Striking the Right BalanceThe Problem
The proportion of cases in which the admissibility of confessions are challenged, and the proportion of such cases in which the challenges are upheld is very high in Hong Kong. A 1995 research project found that in 18% of those cases in which voluntariness of a confession was contested before the magistrate, the magistrate concerned was not satisfied that the confession was obtained voluntarily and therefore excluded it. In contrast, the corresponding figure in post-PACE (see below) England and Wales was about 1 to 2%. After the introduction of videotaped interrogation there, the figure further dropped to below 1%. Recently, over a period of a few days, several shocking incidents involving the Hong Kong police have been reported in the press. The problem lies in the defective legal framework governing police powers, the absence of an independent police complaints authority, and ultimately, in the failure of the Government to address these issues.
At common law, a defendant can be convicted of an offence even if the only evidence against him is his confession. The fact that he has a right to silence, and yet has chosen to confess against his own interest, may be considered sufficient evidence for a conviction. In such a system, when the police are granted enormous powers, with few procedural safeguards and no independent monitoring against abuse, we are indeed inviting the police to coerce confessions out of suspects, putting those under arrest at risk of physical violence. The question then becomes, why should the police bother to investigate a crime carefully if framing people or beating confessions out of suspects can be easily done and carries little risk of being found out?
Law Reform Commission's Recommendations
Until recently Hong Kong was a colony of the United Kingdom and its criminal law closely resembled that of England and Wales. Hong Kong law has therefore inherited a number of shortcomings from the English law. Many of the inadequacies in the law were reviewed and put right by the introduction of the Police and Criminal Evidence Act 1984 (PACE). One of the main objectives of PACE was to strike a satisfactory balance between police powers and the rights of the suspect. However, the provisions of PACE did not apply to Hong Kong.
On 28 November 1988, the Hong Kong Attorney General and the Chief Justice asked the Law Reform Commission (LRC) to examine the rights and duties of the police, other public officers and of private citizens, relating to stops, questioning, detention, searches, arrest, cautions, interrogation and charging; to review the law and practice involved; and to make recommendations on the relevant provisions of the PACE to be adopted in Hong Kong. The LRC was to produce a draft code on these matters.
The Commission's task was to maintain a fair balance between law and order on the one hand, and the liberty of the subject on the other, and to propose legal provisions which were readily accessible and easily understood by the police and the public at large.
The subgroup in the LRC responsible for the task consisted of:
1. Two judges, one of whom chaired the group;
2. A total of four legal experts drawn from the Bar Association, Law Society and Hong Kong University;
3. A social worker;
4. A management consultant;
5. A representative from the Attorney General's Chambers; and
6. Two representatives of the police.
After a total of 44 meetings the subgroup submitted its report to the LRC. The LRC issued its final report in August 1992 after discussions that took place over the course of five meetings. The LRC found that "the concerns which have led to a critical re-examination of police powers" in England were "equally applicable to Hong Kong". It "found that the existing [legal] provisions and Codes of Conduct of the various law enforcement agencies are separate and differ in certain aspects. In addition, most of the Codes of Conduct are confidential." They suggested that "in the interests of clarity and accessibility, [the] recommendations should be of uniform application to all enforcement agencies" but allowed an agency to retain a particular power outside such a common framework if the agency could justify it. The LRC concluded that PACE "has been largely successful in striking a balance between realistic police powers and adequate protection" for those subject to such powers. It recommended the adoption of many of the provisions of PACE in Hong Kong law. Realizing that an increase in resources was required to implement the safeguards it proposed, it has taken into account "the need to ensure that scarce resources are not used unnecessarily" in formulating their recommendations.
Interdepartmental Working Group's Alternatives
Instead of introducing a bill to implement the recommendations, the government set up an Interdepartmental Working Group ("DWG" in April 1993 to examine the report and "to strike a balance between the need for effective law enforcement and the protection of the rights of individuals", apparently implying that a better balance could be struck by the group than the LRC. The IDWG was only a government internal group "chaired by Security Branch with representatives from Police, Immigration, Customs & Excise, ICAC and the Legal Department"
” After three years' examination of the LRC Report, another report was issued by the IDWG in October 1996. No draft bill was produced. No timetable was announced for any bill to implement the recommendations or amendments to the code of practice. Among the 61 main recommendations in the LRC Report, only half of them survived scrutiny by the IDWG. Six were rejected "because they were considered unnecessary, impracticable and/or would unjustifiably weaken the existing law enforcement capability" although none of these LRC recommendations were demonstrated to be flawed and no clear reasons were given for their rejection. Another four "were not adopted as they were technical amendments consequential to proposals which the [IDWG] have rejected." Twenty-one recommendations were accepted in principle but with "suitable adaptations taking into account existing law enforcement practice and [the] local situation". All this despite the fact that the LRC's work was to identify the weaknesses in our law and practice, in light of the local context, and to come up with recommendations to rectify them.
The LRC has examined the issues quite carefully and has made quite sensible recommendations. The original LRC recommendations should be taken forward with a bill to rectify the domestic law. If the IDWG approves most of the LRC proposals - as the tone of the IDWG report seemed to convey - what is the time table for legislation?
The government, including the police, were represented in the subgroup and the LRC, and had the benefits of expressing their points of view in the LRC’s examination and from the contributions of the Law Society, Bar, Judiciary and others. There was no need for a purely government internal IDWG Report to go over "old ground". One cannot help but think that the IDWG Report was an attempt to bury at least some of the LRC recommendations.
The LRC has gone into detail explaining why changes are considered desirable. Yet the IDWG comes up with different conclusions without explaining why. For example, the LRC recommends that a road check has to be based on statutory powers but should only be permitted in relation to a reasonable suspicion in respect of an arrestable offence (punishable with over 12 months’ imprisonment). The IDWG insists on an administrative approach without legislation and no reasonable suspicion requirement for exercising this power. The random road checks which the police advocate are "administrative" meaning that they are not supported by a legal authority. Such checks in effect rely on people's misconception that the police have the authority to carry them out. It is simply not acceptable for the government to weaken the recommendations of an LRC report in this way, i.e. on the recommendation of an internal body which does not even condescend to give reasons for its conclusions. The government should implement the recommendations of the LRC fully by drafting new legislation now and introducing it to the first Legislative Council.
Independent Police Monitoring Authority
The current system of having the police policing themselves has fundamental flaws. CAPO, the branch of the police force responsible for the investigation of complaints against police, just does not function. Its failure lies in its lack of independence. Its tendency to protect the police makes CAPO both ineffective and accounts for its lack of basic credibility. Efforts to provide the Independent Police Complaints Council (IPCC) with power to investigate complaints have been repeatedly defeated by the police with the assistance of the government, the latest case being the government's withdrawal of the IPCC Bill after an amendment to empower the IPCC with investigative power was successfully made to the government Bill. The extreme efforts of the government to protect the police against effective independent investigation indicates not only the undue influence the police have on the government, but also the seriousness of police malpractice as evident in the high rate of excluded confessions. Without an independent monitoring authority with investigative power operating in a system with legal safeguards, including those recommended by the LRC Report, and without videotaping facilities in place, it is impossible to provide effective deterrence to abuses by unscrupulous elements in the police force. Nor can we provide proper protection to suspects and ordinary citizens, especially those under interrogation or in detention.
The government obstruction of these legal and institutional reforms has forced Hong Kong people to continue to pay the price. The recent incidents are just the tip of iceberg. Many incidents like these could have been prevented if reforms had been introduced earlier.
Law Yuk Kai