Crucial Time for Police Reform
According to the UK's Supplementary Report on Hong Kong under the ICCPR, the Independent Police Complaints Council (IPCC) is soon due to complete its independent review of the Complaints Against Police Office (CAPO) procedures.
The Monitor is gravely concerned about illegal use of force by the police during arrest and interrogation of suspects and believes this is a crucial time to press the government for reform in police procedure and for a more effective monitoring mechanism than exists at present. The two are intimately connected as one of the few safeguards against police abuse of powers is a sure and swift response when such abuse occurs.
An ongoing study by Janice Brabyn of the University of Hong Kong has revealed that 162 or 21% of 762 defendants in criminal cases handled by the Magistracy over a two-month period, challenged confession evidence. In 74, or 46% of those cases, the defendants alleged improper police behavior in obtaining confessions. 43 claimed that they had been assaulted by the police, 36 claimed that threats were made against them or family members in order to induce confession.
Tellingly, the magistrate upheld the defendant's challenge in 29, or 18% of the 162 cases in which confession evidence was at issue. Hong Kong's rate of challenge to the admissibility of confessions and the rate at which such challenges are upheld is quite high compared to other jurisdictions. Many of the Monitor's members are legal practitioners and have long believed that illegal or improper use of force in arrest and interrogation is routine. This is confirmed by Brabyn's research.
The police commissioner suggests that allegations of improper use of force are merely a tactic used by accused persons to delay or impede prosecution. The fact that judges take these allegations seriously and in many cases throw out convictions belies this assertion. The proportion of cases in which confession evidence is excluded is much higher in Hong Kong than, for example, England and Wales. Whether innocent suspects are coerced into confession or criminals are let go because of inadequacy in interrogation procedures, improper use of force by the police is itself an injustice which may also prevent justice being done.
Another indication that violence is part of the police culture in Hong Kong and that police are encouraged to see themselves as above the law is the frequency of police assault on persons who are not suspects, the most notorious case in recent years being the attack by six police officers on several off-duty customs officers. The Monitor believes that rather than an isolated incident, the work of a few bad apples, this case is indicative of a pervasive problem.
Dr. Conrad Lam, Vice-Chairman of the IPCC, shares our concerns about illegal use of force by the police and is also concerned that the mechanism for investigating complaints against the police is inadequate. The current practice of the police investigating themselves, through the internal Complaints Against Police Office (CAPO), is neither workable nor credible. In the United Kingdom, investigations into police misconduct are carried out by members of another force. CAPO investigators come from and return to the regular police force, and tend to approach complaints from a defensive posture, rather than an impartial one. Their loyalties lie with the police rather than the public. One rule of procedure followed requires that a complaint is ruled unsubstantiated unless there is independent corroboration. In addition, CAPO will not pursue a complaint unless there is evidence sufficient for a conviction of the police officer, even where there is strong evidence of wrongdoing. It is of prime importance that an independent element be introduced into the mechanism for investigating complaints.
The IPCC as currently constituted does not have sufficient power or resources to effectively monitor CAPO's activities. It has no independent investigative powers and its new ability to call witnesses is insufficient. IPCC reviews the information put before it by CAPO and its members are too busy to look very deeply into the evidence. At most it may catch only the most blatant cases of inadequate investigation by CAPO. Dr. Lam has told us that according to CAPO, IPCC members are not even permitted to enter CAPO's office except by prior agreement. The requirement that IPCC members be Justices of the Peace further limits IPCC's capabilities as it excludes otherwise well-qualified people who might have more time to devote to overseeing CAPO.
To ensure confidence in the police and to safeguard against police abuse, the Hong Kong government should transfer investigation of complaints against police to an independent body. At the very least, a lay person should be appointed to head CAPO in the near future.
The following changes to police practice and investigation of complaints are also necessary: (1) expand video recording of police interviews; (2) introduce a "lay observer" scheme whereby observers make random visits to police stations to ensure proper procedure is being followed; (3) require the police to maintain custody records for every arrested person; (4) revise the guidelines for categorising complaints so that cases in which there is wrongdoing that stops short of criminality are still taken seriously; (5) allow non-Justices of the Peace to be IPCC members and add more members so the Council can fulfill its mandate of oversight; and (6) provide a statutory basis for the IPCC.