Strong arm of the law
Anger at the treatment of protesters has raised concerns about police procedures, writes Jane Moir
In early October, a group of teachers, social workers, environmentalists and heritage buffs staged a last-ditch attempt to save Hong Kong's famous Wedding Card Street from the wrecker's ball.
No 11th-hour reprieve for Lee Tung Street was to come, with police instead breaking up the protest and arresting 15 people for obstruction. And the incident did not end there.
What had been a cut and dried case of urban planning protest became enmeshed in bigger questions of constitutional rights and police accountability. In particular, a decision by police to strip-search the arrested protesters has triggered widespread condemnation from politicians, human rights groups, women's organisations, lawyers and academics.
The searches have been criticised as unjustified given the circumstances of the arrests. A claim by one of the female protesters that she was watched by a male officer during the process has raised alarm.
'It's nonsense,' said legislator James To Kun-sun, who has been helping the activists. 'These were all very enthusiastic teachers, environmentalists, volunteers ... they are not big, threatening robbers.'
Although the police said an initial investigation showed no officers had violated rules, Hong Kong lacks a concise set of guidelines relating to the detention and search of suspects, along the lines of Britain's Police and Criminal Evidence Act (PACE). Despite several recommendations by the Law Reform Commission to implement such guidelines, Hong Kong has for more than a decade resisted reform in this area.
'Basically if they [the police] arrest someone, they have a common law power to search someone they arrest if it's reasonable to do so. What it really comes down to is if it's reasonable in the circumstances,' human rights lawyer Paul Harris said.
Simon Young, an associate professor of law at the University of Hong Kong, said: 'We don't have the same statutory framework [as the UK] but the courts have tried to fill the gaps ... with challenges through the common law, or for constitutional rights.
'I know people would still like to see [police and criminal evidence guidelines]. You can only leave so much to the courts because they work on an incremental basis, case by case.'
A Law Reform Commission report on general arrest procedures in 1992 set out a number of recommendations to ensure a better balance of the rights of people in police custody with law enforcement. It was prompted by calls for rules similar to those contained in Britain's Police and Criminal Evidence Act.
The report resulted in legislation on taking DNA, but did not produce specific evidence-gathering guidelines.
Seven years earlier, the Law Reform Commission had broached the subject in a report on the admissibility of confession statements. It recommended legislation to establish a uniform code of conduct for various law enforcement agencies pertaining to detention and interrogation.
The recommendations were not acted upon. Nor were those in a similar report in 1998 on the admissibility of confession statements.
Mr Young said the situation has been compounded by a dearth of communication between the relevant parties. 'There just isn't a lot of dialogue between the judiciary, defence counsel, the police. We have a fairly weak defence bar when it comes to organising things. In countries such as Britain and Canada, there's a very robust criminal defence bar,' he said.
'There's common interest, people get together, they push the police, they push issues in a coherent way in the courts. And in democracies, these issues become political as parties use them as part of their mandates.'
Mr Young has been helping sex workers' groups who say they are unfairly targeted by police.
'I have discovered there doesn't seem to be a very comprehensive ethical standard that the police adhere to,' he said. 'There's no public statement. The whole issue of ethics doesn't seem to come forward.'
Mr Young said the system of challenging police behaviour was not viewed positively by human rights groups in Hong Kong.
This belief was reflected in the Wedding Card Street case. A decision by the heritage protesters not to take the route of making an official complaint and instead urging an independent inquiry by lawmakers underscores what human rights groups see as an inherent lack of faith in the police accountability system in Hong Kong.
The power to investigate impropriety by officers rests with the Complaints Against Police Office, which is part of the force. It only acts upon complaints, and its critics have long lamented its lack of independence.
Its probes are subject to review by the Independent Police Complaints Council, an advisory body. Although the council is independent of the police, it has no investigative or disciplinary powers.
Legislation now working its way through the Legislative Council should make the council a statutory body, but calls for it to be given investigative powers have fallen on deaf ears.
Law Yuk-kai, director of Hong Kong Human Rights Monitor, refers to the council as a 'toothless paper tiger'. The shortcomings in accountability come as civil activism - particularly on issues such as heritage and conservation - is on the rise, against the backdrop of what Mr Law says is a politicised police force.
'There are still a lot of police who think people gathering in the streets and holding meetings have to be dealt with,' he said. 'They [the police] have a habit of asking for identification, or leaflets, recording them or taking photos. They still have a mentality of control.'
He said the police were more sophisticated than in the past, and better educated. But he added: 'They have not really distanced themselves from political control. They have a narrow concept of public space.
'More liberal ideas have not yet been given weight. And the training of police officers in dealing with demonstrations is totally unrealistic ... It's out of touch with the world.'
Mr Law also says the legal framework within which the police operate is patchy. Guidelines on searching suspects were 'very rough' and the system 'doesn't really provide enough procedural safeguards', he said.
Figures provided by the Complaints Against Police Office show that 11 police officers were disciplined or given recorded warnings last year as a result of complaints by members of the public. It did not give a breakdown of the punishments meted out, saying 'the disciplinary actions vary from case to case'. Only 12 Complaints Against Police Office investigations have led to criminal charges since 2002.
Figures given to the Security Panel of the Legislative Council last month showed that there were 3,518 allegations against police last year, of which 2,114 were endorsed by the Independent Police Complaints Council. The advisory body raised queries or suggestions in 69 of those cases.
Following reclassification by the Complaints Against Police Office, the council endorsed the reports of all 69 allegations.
Even if the council disagrees with complaints office findings, the case is passed back to the police. Should there be an impasse, the case is referred to the chief executive, Donald Tsang Kam-yuen.
Just such a stalemate arose in 1998, after senior police officers drowned out protesters during a handover rally by playing Beethoven. The complaints office initially classified an allegation of police abuse of power as 'no fault'. The council disagreed and a report was sent to the chief executive, who did not endorse the council's findings. The council declined to give further examples of such stalemates.
Mr To said the Independent Police Complaints Council is governed by 'three no's: no investigative power, no power to conclude and no power to discipline.'
And the Legco bill on the council is unlikely to change things. Mr Harris said: 'It's basically putting existing arrangements in statute.'
The proposed law will make the council a statutory body with an independent secretariat, but Mr To said it would provide little help in real terms.
It would mean that any attempt in the future to scrap the council would have to be done by legislative means rather than just an administrative decision.
Mr To also questioned the ability of the independent secretariat to function effectively as a watchdog with its proposed staff of just 11 executive officers and two administrative officers.
'The executive officer is the one who first reads and decides if anything is missing, anything is worth reading ... and they make a preliminary conclusion,' Mr To said. He said that with a caseload of more than 3,500 complaints each year, the officers' task would be arduous.
Mr Law also said the resources were insufficient. 'Unless they have the time to do all these things ... meaningful checks of important cases, it won't be very useful. The problem is, when you have limited manpower, it's not very meaningful,' he said. 'Unfortunately I don't think they have any comparable resources to those of the police.'