Hong Kong Human Rights Monitor

Government Reform of Police Complaints System - Too Little, Too Late

A Bill to place the Independent Police Complaints Council (IPCC) on a statutory basis was introduced to Legco on July 10th. While this move is welcomed, it goes nowhere near far enough. It does nothing to address the grave concern voiced frequently and repeatedly by legislators, lawyers, community workers-- and even members of the IPCC itself--that the police complaints system needs radical reform.

The fact that it is the police who investigate complaints against fellow officers is the basis of this concern. The IPCC Bill was introduced along with a package of recommended reforms both of the IPCC and the of body it monitors, the Complaints Against Police Office (CAPO). The issue of CAPO's lack of independence was not addressed. Organisations and individuals working with victims of abuse of police powers question the value of any measures that fall short of introducing an independent element into the investigation process. The Monitor is calling for the IPCC to be given independent investigative power and for the appointment of a civilian to head CAPO.

The reform package which the Government announced along with the IPCC Bill involves implementing the final recommendations of two reports, one on CAPO and one a comparative study of police complaint systems.

The Report on Review of CAPO's Investigative Procedures, IPCC's Monitoring Mechanisms and Interface with CAPO, notes that the IPCC has twice (in 1993 and in 1995) submitted proposals to the Administration that a civilian be appointed to head CAPO and that some civilian investigators be appointed to investigate some complaints. The author of the report (Allan Chow, seconded to IPCC from the Security Branch), declined to even discuss this issue in his report as "the Chairman of IPCC has recently taken up the proposal of civilianising the head of CAPO with the Commissioner of Police." Mr. Chow was concerned "that [his] thinking on the issue may prejudice the discussion under way."

In the report, it is made clear that CAPO's investigative capabilities are woefully insufficient. Only about half of CAPO's officers have attended the Police Force course in criminal investigation. In addition, the report goes so far as to say that the monitoring of serious complaints by CAPO Crime Team (which has territory-wide responsibility for monitoring and/or investigating allegations of criminality against the police) is "no more than a paper exercise." This puts in a different light the police department's insistence that only the police have the training to investigate complaints against police, when, according to this report, not even CAPO has the proper training.

In addition, while the report's author observed interviews with complainants, he did not survey complainants for their views on the way the system works. He was only reporting on one side of the story.

The Report on Comparative Study of Complaints Against Police Systems is the result of a joint study (by IPCC, Security Branch, and the Royal Hong Kong Police Force) of complaints systems in ten other jurisdictions. The general tone of the report is to downplay the benefits of an investigatory body that is separate from the police department, and to play up the positives of systems similar to Hong Kong's. The report's analysis obscures the fact that of the ten systems surveyed, in six there is a civilian body with either the entire responsibility or at least the capacity for independent investigation The four that have no independent body either monitoring or investigating are Japan, Singapore, the city of Los Angeles and Los Angeles County (the last two hardly models of police restraint). For example, the report notes that five jurisdictions out of the ten studied have systems similar to Hong Kong's (in which police investigate and a civilian body monitors) without noting that in three of those, the monitoring body does have investigative powers which can be used if necessary. In the jurisdictions covered which have entirely independent investigations, the authors find it necessary to point out that the system is relatively new and it's not known how it will work out. This constitutes a refusal to recognise that the trend in police complaint systems is away from police investigating police and towards having an independent investigatory body.

Another issue left unaddressed by the report is that of standard of proof. The standard of proof used in other jurisdictions is in sharp contrast to that used by CAPO in determining whether a complaint is substantiated. Currently, CAPO will often find a complaint unsubstantiated unless there are "independent" witnesses (that is, witnesses who are neither related to nor acquainted with the complainant). This goes beyond what is required in most other jurisdictions studied.

In addition to not going far enough, the Government's proposals also serve as a shocking reflection on the inadequacies of the current system. It is only now that it is proposed, for example, to make it a disciplinary offence to "tip off" a police officer that he or she is under investigation. This suggests that, at present, details of a complainant's case may be revealed to an officer under investigation, which allows the officer to tailor his/her story for investigators.

It is also recommended that CAPO's investigations be speeded up. A complainant now may wait as long as six months to pick out a suspected officer from an identity parade -- in some cases longer still. Completion of investigations can take several years, months for each step of the process, that is, CAPO's initial investigation, IPCC queries, CAPO reinvestigation or response, and final IPCC endorsement.

In its Legco Brief on the IPCC Bill and accompanying package of reforms, the Security Branch made much of the IPCC's power to interview witnesses in complaint cases (another recent reform which took years to be implemented). But it should be noted that with this power, the IPCC has interviewed only 21 witnesses in 11 cases from October 1994 to December 1995. By contrast, in 1995 alone, 3,454 complaints against the police were reported to the IPCC. Further, the IPCC can only "invite" witnesses to appear, it cannot compel their appearance. And IPCC can only speak to witnesses after the conclusion of CAPO's investigation. While IPCC members can now observe CAPO interviews with complainants, witnesses, or complainees, they cannot ask any questions of the interviewee.

The Government also intends to expand the Informal Resolution Scheme (IR) to all "minor complaints." The scheme, while currently applicable to all minor complaints, is in practice used for only some types. IR basically consists of the complainant agreeing to having a superior officer speak to the complainee about the incident complained of. There is currently no admission of guilt and no disciplinary procedure related to the IR scheme. Punishment is no more severe than a ticking off from a superior and no entry is made in an officer's record of service. The Monitor is aware that IR has, in the past, been attempted in a case where the complaint related to assault. IPCC itself objected to the use of IR in 18 cases in 1995 because of the gravity of the allegations. We are concerned that an expansion of the scheme will lead to its use in inappropriate situations.

There are thought to be several constraints explaining why reform has fallen so far short of expectations. Police opposition to a civilian head of CAPO has been steadfast and nothing will be done to knock police morale so close to the handover. It is also said that China will reverse any reforms that are too radical. In any event, it is clear that even the recently announced reforms will take time to come into effect. The IPCC Bill was halfway through its second reading when Legco adjourned and it now waits for Legco to resume its work in October and for a Bills Committee to be formed to discuss its contents. The cost of the reform measures is estimated at 13 million dollars. Exco has indicated that this is not a problem, but the money cannot be allocated until April 1997, the beginning of the next financial year.

The Monitor is calling for an independent element to be introduced into the investigation of complaints. We fear that the announced reforms are too little and come too late. We intend to step up our campaign for police reform in the autumn, both on the legislative front and by highlighting the suffering of victims of police abuses.

1996/1997 (c) Hong Kong Human Rights Monitor