1. A research study is currently being carried out by Dr Janice Brabyn of the University of Hong Kong into the frequency and character of defence challenges to prosecution evidence that the defendant made an out of court written or oral confession. De- fendants may claim that :-
  2. (i) the confession evidence is fabricated;
    (ii) the defendant spoke, wrote or signed the confession because of improper threats, inducements, force or oppression;
    (iii) admission of the confession evidence would in any case be unfair.

    The study also attempts to discover court reaction to the defend- ant's claims, especially the rate at which prosecution evidence is excluded or disregarded.

  3. As part of this study all Hong Kong Magistrates conducting trials during the months of June and July 1995 were asked to fill in a special form with respect to each trial. Replies concerning 762 defendants were received. Of these 162, approximately 21%, involved confession evidence. In 74 of these the Defendant con- tested the voluntariness of the confession; 43 alleged actual assault, 36 alleged threats of various kinds including threats of detention ( denial of bail), assault, and prosecution of family members.
  4. In 29 of these cases the magistrate concerned was not satis- fied that the confession was obtained voluntarily and the confes- sion was therefore excluded. This is almost one in five of the cases in which confession evidence was an issue.
  5. Both the proportion of cases in which the admissibility of a confession was challenged and the proportion of those cases in which the challenge was upheld are very high compared for example with England and Wales. In addition, in terms of absolute numbers 29 cases over a 2 month period during which magistrates could not be certain confessions were voluntarily obtained is a large number. Magistrates dealing with criminal cases in Hong Kong, unlike in England, are full-time professionals, many of them with past prosecution experience. As such they are unlikely to be over-receptive to allegations against the police which are not well-founded. While it is true that in some cases magistrates will have correctly given the benefit of doubt to defendants who may not in fact have been improperly pressured it should also be borne in mind that not all magistrates returned the forms sent to them for this survey and that the true figure for all cases where confessions were excluded during the 2 month period may well be higher. Nor does the survey include District Court and High Court cases. 29 over a 2 month period averages out at 174 cases a year. In each of the cases if the individuals whose confessions were excluded were in fact guilty the effect of the suspected improper pressure will have been to prevent justice being done from the point of view of society or the victim. If the persons concerned were innocent it is at least equally serious that they should have been pressured into making a false confession and brought to court as a result.
  6. This survey confirms and provides a statistical underpinning for what many people in Hong Kong , particularly lawyers, have believed for a long time, namely that assaults on suspects by police officers occur so regularly that they are virtually rou- tine, rather than being simply cases of the occasional proverbial " bad apple ".
  7. In addition there are cases of assaults on persons who are not suspects. The most notorious of these in recent years , involving serious unprovoked assaults by police on a group of off-duty customs officers, led ultimately to the prosecution and convic- tion of the police officers concerned ( R v Cheung Kin Tak & Ors , copy of appeal transcript attached for reference). It is naive wishful thinking to believe that such a case, involving not a single officer but a group of 6, is simply an isolated outrage. It is far more likely to be indicative of a police culture in which many police officers believe that they can get away with breaking the law.
  8. Our concerns about the prevalence of illegal use of force by the police are shared by the Vice-Chairman of the Independent Police Complaints Council, Dr Conrad Lam, with whom the Monitor has had detailed discussions. Dr Lam is also concerned, as we are, that the existing police complaints machinery does not provide an adequate mechanism for investigating complaints. It is wrong in principle in a unitary police force such as the Royal Hong Kong Police that investigation of police complaints should be carried out within the force In the United Kingdom, which has some 40 police forces, serious investigations into police miscon- duct are normally carried out by officers from another force. In addition in practice the Complaints Against Police Office appears to approach its work in a spirit of trying to defend the police irrespective of the circumstances, rather than impartially estab- lishing the truth and ensuring that officers who have behaved badly are punished. In particular it operates a rule of procedure that unless an allegation of assault is corroborated by an inde- pendent witness the complaint will be treated as " unsubstantiat- ed ". This is an abdication of responsibility, as in many circum- stances there are unlikely to be independent witnesses to an as- sault, and there may nevertheless be strong evidence, such as medical evidence of injuries, to indicate that the complainant is telling the truth.
  9. The Independent Police Complaints Council in its present form also provides an inadequate safeguard as its volunteer members are mostly too busy to carry out their own detailed investigation of the cases put before them. In addition they operate on a non- statutory basis and their powers appear to be ill-defined. We were surprised to learn from Dr Lam that CAPO takes the view that members of the IPCC are not permitted to enter CAPO's office with CAPO's prior agreement. This is indicative of an attitude of obstruction which is consistent with other evidence of a com- plaints procedure that does not really work. We were also sur- prised to learn that only Justices of the Peace are eligible to be members of the IPCC. This would seem an unecessary restriction which makes ineligible well-qualified people who might well have more time to devote to the Council.
  10. As 1997 approaches there are understandable fears in Hong Kong that objectionable practices of China's Public Security Bureau may spill over into Hong Kong notwithstanding China's stated commitment to " One Country, 2 systems". Strengthening the police complaints mechanism and taking other steps to eradicate assaults on suspects and other abuses of power would help to provide reassurance to the public and boost confidence in the remaining months before the transfer of sovereignty. Such steps would therefore be good for Hong Kong's stability and prosperity as well as for human rights.
  11. We therefore call on the Hong Kong Government to make the following changes to police procedures:-
  12. (a) speed up the introduction of video recording of police interviews;
    (b) introduce a " lay observer " scheme similar to that used in Britain, whereby designated observers, who are law-abid- ing members of the public with some standing in their local community, are permitted to visit police stations at random to ensure that proper procedures are being followed;
    (c) introduce into Hong Kong the provisions of the English Police and Criminal Evidence Act providing for mainte- nance of a custody record in relation to every arrested person;
    (d) transfer the investigation of police complaints to a separate body outside the police force such as the ICAC, the office of the Commissioner for Administrative Complaints, or a new Police Complaints Authority;
    (e) revise the guidelines for categorisation of the results of investigation of complaints to ensure that where there is strong evidence of wrongdoing but not necessarily sufficient to ensure a conviction in a criminal court the matter is not simply allowed to rest, but is given an intermediate classifica- tion, is investigated further with a view to prosecution, and the complainant advised of their right to bring a civil action against the officer concerned which would be subject to the lower standard of proof in civil cases;
    (f) remove the requirement that the members of the Independent Police Complaints Council be Justices of the Peace, and appoint additional members to ensure that the Council has enough active members to operate effectively;
    (g) place the operation of the IPCC on a statutory basis with sufficient powers to enable it to operate as an effec- tive review body.
  13. Many of these recommendations would merely bring Hong Kong law and practice into line with existing British law and practice and ought not therefore to be controversial either with the general public or in terms of the transfer of sovereignty. The recommendation for extension of the Police and Criminal Evidence Act follows recommendations made some years ago by the Hong Kong Law Commission. The main source of opposition to the changes proposed is likely to be from the Royal Hong Kong Police Force itself. The RHKP has stated that an independent police complaints procedure , or even an independent element in the procedure, is unthinkable, as only the police have the knowledge and skill to investigate other police. This is ridiculous. Very similar argu- ments were included in those put forward in 1973 by the then Commissioner of the RHKP, Charles Sutcliffe, in opposing plans to set up the ICAC. It may be worth quoting those arguments in full, as set out in the second report of Sir Alastair Blair-Kerr's Commission of Inquiry into Corruption in the Royal Hong Kong Police.
    1. Corruption is a crime, and the investigation of crime is the task of officers trained in investigation work with court proceedings in mind. The investigation of crime is not within the province of lawyers and others.
    2. There is no source of trained investigators in Hong Kong outside the Royal Hong Kong Police Force.
    3. It is unlikely that police officers of ability would wish to transfer to an Anti-Corruption Bureau independent of the police because such a bureau would offer very limited career prospects. It is likely that any officers who would be willing to transfer from the police force would be officers of limited ability with little prospects of promotion in the force.
    4. Apart from impairing their career prospects, offi- cers of ability would find it distasteful to spend their working lives in an Anti-Corruption Bureau, independent or otherwise.
    5. The recruitment of police officers from overseas would prove difficult and in any case would take time.
    6. An independent Anti-Corruption Bureau would lose the vast knowledge and resources which the Hong Kong police can bring to bear against crime, including corruption, and the advice and counsel of the Commissioner, his Deputies and the Director of Criminal Investigation.
    7. There is no guarantee the corrupt elements would not soon infiltrate into an independent bureau. If that were to happen, it would be impossible for a small bureau to turn inwards upon itself in order to investigate itself, whereas it is a relatively simple matter for a vast organisation like the Royal Hong Kong Police Force to investigate any part of itself. Corrup- tion in an independent bureau would have to be investigated by the Royal Hong Kong Police.
    8. A bureau staffed by police investigators but respon- sible to persons other than the COmmisioner of Police and his officers would be nothing more than an emphatic vote of no confi- dence in the senior officers of the police force and would be strongly resented by the offficers of the police force. The morale of the force is at stake. The result of any lowering of the morale of the Royal Hong Police Force would be putting in jeopardy the peace, order and security of Hong Kong. "
  14. In rejecting those arguments and introducing the legislation setting up the ICAC the then Governor, Sir Murray Maclehose, stated:- " I believe that it is quite wrong, in the special circum- stances of Hong Kong, that the police, as a force, should carry the whole responsibility for action in this difficult and elusive field. I think the situation calls for an organisation, led by men of high rank and status, which can devote its wholetime to the eradication of this evil. A further and conclusive argument is that public confidence is very much involved. Clearly the public would have more confi- dence in a unit that was entirely independent, and separate from any department of the Government including the police ".
  15. History has shown that Lord Maclehose was right and Mr Sut- cliffe was wrong. The ICAC has served Hong Kong well, and prob- lems of police corruption do not now exist on the scale which existed prior to the ICAC's formation. There is no reason why the problem of police assaults on suspects and others and related abuses of power should not be tackled equally effectively. We urge the Governor to have the courage to emulate Lord Maclehose and introduce comprehensive reforms in this area.

19 January 1996

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1996 (c) Hong Kong Human Rights Monitor