Suspects on police bail are disappearing down a black hole

Reports are emerging of suspects being kept on bail for very long periods, sometimes years
This is absurd and the mental pressure these individuals face is an unacceptable form of punishment, given they have not been convicted of any crime

Mike Rowse

Published: 4:30pm, 31 Dec 2023

Why you can trust SCMP

A black hole is a region of space time where gravity is so strong that nothing, including light and other electromagnetic waves, has enough energy to escape it. Astronomical pioneer John Michell first speculated about the existence of such a phenomenon in the 18th century.

I wonder what he would say if he knew that Hong Kong had created a black hole in our policing procedures. I am referring to the system of granting police bail, provided under section 52 of the Police Force Ordinance.

When an individual is arrested, he or she is deprived of a measure of freedom. That person is stopped from going about their normal life. Such an act is therefore very serious in Hong Kong or any other common law jurisdiction for that individual, but can be justified in the wider public interest if there are strong grounds to suspect the arrested person is involved in a crime.

There are several possibilities for what happens next. The most straightforward is if the evidence in police possession is sufficient to justify the immediate laying of charges. The suspect must be brought before a court of law within a reasonable time (generally 48 hours) and a member of the judiciary takes over the monitoring of the case.

The accused may apply for bail, the prosecution can object on grounds such as the seriousness of the charge, weight of evidence, likelihood of the accused absconding or interfering with witnesses, and the like. Almost 50 years ago, as a junior ICAC anti-graft agency officer, I used that last reason to justify bail refusal in a corruption case in which I was the arresting officer.

The magistrate can then either order incarceration until trial, or allow bail on such terms as he or she thinks reasonable. For people arrested under the national security law, under Article 42 there is a presumption against bail “unless the judge has sufficient grounds for believing that the suspect or defendant will not continue to commit acts endangering national security”.

Hong Kong’s national security law was passed on June 30, 2020. Photo: AP

There is another option if the evidence is not sufficient to warrant the immediate laying of charges, and that is allowing police bail. The officer in charge of a police station or authorised by the commissioner may allow the arrested person to walk free for the time being, “subject to entering into a recognisance, with or without sureties, for a reasonable amount”.

The suspect must agree to report back to the police or turn up at court at a specified time. Other restrictions can be imposed as a condition for granting bail, such as a requirement to report regularly to the accused’s local police station, the surrender of travel documents, not being permitted to leave Hong Kong, etc.

Part 2 of Section 52 lists the records that must be kept in bail cases. “The respective names, residences and occupations of the person so apprehended and of his surety or sureties, if any, entering into such recognisance, together with the condition thereof and the sums respectively acknowledged, shall be entered in a book to be kept for that purpose.”

It would be normal to also include the name and contact details of the case officer, the suspected offence and the arrest date. Each time the accused turns up to report, the record has to be updated to show the date and time of the next deadline.

04:03

Hong Kong opposition activist Agnes Chow jumps bail, says she won't return to the city

There are interesting aspects to the police bail system, but two in particular catch the eye. The first is that the suspect is not obliged to accept the offer of police bail. He or she can refuse and, in effect, say: “Charge me or let me go”.

There have been such cases in recent years. This can be a risky bluff on the part of the suspect as it might encourage the case officer to give priority to his case.

The second is that the law does not specify any time limit before the police must finish their deliberation and declare they have enough evidence to charge the individual, or to accept that the evidence just isn’t there and discharge the person from bail requirements.

It is accepted that there are legitimate reasons for keeping people on police bail: to get medical advice on the precise cause of death; forensic advice; legal advice on the appropriate charge; and investigating the case further to see what can be added to the original evidence that justified the arrest. The question is what amount of time is reasonable.

Clarity needed on the questions raised by activist’s bail decision

My interest in the subject was generated by reports emerging of suspects being on police bail for very long periods, in some cases several years. That seems absurd. The mental pressure of the partial deprivation of liberty for such a long time is a form of punishment for people not yet convicted of any crime.

So I consulted retired police officers and senior counsel known for their conservative approach. The consensus was that anything more than a year could not be justified. So I filed a question with the police’s public relations branch, asking how many people, as of December 1, had been on police bail for more than a year since their original arrest without charges being laid.

The reply came the next working day: “Police do not maintain the requested figure.”

That’s an admirably quick, concise and clear response. But alas, it’s not correct. All those books maintained under part 2 of Section 52 contain the information; it just hasn’t been collated. No light out? The police have created a black hole.

Mike Rowse is an independent commentator