submission of the Monitor to the Bills Committee on the Independent Police Complaints Council Bill (IPCC Bill) held on 3 February 1997
THE NEED FOR AN INDEPENDENT AUTHORITY
1. The Hong Kong Human Rights Monitor condemns the Hong Kong Government's continuing efforts to shield the bad elements in the police force from fair and independent investigation of complaints lodged against them.
2. Governor Chris Patten acknowledged to the Monitor as long ago as January 1996 that there was a serious problem with police behaviour and the police complaints system. Despite this, his government blocks every reasonable attempt to reform the system to introduce independent investigations.
3. The Monitor reiterates that the current system of police policing police simply does not work. Only an independent authority to handle complaints against the police can sufficiently address the lack of credibility and fairness in the police complaints system.
4. The UN Human Rights Committee shared our concerns. It noted in its 1995 Concluding Observations, "the investigation of such complaints rests within the Police Force itself rather than being carried out in a manner that ensures its independence and credibility. In [the] light of the high proportion of complaints against police officers which are found by the investigating police to be unsubstantiated, the Committee expresses concern about the credibility of the investigation process and takes the view that investigation into complaints of abuse of authority by members of the Police Force must be, and must appear to be, fair and independent and must therefore be entrusted to an independent mechanism."
5. The Monitor considers that the Council, as defined by the current Bill, is not an independent mechanism entrusted with the power to investigate complaints against members of the Police Force. In its present form, the Bill does not allow the Council to take over the investigation of complaints unless amended accordingly.
6. While the UN Human Rights Committee welcomed the provision of statutory status to the Independent Police Complaints Council, it rightly highlighted the fact that such changes "still leave investigations entirely in the hands of the police". As an immediate step forward expected to have been implemented in 1996, the Human Rights Committee recommended in 1995 the incorporation of "non-police members in the investigation of all complaints against the police". The Government has failed to achieve anything in this regard.
7. The Government has even failed to implement the IPCC's 1993 and 1995 recommendations that "some non-police officers should be appointed to CAPO to participate in the investigation of some serious complaints" (original emphases reproduced) and "the appointment of a civilian head to CAPO".
8. Preparing amendments to provide the IPCC with investigation powers will require a lot of research. The Monitor is willing to help if the Committee feels this is the alternative preferred. If any Member of the Legislative Council intends to move a private member's bill to bring about such changes if the Government fails to do so, the Monitor is pleased to assist as well.
THE CURRENT BILL
1. Even if the IPCC is just intended to be a monitoring and reviewing body, its necessary functions and powers, etc., have been curtailed, making it difficult even to discharge its basic duties properly. The Monitor queries the sincerity of the Administration in making the Council effective at all even for such limited purposes. We therefore propose below some limited amendments purely to ensure that the monitoring function which is the Government's stated aim can be carried out effectively. These amendments do not deal with the fundamental flaws outlined above.
SECTION 2. INTERPRETATION
1. Complaints should not be restricted to those personally aggrieved but should be accepted from others with a legitimate interest in the subject matter of the complaint.
2. Examples of such cases are those where the person who is personally aggrieved is unable or unwilling to report while there are others who may be able to file a valid complaint. For example, a street-sleeper may be physically abused under a flyover and this may be witnessed by his "neighbour". A mental patient may be unreasonably beaten up in front of a bank counter videoed by the closed circus TV and seen by tellers and customers around. IPCC should be empowered in such cases to deal with complaints lodged by the neighbour, tellers, customers or even the technician who saw nothing but the video, or a casualty room duty doctor who treats the patient immediately afterward and learn of this from a teller who knows the abuse. The Council should also be empowered to deal with cases they learn from the press or from whatever sources it or its secretariat consider appropriate. Representatives of NGO or NGOs should be allowed to complaint on behalf on their clients if authorized by them.
3. Amendments should be made to clarify that "any practice or procedure adopted by the police force" including the Police General and Headquarters Orders made pursuant to sections 46 and 47 of the Police Force Ordinance, Cap. 234.
4. Clarification should be obtained from the Administration as to whether "practice or procedure" in the definition of "complaint" include policies, e.g. those relating to bail, etc.
5. The Council should also be required and empowered to deal with any matter which appears to the police force to indicate that a police officer may have committed a criminal offence or behaved in a manner which would justify disciplinary proceedings but is not the subject of a complaint (c.f. section 88 Police and Criminal Evidence Act 1984). The Commissioner of Police should be obliged to refer such matter to the Council.
6. The definition of "witness" should be extended to mean a person, who in the view of the Council, has provided or might be able to provide information or other assistance in connection with the investigation of a complaint or with the monitoring of the investigation of a complaint including the complainants.
Section 4. Membership of the Council
1. Some people should be disqualified from becoming a member of the Council, including police officers, persons closely connected to the police force or any member of it in family tie, business transactions, etc. There should also be a restriction on the number of members who are civil servants.
2. There should also be requirement that a certain number of the Council members are from NGOs campaigning for criminal justice or civil liberty. This could be achieved by requiring that a number of members have experience of dealing with police complaints other than as members of the police.
3. The Council should also be able to appoint co-opted members to assist it to discharge some or all of its functions.
SECTION 6. APPOINTMENT OF SECRETARY
1. Clarification should be obtained from the Administration as to whether section 6 intends to provide for a secretariat to be headed by the Council Secretary and answerable to the Council only. To ensure an independent Council, the Council should be able to have independent administrative support which involves independent powers to appoint staff, enter into contracts, etc. Such powers should be clearly laid down in the Ordinance, not in the regulations.
SECTION 7. FUNCTION OF THE COUNCIL
1. There should be a requirement that before any order is made by the Commissioner under sections 46 and 47 of Police Force Ordinance, Cap. 234, relating to the handling of complaints against the police the IPCC must be consulted and given an opportunity to comment on any proposed new orders to be made under these provisions. Amendments to this Bill (e.g. sections 7 and 8) or sections 46 and 47 of Police Force Ordinance should be made accordingly.
2. There should also be a requirement that in relation to recommendations made under the proposed new section 7(d) that if the subject matter of the recommendation relates to a Police General and Headquarters Orders made pursuant to sections 46 and 47 of Police Force Ordinance then the Commissioner be obliged to consider revising or removing the relevant Order. If he is not minded to do so he should be obliged to give his reasons to the IPCC in writing. The Council should then report this in its annual or special reports. The Government or the Legislative Council may then choose to intervene, if necessary, by appropriate legislation.
3. The Council should have the function and power to refer a case to the Attorney General or Director of Public Prosecution with recommendations if the Council considers it appropriate to do so. Consequential amendments relating, say, to power, secrecy, report, procedure., etc. should also be made. (c.f. section 90, Police and Criminal Evidence Act 1984)
4. Clarification should be obtained from the Administration as to how active the role of the Council intended to be under section 7(d).
SECTION 8. POWERS OF THE COUNCIL
1. There is a serious defect in this Bill that the IPCC has a number of functions and powers which are basically all to do with monitoring while the Commissioner of Police has only one main duty, that is, to cooperate with the IPCC but not necessarily do what it is necessary to discharge the Council's own duty.
2. Clarification should be obtained from the Administration as to whether section 8 intends to empower the Council to obtain documents or information on practice and procedure, etc.
3. Section 8(2) raises serious doubts as to whether the Government intends to provide for conditions essential for the discharge of the duties of the Council.
4. Section 8(1) gives the powers while section 8(2) contains exemptions which render the Council ineffective even if the powers relate to important activities essential to the discharge the statutory duty of the Council.
5. The Commissioner of Police is even exempted from the duty to assist the Council on work as to "interview any witness for the purpose of exercising its functions under this Ordinance"( section 8(1)(a) ), to "monitor, review or report on any action taken by the police force in respect of a complaint" ( section 8(1)(f) ), and to "do all such other acts as are reasonably necessary for the exercise or performance of all or any of the powers or duties of the Council under this Ordinance or do any other thing which is incidental or conducive to the exercise of the functions of the Council" ( section 8(1)(g) ).
6. Such exemptions are especially unacceptable when there are clear excuses in cases where such compliance with the requirement would likely prejudice, firstly, the security of Hong Kong, or secondly, the investigation of any crime.
7. There should be procedural safeguards to ensure that such grounds will not be raised without explanation or unchecked. These should include a requirement for the Commissioner of Police to give the Chairman and Vice-Chairmen of the Council reasons in writing substantiated with sufficient facts. In case of a disagreement on the part of the Chairman or the Vice-Chairman, the Council should be empowered to challenge such decisions, by applying to a High Court judge in chambers. On application by the IPCC, the judge can order for the compliance of the Commissioner of Police in part or in full and the disclosure of all or part of the facts to the public if the court considers such disclosure is in the interest of the public. This procedure should ensure that non-compliance on these grounds will not be unreasonably raised. Relevant amendments should be made to provide for the power of the Council to take legal action, the procedures and also the requirements for secrecy in such processes.
8. There should also be clear provision in the Ordinance for the power of surprise visits to police stations, premises, vehicles, vessels, etc.
SECTION 9. PROCEDURE, ETC.
1. The procedure stated in section 9 is too restrictive. It undermines the effectiveness of the Council by preventing the Council from monitoring the manner of investigation even when there are irregularities disclosed, or when a case has taken an unreasonably long time. The Council should have the power to demand an oral or written report containing the most recent available information in relation to a case as specified in section 9(1) as far as possible whenever the Council considers appropriate. The Council should be allowed to made recommendations relating to any practice or procedure, or any investigation whether the investigation has never been started, is in progress, or has been completed. Such recommendations should not be made dependent upon the concluding case report prepared by the police.
2. To speed up a case, the Council should also be allowed to make recommendations to the Commissioner verbally and then to record them in writing as soon as possible afterwards. To avoid delay due to the Council's review process (a period added to the investigation), a statutory time limit of one to two months should be imposed on a decision and the issuance of a letter informing the complainants and the victim's family the decision. If the time limit cannot be met, letters informing the delay with the explanations should be issued instead.
SECTION 10. INTERVIEW WITH WITNESS
1. The Council should be allowed to interview any witness at any time the Council considers appropriate.
2. Amendments should be made to section 9 to ensure that no witness would be forced to incriminating himself or herself in the process.
SECTION 11. SECRECY
1. Section 11(2)(c) should be expanded to enable the disclosure of information to his or her guardian and family members (or their guardians in case these members are also minors or of unsound mind) if the person who may make a complaint is a minor or of unsound mind, or is dead. Appropriate changes should be made to take into account the amendments made to the definition of "complaint" in section 2.
2. Once there is a decision to punish a member of the police force, any member, co-opted member, or staff of the Council is allowed to disclose the information. Similar power should be granted to the secretariat.
3. There should be a statutory defense to the offence introduced under section 12(4) if it is in the public interest or reasonable and equitable to disclose that information.
4. The offence should be restricted to those with the intention to prejudice investigation of crime, etc.
SECTION 13. REPORT
1. The yearly report by the Council to the Governor should be tabled in the Legislative Council. Other reports in section 13(2) should also be tabled in the Legislative Council.
SECTION 14. POWER OF GOVERNOR TO MAKE REGULATIONS
1. Clarification should be sought from the Administration on what are those additional functions and duties the Administration has in mind.
2. Provision should be introduced to ensure that those regulation provided for in section 14 should be made to promote the effectiveness of the Council instead of restricting it.
Additional amendments designed to widen the IPCC power of investigation
1. There should be a new section 7 (e):
"to investigate such other complaints brought to its notice as it considered appropriate."
2. There should be a new section 8 (1)(h):
"require the Secretary to cause to be investigated such complaint as it considers appropriate without first requiring the Commissioner of Police to investigate or reinvestigate such complaint."
3. There should be a new section 8 (3):
"Notwithstanding section 4 of the Police Force Ordinance, the Commissioner of Police should cooperate in any investigation into a complaint carried out under subsection 1, unless he is satisfied that compliance with the requirement would be likely to prejudice the security of Hong Kong or the investigation of any crime."
4. This approach, providing for investigation powers for the IPCC will also require a number of consequential amendments.