LCQ15: Majority of LCR’s recommendations suitably implemented by law enforcement agencies
Following is a question by the Hon Kenneth Leung and a written reply by the Secretary for Security, Mr John Lee, in the Legislative Council today (November 1):
The Report on Arrest (the Report) published by the Law Reform Commission (LRC) in 1992 put forward 61 recommendations on the exercise of powers of stop, search, arrest and detention (statutory powers) by law enforcement agencies and related matters. After studying the Report, a working group set up by the authorities in 1993 accepted 30 in full and 21 in principle, and rejected 10 recommendations therein. On the other hand, the English Police and Criminal Evidence Act 1984 (PACE) of the United Kingdom provided that the Home Secretary should lay before the House of Commons of the Parliament the codes of practice on the exercise of statutory powers by police officers for approval, and that police officers breaching the codes could be subject to disciplinary actions. LRC recommended in the Report that practices similar to those under PACE be adopted for Hong Kong, but working group did not adopt the recommendation. In this connection, will the Government inform this Council:
(1) of the latest position of the implementation of each of the recommendations accepted in full or in principle by the working group, as well as the relevant work plans for the coming three years (set out one by one in a table); in respect of each of the recommendations rejected by the working group, of the reasons for rejection given by the authorities at that time, and whether the authorities assessed afresh its feasibility in the past three years; if so, of the assessment outcome (set out one by one in a table);
(2) as it has been almost 25 years since the Report was published, and as there are comments that at present, the society’s demand for and expectations of human rights and conduct of law enforcement officers are higher as compared with those of the past, whether the authorities will consider afresh adopting the recommendation to draw up codes of practice for police officers, as put forward in the Report; if so, of the details and the follow-up work; if not, the reasons for that; and
(3) given that one of the concluding observations, published by the United Nations Committee against Torture in February 2016 after its consideration of the fifth periodic report submitted by the Government of the Hong Kong Special Administrative Region (HKSAR) on the implementation of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in HKSAR, is that Hong Kong should make public the police general orders and related guidelines on the use of force, whether the authorities will accept the suggestion by making public fully the Police General Orders, the Force Procedures Manual and other related orders or codes of practice; if so, of the details and the follow-up work; if not, the reasons for that?
(1) The Report published by the Law Reform Commission (LRC) in 1992 put forward 61 recommendations on the powers of stop, search, arrest and detention of law enforcement agencies and other matters related to the exercise of such powers. In 1993, the Government set up an inter-departmental working group to study the recommendations. The views of the working group were deliberated in the public consultation in 1996 and discussed at the Legislative Council Panel on Security meeting in February 1998. The Hong Kong Special Administrative Region (HKSAR) Government also provided information on the follow up actions on the various recommendations for the meeting of the Legislative Council Panel on Security in July 2004.
Among the 61 recommendations put up by the LRC, 51 were accepted or accepted in principle, and the majority of them had been suitably implemented with regards to the existing law enforcement practice and local situation. These include, for example, the appointment of “Custody Officers” and “Review Officers” by law enforcement agencies to ensure those in detention are treated properly, stating in layman’s term the reasons for the stop and search to the persons affected by law enforcement agencies, the expanded use of video-interviewing with suspects, disclosure of statistics and information in relation to stop, search and road block checks, as well as ensuring that the person arrested should be informed that he is under arrest and of the ground for the arrest, etc. Regarding the recommendations to be followed up, since the relevant reasons and grounds were put up many years ago, we need to review and consider their way forward taking into consideration the changes of situation since then and local law enforcement experience.
As regards the remaining 10 recommendations, including the adoption of the Police and Criminal Evidence Act 1984 on issuing code of practice to facilitate the exercise of powers by police officers, as well as the recommendation of giving persons not charged or not convicted the rights to witness the destruction of their fingerprints and samples, etc. by law enforcement agencies, the working group has rejected them as they were considered unnecessary, impracticable and/or would unjustifiably weaken the law enforcement capability.
(2) The Police General Orders (PGO) are made by the Commissioner of Police (CP) in exercise of the power conferred on him by section 46 of the Police Force Ordinance (Cap 232). The section provides that CP may from time to time make such orders that he thinks are expedient to enable him to administer the Police Force, render the Police Force efficient in the discharge of its duties and for carrying out the objects and provisions of the Police Force Ordinance, etc.
The LRC recommended that when it is necessary to amend the code of practice, the law enforcement agency should go through the legislative process regardless of how minor the proposed amendment is. We consider that the code of practice must be amended frequently in the light of day-to-day operational experience to ensure that it meets the needs of law enforcement. The LRC’s recommended way of amendment would be inflexible and might affect the responsiveness of the law enforcement agency. We consider the existing way of amending the code of practice through administrative means effective and should be maintained.
(3) The Police have currently uploaded part of the PGO to the Police’s public website for public inspection. As for other orders or guidelines which are not disclosed, their disclosure would affect the proper and efficient conduct of the Police’s operations, and the Police’s work in the prevention and detection of crimes. As regards the use of force, there are stringent Police guidelines for the use of force, and the force to be used by the Police shall be the minimum force necessary for achieving a lawful purpose. Police officers shall, before using force and when circumstances permit, give warning of their intention to use force, and the persons involved shall be given every opportunity, whenever practicable, to obey police orders. Police officers shall exercise a high level of restraint at all times in the use of force. The use of force shall cease once the purpose of which has been achieved. The guidelines on the use of force are not suitable for disclosure as operational details are involved.