Government loses legal battle over police identification during Hong Kong protests, court says complaints system ‘inadequate’

Chris Lau
·6-min read

Hong Kong’s High Court has ruled that the system for dealing with complaints against police is inadequate, and officers’ failure to display their identification numbers during last year’s anti-government protests contravened the city’s Bill of Rights.

Court of First Instance Judge Anderson Chow Ka-ming sided with the Hong Kong Journalists Association (HKJA) on Thursday in its legal challenge against the government and the police. The court also ruled in favour of two other judicial review applications filed by four residents who took issue with officers’ failure to display their identification.

Chow found the Bill of Rights imposed a “positive obligation” on the government to maintain an independent mechanism capable of conducting “effective investigation” into complaints of suspected ill-treatment by police officers.

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“The existing complaints mechanism involving the Complaints Against the Police Office (CAPO), with oversight by the Independent Police Complaints Council (IPCC), is inadequate to discharge this obligation,” he said in a written judgment, noting that the former operated under the force itself, while the latter lacked the necessary investigative powers.

Article 3 of the Bill of Rights states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

“The rights protected by [Article 3 of the Bill of Rights] are absolute and non-derogable,” Chow wrote. “This means that even in times of public emergencies, however serious, the rights under [Article 3] must still be respected by the government and protected by the courts.”

The ruling highlights the disagreement between how the judiciary views the existing system, and how it is seen by the authorities led by Chief Executive Carrie Lam Cheng Yuet-ngor, who has been insisting it is capable of handling complaints arising from the protests.

Against the advice of former chief justice Andrew Li Kwok-nang, Lam also previously refused to set up an independent commission of inquiry to look into the protests, insisting a report compiled by the IPCC would suffice.

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Chow also ruled that the police commissioner’s failure to maintain an effective system ensuring uniformed police officers deployed during the unrest displayed their identification numbers violated the Bill of Rights.

He said the complaint system would not work without a victim being able to identify officers implicated in credible cases of ill-treatment.

“An obvious measure that could and should be taken would be to require police officers each to wear and prominently display a unique identification number or mark when carrying out non-covert duties,” he said.

The court cases were filed last year by those who had accused police of mistreatment, but were unable to lodge a complaint because they could not identify the officers allegedly involved.

A police spokesman said the force was studying the ruling with the Department of Justice before taking follow-up action.

Riot police wait on Great George Street, Causeway Bay, as protesters gather for a march in September, 2019. Photo: Sam Tsang
Riot police wait on Great George Street, Causeway Bay, as protesters gather for a march in September, 2019. Photo: Sam Tsang

The Chief Executive’s Office, meanwhile, referred inquiries to the Security Bureau, which said it was also looking into the judgment together with police and the justice department.

In light of the ruling, IPCC chairman Anthony Neoh told the Post on Thursday that there was little the body could do at this stage but continue with its work, adding that if the judgment was not appealed, he expected more direction would be needed from the judge to work out a way forward.

He also noted that the IPCC had recommended to police in June last year that they put officers’ identification on their uniforms and helmets.

Failure to display police ID numbers, lawyers for the applicants argued during the hearing, could lead to “a culture of impunity”, while breaching the rights guaranteed to others under the Hong Kong Bill of Rights and the International Covenant on Civil and Political Rights.

But lawyers for the government and police maintained both had complied with the law, and in an earlier written affirmation, Chief Inspector Kenneth Lee Yuet-lam told the court that riot officers were not required to display their numbers because of “obvious personal safety concerns”.

A new system identifying riot officers, with alphanumeric identification, had been put in place since June, the court was told.

Chow said he was “fully alive” to officers’ concerns about a rampant doxxing campaign, in which their personal information was posted with malicious intent online.

“However … such concern cannot of itself override the duty to maintain an adequate system to investigate suspected cases of breach of [the Bill of Rights],” the judge wrote.

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He also pointed to inadequacies in the new system, as it was an internal one used by the force, which meant victims of police ill-treatment would be left “entirely or largely at the mercy” of officers.

Chow cited instances of officers simply not wearing the new identification signs, or hiding them, while in some cases multiple officers used the same sign on the same occasion.

In addition to the HKJA’s application, the challenges were filed by retiree Chan Ki-chau, teacher Yeung Tsz-chun, former civil servant Kwok Cheuk-kin, disqualified lawmaker Sixtus Baggio Leung Chung-hang, and civilians Chan Kung-shun, Lo Cham-sze, and Ng Hong-luen.

Chow ruled in favour of the HKJA and Chan Kung-shun, as well as in partial favour of Yeung, but dismissed the challenges by Leung, Kwok and Chan Ki-kau on technical grounds.

Yeung, who was hit in the eye by an object coming from the direction of a group of police officers during a protest in June last year, noted he had won only 80 per cent of the case because the judge refused to accept part of his argument.

“But the most important thing [the judgment found] is that police’s decision violated the Bill of Rights, and the IPCC mechanism has been unable to investigate complaints against police effectively,” he wrote on his Facebook page.

HKJA chairman Chris Yeung Kin-hing welcomed the court’s ruling and called for an immediate response from police.

Hong Kong Journalists Association chairman Chris Yeung welcomed the court’s ruling. Photo: Nora Tam
Hong Kong Journalists Association chairman Chris Yeung welcomed the court’s ruling. Photo: Nora Tam

“We hope the force will take immediate actions to rectify the situation, as revealing identities should be a basic requirement [for officers] so that the public, including journalists, can lodge a complaint against certain officers if they are unfairly treated,” he said.

“I think the ruling gives a very clear instruction on what police should do, but honestly, it is beyond our control whether the force will take immediate action, as it is possible they will lodge an appeal.”

Icarus Wong Ho-yin, founder of the Civil Rights Observer, which monitors police conduct, urged the authorities to investigate any infringements of rights arising from officers’ identification numbers being obscured, and to hand out penalties and compensation accordingly.

“The government has the responsibility to set up an independent and effective mechanism to target police officers alleged to have tortured those under arrest,” he added.

Additional reporting by Lilian Cheng

This article Government loses legal battle over police identification during Hong Kong protests, court says complaints system ‘inadequate’ first appeared on South China Morning Post

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