes office, he/she must take an oath or declaration of office set out in Schedule I of the PFO: "I, __NAME__, swear by Almighty God/do solemnly and sincerely declare that I will well and faithfully serve the Government of Hong Kong Special Administrative Region according to law as a police officer, that I will obey uphold and maintain the laws of the Hong Kong Special Administrative Region, that I will execute the powers and duties of my office honestly, faithfully and diligently without fear of or favour to any person and with malice or ill-will toward none, and that I will obey without question all lawful orders of those set in authority over me."

3.56 Oaths must be taken in a sincere and solemn manner (Chief Executive of the Hong Kong Special Administrative Region v The President of the Legislative Council). Therefore, all police officers have a moral and legal duty to act in accordance with their oaths of office. Although there are no direct penalties in law for violations of this oath, the Court of Final Appeal has emphasized the existence of the oath as part of its consideration in deciding whether the police is bound by duty to act (see e.g. Fu Kin Chi v The Secretary for Justice).

3.57 Third, police officers are required to follow all lawful orders from superior officers (PFO s30). They are required to follow lawful orders even if doing so will put themselves at a disadvantage (Fu Kin Chi v The Secretary for Justice). The Commissioner of Police (“CP”) may make orders to administer the police force, called "Police General Orders" (PFO s46). All police officers are legally bound to follow these orders. There will be a more detailed discussion of the Police General Orders below.

3.58 Fourth, police officers shall not threaten or insult another officer of senior or equal rank (PFO s34). Note that the language of s34 may be interpreted to include non-police officers as well, thus it may be an offence for police officers to insult non-police government officials that are clearly of a superior rank (e.g. the Chief Secretary for Administration).

(i) Police General Orders

3.59 "Police General Orders" (“PGOs”) is a code of conduct for police officers. It sets out guidelines for police officers when performing their duties. All police officers are required to abide by PGOs unless where PGOs is inconsistent with laws or regulations (PGOs 1-02). Police officers who do not comply with PGOs are liable to disciplinary action. The interpretation and application of PGOs is vested with respective Authorising Commanders (PGOs 1-01). Note that some sections of PGOs are not available to the public because "disclosure may harm or prejudice the prevention, investigation and detection of crime and offences, or the proper and efficient conduct of the Force’s operations." (LC Paper No. CB(2)235/02-03(05)) As such, the discussion below only covers the sections that are available to the public.

3.60 PGOs covers all aspects of police life, including when police officers are off-duty (eg. welfare and sport). As it is impossible to cover everything here, we will focus on the parts that may be of interest to the general public.

Police Conduct

3.61 Chapter 6 of PGOs regulates police conduct. For example, police officers are not allowed to:

  • associate with any known criminal or triad personality except in the course of duty (6-01-2)
  • send anonymous correspondence (6-01-22)
  • participate in any activity which is likely to interfere with the impartial discharge of his/her duties, or which is likely to give rise to the impression of such. In particular, this includes participating in political activities except voting, or except when permission is given from the Secretary of Civil Service. (6-01-34)

3.62 In addition, unless on duty in disguise, police officers are required to deport and attire themselves and appear at all times in a manner likely to reflect credit on the Force. (6-01-31)

3.63 Chapter 15 of PGOs regulates police dress and appearance. For example:

  1. Police officers shall not vary any item of uniform or dress issued (15-01(a));
  2. They shall ensure they are correctly dressed when in uniform at all times (15-01(d)); and
  3. They shall not appear in public dressed partly in uniform and partly in plain-clothes (15-01(f)).

3.64 Uniform police officers are required to wear uniform when on duty unless specifically exempted (15-04). Supervisory officers have the responsibility to ensure that the dress and appearance of officers under their command reflect credit on the HKPF (15-31).

3.65 Chapter 44 of PGOs regulates police behavior when conducting searches. Searches are to be conducted in as polite a manner as possible and with the preservation of the dignity of the subject of the search paramount (44-05-2). An officer shall not conduct a frisk or wall search of a member of the opposite sex nor may he/she observe or be present during a search of a member of the opposite sex which involves the removal of clothing so as to reveal underwear. In the absence of a woman officer, an officer shall escort a female suspect to a police station or police launch for search by a female officer (44-05-3). In addition, Chapter 49 states that custody searches are never to be used as a punitive measure. In particular, a custody search involving the removal of underwear shall not be conducted routinely but only in circumstances with strong justification (49-04-11).

3.66 We also note two other provisions in PGOs that may be of relevance to recent events:

  • PGOs 27-02-2: "A police officer shall not delay the administering of medical aid or the conveyance of a victim by ambulance to a hospital or clinic."
  • PGOs 39-05: "All officers at the scene of an incident shall: (a) facilitate the work of the news media as much as possible and accord media representatives consideration and courtesy; and (b) not block camera lenses."

Warrant Cards

3.67 According to section 18 of the Police Force Ordinance, a warrant card shall be issued to every police officer, and shall be evidence of his appointment. In general, citizens have the right to demand a police officer on duty, whether in uniform or otherwise, to produce his warrant card for identification (R v Lau Yin Kum).

3.68 Chapter 20 of PGOs regulates the handling and use of warrant cards. Police officers are required to carry their warrant cards on them at all times provided that their activities are compatible with its safe keeping (PGOs 20-14-2). Uniformed police officers should produce their warrant cards upon request unless (a) circumstances do not allow (b) it would prejudice the police action or safety, or (c) the request is unreasonable (PGOs 20-14-4).

3.69 If a uniformed police officer does not produce his/her warrant card at the time of request due to circumstances described above in (a) or (b), he/she should produce the warrant card at the earliest opportune moment, unless the request was unreasonable or the request could not be subsequently complied with, in which case an explanatory notebook entry must be made (20-14-5).

3.70 When a group of uniformed police officers is operating together, only one of the officers present need to produce his warrant card on request (20-14-6).

3.II.6 Redress Against Police Misconduct

3.71 We discussed the powers and duties of police officers. In this part, we discuss how people may seek redress when police officers act inappropriately.

3.72 Any person may make a complaint to the police. Chapter 26 of PGOs lays out the framework of how the police handle complaints. The Independent Police Complaints Council (“IPCC”) is an independent body established under the Independent Police Complaints Council Ordinance (“IPCCO”) (Cap. 604) to observe, monitor and review the handling and investigation of "Reportable Complaints" against the Police by the CP. Chapter 4 of this document discusses these two regimes in detail. Since other parts of this document highlight the shortcomings of having the police conduct investigations into misconduct of their own members, we will leave the issue at rest here.

3.73 Flawed as police internal investigations may be, it is still one of the most accessible avenues the average citizen can take in case of police misconduct. Other ways described below are either prohibitively expensive, or time consuming and uncertain, or both. In a better society, the state would be charged with upholding justice, and it should not come down to private citizens spending their own personal resources in order to achieve the same.

(i) Identification of Police Officers

3.84 When making a complaint against a police officer, or when commencing proceedings against a police officer, the identity of the police officer is of crucial importance. As discussed above, a citizen has the right to demand a police officer on duty produce his/her warrant card for identification.

3.75 However, from the reports of recent events, it seems that there is a general reluctance amongst police officers to be identified while on duty, whether it be a reluctance to produce their warrant cards upon request, or not displaying their police unique identification (“UI”) numbers as part of the uniform.

3.76 We do note that as of late, police officers who are identified risk having their identities widely circulated on the Internet, leading to harassment of not only themselves, but also their family members as well. We suspect this regrettable development has contributed to the aforementioned attitude among police officers.

3.77 However, as far as we can tell, the law and the orders that require police officers on duty to identify themselves upon request still stand. While potential hostility from the general public may pose a practical problem, we humbly submit that a solution should be found in improving the public perception of the police and accountability of the police. Allowing police officers to hide behind a masquerade of anonymity cannot alleviate the problem. Instead, it may further aggravate the problem, making it even harder to re-establish trust between the public and the police.

(ii) Personal Injury and False Imprisonment

3.78 Victims of police officers using unlawful force may have a personal injury claim against the police. The person making the claim must prove, on the balance of probabilities (i.e. more likely than not), that a police officer intentionally or negligently injured him/her during use of unlawful force.

3.79 If the claim is accepted by the court, the court may award damages (i.e. money) as compensation for the injury. The amount of damages awarded is intended to restore the victim to a state as if the wrongful action had not been committed. In practice, for personal injury claims, this would include, for example, medical expenses, damages for pain and suffering, and possibly punitive damages.

3.80 False imprisonment consists of the complete restriction of the victim’s freedom of movement in the absence of lawful excuse. The victim need not be confined within a fixed and enclosed space, but the victim’s freedom of movement has to be restrained in every direction. If the imprisonment turns out to be unlawful, the imprisoner’s belief that he had lawful excuse is irrelevant, i.e. it is still a false imprisonment (R v Governor of Brockhill Prison, ex p Evans).

3.81 The police officers that committed the unlawful acts would be personally liable, but the CP is also vicariously liable for any damages. In practice, this often means that the individual police officers would not have to personally pay damages, but instead government money would be paid to compensate the victims.

3.82 Since personal injury and false imprisonment claims (as described here) are civil cases, even if a victim proves that some police officers had used unlawful force, the police officers that perpetrated the acts will not necessarily be penalized. They are not convicted of a criminal offence, and should not be considered to have been convicted of a criminal offence, since the standard of proof in a criminal case is much higher. It is up to the police to decide whether to conduct further investigations either for internal disciplinary proceedings or criminal proceedings. Therefore, personal injury / false imprisonment claims may be helpful if the victim suffered injuries and incurred a large medical expense as a result, but it may not be an effective way for victims to bring police officers who had committed unlawful acts to “justice”.

(iii) Private Prosecutions

3.83 The vast majority of criminal prosecutions in Hong Kong are initiated by the government. Normally, law enforcement agencies investigate crimes and collect evidence. If there is sufficient evidence, prosecutors from the Department of Justice (on behalf of the Secretary for Justice) will commence proceedings.

3.84 However, in common law, anyone can bring a private prosecution. A feature of the early common law was the notion that it was not only the privilege but also the duty of the citizen to preserve the king’s peace and to bring offenders to justice. It has been held that private prosecution "remains a valuable constitutional safeguard against inertia or partiality on the part of authority" (Gouriet v Union of Post Office Workers).

3.85 Section 14(1) of the Magistrates Ordinance (Cap. 227) also affirms the right to bring private prosecutions. However, it also states that the Secretary for Justice may intervene at any stage of the proceedings, and assume the conduct of the proceedings, effectively taking over the prosecution, and possibly stopping it.

3.86 The right of citizens to bring a private prosecution is rarely exercised. There are only a handful of such cases every year, compared with the thousands of criminal prosecutions initiated by the government. Private citizens do not have powers of investigation under the PFO (see above). They generally do not have the resources and expertise to conduct a proper investigation into a crime. They would need to either have the legal knowledge on how to conduct a private prosecution, or engage a lawyer to do so. Given that the standard of proof in criminal trials is "beyond reasonable doubt", which is a high bar to meet, even when all evidence is apparently in order, the prosecution may still be unable to prove their case against the accused.

3.87 The high costs and risks of bringing a private prosecution, together with the possibility that the Secretary for Justice may decide to take over and stop the case, mean that while private prosecution is a possible way to bring police officers who have committed crimes to justice, it rarely happens in practice.

4 Complaints Against Police and System of Monitoring of Police Powers

4.I Complaints Against Police Office and Independent Police Complaints Council

4.I.1 Complaints Against Police Office

4.1 The government has repeatedly emphasized that there are existing mechanisms for handling and investigating public complaints against police officers. On the face of it, the HKPF does have the CAPO, which is part of the Complaints and Internal Investigations Branch ("C&IIB") of the 'D' Department (Management Services). The CAPO is led by a Senior Superintendent of Police.

(i) Existing Mechanism

4.2 If any member of the public is directly affected by the conduct of a member of the police force, or any practice or procedure adopted by the police force, and feel aggrieved about it, they have the right to make a complaint. They can lodge their complaint to the report room of any police station or the Reporting Centre of the CAPO in person, by telephone, by letter, by fax or by e-mail. Before conducting a formal complaint, members of the public can consider using the “Expression of Dissatisfaction Mechanism”. However, for more serious matters, the complainant can directly proceed with the formal complaint procedure. Complaints are categorized in accordance with the IPCC Ordinance. All reportable complaints will be looked into by CAPO.

4.3 In accordance to the Guide for Complainants published by the HKPF, it is claimed that many of the complaints can be resolved by Informal Resolution. However, either if the complainant declines to use the said method, or if the method is not suitable to resolve the complaint, the CAPO will initiate a full investigation. The HKPF may approach the complainant for a written statement to detail the complaint. After the completion of the full investigation, CAPO will inform the complainant the result of the investigation. If the complainant is not satisfied with the result, the complainant may, within 30 days from the date of the reply letter from the CAPO, request the CAPO to conduct a review.

4.4 The CAPO shall, having regard to the urgency, complexity and sensitivity of complaint cases, as well as the availability of resources for investigation, consider the need to form a special investigation team. Such a decision shall be made by the Assistant Commissioner of Police (Service Quality) upon deliberation of C&IIB's recommendations. From 2009 to 2014, the CAPO set up special investigation teams on two occasions: to investigate complaints related to the Police's approach in handling the security arrangements of former Vice Premier Li Keqiang's visit to Hong Kong; and to investigate complaints stemming from the “Occupy Central” Movement.

(ii) Issues

4.5 In terms of structure, although the IPCC monitors and reviews the complaints handled by the CAPO (the functions and performance of the IPCC in recent years will be discussed in the next Chapter), the CAPO is still fundamentally a department of the HKPF. An impression of partiality when police investigate their own colleagues is inevitable. Moreover, if the police-civilian relationship is at a low ebb, or when the legitimacy of the government is in question, the public would find it difficult to trust the CAPO, and they may not be willing to or dare not take concrete action to lodge a complaint.

4.6 The CAPO is not required to submit a report for every complaint to the IPCC. Complaints to the CAPO will be classified into two types, namely (1) reportable complaints and (2) notifiable complaints. The first type is subject to monitoring and review by the IPCC, while the second type is not. A reportable complaint is “a public complaint that relates to the conduct of a police officer while on duty or who identifies himself as a police officer,'' which must be “made in good faith by the person directly affected by the police misconduct”. A notifiable complaint includes “complaints made by an anonymous complainant or by a complainant who is not the aggrieved party”. In other words, only complaints made by the victim themselves may be reviewed by the IPCC. Complaints lodged by witnesses at the scene or by those who learnt about the abuse of power by police officers through videos or photos are not subject to monitoring or review by the IPCC.

4.7 If aggrieved citizens do not lodge complaints themselves, perhaps fearing trouble or not wanting to put up with the fuss, such cases of power abuse may not be duly handled even if there is concrete evidence. Moreover, in large-scale political conflicts, it is highly possible that aggrieved citizens will be arrested by the HKPF once they expose their identities when they show up in person to lodge complaints. When discussing recent clashes, Dr. Anthony Neoh, Chairman of the IPCC, also pointed out that “if someone has breached the law, we are obliged to inform the CP”, and reminded the public to consider whether they will “incriminate themselves” when lodging the complaints. Under this mechanism, citizen’s intention to lodge complaints will be significantly reduced in order to avoid being charged. Many cases of police power abuse will naturally go unnoticed and cannot be handled.

4.8 In addition, cases handled by the CAPO mostly involve misconduct of individual police officers. If there are systematic problems within the entire police force (for example, senior commanders making unlawful or questionable orders during police operations; controversial guidelines and policies in relation to the use of force; a culture of not respecting orders or guidelines, etc.), the limited authority of the CAPO will inevitably attract public concern and doubts over its effectiveness.

4.9 For instance, during numerous clashes between the police and citizens since this June, many police officers (whether uniformed, plain-clothed, or “raptors”, i.e. the Special Tactical Contingent) refused to show their warrant cards. Police officers wearing uniforms had no UI numbers or relevant identification, or intentionally covered up such information with clothing (please refer to Chapter 5 for details). Under such situations, even if one intends to file a complaint in the form of a written statement, it would not be possible for him/her to identify the officer(s) involved in the complaint. If the CAPO takes this as an excuse to dismiss these cases, then the whole complaint mechanism would exist in name only, and its whole purpose would be defeated. If there is no way for the public to express their dissatisfaction towards particular police officers, it would further widen the rift between the HKPF and the general public.

4.I.2 The Independent Police Complaints Council

4.10 In response to a series of clashes between the police and Hong Kong citizens, the government kept reiterating that the monitoring framework managed by the IPCC is well established and effective. In the following sections, we will briefly review the functions of the IPCC, its composition and past performance, in order to understand why the existing body may not be able to carry out its monitoring duties effectively.

(i) Statutory Power

4.11 The IPCC is a statutory body established under the IPCCO enacted in 2008. According to Section 8(1) of the IPCCO, the main functions of the IPCC are:

  1. To observe, monitor and review the handling and investigation of Reportable Complaints by the CP;
  2. To monitor actions taken or to be taken in respect of any police officer by the CP in connection with Reportable Complaints;
  3. To identify any fault or deficiency in police practices or procedures that has led to or might lead to a Reportable Complaint;
  4. To advise the CP and/or the CE of its opinion and/or recommendation in connection with Reportable Complaints; and
  5. To promote public awareness of the role of the Council.

4.12 Under the two-tier police complaints system, the main function of the IPCC is to review investigation reports submitted by the CAPO of the Force. In other words, if citizen intends to lodge a complaint against police officer(s), he/she must first file a case to the CAPO as described in paragraph 4.1. The CAPO will then start the investigation, make a decision and submit a report. Upon receipt of the report, IPCC will review the report, and may raise Queries to the CAPO. Finally, IPCC will consider whether the complaint has been properly handled and decide whether to endorse the report.

4.13 As shown above, the statutory functions of the IPCC are restricted to “observe”, “monitor”, “review”, “identify faults” and “advise”, etc.. With limited authority, the IPCC often takes a passive role. The CAPO has the initiative in handling complaints, and it possesses the authority to conduct investigations and to determine the results of the complaints. On the contrary, the IPCC can neither initiate investigation, determine results nor impose penalties. It can only raise Queries on the reports submitted by the CAPO and decide whether to endorse the reports or not. Therefore, under the current framework, the IPCC can do nothing even if, in an extreme case, the CP ignores all recommendations proposed by the IPCC.

4.14 “Raising Queries” and “deciding whether to accept the report” are crucial tools of the IPCC but their effectiveness is still in question. The Queries that the IPCC can raise include various requests to CAPO, for example, changing the content of the investigation reports, providing more information and clarification regarding the report, and the IPCC making improvement recommendations on the Police practices and procedures, etc. Although CAPO must give a reply to the IPCC, it is not obliged to accept Queries.

4.15 If the CAPO does not accept any Query, it has to provide explanations to the IPCC. According to the Report of IPCC 2017/18, such unaccepted Queries “were given satisfactory explanation and resolved after further Queries by the IPCC’s or discussion with CAPO at meetings.” Even disregarding the fact that the statement is equivocal and unspecific, what we still need to ask is: if the CAPO insisted on not accepting Queries from the IPCC and at the same time could not provide a satisfactory explanation to the IPCC, what action could the IPCC take? The Report of IPCC 2011/12 stated that only when the IPCC Secretariat and Members accepted the CAPO’s explanation would a complaint case be endorsed. In other words, the IPCC has no authority to compel the CAPO to accept Queries or advice. It can only respond by not endorsing the case or not accepting the report.

4.16 The final and most important power of the IPCC is to “reject a report” which is its most important power. This power, however, is still insufficient to monitor the HKPF or put checks on its behavior. As mentioned in the section “Hong Kong’s two-tier police complaints system “ in IPCC’s annual report, if a report from the HKPF is rejected, the IPCC may:

  1. request the CAPO to re-investigate;
  2. interview witnesses to clarify uncertainties; and
  3. bring up the case during working level meetings or joint IPCC/CAPO meetings.

4.17 However, the IPCC does not state what would happen if the HKPF refuses to cooperate. It is stated in the Monitoring Procedures that if the investigation results are rejected, IPCC will (1) report to the CE, and (2) disclose disagreement on investigation results/opinion on the actions to be taken against defaulting officers. But the CE is not required to make a judgment on the matter, and the public has no other means to counterbalance the powers of HKPF. In other words, if the HKPF chooses not to cooperate, the IPCC can do nothing about it. Moreover, in time of major political events, the CE often sides with the HKPF. In such cases, “reporting to the CE” is a rather ineffectual last resort.

4.18 In conclusion, even if we disregard issues of practicality and merely consider in theory from the standpoint of legal authority, the IPCC lacks sufficient authority to effectively monitor the HKPF. First, the IPCC has no power to investigate, file a case or to take disciplinary measures, and instead can only assume a passive role in raising Queries. Second, the IPCC cannot compel the HKPF to accept any Queries or recommendations. If the HKPF refuses to cooperate, the IPCC is up against a wall. Moreover, the IPCC can only make recommendations or report to the CE and the CP, but does not have any actual authority to regulate the HKPF. Therefore, the IPCC is only independent in form, but not in substance. The independence of the IPCC is not only constrained by its lack of statutory authority that limits their effectiveness in major political events - if we look at the constitution of the IPCC in recent years, the predominantly pro-government background and political stances of its Members raise even more questions about its independence.

(ii) Constitution

4.19 The HKPF is the most powerful law enforcement department in Hong Kong. In order to have sufficient authority and clout to effectively counteract and monitor the HKPF, the constitution of the IPCC should be fair and balanced, and its Members should be authoritative figures in their own right. In early years, the Chairmen of the IPCC were Senior Counsels. With unquestionable qualification and profile, they were highly reputable within the profession and beyond, and had extensive experience in public service before taking office in the IPCC. In 2014, however, Mr CY Leung, former CE, appointed Mr Larry Kwok Lam-kwong as Chairman of the IPCC, breaking the convention that candidates selected for the Chair of the IPCC being senior counsel (see Table 1).

4.20 Shortly after Mr Larry Kwok assumed his office, his qualification, capability and background was called into question. Apart from the fact that Kwok was the only IPCC Chairman who was not a Senior Counsel, all other Chairmen had relevant experience in human rights protection. Yet Kwok only specialized in commercial law and had no experience in human rights work. A further concern is that Kwok had served for over a decade as delegate of CPPCC Guangxi, which inevitably cast doubts on whether his political background would affect the neutrality of the IPCC. In fact, during Kwok’s term, his approach to handling cases was subject to controversies. In the review of Chu King-wai’s case, among others, the IPCC used a secret ballot to make a decision for the very first time. It raised questions over whether Members were able to express their honest opinion in the meetings during Kwok’s tenure. After Mr Larry Kwok stepped down in 2018, the HKSAR Government appointed Mr Anthony Francis Neoh, Senior Counsel, as the new Chairman. But the incident above had already shaken the public’s confidence in the IPCC.

4.21 Apart from the Chairmen, other Members of the IPCC also seem to be increasingly pro-Beijing in recent years. Take for example the vice-chairmen of the IPCC. As part of the leadership of the IPCC, they are supposed to be impartial and neutral, or else it will affect the IPCC’s work and the public’s impression of the IPCC. From 2009 to 2012, the three vice-chairmen were selected from both the pro-establishment and non-pro-establishment camps. Since 2013, however, all the IPCC Vice-Chairmen appointed by the HKSAR Government belonged to the pro-establishment camp. In addition, many of the 20+ current Members have a pro-establishment background (see Appendix 2). In past major political events, Members of the pro-establishment camp were required to form a united front with the HKSAR Government (i.e. so called “taking a side”). Given the political affiliation of existing Members, questions arise whether the IPCC would instead shield the HKPF from accusations and lose its ability to monitor it independently. In fact, be it Chairmen, Vice-Chairmen or other Members, they all had acted and spoken explicitly in favour of the HKPF (see Table 2). It is therefore hard for the public to believe that the IPCC can handle complaints against police officers in a sincere and fair manner, and maintain impartial and proactive when monitoring and counteracting the HKPF.

(iii) Statistics in Recent Years

4.22 Is the IPCC actually a “toothless tiger”? Related statistics from the number of CAPO cases handled by the IPCC may perhaps shed some light. First, the number of allegations endorsed by the IPCC fell from 7,182 in 2010/11 to 2,872 in 2017/18 (Table 3). Amidst the increasingly uncertain political environment of Hong Kong, it is prudent for the public to contemplate the reason behind this declining trend. The major categories among the number of allegations received were “Neglect of Duty” and “Misconduct/Improper Manner/Offensive Language”. The number of allegations that required a full investigation declined drastically from 2,105 to 1,010, with the corresponding proportion slightly up from some 30% to 35%. More importantly, taking the latest statistics as the example, amongst all endorsed cases, only 68 (i.e. 2%) were “Substantiated” while 440 (i.e. 15%) were “Unsubstantiated/Not Fully Substantiated”. More than half (i.e. 1,535 cases or 55%) were "Withdrawn” or “Not Pursuable” (see Figure 1).

4.23 The number of disciplinary actions taken by the HKPF following the complaints decreased from 296 in 2010/11 to 130 in 2017/18. In view of over a thousand of complaints received annually, such statistic is merely a drop in a bucket. Further analysed by category, most of them were internal actions taken by the HKPF, i.e. issuing “Warnings” and “Advice” (amounted to 31 and 89 cases respectively in 2017/18, representing 92% of the total. Such proportion does not deviate much from the past trend). Over nine years, only one police officer was charged with “Criminal proceedings” and less than 125 cases required “Disciplinary review”, an extremely small number vis-a-vis total caseload (Table 4). It was specifically pointed out by a number of media outlets that, regarding allegations relating to abusive uses of force which the public are most concerned with, only two among the 2,119 cases related to assault were substantiated over seven years between 2011/12 to 2017/18, equivalent to a success rate of only 0.09%.

4.24 After reviewing the investigation reports, the IPCC could recommend the CAPO to reclassify the original investigation results (as mentioned above, the HKPF could also choose to refuse to do so). From 2011/12 to 2017/18, the reclassification percentage rose somewhat from 44% to 55%. Nevertheless, among the reclassified cases, the number of which being reclassified to “Substantiated” amounted to only 7 to 30 cases a year. Relative to the total number of complaint cases endorsed by the IPCC, less than one in every 100 cases on average was ultimately reclassified to “Substantiated” from “Not Substantiated”.

4.25 Besides, the IPCC could also raise Queries on the complaint cases from the HKPF. The proportion of Queries accepted by the HKPF went down significantly from nearly 70% in 2011/12 to only 48%-60% in recent three years. One of the subjects being criticised the most is about Queries regarding “Reasons for exercising police power”. The CAPO seldom accepted Queries that fall under this category. The percentage of acceptance averaged 8% in the last nine years, with four years even getting zero in such percentage in question. As for the Queries regarding the compliance of the Police Regulations, the respective percentages of acceptance were as low as 18% and 19% in the past two years. All these figures have clearly converged to the increasing reluctance of the HKPF to follow the advice provided by the IPCC. In view of the very limited power by the IPCC itself, these issues need to be addressed as early as possible.

(iv) Case Study

The Chu King-wai Case

4.26 Taken place in 2014, the case involving Superintendent Chu King-wai assaulting citizens was a relatively conspicuous case of abuse of power by the HKPF during the Umbrella Movement. Even with the presence of both witnesses and physical evidence, it still took three years to convict the police officer involved, fully reflecting the inadequacies of the existing monitoring system.

4.27 In November 2014, Mr Frankly Chu King-wai assaulted with his baton citizen Mr Osman Cheng Chung-hang and other pedestrians outside the Shanghai Commercial Bank in Mongkok. A few days later, Mr Cheng filed a complaint to the HKPF. The CAPO took over seven months to finish the investigation and concluded that “the assault allegation was unsubstantiated”. The IPCC did not accept the result, and requested CAPO to reclassify the allegation to a “Substantiated” case. Yet, the CAPO refused to follow the recommendation, instead proposed a reclassification as "Unnecessary Use of Authority". The IPCC insisted that Mr Chu’s misconduct was indeed an assault, but while the CAPO accepted the recommendation, it still considered the allegation “Not Fully Substantiated”.

4.28 The IPCC convened a special meeting, and based on a secret ballot vote, again endorsed the assault allegation against Mr Chu as substantiated, thereby requesting the CAPO to provide further response. Eventually, in December 2015, the CAPO, upon receiving advice from the Secretary for Justice, agreed to reclassify the allegation to “Substantiated”. Starting from the time of filing the complaint, the whole process took more than one year to reach its final conclusion. In the meantime, the CAPO’s repeated haggling over the case also introduced additional hiccups to the investigation process. Furthermore, despite the fact that the HKPF commenced criminal investigations after the allegation was substantiated, it took another year for the HKPF to arrest Mr Chu in March 2017. It demonstrated how difficult and time-consuming it could be if a citizen decides to file a complaint against the HKPF.

The Ming Pao Reporter Case

4.29 In another case, during the Mongkok Incident in 2016, the then Ming Pao news reporter Mr Tang Lik-hang was pressed to the ground and badly beaten by several police officers with batons even after revealing his identity as a reporter. The entire event was recorded by various media agencies and Tang lodged a complaint to the HKPF. However, after three years of investigation, the CAPO and the IPCC unanimously concluded that the incident was “Not Fully Substantiated” and “Not Pursuable”. The result stood unchanged even after Mr Tang demanded a review in a written request. Eventually, Mr Tang had to personally file a personal injury claim against the CP, a reflection of the weaknesses inherent to the complaint mechanism.

4.30 The Chu King-wai Case, widely reported by local media, caused a huge public outcry at the time. But even with strong public pressure and indisputable evidence, it eventually took three years to get the involved police officer arrested after a long tug-of-war struggle between the IPCC and the HKPF, with the latter seemingly trying its best to harbour the offending officer. In a similar vein, the Ming Pao Reporter Case shows the very impotence of the complaint mechanism to protect citizens’ rights, given the difficulty to hold police officers accountable for their unlawful behaviour, even with video evidence. Conceivably, there could well be other abuses of power by the HKPF during the Umbrella Movement, albeit not being properly recorded, or not being complained of by the victims, or not reported by the media. Under such circumstances, it would be extremely difficult, if not impossible, to seek redress against police misconduct via the fundamentally flawed complaint mechanisms.

4.II Office of The Ombudsman and Civil Service Bureau

4.31 The Office of The Ombudsman also monitors the operation of the HKSAR Government, redressing grievances and addressing issues arising from maladministration in the government departments and public bodies. As The Ombudsman is appointed by the CE of the HKSAR Government, this means the Office of The Ombudsman is an independent statutory body directly reporting to the CE. The statutory power of the Office of The Ombudsman comes mainly from The Ombudsman Ordinance (Cap. 397). The Office handles complaints relating to “maladministration” and non-compliance with the Code on Access to Information by government departments and public bodies. In addition the Ombudsman may initiate investigation of their own volition into issues of potentially wide public interest and concern.

4.32 Under the Ordinance, The Ombudsman has a wide range of investigative powers: conducting inquiries, obtaining information and documents, summoning witnesses and inspecting premises of organizations under complaint. While The Ombudsman’s investigation shall not affect any action taken by the organization under complaint or the organization’s power to take further action with respect to any decision which is subject to the investigation, The Ombudsman may report his findings and make recommendations for redress or improvement to the organization. Heads of organizations have an obligation to report at regular intervals their progress of implementation of The Ombudsman’s recommendations. The Ombudsman also maintains liaison with the organizations and follow up and monitor the progress.

4.33 Though the definition of “maladministration” is broad and the Office of The Ombudsman plays a pivotal role in monitoring the government departments and public bodies, it should be noted that under the current institutional setting, the Office of The Ombudsman will not investigate actions taken by the HKPF or the Independent Commission Against Corruption ("ICAC") in relation to crime prevention and investigation. One of the reasons, as already detailed in Chapter 4.I, is that the HKPF has its own redress system, including the CAPO which handles complaints followed by the IPCC to examine the results. The Ombudsman only has the authority to investigate complaints for non-compliance with the Code on Access to Information.

4.34 It is worth noting that, three key positions (equivalent to or above Permanent Secretary, i.e. D8) within the HKSAR Government: the CP (Mr Lo Wai-chung, Stephen), Secretary for Security (Mr Lee Ka-chiu, John), and The Ombudsman (Ms Chiu Wai-Yin, Winnie), are all former or current police officers, among whom Mr Lee and Ms Chiu were promoted to the rank of Deputy Commissioner of Police before leaving the HKPF. Upon assumption of office, The Ombudsman emphasized to the media reporters that, in order to avoid conflict of interests, she would not handle any complaint involving the HKPF and such cases would be passed to the Deputy Ombudsman for action instead. In any event, it is undeniable that the Office of The Ombudsman cannot institutionally counterbalance and monitor the HKPF in the same way it deals with other government bureaux or departments.

4.35 All police officers are civil servants and hence they are obliged to abide by the Civil Service Regulations and all related instructions and guidelines, including declaration of investments within a specified period; declaration of conflicts of interest, gifts, insolvency and bankruptcy, financial declarations, lending and borrowing money, outside employment, etc. In addition, police officers are also regulated by the Prevention of Bribery Ordinance (Cap. 201) and the common law offence of “misconduct in public office”. If any civil servant is found to have violated the rules, theoretically speaking, citizens could lodge complaints to the Complaints Unit under the Civil Service Bureau. Yet, the Complaints Unit states clearly that, if the complaints are about the operation and management of a particular government department or bureau, it will refer the case to the relevant government departments or bureaux or the relevant parties for them to directly investigate and respond to the complaints. Therefore, under normal circumstances, complaints from the public against the HKPF would be referred to the CAPO for handling as stated in Chapter 4.I. Under the current situation where there is generally a lack of mutual trust between the HKPF and a large section of the public, these procedures are inadequate to meet public expectations.

4.36 Looking at the statistics of the disciplinary cases in the civil service, in 2018-19, 412 resulted in punishment imposed after summary disciplinary action (e.g. verbal or written warning). Other cases resulted in punishment imposed under the Public Service (Administration) Order or the disciplined services legislations. Of those, 14 were punished by “Dismissal”, 18 by “Compulsory retirement” and 304 by “Others”. We do not have the corresponding figures solely for police officers. But when considered from the statistics taking the whole civil service into account, the number of disciplinary cases is still extremely small. These low numbers either reflect a high standard of integrity upheld by the civil service, or it would be attributable to the very high bar that must be met before the Civil Service Bureau would take disciplinary action.

5 Evidence on the Suspected Contravention of Regulations against the Hong Kong Police Force when Discharging Duties (Until 10/8/2019)

5.1 This Chapter represents the main objective of this report.

5.2 We called on netizens via Facebook and LIHKG online forum, inviting them to submit photos/videos (mainly videos), via Google form or other means, already published on the Internet for our screening. As the conflicts between the HKPF and the public since June have not cooled down but have continuously escalated, the number of videos available has also grown exponentially. Under such circumstances and with limited resources, we admit the investigation process is tremendously difficult and the progress is very slow.

5.3 On the other hand, since July, in addition to the general abuse of power and various illegal acts done by the HKPF, its approach to handling various incidents were also strongly criticized by different parties, these include: (1) suspected collusion with triads, as an extrajudicial way to deal with protestors (i.e. the Yuen Long Incident on July 21); (2) use of undercover cops to apprehend protesters; these undercover cops might have been involved in violent acts to frame the protesters; (3) use of expired tear gas canisters that might have especially harmful health effects; (4) alleged mistreatment (harassment, assault or even torture) of protesters after arrest and during detention, leading to injuries and casualties (for example, San Uk Ling Holding Centre denied visits from family members, lawyer representatives and Justice of Peace; the Augut 31 Incident at Prince Edward MTR station, etc.). However, with limited resources and time, it is hard to ascertain the authenticity of these incidents solely from the videos included in the report. We hereby strongly call for the media and journalists to undertake further investigation, with an aim to further unravel the truth.

5.4 At present, we believe that the examples consolidated and listed in the report are just the tip of the iceberg among tens of thousands of video clips. Moreover, we are mindful of the practical constraints of online media, and we understand that they might not be sufficient evidence to prove the police officers’ guilt in a court of law. But we have tried our best, and we apologize in advance for any faults or omissions in the report. We hope that this small step we made will provide an objective and strong foundation for the subsequent investigations.

5.5 As of August 10 2019, the video footage in the dataset include large-scale conflicts between the HKPF and the public that took place on the following dates:

  • June 12 (Tamar)
  • July 7 (Mong Kok)
  • July 13 to 14 (Sheung Shui / Shatin)
  • July 21 (Sai Wan)
  • July 27 to 28 (Yuen Long / Sai Wan)
  • August 2 (various places in Hong Kong Island and Kowloon)
  • August 3 to 6 (various places in Hong Kong Island and Kowloon)
  • August 10 (various places in Hong Kong Island and Kowloon)

5.6 The dataset includes the following mainstream online media/sources (listed in no particular order):

  • RTHK
  • i-Cable News
  • NOW News
  • TVB
  • Ming Pao
  • Hong Kong Economic Journal (HKEJ)
  • Oriental Daily
  • Apple Daily
  • Next Magazine
  • Stand News
  • Hong Kong Citizen News
  • CUP
  • Symedialab
  • LIHKG Forum
  • Passion Times
  • FTVV
  • Chinese University Student Press / Chinese University of Hong Kong Campus Radio
  • Campus TV, Student Union, University of Hong Kong
  • City University of Hong Kong Students' Union / City Broadcasting Channel
  • Hong Kong Polytechnic University Students' Union PressCom
  • Hang Seng University of Hong Kong Students' Union
  • Hong Kong Baptist University Students' Union
  • EdUHKSU Editorial Board
  • SocREC Social Record Channel
  • VOA News
  • CBS News
  • New York TImes
  • Hong Kong In-media
  • United Social Press
  • RFA Cantonese
  • Truth Media Hong Kong (TMHK)
  • Hong Kong Free Press
  • Individual’s YouTube Channels / Facebook Pages, etc.

5.7 As of 10 August 2019, our dataset includes 222 entries (some might involve videos/photos from multiple sources). Of which, 77 entries belong to the period from June 10 to July 27, 145 entries belong to the period from August 1 to August 10 (please refer to Table 5). Within the first ten days of August, the number of entries has exceeded that of June and July combined, reflecting the prevalence of the movement, where demonstrations happened simultaneously at multiple locations in Hong Kong, leading to widespread suppression by the HKPF. The level of force used by the police also escalated significantly and suspected illegal conduct by the police became more blatant and common. Hence, we do not exclude the possibility that different entries might actually be referring to the same incident.

5.8 Details are set out in Appendix 1 (June 10 - July 28) (August 2 - August 10).

5.9 As of the events happening after August 10 2019, due to time and resource constraints, our team was unable to provide a complete and thorough compilation of the evidence on the suspected contravention of regulations against the HKPF when discharging duties. Having said that, a simplified list which covers selected major events is provided for readers’ reference. (Please refer to Appendix 1b).

6 Recommendations and Conclusion

6.I Reforming IPCC

6.1 This report argues that the IPCC lacks statutory powers to conduct fair and independent investigations into the HKPF, and that the HKPF is not obliged to accept recommendations given by the IPCC. Furthermore, as many of the IPCC members belong to the pro-establishment camp, the public may not trust the IPCC to carry out impartial investigation into the systemic problems of the HKPF, and to take disciplinary actions accordingly. It is equally difficult for the Office of The Ombudsman and the Civil Service Bureau to handle complaints against the HKPF under current mechanism. Citizens have no effective means to lodge complaints against illegal acts by the police officers, let alone rectify the misdeeds of the HKPF during their recent large scale operations.

6.2 “The state could not stand if the people have no faith in their rulers” (A proverb from Analects). The recent conflict has severed the relationship between the public and the HKPF. To rebuild public confidence, the issues identified by this report regarding suspected illegal acts committed by the HKPF must be rectified. If the IPCC is to effectively and thoroughly investigate the complaints, and let justice be done and be seen by the public to be done, then it is necessary for the IPCC to have powers of independent investigation. Furthermore, the investigation should be transparent and open, the HKPF should not have the power to influence the outcome, and the IPCC should also have the authority to hold police officers accountable for their faults. Only then the IPCC would have the deterrent effect originally intended. If the public is still unable to regain trust in the IPCC, the government may need to set up an independent body, similar to the previous establishment of the ICAC or the enactment of the Prevention of Bribery Ordinance, or let ICAC take up the investigation instead, in order to duly handle the irregularities in the HKPF.

6.II Formation of an Independent Commission of Inquiry

6.3 The situation of Hong Kong did not see clear signs of deterioration during the initial drafting stage of this report at the end of June. At that time, we once also believed the formation of an independent investigative committee, being regarded as one of the Five Demands (with the other four being the withdrawal of the extradition bill, the withdrawal of the riot characterization of protests, the release of all arrested protesters, and the implementation of dual universal suffrage), could help relieve the heightened social tension. Indeed, former Chief Justice of the Court of Final Appeal Andrew Li, in his open letter, also supported the formation of such an independent commission, as its power to summon witnesses to testify could make it more effective than the IPCC for investigating the matter.

6.4 Nevertheless, the situation has continued to deteriorate since mid-July. As observed from multiple dispersal operations by the HKPF, it not only involved suspected abuse of power and other alleged violations of the frontline officers, these unlawful actions seemed to be supported by the senior management. Regarding the terrorist attack in Yuen Long, doubts of the police’s collusion with local triads were not dispelled and media inquiries remained unanswered, further destabilising the situation. It would therefore be rather naive to suggest that forming an independent commission of inquiry would be enough to alleviate the tensions and allow rifts among various segments of the society to mend. We are of the view that we have missed the best opportunity to set up this independent commission of inquiry.

6.5 Furthermore, under the Commissions of Inquiry Ordinance (Cap. 86), the effectiveness of the independent commission to be set up still very much hinges on its composition and terms of reference. First, if the appointees have high reputation but are yet unable to handle complaints impartially, or even shielding the HKPF from scrutiny, this would not calm the public’s discontent. Second, if the commission is merely another “toothless tiger” like the IPCC without the power to access sensitive or confidential information of the HKPF, it would be hard to imagine a fruitful result. Third, even if a tremendous amount of resources and time is poured into the effort, it is plausible that the commission could still fail to meet public expectations, especially when the report has so many sensitive materials redacted. The report could not compel offending officers to be subject to disciplinary action, may be used by the government as a tool to buy time. Typical examples include the Commission of Inquiry into Excess Lead Found in Drinking Water in public housing estates, and the Commission of Inquiry into the Collision of Vessels near Lantau Island.

6.6 If a full reform of the regulatory framework and the HKPF is to be embarked as recommended in Chapter 6.I, the setting up of the independent commission of inquiry could only serve as a transitional arrangement, rather than a panacea for solving the problems facing Hong Kong.

6.III Political Reform

6.7 This incident has completely exposed how easily governing without public mandate could fall into a state of anarchy under crises. There are virtually no checks and balances in place to safeguard public interests from the excessive powers of the HKPF, and its alleged collusion with triads. All these have severely shaken the foundation of the rule of law, and eroded the public confidence in the “One Country, Two Systems” principle and the Basic Law. To restore effective governance and to prevent recurrence of such incidents, a holistic political reform and universal suffrage for the CE and Legislative Council elections are still topics that cannot be avoided.

7 References

  1. A commission of inquiry into police conduct can help Hong Kong's healing process – an amnesty for protesters cannot. Andrew Li. Opinion, South China Morning Post. 9-7-2019
  2. Annual Survey on Crime Trends and Operations of Criminal Justice Systems (UN-CTS), Office on Drugs and Crime, the United Nations.
  3. Integrity management and behavioural guidelines of the Hong Kong Police Force (LC Paper No. CB(2)1633/09-10(07)) 1-6-2010
  4. 10-year anniversary of IPCC: a review, Apple Daily, 5-6-2019 (Available only in Chinese)
  5. Independent Police Complaints Council Public Opinion Survey 2018, Independent Police Complaints Council and Public Opinion Programme, The University of Hong Kong, 2018.
  6. Hong Kong Police Review, Hong Kong Police Force, Government of the Hong Kong Special Administrative Region, 2001-2016.
  7. IPCC Annual Reports, Independent Police Complaints Council, 2009/10-2017/18.
  8. Independent Police Complaints Council Ordinance
  9. Complaints Against Police Office - A Guide for Complainants
  10. A Guide for Complainants - "Expression of Dissatisfaction Mechanism"
  11. How could a statutory body become “Club of Leung’s (former Chief Executive) supporters”?. Hong Kong InMedia. Democratic Party LegCo Member Andrew Wan Siu-kin, 17-6-2014 (Title translated from Chinese, article available only in Chinese)
  12. Occupying Central is near, “No debts without creditors”, said Jat Sew-tong. HKEJ. 30-5-2014 (Title translated from Chinese, article available only in Chinese)
  13. We once believed in the police monitoring mechanism - Past records of IPCC’s failures. Ming Pao Supplement. 23-6-2019 (Title translated from Chinese, article available only in Chinese)

Abbreviation List

  • CAPO Complaints Against Police Office
  • CE Chief Executive (of the HKSAR)
  • CP Commissioner of Police
  • CPO Criminal Procedure Ordinance (Cap. 221)
  • C&IIB Complaints and Internal Investigations Branch
  • HKPF Hong Kong Police Force
  • HKSAR Hong Kong Special Administrative Region
  • IPCC Independent Police Complaint Council
  • IPCCO Independent Police Complaint Council Ordinance (Cap. 604)
  • IM Integrity Management
  • OAPO Offences Against the Person Ordinance (Cap. 212)
  • PFO Police Force Ordinance (Cap. 232)
  • PGO Police General Orders
  • POO Public Order Ordinance (Cap. 245)
  • UI Unique Identification

Appendix 1: Please refer to the Evidence page.

Appendix 2: Profile of Incumbent Members of the Independent Police Complaints Council